The Canadian Federal Court ruled today that two Cabinet ministers acted unlawfully in delaying for several years the production of recovery strategies for four at-risk species threatened by industrial development, including the proposed Northern Gateway pipeline and tanker route.

Brought by five environmental groups – the David Suzuki Foundation, Greenpeace Canada, Sierra Club BC, Wilderness Committee and Wildsight – the lawsuit challenged the federal government’s multi-year delays in producing recovery strategies for species listed under the Species at Risk Act of 2002.

Lawyers for the nonprofit law firm Ecojustice represented the five groups in court. They argued that the federal government’s chronic delays have forced species already struggling to survive to wait even longer for the protection they need.

Justice Anne Mactavish declared that the Minister of Environment and Minister of Fisheries and Oceans “did not comply with the statutory timelines for the preparation and publication of recovery strategies” for the four species at issue in this lawsuit: the Pacific humpback whale, the Nechako white sturgeon, the Marbled murrelet and the Southern mountain caribou.

Justice Mactavish wrote, “To state the obvious, the Species at Risk Act was enacted because some wildlife species in Canada are at risk. As the applicants note, many are in a race against the clock as increased pressure is put on their critical habitat, and their ultimate survival may be at stake…”

“The timelines contained in the Act reflect the clearly articulated will of Parliament that recovery strategies be developed for species at risk in a timely fashion, recognizing that there is indeed urgency in these matters,” she wrote.

“We’re pleased that the court has agreed that it’s unacceptable for the federal government to continue to miss the mandatory deadlines set out in the Species at Risk Act,” said Sean Nixon, Ecojustice staff lawyer. “That said, it is disappointing that we had to resort to litigation yet again to force the government to follow its own law.”

Justice Mactavish noted that the ministers have now propsed the required recovery strategies but only after the groups filed their lawsuit. The final recovery strategies for the four species at issue in this case were at least three years overdue when the lawsuit was filed in September 2012.

“The commencement of this litigation prompted the publication of proposed recovery strategies for three of the four species shortly before the start of the hearing, as well as the publication of a final recovery strategy for one of these species. A proposed recovery strategy was published for the fourth species shortly after the hearing was concluded,” wrote Justice Mactavish. “In each case, however, the proposed recovery strategy was published several years after the expiry of the relevant statutory timeline.”

“It is, moreover, apparent that the delay encountered in these four cases are just the tip of the iceberg,” she wrote. “This is clearly an enormous systemic problem within the relevant Ministries, given the respondents’ acknowledgement that there remain some 167 species at risk for which recovery strategies have not yet been developed.”

Scott Wallace, senior research scientist at the David Suzuki Foundation, said, “This is a clear decision, not just for the four species at issue in this lawsuit, but for the more than 160 at-risk species in Canada that still await the release of their recovery strategies.”

While the final recovery strategy for the humpback whale has since been posted, it was not taken into account by the National Energy Board’s Northern Gateway Joint Review Panel, even though it contains relevant information the panel should have considered in its final report, the groups point out.

Following this ruling, the Court will oversee the government process to ensure the final recovery strategies are produced in a timely fashion.

“This is a good day for Canada’s species at risk,” said Gwen Barlee, policy director with the Wilderness Committee. “Not only did Justice Mactavish find that the federal government acted unlawfully, but she found these delays were part of a larger systemic problem.”

Barlee said, “The Canadian government now needs to ramp up its efforts to finalize recovery strategies for the more than 160 other species at risk that need protection.”

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Photo: Humpback whale (Ursus Photography)