Ministry strategies could have impacted Enbridge ruling

Two federal ministers unlawfully delayed the release of recovery strategies for four endangered species that should have been part of the evidence in the Northern Gateway environmental review, a Federal Court judge ruled Friday.

Justice Anne L. Mactavish found there were "egregious delays" in the release of the recovery strategies for the Nechako white sturgeon, southern mountain caribou, Pacific humpback whale and marbled murrelet and that both the minister of the environment and the minister of fisheries and oceans should have ensured they were completed sooner.

In a 47-page written decision, Mactavish ruled that the strategies would have been helpful to the Joint Review Panel examining the Northern Gateway pipeline. In December that panel recommended conditional approval of a heavy oil pipeline from northern Alberta to Kitimat.

While the five environmental groups behind the lawsuit are happy the court ruled in their favour, Mactavish's ruling doesn't sanction the government in any way for delaying the reports, short of saying the ministers acted improperly.

"It's a bit of a slap on the wrist, but that's sort of the reality of this type of court case," Ecojustice lawyer Sean Nixon said. "Generally at best you get a public admonishment of the federal government."

Ecojustice represented the David Suzuki Foundation, Greenpeace Canada, Sierra Club BC, Wilderness Committee and Wildsight in the case.

Environment Minister Leona Aglukkaq's press secretary Amanda Gordon said the government is reviewing the court decision and remains committed to protecting endangered species.

"Environment Canada has significantly accelerated its progress in recent years and has published 85 strategies and plans in the last three years," Gordon said. "It is also finalizing a posting plan to ensure transparency with respect to upcoming recovery documents and progress in reducing the number of overdue recovery documents over the next few years."

Mactavish ruled the four overdue recovery strategies at the centre of the case are "just the tip of the iceberg" and that more than 160 other recovery strategies are delayed. Gordon acknowledged that 163 strategies are overdue and said a backlog was created when the Species at Risk Act first came into force.

Wilderness Committee policy director Gwen Barlee said her group is happy with the result, but is tired of having to take the government to court to ensure it's living up to its own laws. She's hopeful Mactavish's strong language around the unlawful actions of the ministers will push the government to act more quickly on other recovery strategies.

"I don't think the federal government wants to thumb their nose at the court, it doesn't look good," she said. "Not only does it not look good to the court, it doesn't look good to Canadians when the government is saying we've had many rulings from the court saying that we're acting unlawfully with regards to our own Species at Risk Act and yet we continue to delay recovery strategies."

The recovery strategies are important because they identify the critical habitats the species need to survive. Had the reports been ready in time for the Joint Review Panel, the panelists would have been forced to consider the impact the proposed pipeline would have on the four species, which could have led the panel to reconsider its final decision or impose different conditions on the pipeline.

Five groups have filed submissions to ask both the Federal Court and the Federal Court of Appeal to review the Joint Review Panel report regarding the pipeline. Some of the groups are arguing the panel's report is incomplete and Nixon said Friday's ruling could have an impact on those judicial reviews.

"I think the court looking at that case about the Enbridge Northern Gateway project will be at least interested in what this court had to say about the federal government's delays," he said.

While all of the recovery strategies were delayed long enough not to be part of the Northern Gateway environmental review, the federal government did issue draft reports in the days leading up to the court case. Mactavish said the court will supervise the process to ensure there are no unnecessary delays in finalizing the draft documents.

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Photo: Mountain Caribou (John E. Marriott)