Legal victory for endangered species across Canada

Court ruling means Department of Fisheries and Oceans must overhaul recovery plans

Vancouver, BC – A precedent-setting legal victory for endangered species may put an end to years of unlawful action by the Government of Canada. In a September 9 ruling, the Federal Court admonished the Minister of Fisheries and Oceans (DFO) for failing to identify the habitat of the Nooksack dace, an endangered fish restricted to only four streams in B.C.’s Lower Mainland. The ruling will ensure greater protection of species-at-risk and their habitats across Canada: from the smallest minnow to BC’s massive humpback whales.

In his judgment, Justice Campbell said the lawsuit, brought by Ecojustice lawyers on behalf of the David Suzuki Foundation, Environmental Defence, Georgia Strait Alliance and the Wilderness Committee, was “absolutely necessary.” He described the case as “a story about the creation and application of policy by the Minister in clear contravention of the law, and a reluctance to be held accountable for failure to follow the law.”

That law, the Species at Risk Act, requires the federal government to identify the critical habitat of endangered and threatened species. The environmental groups’ lawsuit was filed in 2007 after the DFO unlawfully deleted habitat maps from the Nooksack dace recovery strategy.

“We are ecstatic about the ruling,” said Christianne Wilhelmson of the Georgia Strait Alliance. “We hope that DFO will now start giving real protection to endangered plants and animals without having to be dragged into court for every species it is supposed to protect. Canadians owe a lot to this little minnow and to the scientists who stood up for it.”

“This case is not only a tremendous victory for the dace, but for Canadian species everywhere that have been left unprotected by the Act,” said Rachel Plotkin of the David Suzuki Foundation.

The court’s decision has implications far beyond the Nooksack dace. Justice Campbell ruled that critical habitat for the Nooksack dace was deleted on the basis of an unlawful DFO policy direction. That policy directed that critical habitat information should be removed or suppressed from all recovery strategies for all aquatic species at risk in British Columbia.

“We are putting DFO on formal notice that it has 90 days to rewrite BC species’ recovery strategies that have unlawfully failed to identify critical habitat,” said Ecojustice lawyer Lara Tessaro. “DFO’s unlawful policy appears to have affected at least 20 aquatic species in BC, from resident killer whales to blue whales to Salish suckers. We believe the Court’s decision means that DFO must fix at least 17 recovery strategies.”

The ruling is the second major legal victory for endangered species in eight weeks. In another Ecojustice lawsuit, the Federal Court also ruled in favour of species-at-risk, holding that the Minister of Environment had acted unlawfully in declining to identify critical habitat of the Prairies’ greater sage-grouse.

“This string of successful lawsuits means that the Government of Canada can no longer turn a blind eye to disappearing species by claiming it can’t identify critical habitat,” said Gwen Barlee of the Wilderness Committee. “This is a whale of a judgement: a ruling about a homely minnow will actually protect BC’s endangered humpback and killer whales.”

The environmental groups will be participating in a five-year parliamentary review of the Species at Risk Act which is set to resume later this month.

"With the impending five-year review of the Species At Risk Act by Parliament, we hope that the inadequacies of the Act’s implementation that this case lays bare prompts thorough public hearings by MP’s,” said Rick Smith of Environmental Defence. “Canadians deserve some answers as to why the federal government is failing to protect our country’s natural heritage despite having a legal duty to do so."

For more information, please visit www.ecojustice.ca or contact:
Lara Tessaro, Lawyer, Ecojustice, (604) 313-3132 or Susan Pinkus, Staff Scientist, Ecojustice (604)-537-6407
Rachel Plotkin, Biodiversity Policy Analyst, David Suzuki Foundation (613) 594-9026
Rick Smith, Executive Director, Environmental Defence Canada , (416) 670-9521
Gwen Barlee, Policy Director, Wilderness Committee, (604) 683-8220 or cell (604) 202-0322

Christianne Wilhelmson, Managing Director, Georgia Strait Alliance, (604) 862-7579

For scientific information on Nooksack dace, please contact:

Mike Pearson Ph.D., leading Nooksack dace expert, Pearson Ecological, (604) 785-7246

 

MEDIA BACKGROUNDER

Nooksack Dace Lawsuit has Widespread Implications for Endangered Species

September 10, 2009

Canada’s Species at Risk Act (SARA)

The federal Species at Risk Act (SARA), which came fully into force in 2004, is Canada’s national law to protect endangered species.

One of the main tools used in SARA to help an endangered or threatened species survive and recover is the recovery strategy. A recovery strategy is a scientific document written by experts on a species. This document reviews the biology and conservation status of the species, what it needs to survive and recover, and the threats faced by the species.  Other later documents under SARA, called action plans, provide a more detailed management plan setting out measures to achieve survival and recovery.

SARA explicitly recognizes that conserving a species’ habitat is key to its conservation. SARA requires that the habitat necessary for an endangered species’ survival or recovery (called “critical habitat”) be identified in the recovery strategy for that species “to the extent possible, based on the best available information”.

Under SARA, protection of critical habitat occurs only if that habitat is identified in a recovery strategy or action plan. Unlike recovery strategies which must meet mandatory timelines, SARA contains no time limits for action plans. Thus, failure to identify critical habitat at the recovery strategy stage risks indefinite delay in protecting that habitat.

Systemic failure to identify critical habitat in recovery strategies

More than 80% of Canada’s species at risk are endangered primarily because of habitat loss. The longer we wait to identify and protect their critical habitat, the less chance they have of surviving, let alone recovering.

In the case of the Nooksack dace, scientists on the Recovery Team mapped the location of its critical habitat and included those maps in a draft recovery strategy. However, DFO officials removed these maps from the final recovery strategy.  The Nooksack dace is just one example of a systematic failure by the federal government to identify and protect critical habitat for endangered species. Across Canada, 104 species have final recovery strategies – but only 23 have critical habitat identified in their final recovery strategies.

Nooksack dace ruling applies to numerous BC species

Justice Campbell ruled that the Department of Fisheries and Oceans has been using an unlawful policy direction. That policy directs that critical habitat should be removed from all recovery strategies for all aquatic species in BC. It appears that DFO has applied its unlawful policy to at least 20 other species in British Columbia.

Lawsuits brought or threatened by environmental groups have ensured that 3 of these 20 species have had their habitat identified (Southern and Northern resident killer whale populations, and Nooksack dac
e). However, 17 recovery strategies for BC species need to be re-written to identify critical habitat and comply with SARA. These 17 species are:

  1. Enos Lake Stickleback Species Pair benthic
  2. Enos Lake Stickleback Species Pair limnetic
  3. Paxton Lake Stickleback Species Pair benthic
  4. Paxton Lake Stickleback Species Pair limnetic
  5. Vananda Creek Stickleback Species Pair benthic
  6. Vananda Creek Stickleback Species Pair limnetic
  7. Hotwater Physa
  8. Morrison Ck. Lamprey
  9. Cultus Pygmy Sculpin
  10. Sea Otter
  11. Vancouver Lamprey
  12. Blue Whale (Pacific)
  13. Leatherback Turtle (Pacific)
  14. Sei Whale (Pacific)
  15. Fin Whale (Pacific)
  16. Northern Abalone
  17. Transient Killer Whale
Feds’ own report confirms our concerns
Environmental groups’ concerns are echoed by a 2006 independent review of the implementation of SARA commissioned by the federal government. This review concluded that recovery strategies were not identifying critical habitat as mandated, and warned that this failure could jeopardize the implementation of SARA. A five-year parliamentary review of the Act is now underway in Ottawa.
Facts about Nooksack dace and its habitat

The Nooksack dace is a small minnow-like fish less than 15cm long. Nooksack dace in Canada are found only in four lowland streams in the Fraser Valley of BC.
Nooksack dace share their habitat with Cutthroat Trout, juvenile Coho Salmon, Lamprey, Sculpins, and the Salish Sucker (another endangered native fish).

Habitat loss is the key threat to survival for the Nooksack dace.

The Committee on the Status of Endangered Wildlife in Canada (COSEWIC), Canada’s official national body responsible for assessing species at risk, wrote in 1996 in its Status Report on the Nooksack Dace: “…, habitat suitable for adult Nooksack Dace will continue to decrease and the species probably will go extinct in Canada in the next one or two decades. … Habitat loss through human disturbance is the greatest threat facing the Nooksack Dace in British Columbia. Housing developments, shopping malls and industrial parks are replacing fields and wooded areas in the range of this species at a dizzying pace. … The shrinking Canadian [Nooksack dace] populations are sandwiched between a deteriorating environment upstream and unsuitable habitat downstream.”

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