Legal Victory for Endangered Species across Canada

Court Ruling means Department of Fisheries and Oceans must Overhaul Recovery Plans

September 10, 2009 (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 BC’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.”

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For more information, please visit www.ecojustice.ca or contact:

• Lara Tessaro, Lawyer, Ecojustice, (604) 313-3132
• 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