"BIOLOGICAL DIVERSITY means the variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part: this includes diversity within species, between species and of ecosystems.” -United Nations Convention on Biological Diversity

Canada is a signatory to the United Nations Convention on Biological Diversity. But as with the UN Framework Convention on Climate Change, our nation has failed to live up to its international commitment and will not meet any of its 2010 targets.

Despite this failure, Canada’s federal government under Jean Chretien enacted the Species at Risk Act (SARA) in 2002. As it is directly targeted at preventing wildlife species from becoming extinct and at bringing about the recovery of species at risk, SARA is a key tool in efforts to meet the first of three provisions included in the UN Convention on Biological Diversity (CBD): the conservation of biological diversity. However, while the CBD is not binding, SARA has the teeth of law. (What a pity climate change isn’t similarly endowed.)

But don’t let fuzzy thoughts of woodland caribou safely frolicking in their northern habitat cloud your vision. This is a story of the Canadian justice system at work, but it is also a story of the government failing to obey its own laws. One result is that taxpayers are doling out thousands of dollars, and non- governmental watchdogs are investing thousands of hours to simply to make governments toe their own line.

Under SARA, an independent group of experts advises the federal government on the status of wildlife species, and the government then classifies them. Those species that are listed as being endangered, threatened, extirpated (locally extinct) or of special concern are subject to SARA. For the latter designation – species of special concern – a management plan is required, but no recovery efforts are stipulated. In theory, activities that could harm them or their habitat are prohibited.

While true species protection requires a holistic, ecosystem- wide approach that is beyond the scope of SARA, this legislation nonetheless recognizes that more is required than simply label- ling a species in need of protection and prohibiting harm to it. Effective action requires an examination of the lifecycle of the species and protection of its habitat. This facet of SARA, as our courts are pointing out, cannot be ignored or otherwise avoided, despite our federal government’s efforts to do so.

For endangered, threatened and extirpated species, the gov- ernment must develop a recovery strategy and action plan. However, the powers that be in Ottawa have often failed to iden- tify critical habitat in their recovery strategies. By not doing so, SARA’s provisions to protect critical habitat don’t apply, render- ing its intentions meaningless. Fortunately, as the courts have pronounced, SARA cannot be so easily circumvented. Recent decisions are not allowing government to get away with this tactic.

The Case of the Greater Sage Grouse
In 2009, non-governmental organizations took the federal Minister of the Environment to court because his department’s recovery strategy for the Greater Sage Grouse, an endangered prairie bird, did not specify the bird’s critical habitat. Calling the government’s bluff, the judge ruled that, “If leks [the name given to the critical habitat of Greater Sage Grouse] are sufficiently notorious to be so named and labelled, it is unreasonable to state that they cannot be described.” The judge recognized that SARA requires that critical habitat be identified based on “best available information,” so lack of precision and exactitude could not be used as a reason not to describe it.

The Case of the Nooksack Dace
Another case challenged the Minister of the Department of Fisheries and Oceans (DFO) for failing to identify critical habi- tat for the Nooksack Dace, a small minnow found in Southern BC. Court records indicate that DFO tried to get out of its responsibilities under SARA by creating a policy that directed the removal or suppression of critical habitat information from SARA recovery strategies for all at-risk aquatic species in BC. This move prompted the judge to find that “the Minister acted contrary to the law intended by Parliament to protect the Nooksack Dace.” In making the determination, the judge acknowledged that “Canada has ratified the United Nations Convention on the Conservation of Biological Diversity (the Convention) and, therefore, is committed to apply its principles.”

Both cases establish the precedent that under SARA, the federal government is required to identify critical habitat in a recovery strategy to the extent possible based on the “best available information.” Moreover, government policies contrary to the legislation and international obligations may be found to be unlawful. Our governments, it turns out, cannot fail to implement international commitments such as the CBD that are given life domestically through binding statutory provisions such as SARA.

Sadly, our political leaders have yet to learn from these court decisions, and the legal battles continue. Earlier this year, non- governmental watchdogs took the DFO to federal court over protection of BC’s killer whales. As of this writing, the case had not yet been decided, but the groups argue that protection of critical habitat includes ensuring suitable food stock, clean waterways and protection from noise so the whales can properly communicate and hunt.

Also in BC, the West Moberly First Nations used a different approach to protect a herd of critically threatened boreal cari- bou. They used Aboriginal treaty rights to argue that the BC government failed to reasonably accommodate them, based on the government’s refusal to create a recovery plan under SARA for the Burnt Pine herd, which has been reduced to a mere 11 members. The judge held that the public’s interest and the First Nation rights could not be balanced “if caribou herds in the affected territories are extirpated.” He then stayed the applica- tion for 90 days, ordering the BC government to develop a plan to address concerns about the herd.

On one hand, Canadians can rejoice that our justice system is working. On the other, Canadians should be outraged that it takes time-consuming and expensive litigation to force our governments to abide by their own laws. Imagine the benefits to protecting biodiversity if these resources were dedicated to the problem rather than duking it out in court.

Kimberley Broome combines a law degree with a BSc from the University of Waterloo’s Cooperative Environmental Science Program.

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