2012 FCA 40, 2012 FCA 40

A-2-11 2012 FCA 40 Minister of Fisheries and Oceans ( Appellant ) v . David Suzuki Foundation, Dogwood Initiative, Environmental Defence Canada, Georgia Strait Alliance, Greenpeace Canada, International Fund for Animal Welfare, Raincoast Conservation Society, Sierra Club of Canada and Western Canada Wilderness Committee ( Respondents ) Indexed as: David Suzuki Foundation v. Canada (Fisheries and Oceans) Federal Court of Appeal, Nadon, Sharlow and Mainville JJ.A.—Vancouver, November 30, 2011; Ottawa, February 9, 2012.

Environment — Appeal from Federal Court judgment declaring that ministerial discretion not legally protecting critical habitat under Species at Risk Act (SARA), s. 58 ; that appellant unlawfully citing discretionary provisions of Fisheries Act in protection statement concerning critical habitat of Northeast Pacific Northern, Southern populations of killer whales — When southern, northern resident populations of killer whales designated as endangered, threatened respectively, listed accordingly in

Schedule 1 of SARA — Pursuant to SARA, s. 58(5) appellant required to ensure that critical habitat identified in recovery strategy be protected — Rather than issuing protection order, appellant issuing public statement — However, appellant reversing position, issuing protection order under SARA, s. 58(1) , (4) — Respondents challenging lawfulness of Killer Whales Protection Statement (Protection Statement), order by initiating judicial review applications — Main issues herein applicable standard of review, whether appellant erring by relying on Fisheries Act, regulations in making Protection Statement — Issues of statutory

interpretation raised herein reviewed, determined on standard of correctness — Parliament intending that appellant be allowed some flexibility as to how to provide compulsory protection under SARA — Prohibitions set out in Fisheries Act, s. 35(1) , when read in conjunction with s. 35(2) thereof, constituting legal means whereby appellant enabled to manage, control alteration, disruption or destruction of fish habitat — Protection offered fish habitat under s. 35(1) may be waived at discretion of appellant acting under s. 35(2) — This provision thus not ensuring that critical habitat of endangered or threatened aquatic species “legally protected” — Regarding Fisheries Act, s. 36, wrong for Federal Court to rule

section could not be relied on by appellant for purposes of protection statement under SARA, s. 58 — Compliance with Fisheries Act, s. 36(3) may not be waived by appellant through licence, permit or other authorization, nor may derogations from related regulations be authorized — Measures under Fisheries Act, s. 36 , specific related regulations legally enforceable, not subject to ministerial discretion —

Section 36, regulations made thereunder thus providing for compulsory, non-discretionary, legally enforceable measures — No evidence in record showing whether pollution controls set in related regulations protecting from destruction critical habitat of concerned killer whale populations — Therefore, no basis in present proceedings upon which Federal Court could have determined whether appellant’s reliance on s. 36 could have been justified in light of SARA, s. 58 — While appellant relying on existing fishery management scheme adopted under Fisheries Act in Protection Statement, reliance misguided; regulations at issue not seeking to prohibit destruction of salmon prey as element of critical habit but rather providing framework for management of Pacific salmon fisheries under highly discretionary ministerial licensing scheme — Substitution not approved — Therefore, Federal Court judgment declaring that ministerial discretion not legally protecting critical habitat within meaning of SARA, s. 58 upheld save insofar as impeding appellant from relying, in appropriate cases, on Fisheries Act, s. 36, regulations adopted thereunder — Appeal allowed in part.

Administrative Law — Judicial Review — Standard of Review — In appeal from Federal Court judgment involving protection of critical habitat under Species at Risk Act (SARA), s. 58 , principal question concerning meaning of words “legally protected by provisions in, or measures under, this or any other Act of Parliament” found in SARA, s. 58(5) — No deference owed by Federal Court of Appeal to appellant as to

interpretation of relevant provisions of SARA or of Fisheries Act, regulations — Parliament not intending to shield appellant’s

interpretation of pertinent provisions of SARA, Fisheries Act from judicial review on standard of correctness — Number of clear indicators that Parliament greatly restricting appellant’s discretion, that not intending to shield appellant’s legal

interpretation from judicial review — Therefore, issues of statutory

interpretation raised by appeal reviewed, determined on standard of correctness. Construction of Statutes — Appeal from Federal Court judgment declaring, in particular, that ministerial discretion not legally protecting critical habitat under Species at Risk Act (SARA), s. 58 — Pertinent provisions of SARA interpreted to determine whether Parliament intending to allow appellant some flexibility as to how to provide compulsory protection under SARA — Under SARA, s. 58, protection of critical habitat identified in recovery strategy must be achieved through legally enforceable measures — Based on dictionary

definitions of word “protect”, French word “protéger”, Parliament’s intent being to avoid interference with, destruction of critical habitat — Juxtaposition of word “legally” with word “protected” to form expression “legally protected” leaving little ambiguity as to Parliament’s intent that critical habitat must be preserved through legally enforceable measures — Legal protection scheme not regulatory management scheme — Based on analysis of SARA, s. 58, Parliament seeking to avoid destruction of identified critical habitat of listed endangered, threatened aquatic species through any means — Consequently, provision in, or measure under, Act of Parliament only legally protecting critical habitat for purposes of SARA,s. 58 if that provision or measure preventing destruction of critical habitat through legally enforceable means not subject to ministerial discretion.

This was an appeal from a Federal Court judgment declaring that ministerial discretion does not “legally protect” critical habitat under

section 58 of the Species at Risk Act (SARA) and that it was unlawful for the appellant to have cited discretionary provisions of the Fisheries Act in a protection statement concerning the critical habitat of the Northeast Pacific Northern and Southern population of killer whales. Subsection 58(5) of the SARA provides that the appellant must make an order under subsections 58(1) and (4) protecting the critical habitat of listed endangered or threatened aquatic species if such critical habitat is not legally protected by provisions or measures found in the SARA or another federal legislation.

The Federal Court ruled that the appellant may avoid issuing a critical habitat protection order under the SARA only where the legal protection offered that habitat under another Act of Parliament is the same as that provided under a protection order. It further ruled that the measures available to the appellant under the Fisheries Act could be diluted under the sweeping and largely unfettered discretions

granted to the appellant thereunder. Therefore, it concluded that the Fisheries Act could not be resorted to as a substitute to a critical habitat protection order under the SARA. It went on to make 11 declarations of law. When the southern resident population of killer whales was designated as endangered and the northern resident population of killer whales as threatened, they were listed accordingly in

Schedule 1 of the SARA when that statute was adopted. A recovery strategy for these killer whale populations was prepared and included in the public registry. Pursuant to subsection 58(5) of the SARA, the appellant was required to ensure that the critical habitat identified in the strategy be protected within a deadline. Rather than issuing a protection order, the appellant issued a public statement setting out how the critical habitat of the concerned killer whale populations was legally protected. The statement restricted the concept of critical habitat for the purposes of the SARA to geophysical attributes.

Some of the most important elements of the critical habitat which had been identified in the recovery strategy were left without protection; the statement did not consider these components as part of “critical habitat” for the purposes of protection under the SARA.

The respondents in this appeal challenged the lawfulness of the Killer Whales Protection Statement (Protection Statement) by initiating a judicial review application, arguing that the critical habitat of the concerned killer whale populations included not only the geophysical elements of that habitat but also all the other components identified in the recovery strategy. Before the judicial review application hearing, the appellant reversed its position and a protection order under subsections 58(1) and (4) of the SARA was issued and registered.

The respondents then sought clarification as to the scope and meaning of the order and, unsatisfied with the appellant’s response, filed a second judicial review application challenging the practice of limiting the scope of a protection order made under subsections 58(1) and (4) of the SARA to geospatial areas and geophysical elements of critical habitat. The appellant’s two grounds of appeal in this case concerned the standard of review and the

interpretation of the SARA . The mains issues were the applicable standard of review in this case and whether the appellant erred by relying on the provisions of the Fisheries Act and of its regulations in making the Killer Whales Protection Statement. Held , the appeal should be allowed in part. Regarding the standard of review, the principal question concerned the meaning of the words “legally protected by provisions in, or measures under, this or any other Act of Parliament” found in subsection 58(5) of the SARA . No deference is owed by the Federal Court of Appeal to the appellant as to the

interpretation of the relevant provisions of the SARA or of the Fisheries Act and its regulations. It was determined that Parliament did not intend to shield the appellant’s

interpretation of the pertinent provisions of the SARA and of the Fisheries Act from judicial review on a standard of correctness. Neither the SARA nor the Fisheries Act contains a privative clause, a strong indication of Parliament’s intent not to shield the appellant’s

interpretation of these statutes from judicial review. Also, the purpose of

section 58 is to ensure that all the critical habitat is protected and, under subsection 58(5), the appellant must make a protection order to protect identified critical habitat unless that habitat is legally protected by, inter alia ,

an act of Parliament. These are all indications that Parliament has greatly restricted the appellant’s discretion and its intent not to shield the appellant’s legal

interpretation from judicial review appears clear. As well, the appellant acts in an administrative capacity and not as an adjudicator when preparing and issuing a protection statement under subsection 58(5) of the SARA. The fact that Parliament has not had to set up an independent administrative tribunal to adjudicate legal issues under the SARA is a further indication of the legislative intent to empower the courts with authority to adjudicate these issues on a standard of correctness. The question in issue is one of statutory

interpretation which the courts are best equipped to answer in the circumstances of this case. Finally, though the appellant can certainly claim expertise in the management of the fisheries and of fish habitat, this does not confer on the appellant expertise in the

interpretation of statutes. Expertise in fisheries does not necessarily confer special legal expertise to interpret the statutory provisions of the SARA or of the Fisheries Act . Therefore, the issues of statutory

interpretation raised by this appeal were reviewed and determined on a standard of correctness. To determine whether Parliament intended that the appellant be allowed some flexibility as to how to provide the compulsory protection under the SARA , the pertinent provisions thereof were interpreted. Under

section 58, protection of critical habitat identified in a recovery strategy must be achieved through legally enforceable measures. Based on the dictionary

definitions of the word “protect” and the French word “ protéger ”, Parliament’s intent was to avoid interference with and destruction of critical habitat. The juxtaposition of the word “legally” with the word “protected” to form the expression “legally protected” leaves little ambiguity as to Parliament’s intent that critical habitat must be preserved through legally enforceable measures. A legal protection scheme is not a regulatory management scheme. Had Parliament intended only a legal prohibition from destruction to protect critical habitat, it would not have provided the alternative of a protection statement. In conclusion, a textual, contextual and purposive analysis of

section 58 of the SARA showed that Parliament is precisely seeking to avoid the destruction of identified critical habitat of listed endangered and threatened aquatic species through any means, including through activities authorized under discretionary permits or licences. Consequently, a provision in, or a measure under,

an Act of Parliament only legally protects critical habitat for the purposes of

section 58 if that provision or measure prevents the destruction of critical habitat through legally enforceable means which are not subject to ministerial discretion. As to whether relevant provisions of the Fisheries Act could be relied on by the appellant for the purposes of

section 58 of the SARA , the prohibitions set out in subsection 35(1) , when read in conjunction with subsection 35(2) , constitute a legal means whereby the appellant is enabled to manage and control the alteration, disruption or destruction of fish habitat. There is no dispute that the protection offered fish habitat under subsection 35(1) may be waived at the discretion of the appellant acting under subsection 35(2). Thus, this provision cannot ensure that the critical habitat of endangered or threatened aquatic species is “legally protected” under the meaning of

section 58 of the SARA. Regarding

section 36 of the Fisheries Act , the Federal Court ruled that this

section could not be relied on by the appellant for the purposes of a protection statement under

section 58 of the SARA. This conclusion was based on the fact that though this

section prohibits the deposit of a deleterious substance into water frequented by fish, it allows for the authorization of such deposits through regulation at Cabinet’s discretion. This ruling was not agreed with. Compliance with subsection 36(3) of the Fisheries Act may not be waived by the appellant through a licence, permit or other authorization, nor may the appellant authorize derogations from related regulations. Measures under this

section and specific related regulations are legally enforceable and are not subject to ministerial discretion. This

section and the regulations made thereunder thus provide for compulsory, non-discretionary and legally enforceable measures. Regulations made under

section 36 of the Fisheries Act may be adopted or amended from time to time. The fact a statutory provision or a regulatory provision may be eventually modified does not entail that it may not be relied upon by the appellant for the purposes of subsection 58(5) of the SARA. There is a fundamental difference between a non-discretionary and legally enforceable

regulation and a discretionary ministerial licensing scheme. There was no evidence in the record showing whether the pollution controlsset out in related regulations protect from destruction the critical habitat of the concerned killer whale populations. Therefore, there wasno basis in these proceedings upon which the Federal Court could have determined whether the appellant’s reliance on

section 36 of theFisheries Act could have been justified in light of the provisions of

section 58 of the SARA. Consequently, to the extent that the FederalCourt’s declaration impedes the appellant from relying, in appropriate cases, on

section 36 of the Fisheries Act and its regulations for thepurposes of a protection statement made under paragraph 58(1)(

b) of the SARA, it could not stand. In the present case, it did not need tobe determined whether the appellant’s reliance on this provision met the requirements of

section 58 of the SARA. In the Protection Statement, the appellant relied on the existing fishery management scheme adopted under the Fisheries Act, submittingthat it offers adequate protection to ensure the availability of salmon prey for the concerned killer whale populations. This reliance wasmisguided; the regulations at issue do not seek to prohibit the destruction of salmon prey as an element of critical habit but rather providethe framework for the management of the Pacific salmon fisheries under a highly discretionary ministerial licensing scheme. Thesubstitution of the non-discretionary and compulsory critical habitat protection scheme of

section 58 of the SARA with the discretionaryfisheries management scheme established under the Fisheries Act and its regulations should not be approved. The protection of criticalhabitat should not be confused with the management of critical habitat. The SARA calls for both the protection of critical habitat undersection 58 and for management measures to ensure the recovery of that habitat through action plans and other methods. Therefore, the Federal Court judgment declaring that ministerial discretion does not legally protect critical habitat within the meaning ofsection 58 of the SARA was upheld save insofar as, for the purposes of

section 58 of the SARA, it impedes the appellant from relying, inappropriate cases, on

section 36 of the Fisheries Act and the regulations adopted under that section. STATUTES AND REGULATIONS CITED Act of Settlement, 1700 (U.K.), 12 & 13 Will. III, c. 2.

An Act declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown, 1688 (U.K.), 1 Will. & Mary, Sess. 2,c. 2 (Bill of Rights). British Columbia Sport Fishing Regulations, 1996, SOR/96-137, ss. 42, 43, 44, 45 (as am. by SOR/2001-156, s. 10(E)), 46 (as am. bySOR/2002-380, s. 7(E)), 47, 48 (as am. by SOR/2001-156, s. 11), 49 (as am. by SOR/2002-380, s. 8(E)), 50, Sch. VI. Canadian Human Rights Act, R.S.C., 1985, c. H-6. Critical Habitats of the Northeast Pacific Northern and Southern Resident Populations of the Killer Whale (Orcinus orca) Order,SOR/2009-68.

Fisheries Act, R.S.C., 1985, c. F-14, ss. 2 “fish” (as am. by S.C. 1991, c. 1, s. 1), 7(1), 35, 36. Fishery (General) Regulations, SOR/93-53, s. 22 (as am. by SOR/93-333, s. 4). Metal Mining Effluent Regulations, SOR/2002-222. National Energy Board Act, R.S.C., 1985, c. N-7, s. 99(1) (as am. by S.C. 1990, c. 7, s. 25(F)). Pacific Fishery Regulations, 1993, SOR/93-54, ss. 51, 52, 53, 54, 55, 56, 57, 58 (as am. by SOR/2010-270, s. 11), 59, 60, Sch. VI (asam. by SOR/95-181, s. 3(F); 96-330, s. 4). Patent Act, R.S.C., 1985, c. P-4.

Pulp and Paper Effluent Regulations, SOR/92-269, ss. 6(1)(a) (as am. by SOR/2004-109, s. 2), (b) (as am. idem), (2) (as am. idem), 14(as am. idem, s. 12; 2008-239, s. 3(E)), 15(1) (as am. by SOR/2004-109, s. 12; 2008-239, s. 4), 16(1) (as am. by SOR/2004-109, s. 12),(2) (as am. idem), (4) (as am. idem), 18(1) (as am. idem, s. 14), 19 (as am. idem, s. 15; 2008-239, s. 5(E)), 20 (as am. by SOR/2004-109,s. 15; 2008-239, s. 6(E)), 21, 33 (as am. by SOR/2004-109, s. 18), 34 (as am. idem). Species at Risk Act, S.C. 2002, c. 29,

preamble, ss. 2(1) “aquatic species”, “competent minister” (as am. by S.C. 2005, c. 2, s. 14),“critical habitat”, “endangered species”, “extirpated species”, “habitat”, “Minister”, “residence”, “species at risk”, “species of specialconcern”, “threatened species”, (3), 5, 6, 8(1), 11, 27, 32, 33, 37(1), 38, 39, 41(1), 42, 43, 46, 47, 48, 49 (as am. by S.C. 2005, c. 2, s.22), 50, 51, 52, 53, 54, 55, 57, 58, 60, 61, 73 (as am. by S.C. 2005, c. 2, s. 23), 74, 75, 77, 80(2), 83, 97, 98, Sch. 1 Statutory Instruments Act, R.S.C., 1985, c. S-22, s. 2(1) “regulation”.

TREATIES AND OTHER INSTRUMENTS CITED Convention on Biological Diversity, 5 June 1992, [1993] Can. T.S. No. 24. CASES CITED applied: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, 329 N.B.R. (2d) 1, 291 D.L.R. (4th) 577; Borowski v. Canada (AttorneyGeneral), (SCC), [1989] 1 S.C.R. 342, (1989), 57 D.L.R. (4th) 231, [1989] 3 W.W.R. 97, 75 Sask. R. 82; Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, 218 N.S.R. (2d) 311, 232 D.L.R. (4th) 577. considered:

Environmental Defence Canada v. Canada (Fisheries and Oceans), 2009 FC 878, 45 C.E.L.R. (3d) 161, 349 F.T.R. 225; Celgene Corp.v. Canada (Attorney General), 2011 SCC 1, [2011] 1 S.C.R. 3, 327 D.L.R. (4th) 513, 14 Admin. L.R. (5th) 1; Canada (Canadian HumanRights Commission) v. Canada (Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471, 337 D.L.R. (4th) 385, 26 Admin. L.R. (5th) 1;Smith v. Alliance Pipeline Ltd., 2011 SCC 7, [2011] 1 S.C.R. 160, 328 D.L.R. (4th) 1, 16 Admin. L.R. (5th) 157; Adam v. Canada(Environment), 2011 FC 962, sub nom. Athabasca Chipewyan First Nation v.

Canada (Environment), [2013] 2 F.C.R. 201, 62 C.E.L.R.(3d) 218, [2011] 4 C.N.L.R. 17; Blanchard v. Control Data Canada Ltd. et al., (SCC), [1984] 2 S.C.R. 476, (1984), 14D.L.R. (4th) 289, 14 Admin. L.R. 133; Pezim v. British Columbia (Superintendent of Brokers), (SCC), [1994] 2 S.C.R.557, (1994), 114 D.L.R. (4th) 385, [1994] 7 W.W.R. 1; Canada (Director of Investigation and Research) v. Southam Inc., (SCC), [1997] 1 S.C.R. 748, (1997), 144 D.L.R. (4th)1, 50 Admin. L.R. (2d) 199; Pushpanathan v. Canada (Minister of Citizenshipand Immigration), (SCC), [1998] 1 S.C.R. 982, (1998), 160 D.L.R. (4th) 193, 11 Admin.

L.R. (3d) 1, amended reasons, (SCC), [1998] 1 S.C.R. 1222, (1998), 11 Admin. L.R. (3d) 130; Dr. Q v. College of Physicians and Surgeons of BritishColumbia, 2003 SCC 19, [2003] 1 S.C.R. 226, 223 D.L.R. (4th) 599, [2003] 5 W.W.R. 1; Nor-Man Regional Health Authority Inc. v.Manitoba Association of Health Care Professionals, 2011 SCC 59, [2011] 3 S.C.R. 616, 340 D.L.R. (4th) 1, [2012] 2 W.W.R. 619. referred to: Aktiebolaget Hässle v. Apotex Inc., 2008 FCA 88, 65 C.P.R. (4th) 5, 375 N.R. 342; Baron v.

Canada (Minister of Public Safety andEmergency Preparedness), 2009 FCA 81, [2010] 2 F.C.R. 311, 309 D.L.R. (4th) 411, 79 Imm. L.R. (3d) 157; Public Mobile Inc. v.Canada (Attorney General), 2011 FCA 194, [2011] 3 F.C.R. 344, 333 D.L.R. (4th) 463, 420 N.R. 50; Toussaint v. Canada (AttorneyGeneral), 2011 FCA 213, [2013] 1 F.C.R. 374, 420 N.R. 213; Canadian Union of Public Employees, Local 963 v. New BrunswickLiquor Corporation, (SCC), [1979] 2 S.C.R. 227, (1979), 25 N.B.R. (2d) 237, 97 D.L.R. (3d) 417; U.E.S., Local 298 v.Bibeault, (SCC), [1988] 2 S.C.R. 1048, (1988), 35 Admin.

L.R. 153, 89 CLLC 14,045; Alberta (Information andPrivacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654, 519 A.R. 1, 339 D.L.R. (4th) 428; CanadaTrustco Mortgage Co. v. Canada, 2005 SCC 54, [2005] 2 S.C.R. 601, (2005), 259 D.L.R. (4th) 193, [2005] 5 C.T.C. 215; Rizzo & RizzoShoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27, (1998), 36 O.R. (3d) 418, 154 D.L.R. (4th) 193; Quebec (AttorneyGeneral) v. Moses, 2010 SCC 17, [2010] 1 S.C.R. 557, 318 D.L.R. (4th) 288, 51 C.E.L.R. (3d) 1; Comeau’s Sea Foods Ltd. v.

Canada(Minister of Fisheries and Oceans), (SCC), [1997] 1 S.C.R. 12, (1997), 142 D.L.R. (4th) 193, 43 Admin. L.R. (2d) 1;Carpenter Fishing Corp. v. Canada, (FCA), [1998] 2 F.C. 548, (1997), 155 D.L.R. (4th) 572, 221 N.R. 372. AUTHORS CITED Canadian Oxford Dictionary, 2nd ed. Toronto: Oxford University Press, 2004, “protect”. Dussault, René and Louis Borgeat. Administrative Law: A Treatise, 2nd ed. Toronto: Carswell, 1990. Goodhart, A. L. and R. E. Megarry. “Judicial Review and the Rule of Law: Historical Origins” (1956), 72 L.Q.R. 345 Hailsham of St.

Marylebone, Lord. “Democracy and Judicial Independence” (1979), 28 U.N.B.L.J. 7. Northern and Southern Resident Killer Whales (Orcinus orca) in Canada: Critical Habitat Protection Statement, online: Species at RiskPublic Registry: <https://www.registrelep-sararegistry.gc.ca/virtual_sara/files/ch_killer_Whale_0908_e.pdf>. Nouveau Petit Robert : Dictionnaire alphabétique et analogique de la langue française. Paris: Dictionnaires Le Robert, 2006,“protéger”.

Recovery Strategy for the Northern and Southern Resident Killer Whales (Orcinus orca) in Canada, March 2008, online:<http://publications.gc.ca/collections/collection_2008/ec/En3-4-46-2007E.pdf>. APPEAL from a Federal Court decision (2010 FC 1233, [2012] 3 F.C.R. 136, 55 C.E.L.R. (3d) 250, 379 F.T.R. 183) declaring thatministerial discretion does not “legally protect” critical habitat under

section 58 of the Species at Risk Act and that it was unlawful for theappellant to have cited discretionary provisions of the Fisheries Act in a protection statement concerning the critical habitat of theNortheast Pacific Northern and Southern population of killer whales. Appeal allowed in part. APPEARANCES Lorne Lachance and Lisa Riddle for appellant. Margot Venton and Tim Leadem for respondents. SOLICITORS OF RECORD Deputy Attorney General of Canada for appellant. Ecojustice, Vancouver, for respondents.

The following are the reasons for judgment rendered in English by [1] Mainville J.A.: The Minister of Fisheries and Oceans (Minister) is appealing a judgment of the Federal Court cited as 2010 FC1233, [2012] 3 F.C.R. 136 (reasons) in which Russell J. (Federal Court Judge) declared that ministerial discretion does not “legallyprotect” critical habitat under

section 58 of the Species at Risk Act, S.C. 2002, c. 29 (SARA) and which further declared that it wasunlawful for the Minister to have cited discretionary provisions of the Fisheries Act, R.S.C., 1985, c. F-14 in a protection statementconcerning the critical habitat of the Northeast Pacific Northern and Southern populations of killer whales. [2] Subsection 58(5) of the SARA provides that the Minister must make an order under subsections 58(1) and (4) protecting the

critical habitat of listed endangered or threatened aquatic species if such critical habitat “is not legally protected by provisions in, or measures under, this or any other Act of Parliament”.

The Minister had determined that the Fisheries Act legally protected some aspects of the critical habitat of killer whales and could thus be resorted to as a substitute to a protection order under the SARA. [ 3 ] The Federal Court Judge ruled that the Minister may avoid issuing a critical habitat protection order under the SARA only where the legal protection offered that habitat under another Act of Parliament is the same as that provided under a protection order.

He further ruled that the measures available to the Minister under the Fisheries Act could be diluted under the sweeping and largely unfettered discretions granted to the Minister under that statute. Consequently, he concluded that the Fisheries Act could not be resorted to as a substitute to a critical habitat protection order under the SARA. Overview of conclusions [ 4 ] The Minister is appealing to this Court on two main grounds. [ 5 ] The first ground of appeal concerns the standard of review.

The Minister submits that Parliament made him responsible for the administration of the regulatory schemes of the SARA and of the Fisheries Act ; hence, his

interpretation of their provisions is entitled to deference. The Minister bases that submission on a judgment rendered fairly recently by the Supreme Court of Canada: Dunsmuir v. New Brunswick , 2008 SCC 9 , [2008] 1 S.C.R. 190 ( Dunsmuir ). That judgment emphasized the deference owed to an administrative tribunal when it interprets a provision of its enabling (or “home”) statute or statutes closely related to its functions. [ 6 ] In my view, no deference is owed to the Minister as to the

interpretation of the relevant provisions of the SARA or of the Fisheries Act . The Minister’s

interpretation of the Supreme Court’s most recent pronouncements is erroneous as it fails to consider the context in which they were developed and the reasons which may warrant deference to an administrative tribunal when it interprets its enabling statute. The reasonableness standard of review does not apply to the

interpretation of a statute by a minister responsible for its implementation unless Parliament has provided otherwise. I thus conclude—as did the Federal Court Judge in this case—that where an application for judicial review of a decision as to the implementation of the SARA is based on an allegation that the Minister has misinterpreted a provision of the SARA—or of the Fisheries Act as it relates to the SARA—the Minister’s

interpretation must be reviewed on a standard of correctness. The courts owe no deference to the Minister in that respect. [ 7 ] The second ground of appeal concerns the

interpretation of the SARA . The Minister does not dispute that the protection of critical habitat under the SARA is compulsory. However, the Minister submits that Parliament intended that there should be some flexibility as to the modalities of that compulsory protection. The Minister states that he does not wish to retain discretion under the Fisheries Act to undermine that protection or to provide protection which is inferior to that afforded under a SARA protection order.

Rather, the Minister submits that certain measures under the Fisheries Act do protect critical habitat against destruction, and that he should therefore be able to resort to such measures as alternatives to a SARA protection order even though they might be subject to his discretion. [ 8 ] I do not accept the Minister’s

interpretation of the SARA on this point. When Parliament adopted

section 58 of the SARA, its intent was to provide for compulsory and non-discretionary legal protection from destruction for the identified critical habitat of listed endangered or threatened aquatic species. This protection can be achieved through a provision or measure under

an Act of Parliament which legally protects from destruction of that habitat and which is not subject to dilution through discretionary ministerial action.

In the absence of such a legally enforceable provision or measure, the Minister must make a protection order under subsections 58(1) and (4) of the SARA to ensure the protection of that habitat. [ 9 ] While the Minister submits that, by retaining his discretion under the Fisheries Act he does not intend to undermine the protection provided under the SARA or to provide protection that is inferior to that available under a SARA protection order, he fails to explain how his discretion under the Fisheries Act would be legally fettered. Parliament adopted

section 58 of the SARA precisely to avoid the destruction of the identified critical habitat of listed endangered and threatened aquatic species through any means. If the Minister’s position were accepted, the compulsory and non-discretionary protection scheme set out by Parliament under the SARA would be transformed into a protection scheme largely subject to ministerial discretion. Such was not Parliament’s intent in adopting the SARA. [ 10 ] However—and contrary to the conclusions of the Federal Court Judge in this case—there may be circumstances in which the Minister may rely on

section 36 of the Fisheries Act (which I take to include regulations made under that section) in a protection statement made under paragraph 58(5) (

b) of the SARA .

Section 36 of the Fisheries Act prohibits the deposit of deleterious substances in water frequented by fish, unless such deposit is authorized under regulations adopted by the Governor in Council. In a given case, the combined operation of

section 36 of the Fisheries Act and of its regulations may afford a particular endangered or threatened species the legal protection mandated by

section 58 of the SARA. In such a case, it may be appropriate for the Minister to rely on those provisions for the purposes of paragraph 58(5)(

b) of the SARA. [ 11 ] However, in this case, the record contains no evidence as to the effect, if any, of

section 36 and its regulations on the killer whale critical habitat at issue. Therefore, there was no basis in these proceedings upon which the Federal Court Judge could have determined whether the Minister’s reliance on

section 36 could have been justified in light of the provisions of

section 58 of the SARA . Overview of the provisions of the Species at Risk Act relevant to this appeal [ 12 ] The SARA was assented to in 2002 as the first comprehensive federal legislation seeking (

a) to prevent wildlife species from being extirpated or becoming extinct and (

b) to provide for the recovery of wildlife species that are extirpated, endangered or threatened as a result of human activity. That legislation was adopted partly to meet Canada’s obligations under the United Nations Convention on the Conservation of Biological Diversity [ Convention on Biological Diversity , 5 June 1992, [1993] Can. T.S. No. 24]. Some of the relevant provisions of the SARA are reproduced in a

schedule to these reasons. [ 13 ] The SARA identifies different categories of species at risk and distinguishes between extirpated species, endangered species, threatened species and species of special concern. For the purposes of this appeal, we need only concern ourselves with the scheme

pertaining to listed endangered and threatened aquatic species. [ 14 ] An endangered species is a wildlife species that is facing imminent extirpation or extinction, while a threatened species is a species that is likely to become an endangered species if nothing is done to reverse the factors leading to its extirpation or extinction. An aquatic species includes fish, shellfish, crustaceans, marine animals, and marine plants. It is not disputed that killer whales are an aquatic species for the purposes of the SARA : subsection 2(1) of the SARA concerning the

definitions of “aquatic species”, “endangered species” and “threatened species”;

section 2 of the Fisheries Act concerning the definition of “fish” [as am. by S.C. 1991, c. 1, s. 1]. [ 15 ] While the Minister of the Environment is responsible for the administration of the SARA , the appellant Minister is the competent minister under that statute with respect to aquatic species, including with regard to the preparation of recovery strategies, action plans and the protection of critical habitat for such species which are endangered or threatened: subsection 2(1) “competent minister” [as am. by S.C. 2005, c. 2, s. 14 ] and “Minister”, subsections 8(1) and 37(1) ,

section 47 , and subsection 58(5) of the SARA. [ 16 ] The SARA sets out a listing process to identify species at risk. An initial list (distinguishing between extirpated, endangered, and threatened species and species of special concern) is included in

Schedule 1 of the SARA. Wildlife species may be added to, or removed from, this list—or reclassified within the list—by the Governor in Council taking into account the recommendations of an expert committee designated the Committee on the Status of Endangered Wildlife in Canada (COSEWIC) and after consultation with relevant stakeholders:

section 27 of the SARA. [ 17 ] The listing of an aquatic wildlife species as endangered or threatened extends important legal protections to that species. To kill, harm, harass, capture or take an individual of a listed endangered or threatened aquatic wildlife species is prohibited by subsection 32(1) of the SARA . Possessing, collecting, buying, selling or trading an individual of such a species—or any part or derivative thereof—is prohibited by subsections 32(2) and (3). Furthermore,

section 33 prohibits any person from damaging or destroying the residence or dwelling place (such as a den, nest or other similar area or place) of one or more individuals of such a species. Those who fail to respect these prohibitions are liable to large fines and to imprisonment: sections 97 and 98. [ 18 ] The listing of an aquatic species in

Schedule 1 of the SARA as endangered or threatened also requires the Minister to prepare a recovery strategy for that species within specified timelines: subsections 37(1) and 42(2) of the SARA. Such a recovery strategy must be prepared in cooperation with various stakeholders:

section 39. If the Minister determines that the recovery of the endangered or threatened aquatic species is feasible, the recovery strategy must address the threats to the survival of the species identified by the COSEWIC, including any loss of habitat, and must include, inter alia , an identification of the species’ critical habitat to the extent possible, based on the best available information, including information provided by COSEWIC, and examples of activities that are likely to result in its destruction: paragraph 41(1)( c ). [ 19 ] The proposed recovery strategy is then subject to public consultations.

The Minister must consider any comments received, and make the changes he considers appropriate. Finally, the Minister must finalize the recovery strategy by including a copy in the public registry established for the purposes of the SARA :

section 43 . The Minister must also publicly report every five years on the implementation of the recovery strategy and the progress towards meeting its objectives:

section 46. [ 20 ] The Minister must prepare one or more action plans based on the recovery strategy, and such plans must include, inter alia : an identification of the aquatic species critical habitat and examples of activities which are likely to result in its destruction; a statement of measures which are proposed to be taken to protect the species critical habitat; an identification of any portions of the species critical habitat that have not been protected; and a statement of the measures that are to be taken to implement the recovery strategy:

section 47 and paragraphs 49(1)( a ), ( b ), (

c) and ( d ). [ 21 ] A final recovery strategy for a listed endangered or threatened aquatic species has important legal consequences under the SARA since the entire critical habitat identified in the recovery strategy must be protected:

section 57 and subsections 58(1) to (5) of the SARA. This protection is achieved either: (

a) through provisions in or measures under the SARA or any other Act of Parliament; in such case, the Minister must identify how the critical habitat is legally protected in a protection statement made pursuant to paragraph 58(5)( b ); or (

b) through a protection order made by the Minister under subsections 58(1) and (4) in respect of the critical habitat or portion of the critical habitat specified in the order. [ 22 ] Since many endangered and threatened species are not aquatic species or migratory bird species falling under primary federal jurisdiction, the SARA provides that federal action to prohibit the destruction of the critical habitat of most species must be exercised in close collaboration with provincial and territorial authorities.

Consequently, different provisions of the SARA govern the protection of the critical habitat of these other species on lands which are not federal lands: sections 60 and 61 of the SARA.

It is not however necessary to examine these other provisions of the SARA for the purposes of this appeal, and nothing in these reasons should be understood as pertaining to them. [ 23 ] The Minister may also use his permitting and licensing authorities under the SARA or under another Act of Parliament to protect listed wildlife species, their critical habitat or their residences or dwelling places: sections 73 [as am. by S.C. 2005, c. 2, s. 23 ], 74 and 75 of the SARA. [ 24 ] The prohibitions under the SARA preventing the harvesting and trading in endangered or threatened aquatic species, the destruction of their dwelling places and the destruction of their critical habitat do not apply to activities related to public safety, health or national security that are authorized by, or under,

an Act of Parliament: subsections 83(1) to (4) of the SARA. Background to these proceedings [ 25 ] Killer whales are the largest members of the dolphin family. They are long-lived animals with no natural predators. They are found in all three of Canada’s oceans, as well as occasionally in Hudson Bay and the Gulf of St. Lawrence. In British Columbia, they

have been recorded in almost all saltwater areas. Three distinct forms of killer whale inhabit Canadian Pacific waters: transient, offshore and resident. These forms are sympatric but socially isolated and differ in their dietary preferences, genetics, morphology and behaviour. [ 26 ] Resident killer whales are the best understood. Their social organization is highly structured and their fundamental unit is matrilineal, comprising all surviving members of a female lineage. A typical matrilineal unit comprises an adult female, her offspring, and the offspring of her daughters.

Both sexes remain within their natal matrilineal unit. [ 27 ] There are two communities of resident killer whales in British Columbia: the northern resident population and the southern resident population. These resident killer whale populations are considered at risk because of their small population size, low reproductive rate, and the existence of a variety of man-made threats that have the potential to prevent recovery or to cause further declines. Principal among these threats are environmental contamination, reductions in the availability and quantity of prey, and both physical and acoustic disturbance.

In 2003, the southern resident killer whale population counted 85 members, while the northern resident population counted 205 members. [ 28 ] In 2001, COSEWIC designated the southern population as endangered, and the northern population as threatened. These populations were listed accordingly in

Schedule 1 of the SARA when that statute was adopted by Parliament. Consequently, under subsections 37(1) and 42(2) of the SARA, the Minister was required to prepare a recovery strategy for these killer whale populations within specified timelines. For this purpose, a Resident Killer Whale Recovery Team (the Recovery Team) comprising independent and government experts was convened in 2004. [ 29 ] Following extensive study and review, a final draft recovery strategy was completed in May of 2006 for submission to the Minister.

The manner in which critical habitat was described in this draft led to disputes between the Recovery Team and officials from the Department of Fisheries and Oceans.

These disputes delayed the posting and approval of the recovery strategy, which was only included in the public registry established under the SARA in March of 2008 [ Recovery Strategy for the Northern and Southern Resident Killer Whales (Orcinus orca) in Canada ]. [ 30 ] Pursuant to subsection 58(5) of the SARA , the inclusion of the recovery strategy in the public registry required the Minister to ensure that the critical habitat identified in that strategy be protected within 180 days.

That protection could be achieved either through a protection order made by the Minister under subsections 58(1) and (4) or through a statement by the Minister setting out how the critical habitat or portions of it, as the case may be, would be legally protected under

an Act of Parliament. The Minister did not make a protection order under the SARA. Rather, he included in the public registry a statement setting out how the critical habitat of the concerned killer whale populations was legally protected (the Killer Whales Protection Statement) [Northern and Southern Resident Killer Whales ( Orcinus orca ) in Canada: Critical Habitat Protection Statement]. [ 31 ] The Killer Whales Protection Statement restricted the concept of critical habitat for the purposes of the SARA to geophysical attributes.

Consequently, the Killer Whales Protection Statement identified three types of human activity which could potentially destroy the geophysical attributes of the critical habitat of the concerned killer whale populations in the identified areas. It further identified various legislative provisions, including

section 35 of the Fisheries Act and subsection 22(1) [as am. by SOR/93-133, s. 4 ] of the Fishery (General) Regulations , SOR/93-53 which were deemed to ensure the protection of these geophysical attributes.

The pertinent paragraphs of the Killer Whales Protection Statement read as follows: Human activities which could potentially destroy the geophysical attributes of critical habitat for these species, as identified in the Final Recovery Strategy, and the federal legislations, regulations and/or policies which would be used to provide protection against such destruction are: • Industrial activities such as construction, drilling, pile driving, pipe-laying, and dredging, and construction of physical structures such as wharves and net pens for aquaculture ○ Protected under provisions of the Fisheries Act s. 35 and the Canadian Environmental Protection Act, 1999 (Part 7, Division 3).

This protection is supported by processes under the Canadian Environmental Assessment Act . • Fishing vessels using gear that drags along the bottom ○ Protected through provisions of the Fisheries Act or regulations made thereunder, in particular s. 22(1) of the Fishery (General) Regulations .

This protection is supported by processes under the Fisheries and Oceans Canada policy on Managing the Impacts of Fishing on Sensitive Benthic Areas. • Use of vessel anchors which may permanently damage the seabed, or which may serve to destroy a rubbing beach ○ Protected through provisions of the Fisheries Act s. 35, or of the Oceans Act s. 35 and/or s. 36 .

In addition, a Code of Conduct and outreach initiatives to inform and sensitise Canadians to the need to protect Resident Killer Whale habitat will continue to be developed and implemented. [ 32 ] The difficulty in defining critical habitat in terms of geophysical attributes was that some of the most important elements of the critical habitat which had been identified in the recovery strategy were left without protection.

The recovery strategy had indeed identified acoustic degradation, chemical and biological contamination and diminished prey availability as key components of the critical habitat of killer whales. Yet the Killer Whales Protection Statement did not consider these components as part of “critical habitat” for the purposes of protection under the SARA . Rather, the Killer Whales Protection Statement treated these components as “ecosystem features” to be dealt with through “legislative and policy tools”, and not under the SARA.

The Killer Whales Protection Statement thus treated these components as follows: While the Recovery Strategy identifies the critical habitat as a defined geophysical area, Fisheries and Oceans Canada (DFO) recognizes that other ecosystem features such as the availability of prey for foraging and the quality of the environment are important to the survival and recovery of Northern and Southern Resident Killer Whales. A variety of legislative and policy tools are available to manage and

mitigate threats to these functions of the Resident Killer Whale critical habitat, to individuals and to populations. • Disturbance ○ Threat management and mitigation is afforded under the Marine Mammal Regulations and the Whale Watching Guidelines developed cooperatively by industry and DFO. • Degradation of the Acoustic Environment ○ Threat management and mitigation is afforded under the Marine Mammal Regulations, the Statement of Practice with Respect to the Mitigation of Seismic Sound in the Marine Environment, and protocols for military sonar use. • Marine Environmental Quality ○ Threat management and mitigation is afforded under provisions of the Fisheries Act , or regulations made thereunder, and the Canadian Environmental Protection Act, 1999 or regulations made thereunder. • Availability of Prey ○ Threat management and mitigation is afforded under the Fisheries Act or regulations made thereunder, supported by the Wild Salmon Policy and use of Integrated Fisheries Management Plans.

History of the litigation [ 33 ] The respondents in this appeal challenged the lawfulness of the Killer Whales Protection Statement by initiating a judicial review application before the Federal Court in October of 2008, wherein they asked that Court to make various declarations, set aside the Killer Whales Protection Statement, and refer the matter back to the Minister for a new decision under

section 58 of the SARA . [ 34 ] In their application, the respondents argued that the critical habitat of the concerned killer whale populations included not only the geophysical elements of that habitat, but also all the other components identified in the recovery strategy. They further argued that, in a protection statement, the Minister could not resort to non-binding policy, prospective legislation or ministerial discretion. [ 35 ] Before this judicial review application could be heard, the Minister reversed himself.

Both he and the Minister of the Environment jointly issued a protection order under subsections 58(1) and (4) of the SARA , which order was registered on February 19, 2009 as the Critical Habitats of the Northeast Pacific Northern and Southern Resident Populations of the Killer Whale (Orcinus orca) Order , SOR/2009-68 (the Killer Whales Protection Order). Maps identifying the critical habitat areas contemplated by that order are attached in a

schedule to these reasons. These are the same critical habitat areas as identified in the recovery strategy. [ 36 ] Soon after this Order was published, the respondents in this appeal sought clarification as to the scope and meaning of the Order. In response, the Minister (

a) asserted that the Killer Whales Protection Order was an optional alternative to the Killer Whales Protection Statement; (

b) further asserted that policy and discretionary tools could be resorted to; and (

c) did not give assurances to confirm that the Killer Whales Protection Order protected the biological features of critical habitat from destruction: reasons, at paragraph 44. [ 37 ] The respondents in this appeal were unsatisfied and consequently filed a second judicial review application before the Federal Court.

This second application challenged the practice of limiting the scope of a protection order made under subsections 58(1) and (4) of the SARA to geospatial areas and geophysical elements of critical habitat. [ 38 ] Both judicial review applications were consolidated before the Federal Court after O’Reilly J. rejected the Minister’s motion to dismiss as moot the judicial review application challenging the Killer Whales Protection Statement. O’Reilly J. was satisfied that in light of the Killer Whales Protection Order , the application for judicial review challenging the Killer Whales Protection Statement was moot.

However, he was also of the view that there was a serious issue as to whether that judicial review application should nevertheless be heard in the exercise of the Federal Court’s discretion in such circumstances; a discretion which, he opined, would be better exercised by the judge hearing both applications on the merits.

The reasons and judgment of the Federal Court [ 39 ] The Federal Court Judge hearing both applications on their merits granted most of the declarations sought and provided detailed reasons in support thereof. [ 40 ] Turning his attention to the standard of review, the Federal Court Judge found that since the issues raised were essentially questions of statutory

interpretation, the correctness standard applied. [ 41 ] As to the scope of “critical habitat” under the SARA , the Federal Court Judge concluded that the issue had been conclusively decided by Campbell J. of the Federal Court in Environmental Defence Canada v. Canada (Fisheries and Oceans) , 2009 FC 878 , 45 C.E.L.R. (3d) 161 ( Environmental Defence ). [ 42 ] The issue in Environmental Defence mainly concerned the scope of the expression “critical habitat” for the purposes of inclusion in a recovery strategy under paragraphs 41(1)(

c) and ( c. 1) of the SARA . The applicants in Environmental Defence submitted that the constituents of habitat—and by implication of critical habitat—for specified species “are an identifiable location and the attributes of that location”: Environmental Defence , at paragraph 46. Campbell J. agreed, and ruled that for the purposes of the SARA, the word “areas” in the definition of “habitat” set out in the SARA did not just connote a location, “but a location that includes its special identifiable features”: Environmental Defence , at paragraph 58.

The order of Campbell J. in Environmental Defence was not appealed from by the Minister, who now accepts that both the location and the components of critical habitat are contemplated by the SARA. [ 43 ] Since, in this case, the recovery strategy identified reduced availability of prey, environmental contaminants and physical and

acoustic disturbance as components of the critical habitat of the concerned killer whale populations, the Federal Court Judge found thatthe Killer Whales Protection Order had to apply to all these components: reasons, at paragraphs 163–164 and 337–339. Moreover, inlight of Environmental Defence, the Minister had in fact conceded this point before the Federal Court Judge: reasons, at paragraphs 159and 163.

By necessary implication, the Killer Whales Protection Statement was also flawed since it did not include these elements ascritical habitat: reasons, at paragraphs 337–339. [44] The Federal Court Judge then went on to reject the Minister’s contention that the declarations sought in regard to the KillerWhales Protection Order were beyond the jurisdiction of the Federal Court. The Minister had indeed submitted that the Killer WhalesProtection Order was not a “decision” subject to judicial review; he argued that the order was rather a “regulation” within the meaning ofthe Statutory Instruments Act, R.S.C., 1985, c.

S-22 [s. 2(1)], and that it was thus immune from judicial review. The Federal Court Judgewas not persuaded, ruling instead that Parliament had not shielded decisions under subsection 58(5) of the SARA from judicial reviewthrough the use of a privative clause or otherwise.

In his view, the SARA was clearly a justiciable statute that imposed duties on theMinister, and whose actions under that statute were subject to review before the Federal Court: reasons, at paragraphs 183–184. [45] The Federal Court Judge also decided to hear the application concerning the Killer Whales Protection Statement even if theKiller Whales Protection Order had made that application moot. Applying the factors established in Borowski v.

Canada (AttorneyGeneral), (SCC), [1989] 1 S.C.R. 342, the Federal Court Judge concluded that, in view of the fundamental points oflaw raised by the proceedings, a quite live controversy between the parties did remain: reasons, at paragraphs 242–245. He alsoconcluded that these points were of general importance for the

interpretation and application of the SARA: reasons, at paragraphs 250–251. [46] The Federal Court Judge then ruled that a competent minister may not resort to another federal statute as a substitute for aprotection order unless that statute provides an equal level of legal protection for critical habitat as would be engaged through aprotection order: reasons, at paragraphs 257 and 272.

The Federal Court Judge made that ruling on the basis of a purposive reading of thepertinent provisions of the SARA; he concluded that Parliament had sought to limit ministerial discretion where the protection of criticalhabitat of endangered and threatened species was at issue: reasons, at paragraphs 277–280. [47] The Federal Court Judge then went on to conclude that the Fisheries Act, and the regulations adopted under that statute, could notbe used as a substitute for a protection order.

His conclusion was based on the highly discretionary nature of the broad powers afforded tothe Minister under the scheme of the Fisheries Act, including a broad discretion to authorize the destruction of fish habitat undersubsection 35(2) and to attach conditions to a fishing licence under

section 22 of the Fishery (General) Regulations: reasons, atparagraphs 320–321. [48] The Federal Court Judge also discarded

section 36 of the Fisheries Act—which prohibits the deposit of a deleterious substanceinto waters frequented by fish—on the basis that such deposits may nevertheless be authorized through regulations adopted “at Cabinet’sdiscretion”: reasons, at paragraph 325. [49] The Federal Court Judge then went on to make 11 declarations of law. These declarations read as follows: 1. With respect to the Protection Statement application: a. The Minister of Fisheries and Oceans erred in law in determining that the critical habitat of the resident killer whales was alreadylegally protected by existing laws of Canada; b.

Section 58 of SARA requires that all elements of critical habitat be legally protected by the competent ministers; c. Outreach programs, stewardship programs, voluntary codes of conduct or practice, voluntary protocols and/or voluntary guidelines andpolicy do not legally protect critical habitat within the meaning of

section 58 of SARA, and it was unlawful for the Minister to have citedpolicy documents in the Protection Statement; d. Ministerial discretion does not legally protect critical habitat within the meaning of

section 58 of SARA, and it was unlawful for theMinister to have cited discretionary provisions of the Fisheries Act in the Protection Statement; e. Prospective laws and regulations that are not yet in force do not legally protect critical habitat within the meaning of

section 58 ofSARA, and it was unlawful for the Minister to have cited provisions in the Protection Statement that are not yet in force; f. Provincial laws do not legally protect critical habitat within the meaning of

section 58 of SARA, and it was unlawful for the Ministerto have cited provincial laws in the Protection Statement. 2. With respect to the Protection Order application: a. The ministers acted unlawfully in limiting the application and scope of the Protection Order made under subsection 58(4) of SARA; b. The ministers have a duty under

section 58 to provide legal protection against destruction for all components of the resident killerwhales’ critical habitat; c. The ministers acted unlawfully when they limited the application and scope of the destruction prohibition in subsection 58(1) ofSARA to certain components of critical habitat but not others; d. It was an error of law for the ministers to limit the application and scope of the Protection Order to provide legal protection forgeophysical parts of critical habitat only; e.

It was unlawful for the ministers to exclude the ecosystem features of resident killer whales’ critical habitat, including availability ofprey and acoustic and environmental factors from the scope of the Protection Order.

The issues in this appeal [ 50 ] Though the Minister of the Environment was also a respondent before the Federal Court, only the Minister of Fisheries and Oceans has appealed to this Court. Moreover, that Minister’s appeal only concerns one of the declarations made by the Federal Court Judge, namely declaration 1(

d) providing that ministerial discretion does not legally protect critical habitat within the meaning of

section 58 of the SARA , and that it was consequently unlawful for the Minister to have cited discretionary provisions of the Fisheries Act in the Killer Whales Protection Statement. [ 51 ] The Minister raises the standard of review as a first ground of appeal. He submits that Parliament entrusted him with the responsibility to manage aquatic species under both the SARA and the Fisheries Act , and that, consequently, he is entitled to deference as to the

interpretation of both these statutes. [ 52 ] As a second ground of appeal, the Minister submits that he lawfully invoked the provisions of the Fisheries Act in the Killer Whales Protection Statement, and that he may resort to such provisions in any protection statement made under subsection 58(5) of the SARA . [ 53 ] This appeal consequently raises the following questions: a. What is the standard of review? b.

Did the Minister err by relying on the provisions of the Fisheries Act and of its regulations in making the Killer Whales Protection Statement? [ 54 ] In addition, as a preliminary matter, I must consider whether this appeal should be dismissed on the basis that the issues raised by the Minister are moot. Preliminary issue: Should this appeal be dismissed on the ground that the issues raised by the Minister are moot? [ 55 ] The Minister’s appeal concerns the Killer Whales Protection Statement, which statement was replaced by the Killer Whales Protection Order .

As both O’Reilly J. and the Federal Court Judge concluded in this case, the issues which are raised by these proceedings and which concern the Killer Whales Protection Statement are clearly moot. Hence, should this Court entertain those issues? [ 56 ] The Minister and the respondents are not pursuing this argument before this Court, but the fact that they are not raising it does not mean that this Court can simply ignore the matter.

Reluctant as this Court is to decide a matter not fully argued before it, determining if the issues are moot and if so, whether they should nevertheless be decided, is a prerequisite to the disposition of this appeal. [ 57 ] The choice of the appropriate test to apply in deciding whether a matter is moot is a question of law. The decision of whether to hear a moot proceeding is discretionary: Aktiebolaget Hässle v. Apotex Inc. , 2008 FCA 88 , 65 C.P.R. (4th) 5, at paragraph 11 . The identification of the factors which must be considered in exercising that discretion is also a question of law: Doucet-Boudreau v.

Nova Scotia (Minister of Education) , 2003 SCC 62 , [2003] 3 S.C.R. 3, at paragraph 18 . [ 58 ] It cannot be disputed that the issues raised are moot. It is also clear from the Federal Court Judge’s reasons at paragraphs 236 to 252 that he identified the appropriate factors to consider in exercising his discretion to nevertheless hear these issues.

In an appeal from such a judgment, should this Court review the exercise of the Federal Court Judge’s discretion on a standard of reasonableness or should this Court rather exercise anew judicial discretion and decide itself whether or not to hear the moot issues in appeal? In past appeals, this Court seems to have preferred to exercise anew the discretion: see Baron v. Canada (Minister of Public Safety and Emergency Preparedness) , 2009 FCA 81 , [2010] 2 F.C.R. 311, at paragraphs 26–46 . [ 59 ] In Borowski v. Canada (Attorney General) , above, at pages 358–363, and in Doucet-Boudreau v.

Nova Scotia (Minister of Education) , above, at paragraphs 18–22 , the Supreme Court of Canada has outlined the following criteria for courts to consider in exercising discretion to hear a moot case: a. the presence of an adversarial context; b. the concern for judicial economy; and c. the need for the Court to be sensitive to its role as the adjudicative branch in our political framework. [ 60 ] Applying these factors, I conclude that the Federal Court Judge reasonably exercised his discretion to hear the issues relating to the Killer Whales Protection Statement.

I also conclude that this Court should exercise its discretion to entertain those issues even though they are moot. [ 61 ] These issues have been fully argued before both the Federal Court and this Court; and a very live controversy exists between the parties which will persist until they are finally decided. [ 62 ] Judicial economy will be well served if this Court addresses the issues raised. They have been fully canvassed in these proceedings and they will likely arise in the future in the context of other protection statements under the SARA .

It is thus appropriate to settle these issues now rather than to await another case which will require additional efforts and expenditures to pursue. [ 63 ] The issues raised are of public importance, and their resolution is in the public interest. This case is the first to be heard by this Court concerning the scope of a protection statement under the SARA . Many other protection statements are being prepared and may have been issued for other endangered or threatened species. Consequently, both the Minister and the respondents seek guidance as to the

interpretation and application of

section 58 of the SARA. [ 64 ] Finally, this Court is neither departing from its traditional role as an adjudicator nor intruding upon the legislative or executive

sphere by deciding to hear this appeal. The issues raised are all questions of statutory

interpretation. Moreover, the Minister—acting as a member of the Executive branch of government—seeks the opinion of this Court on these issues. The standard of review The Minister’s position [ 65 ] At its core, the principal question before this Court concerns the meaning of the words “legally protected by provisions in, or measures under, this or any other Act of Parliament” found in subsection 58(5) of the SARA . That is a question of statutory

interpretation, and that is not disputed by the Minister. [ 66 ] However, the Minister submits that Parliament has entrusted him with the responsibility to manage the regulatory schemes under the SARA and the Fisheries Act , and that consequently, his

interpretation of

section 58 of the SARA—and of the provisions of the Fisheries Act and of its regulations as they relate to that section—should be given deference. [ 67 ] The Minister relies for this proposition on Dunsmuir and recent decisions of the Supreme Court of Canada which have all clearly emphasized the deference which courts must show to an administrative tribunal when it interprets a provision of its enabling (or “home”) statute or statutes closely connected to its functions. The Minister notably relies on Celgene Corp. v.

Canada (Attorney General) , 2011 SCC 1 , [2011] 1 S.C.R. 3 ( Celgene ), at paragraphs 33–34 ; Canada (Canadian Human Rights Commission) v. Canada (Attorney General) , 2011 SCC 53 , [2011] 3 S.C.R. 471 ( Mowat ), at paragraphs 15–27 ; and Smith v. Alliance Pipeline Ltd. , 2011 SCC 7 , [2011] 1 S.C.R. 160 ( Smith ), at paragraph 26 . In this regard, I note that the standard which applies when the

interpretation of a statute by a government official is raised in a judicial review proceeding has been questioned by this Court following Dunsmuir : see Public Mobile Inc. v. Canada (Attorney General) , 2011 FCA 194 , [2011] 3 F.C.R. 344, at paragraph 35 and Toussaint v. Canada (Attorney General) , 2011 FCA 213 , [2013] 1 F.C.R. 374, at paragraph 19 . [ 68 ] The Minister also finds support for his position in Adam v. Canada (Environment) , 2011 FC 962 , sub nom. Athabasca Chipewyan First Nation v. Canada (Environment) , [2013] 2 F.C.R. 201 ( Adam ), a recent decision of the Federal Court. The applicants in Adam were asking the Court to order the Minister of the Environment to (

a) finalize a recovery strategy under the SARA for the boreal caribou located in northeastern Alberta and (

b) recommend the adoption of an emergency protection order for these caribou under subsection 80(2) of the SARA. Without proceeding with a standard of review analysis, the Court in Adam concluded—based on its understanding of Dunsmuir and Smith —that the Minister of the Environment’s

interpretation of subsection 80(2) of the SARA was subject to review under a reasonableness standard. Since that minister was interpreting his “home” statute (the SARA), and since no constitutional question, no question of law of central importance to the legal system as a whole, and no jurisdictional question was raised by the proceedings, the Minister of the Environment’s

interpretation of subsection 80(2) of the SARA was reviewed on a standard of reasonableness: Adam , at paragraph 40 . [ 69 ] The Minister submits that as the “competent minister” with respect to aquatic species, he is entitled to the same deference as to his

interpretation of the pertinent provisions of the SARA . Likewise, as the minister responsible for the Fisheries Act , deference should also be extended to his

interpretation of that statute and of its regulations. In short, the Minister submits that pursuant to the most recent Supreme Court of Canada jurisprudence, a presumption of deference has been extended to administrative decision makers—such as himself—when they interpret their enabling (or “home”) statutes. [ 70 ] I disagree with the Minister. For the reasons which follow, I have concluded that no deference is owed by this Court to the Minister as to the

interpretation of the relevant provisions of the SARA or of the Fisheries Act and its regulations. Historical and constitutional foundations of judicial review [ 71 ] It is useful to set out briefly the foundations of judicial review in Canada. The two guiding principles of the British constitution —on which the Constitution of Canada is modelled—are the sovereignty of Parliament and the rule of law. These constitutional principles were largely developed as a result of the English Civil War of the 17th Century and its aftermath.

This long, difficult and often bloody struggle between the Crown and Parliament culminated in the victory of the Parliamentarians in the so-called “Glorious Revolution”, which ensured the accession to the throne of William and Mary and led to the adoption of the Bill of Rights of 1688 [

An Act declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown , 1688 (U.K.), 1 Will. & Mary, Sess. 2, c. 2], later followed by the Act of Settlement, 1700 [(U.K.), 12 & 13 Will. III, c. 2]. [ 72 ] Through these historical events, the Crown’s powers were made subject to the laws of Parliament. Prior to the Bill of Rights of 1688, the Crown had asserted that it could “Assum[e] and Exercis[e] a Power of Dispensing with and Suspending of Lawes and the Execution of Lawes without Consent of Parlyament”:

Preamble to the Bill of Rights of 1688. While the Bill of Rights of 1688 firmly consecrated the principle of Parliamentary sovereignty, it also implicitly empowered the courts, and particularly the common law courts, to both interpret Parliament’s laws and censure unlawful behaviour on the part of Crown officials.

This was further entrenched by the subsequent Act of Settlement, 1700 which recognized the independence of the judiciary. [ 73 ] The Bill of Rights of 1688, the Act of Settlement, 1700 , and the constitutional principles flowing from those documents thus ensured that the Crown and its officials would be thereafter bound by Parliament’s laws as interpreted by the independent common law courts: see Dussault and Borgeat, Administrative Law: A Treatise , 2nd edition, Volume 4, Toronto: Carswell, 1990, at pages 12–13 and 27–31; A. L. Goodhart and R. E.

Megarry, “Judicial Review and the Rule of Law: Historical Origins” (1956), 72 L.Q.R. 345, at page 362; Lord Hailsham of St. Marylebone, “Democracy and Judicial Independence” (1979), 28 U.N.B.L.J. 7, at page 9. [ 74 ] The principles of Parliamentary sovereignty and of the rule of law are still today at the heart of judicial review: Dunsmuir , at paragraphs 27–30 . [ 75 ] With the expansion of state intervention in the first part of the 20th Century, Parliament set up numerous intricate legislative schemes seeking to achieve complex economic and social goals.

It delegated more and more powers to various administrative bodies entrusted with the authority to implement these schemes. Parliament also created numerous administrative tribunals to adjudicate the

disputes resulting from these complex schemes. In some cases, Parliament sought to protect these administrative bodies and tribunalsfrom interference by the courts. This was principally achieved by the inclusion of various privative clauses in the legislation enablingthese administrative bodies and tribunals to carry out their functions. [76] Though the courts throughout the Commonwealth fiercely resisted these curtailments of their authority, they eventually relentedin deference to the principle of Parliamentary sovereignty.

However, the courts always maintained a right—albeit limited—to controladministrative decisions on the ground that the rule of law required it in certain appropriate circumstances, notably in cases of excess ofjurisdiction, abuse of power or failure to comply with principles of natural justice. The modern Canadian approach to judicial review of questions of law [77] The modern Canadian approach to judicial review of questions of law involving administrative tribunals can be ascertained fromCanadian Union of Public Employees, Local 963 v.

New Brunswick Liquor Corporation, (SCC), [1979] 2 S.C.R. 227(C.U.P.E.) and Blanchard v. Control Data Canada Ltd. et al., (SCC), [1984] 2 S.C.R. 476 (Control Data). JusticeLamer [as he then was] summarized as follows the Canadian approach in Control Data, at pages 492–493: In principle, where there is a privative clause the superior courts should not be able to review errors of law made by the administrativetribunals. However, it is now settled that some errors of law can cause the arbitrator to lose his jurisdiction. The debate turns on thequestion of which errors of law result in the loss of jurisdiction.

Contrary to the decision of Lord Denning in Pearlman v. Keepers andGovernors of Harrow School, [1979] 1 All E.R. 365, where he said (at p. 372) that “no court or tribunal has any jurisdiction to make anerror of law on which the decision of the case depends” (subsequently disapproved by the Privy Council in South East Asia Fire BricksSdn. Bhd. v.

Non-Metallic Mineral Products Manufacturing Employees Union, [1980] 3 W.L.R. 318, and Re Racal CommunicationsLtd., [1980] 2 All E.R. 634), this Court has tended since Nipawin, supra, [Service Employees’International Union, Local No. 333 v.Nipawin District Staff Nurses Association et al., (SCC), [1975] 1 S.C.R. 382] and C.U.P.E., supra, to avoid interveningwhen the decision of the administrative tribunal was reasonable, whether erroneous or not. In other words, only unreasonable errors oflaw can affect jurisdiction.

The following extract from C.U.P.E., supra, at p. 237, frequently referred to in later cases, has become theclassic statement of the approach taken by this Court: Put another way, was the Board’s

interpretation so patently unreasonable that its construction cannot be rationally supported by therelevant legislation and demands intervention by the court upon review? This is a very severe test and signals a strict approach to the question of judicial review.

It is nevertheless the test which this Court hasapplied and continues to apply …. [Emphasis in original.] [78] Thus, if Parliament (or a provincial legislature) has adopted a privative clause providing that the decisions of an administrativetribunal—or of any other administrative decision maker—are not subject to judicial review for error of law, the courts should strive torespect that legislative intent and should only interfere where a given decision is unreasonable. [79] In subsequent cases, the Supreme Court of Canada applied this approach, even in the absence of a privative clause, insofar ascertain factors set out in the enabling legislation made the legislative intent clear. [80] In Pezim v.

British Columbia (Superintendent of Brokers), (SCC), [1994] 2 S.C.R. 557 (Pezim) and in Canada(Director of Investigation and Research) v. Southam Inc., (SCC), [1997] 1 S.C.R. 748 (Southam)—both of whichinvolved a statutory appeal—the Supreme Court of Canada did not apply a correctness standard to questions of law, but rather deferred tothe original decision-maker’s legal analysis.

In both cases, the application of the reasonableness standard flowed from legislative intent.As noted by Justice Iacobucci in Pezim, at pages 589–590: The central question in ascertaining the standard of review is to determine the legislative intent in conferring jurisdiction on theadministrative tribunal. In answering this question, the courts have looked at various factors. Included in the analysis is an examinationof the tribunal’s role or function. Also crucial is whether or not the agency’s decisions are protected by a privative clause.

Finally, offundamental importance, is whether or not the question goes to the jurisdiction of the tribunal involved. [81] In Pezim and Southam, privative clauses were found to be only one of many factors which may be considered for the purpose ofascertaining a legislative intent to limit the scope of a court’s power to review an administrative tribunal’s decision on questions of law.Factors such as the nature of the problem before the tribunal, the wording of the enabling (or “home”) statute, the purpose of that statute,and the areas of expertise could be considered to ascertain legislative intent, in addition to the presence or absence of a privative clause.Consequently, a so-called “pragmatic and functional” approach—similar to the one developed in U.E.S., Local 298 v.

Bibeault, (SCC), [1988] 2 S.C.R. 1048 for the identification of jurisdictional issues—was required in order to ascertain the scope ofjudicial review of an administrative tribunal’s decision: Pezim, at page 592. [82] Similar considerations were expressed in Pushpanathan v. Canada (Minister of Citizenship and Immigration), (SCC), [1998] 1 S.C.R. 982, at paragraph 26: “The central inquiry in determining the standard of review exercisable by a court of law isthe legislative intent of the statute creating the tribunal whose decision is being reviewed.” This was also reiterated in Dr. Q v.

College ofPhysicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226, at paragraph 21: “the pragmatic and functionalapproach inquires into legislative intent, but does so against the backdrop of the courts’ constitutional duty to protect the rule of law.” Dunsmuir and the subsequent case law [83] The Minister submits in this appeal that in view of the responsibilities conferred on him by the SARA and the Fisheries Act, hisinterpretation of those statutes is not susceptible to judicial review on a standard of correctness.

The Minister’s position implies that thestandard of review analysis ends as soon as Parliament confers on a minister the responsibility to administer a federal statute. This, theMinister submits, is the conclusion which must be drawn from the recent jurisprudence of the Supreme Court of Canada. I d

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