2010 FC 1233, 2010 FC 1233

[2012] 3 F.C.R. 136 2010 FC 1233 T-1552-08 Georgia Strait Alliance, Sierra Club of Canada, David Suzuki Foundation, Dogwood Initiative, Environmental Defence Canada, Greenpeace Canada, International Fund for Animal Welfare, Raincoast Conservation Society, and Western Canada Wilderness Committee ( Applicants ) v. Minister of Fisheries and Oceans ( Respondent ) T-541-09 David Suzuki Foundation, Dogwood Initiative, Environmental Defence Canada, Greenpeace Canada, International Fund for Animal Welfare, Raincoast Conservation Society, Sierra Club of Canada, and Western Canada Wilderness Committee ( Applicants ) v .

Minister of Fisheries and Oceans, Minister of the Environment ( Respondents ) Indexed as: David Suzuki Foundation v. Canada (Fisheries and Oceans) Federal Court, Russell J.—Vancouver, June 14; Ottawa, December 7, 2010. * Editor’s Note: This decision has been reversed in part on appeal (A-2-11, 2012 FCA 40 ). The reasons for judgment, handed down February 9, 2012, will be published in the Federal Courts Reports .

Environment — Judicial reviews of decisions concerning respondents’ obligations under Species at Risk Act (SARA), s. 58 to provide legal protection for critical habitat of two populations of killer whales — First application challenging Minister of Fisheries and Oceans’ Northern and Southern Resident Killer Whales (Orcinus orca) in Canada: Critical Habitat Protection Statement (Protection Statement) issued pursuant to SARA, s. 58(5) (b) — Second application challenging protection order made jointly by Minister of Fisheries and Oceans, Minister of the Environment (ministers or respondents) limiting scope of Critical Habitats of the Northeast Pacific Northern and Southern Resident Populations of the Killer Whale (Orcinus orca) Order (Protection Order) made pursuant to SARA, s. 58(5)(a) — Northern and southern resident killer whales considered at risk — Minister of Fisheries and Oceans erring in law in issuing protection statement relying on policy, other non-statutory instruments, prospective laws, ministerial discretion to provide legal protection for critical habit — Protection against destruction of critical habitat provided by SARA, s. 58(1) applying only where competent minister issuing protection order under s. 58(4) — Competent minister having no discretion to rely on provision of other federal law unless law providing equal level of legal protection to critical habitat as would be engaged through SARA, ss. 58(1), (4) — Provisions cited in Protection Statement not legally protecting critical habitat from destruction since discretionary protection neither mandatory nor enforceable — Protection Statement in present case unlawful because legally protecting only certain components of critical habitat, failing to prevent most significant threats thereto — As for Protection Order, ministers acting unlawfully in limiting its application to geophysical areas rather than protecting all components of critical habit — Therefore, Protection Order also incorrect, unlawful because ministers failing to respond to duty assigned thereto by SARA — Applications allowed.

Construction of Statutes — Respondents having obligation under Species at Risk Act (SARA), s. 58 to provide legal protection for critical habitat of two populations of killer whales — Meaning of protection statement as described in SARA, s. 58(5) (

b) examined, interpreted — In s. 58(5)(a), use of word “legally” to modify “protected” together with reference to “provision in or measures under” an “Act of Parliament” confirming that provision(

s) cited in protection statement should be law or regulation — Protection statement also intended to cite provisions of or under federal law, not provisions of provincial or municipal laws — Must set out how critical habitat or portions thereof “are” legally protected, not how critical habitat could be or will be legally protected.

Practice — Mootness — Applicant challenging Minister of Fisheries and Oceans’ Northern and Southern Resident Killer Whales (Orcinus orca) in Canada: Critical Habitat Protection Statement (Protection Statement) issued pursuant to Species at Risk Act (SARA), s. 58(5) (b) — Protection Statement subsequently replaced with Protection Order — While Protection Statement application herein moot, applicants establishing that Federal Court should nevertheless hear, decide fundamental issues of disagreement between parties concerning what can lawfully be relied upon in protection statement, whether Protection Statement herein illegal for failing to provide protections SARA stating ministers owing to resident killer whales.

These were two consolidated applications for judicial review of decisions concerning the respondents’ obligations under

section 58 of the Species at Risk Act (SARA) to provide legal protection for the critical habitat of two populations of killer whales. The first application (Protection Statement application) challenged the Minister of Fisheries and Oceans’ Northern and Southern Resident Killer Whales ( Orcinus orca ) in Canada: Critical Habitat Protection Statement (Protection Statement) that was issued pursuant to paragraph 58(5) (

b) of SARA in September 2008. It specifically challenged the Minister’s decision to issue the Protection Statement. The second application ( Protection Order application) challenged a protection order made by the Minister of Fisheries and Oceans and the Minister of the Environment (ministers or respondents) in February 2009 to limit the scope of the Critical Habitats of the Northeast Pacific Northern and Southern Resident Populations of the Killer Whale (Orcinus orca) Order (Protection Order) made pursuant to paragraph 58(5)(

a) of SARA. It specifically challenged the ministers’ decision to limit the scope of the Protection Order such that it applies only to geospatial areas or geophysical attributes of critical habitat and not the biological elements thereof.

Two distinct populations of killer whales are considered at risk: the northern residents and the southern residents (jointly resident killer whales). The southern resident killer whale is an “endangered species” as defined in subsection 2(1) of SARA whereas the northern resident killer whale is a “threatened species” as defined in subsection 2(1) of SARA.

The Department of Fisheries and Oceans (DFO) issued the Protection Statement (which offers indirect protection under other federal laws), which allegedly distinguished between DFO’s duty to provide legal protection for the geophysical attributes of critical habitat and its discretion to “manage and mitigate” threats to biological and other ecosystem features. DFO later reversed its position and replaced the Protection Statement with a protection order (which offers direct protection under SARA).

The respondents filed a motion to have the Protection Statement application dismissed on the ground of mootness but it was denied.

The main issues were whether the Federal Court should hear the moot Protection Statement application; whether the Minister of Fisheries and Oceans erred in issuing a protection statement that relies on policy and other non-statutory instruments, prospective laws and ministerial discretion to provide legal protection for the resident killer whales’ critical habit; and whether the ministers erred in limiting the application of the Protection Order to the geophysical area to the exclusion of the other components of critical habitat. Held , the applications should be allowed.

While the Protection Statement application was moot, the applicants established that the Federal Court should nevertheless hear and decide the fundamental issues of disagreement between the parties concerning what can lawfully be relied upon in a protection statement and whether the Protection Statement in this case was illegal for failing to provide the protections that SARA states the ministers owe to the resident killer whales.

The Minister of Fisheries and Oceans erred in law in issuing a protection statement that relied on policy and other non-statutory instruments, prospective laws and ministerial discretion to provide legal protection for the critical habit of the resident killer whales. The protection against the destruction of critical habitat, provided by subsection 58(1) of SARA , applies only where a competent minister issues a protection order under subsection 58(4) .

Moreover, a competent minister has no discretion to rely on a provision of another federal law unless the law provides an equal level of legal protection to critical habitat as would be engaged through subsections 58(1) and (4). If a provision cited in a protection statement does not legally protect critical habitat to a degree equalling the protection under subsection 58(1) and other SARA provisions, then the minister must issue a protection order.

Under subsection 58(5) of SARA, the minister is obliged to ensure, either through a protection order or a protection statement, that critical habitat is “legally protected”. In paragraph 58(5)( b ), the use of the word “legally” to modify “protected” taken in conjunction with the reference to “a provision in or measures under” an “Act of Parliament” in paragraph 58(5)(

a) confirm that a provision cited in a protection statement should be a law or regulation as opposed to a policy or guideline. It is also clear that a protection statement is supposed to cite provisions of or under a federal law, as opposed to provisions of provincial or municipal laws. A protection statement must also set out how the critical habitat or portions thereof “are” legally protected, not how critical habitat could be or will be legally protected. Within the SARA scheme, a protection statement acts as a substitute for a protection order.

The provisions cited in a protection statement are intended to provide the same protection for critical habitat as that provided by a protection order. The Protection Statement in this application cited non-statutory instruments, which are policies, not laws that legally protect critical habitat from destruction. Furthermore, a protection statement cannot cite and rely upon prospective laws or those that require some subsequent step to engage or trigger legal protection. The Protection Statement in the present case unlawfully relied on speculative or future regulatory action to protect critical habitat.

Provisions cited in the Protection Statement granted a broad, unstructured discretion to permit harmful activities, including those that would destroy critical habitat. Such discretion does not legally protect critical habitat from destruction because discretionary protection is neither mandatory nor enforceable. While the Fisheries Act and regulations were cited in the Protection Statement purportedly to protect the resident killer whales’ critical habitat from numerous threats, the regulatory scheme under the Fisheries Act affords far more discretion than SARA .

Absent a specific regulation protecting critical habitat, the Fisheries Act scheme cannot lawfully substitute for an order under subsection 58(4) of SARA. As well, provincial laws do not legally protect critical habitat within the meaning of

section 58 of SARA and it was unlawful for the Minister to have cited provincial laws in the Protection Statement. The Protection Statement was moreover unlawful because it was intended to provide legal protection for only certain components of critical habitat and failed to prevent the most significant threats to critical habitat such as reduction in prey availability and toxic contamination. The applicants’ statement of the law and their conclusions regarding the Protection Order and its application to all components of critical habitat were correct.

Notwithstanding DFO’s subsequent changes of position since the Protection Order originally issued, the ministers acted unlawfully in limiting the Protection Order made under subsection 58(4) of SARA . The Protection Order was and is incorrect and unlawful because, in limiting its application to geophysical areas, the respondents failed to respond to a duty assigned to them by statute, in this case, SARA. The applicants’

interpretation of the ministers’ duty under SARA to protect all components of critical habitat for the resident killer whales was fully supported by the plain language of

section 58 read in the full context of SARA, the bilingual version of the

section and the Federal Court’s decision in Environmental Defence Canada v. Canada (Fisheries and Oceans) . STATUTES AND REGULATIONS CITED Auditor General Act , R.S.C., 1985, c. A-17. Bill C-5,

An Act respecting the protection of wildlife species at risk in Canada , 1st Sess., 37th Parl., 2001 (1st reading, February 2, 2001). British Columbia Sport Fishing Regulations, 1996 , SOR/96-137. Canadian Charter of Rights and Freedoms , being

Part I of the Constitution Act, 1982 ,

Schedule B, Canada Act 1982 , 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]. Canadian Environmental Assessment Act , S.C. 1992, c. 37.

Canadian Environmental Protection Act, 1999, S.C. 1999, c. 33. Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.),

Schedule to the Constitution Act,1982, Item 1) [R.S.C., 1985, Appendix II, No. 5]. Critical Habitats of the Northeast Pacific Northern and Southern Resident Populations of the Killer Whale (Orcinus orca) Order,SOR/2009-68. Ecological Reserve Act, R.S.B.C. 1996, c. 103. Endangered Species Act of 1973, 16 U.S.C. §§ 1531–1544 (2006). Federal Courts Act, R.S.C., 1985, c. F-7, ss. 1 (as am. by S.C. 2002, c. 8, s. 14), 18(1)(a) (as am. by S.C. 1990, c. 8, s. 4; 2002, c. 8, s.26), (3) (as am. by S.C. 1990, c. 8, s. 4), 18.1(3) (as enacted by S.C. 1990, c. 8, s. 5; 2002, c. 8, s. 27).

Federal Courts Rules, SOR/98-106, rr. 1 (as am. by SOR/2004-283, s. 2), 317 (as am. by SOR/2002-417, s. 19; 2006-219, s. 11(F)). Fisheries Act, R.S.C., 1985, c. F-14, ss. 7, 35, 36, 43 (as am. by S.C. 1991, c. 1, s. 12). Fishery (General) Regulations, SOR/93-53, s. 22 (as am. by SOR/93-333, s. 4). Oceans Act, S.C. 1996, c. 31, ss. 31, 32, 35, 36. Pacific Fishery Regulations, 1993, SOR/93-54.

Species at Risk Act, S.C. 2002, c. 29, ss. 2(1) “COSEWIC”, “critical habitat”, “endangered species”, “threatened species”, 11, 41 (as am.by S.C. 2005, c. 2, s. 21), 42, 56, 57, 58, 63, 73 (as am. by S.C. 2005, c. 2, s. 23), 74, 120. 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; AttorneyGeneral of Canada v. Inuit Tapirisat of Canada et al., (SCC), [1980] 2 S.C.R. 735, (1980), 115 D.L.R. (3d) 1, 33 N.R.304; Commission des droits de la personne v. Attorney General of Canada et al., (SCC), [1982] 1 S.C.R. 215, (1982),134 D.L.R. (3d) 17, 41 N.R. 318; Solosky v. The Queen, (SCC), [1980] 1 S.C.R. 821, (1979), 105 D.L.R. (3d) 745, 50C.C.C. (2d) 495; Doucet-Boudreau v.

Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, 218 N.S.R. (2d) 311, 232D.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; AhousahtIndian Band and Nation v. Canada (Attorney General), 2009 BCSC 1494, [2010] 1 C.N.L.R. 1; Greater Yellowstone Coalition, Inc. v.Servheen, 672 F.Supp.2d 1105 (D. Mont. 2009); Carpenter Fishing Corp. v. Canada, (FCA), [1998] 2 F.C. 548,(1997), 155 D.L.R. (4th) 572 (C.A.); R. v.

Daoust, 2004 SCC 6, [2004] 1 S.C.R. 217, 235 D.L.R. (4th) 216, 180 C.C.C. (3d) 449; MerckFrosst Canada Inc. v. Canada (Minister of National Health and Welfare) (1997), (FC), 72 C.P.R. (3d) 468, 128F.T.R. 222 (F.C.T.D.); Sinclair v. Quebec (Attorney General), (SCC), [1992] 1 S.C.R. 579, (1992), 89 D.L.R. (4th)500, 10 M.P.L.R. (2d) 92; Dixon v. Canada (Governor in Council), (FCA), [1997] 3 F.C. 169, (1997), 149 D.L.R.(4th) 269, 3 Admin.

L.R. (3d) 306 (C.A.); Reference re Manitoba Language Rights, (SCC), [1985] 1 S.C.R. 721, (1985),19 D.L.R. (4th) 1, [1985] 4 W.W.R. 385; Reference re Canada Assistance Plan (B.C.), (SCC), [1991] 2 S.C.R. 525,(1991), 83 D.L.R. (4th) 297, [1991] 6 W.W.R. 1; Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources), (SCC), [1989] 2 S.C.R. 49, (1989), 61 D.L.R. (4th) 604, 97 N.R. 241; Ecology Action Centre Society v. Canada (AttorneyGeneral), 2004 FC 1087, 262 F.T.R. 160. referred to: Alberta Wilderness Association v. Canada (Environment), 2009 FC 710, 94 Admin.

L.R. (4th) 81, 45 C.E.L.R. (3d) 48, 349 F.T.R. 63;Arsenault v. Canada (Attorney General), 2009 FCA 300, 1 Admin. L.R. (5th) 91, 395 N.R. 223; Friends of the Oldman River Society v.Canada (Minister of Transport), (SCC), [1992] 1 S.C.R. 3, (1992), 88 D.L.R. (4th) 1, [1992] 2 W.W.R. 193; Glowinskiv. Canada (Treasury Board), 2006 FC 78, 286 F.T.R. 217; Maystar General Contractors Inc. v. International Union of Painters andAllied Trades, Local 1819, 2008 ONCA 265, 90 O.R. (3d) 451, 292 D.L.R. (4th) 554, 69 Admin. L.R. (4th) 271; Amax Potash Ltd. et al.v.

Government of Saskatchewan, (SCC), [1977] 2 S.C.R. 576, (1976), 71 D.L.R. (3d) 1, [1976] 6 W.W.R. 61; ITO—International Terminal Operators Ltd. v. Miida Electronics Inc. et al., (SCC), [1986] 1 S.C.R. 752, (1986), 28 D.L.R.(4th) 641, 34 B.L.R. 251; Gaudes v. Canada (Attorney General), 2005 FC 351; Saskatchewan Wheat Pool v. Canada (Attorney General)(1993), (FC), 107 D.L.R. (4th) 190, 17 Admin. L.R. (2d) 243, 67 F.T.R. 98 (F.C.T.D.); Bell ExpressVu LimitedPartnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, 212 D.L.R. (4th) 1, [2002] 5 W.W.R. 1; R. v. Richards, [1991] B.C.J. No. 4101(Prov. Ct.) (QL).

AUTHORS CITED Boyd, David R. Unnatural Law: Rethinking Canadian Environmental Law and Policy . Vancouver: UBC Press, 2003. Collins Robert French Dictionary , 7th ed. New York: HarperCollins, 2005, “ élément ”. Merriam-Webster’s Collegiate Dictionary , 10th ed. Springfield, Mass.: Merriam-Webster, 1998, “component”. Northern and Southern Resident Killer Whales ( Orcinus orca ) in Canada: Critical Habitat Protection Statement, online: Species at Risk Public 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, 2002, “ élément ”. 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>. Recovery Strategy for the Northern and Southern Resident Killer Whales (Orcinus orca) in Canada (Proposed) , June 2007, online: <http://www.sararegistry.gc.ca/virtual_sara/files/plans/rs_Resident_Killer_Whale%20_0607_e.pdf>. Regulatory Impact Analysis Statement, SOR/2009-68, C.

Gaz. 2009.II.338. Robert & Collins dictionnaire français-anglais, anglais-français senior , 4th ed. Paris: Dictionnaires Le Robert, 1995, “ élément ”. Species at Risk Act Policies: Policies and Guidelines Series: Draft , online: <http://publications.gc.ca/collections/collection_2009/ec/En4- 113-2009-eng.pdf>. Walton, Janice H. Blakes’ Canadian Law of Endangered Species . Toronto: Carswell, 2007. APPLICATIONS for judicial review concerning the respondents’ obligations under

section 58 of the Species at Risk Act to provide legal protection for the critical habitat of two populations of killer whales. Applications allowed. APPEARANCES Margot Venton and Keith Ferguson for applicants. Donnaree Nygard and Lisa S. Riddle for respondents. SOLICITORS OF RECORD Ecojustice Canada , Vancouver, for applicants. Deputy Attorney General of Canada for respondents.

Table of Contents Paragraph Background 3 Procedural History and Parties 3 Southern and Nothern Resident Killer Whales 9 Listing and Recovery Planning for the Resident Killer Whales 13 Recovery Strategy Identifies Critical Habitat 27 180 Days Later, DFO Must Protect Critical Habitat 31 Applications for Judicial Review 37 Consolidation 46 Issues 49 Standard of Review 51 Applicants’ Arguments on Standard of Review 52 Respondents’ Arguments on Standard of Review 57 Appropriate Standard of Review 58 Arguments 61 The Applicants 61 The Court Should Exercise its Discretion to Hear First Moot Application 61 Hearing a Moot Application 64 Minister’s Duty 69 Recovery Strategy 70 Protection Statement 72 Protection Statement is Unlawful 72 Fisheries Act 82

Canadian Environmental Assessment Act 86 Provincial Laws Are Not Laws of Parliament 87 Protection Statement Fails to Protect All Components 88 Protection Order 91

Interpretation of

Section 58 93 Bilingual

Interpretation 93 The Case of Environmental Defence 102 Unlawful Limitation of the Scope of the Protection Order 105 The Respondents 113 Court Should Not Exercise its Jurisdiction 114 Protection Statement 120 Protection Order Application is Misguided 129 Future Intentions 138 Lack of Jurisdiction 142 Improper Submissions 145 Applicants’ Reply 146 Analysis 154– General Introduction 154 Protection Order Application 163 Respondents’ Grounds 166 Application is Misguided 167 Order Cannot be Challenged 171 Order Cannot be More than it is 185 Attempt to Review Speculated Future Intentions 189 Applicants Cannot Obtain the Declaration Sought 203 Protection Statement Application 236 Should the Court Hear it? 236 Adversarial Context 241 Judicial Economy 246 Merits of Protection Statement Application 253 Protection Statement 254 Disagreement Between the Parties 258 Legal Requirements of a Protection Statement 291 Plain Language

Interpretation of Paragraph 58(5)( b ) 293 Role of a Protection Statement Within the SARA Scheme 296 Intention of Parliament—Habitat Protection Must be Mandatory and Meaningful 299 Protection Statement Unlawfully Includes Non-Statutory Instruments 300 Protection Statement Unlawfully Cites Possible Future Provisions 305 Protection Statement Unlawfully Relies on Ministerial Discretion 312 The Fisheries Act and Regulations 315 Canadian Environmental Assessment Act 334 Provincial Laws Are Not Laws of Parliament 335 Protection Statement Fails to Set Out How All Components of Critical Habitat Are Legally Protected 337 Conclusions 340 The following are the reasons for judgment and judgment rendered in English by [ 1 ] Russell J.: At issue are two consolidated applications for judicial review to challenge related decisions.

The first application (Protection Statement application) challenges the Minister of Fisheries and Oceans’ Northern and Southern Resident Killer Whales ( Orcinus orca ) in Canada: Critical Habitat Protection Statement (Protection Statement), which was issued pursuant to paragraph 58(5) (

b) of the Species at Risk Act , S.C. 2002, c. 29 (SARA or the Act) on September 10, 2008. [ 2 ] The second application ( Protection Order application) challenges a protection order made in February 2009 by the Minister of Fisheries and Oceans and the Minister of the Environment (ministers) to limit the scope of the Critical Habitats of the Northeast Pacific Northern and Southern Resident Populations of the Killer Whale (Orcinus orca) Order [SOR/2009-68] (Protection Order), made pursuant to paragraph 58(5) (

a) of SARA . BACKGROUND Procedural History and Parties [ 3 ] These two consolidated applications for judicial review are concerned with the respondents’ obligations under

section 58 of SARA to provide legal protection for the critical habitat of two populations of killer whales.

[ 4 ] The first application challenges the September 10, 2008 decision of the Minister of Fisheries and Oceans to issue the Protection Statement pursuant to paragraph 58(5) (

b) of SARA . [ 5 ] The second application challenges the February 2009 decision made jointly by the Minister of Fisheries and Oceans and the Minister of the Environment to issue the Protection Order under subsections 58(4) and (5) of SARA . Specifically, it challenges the respondents’ decision to limit the scope of the Protection Order such that it applies only to geospatial areas or geophysical attributes of critical habitat. [ 6 ] The nine applicants are non-profit environmental organizations from across Canada. They each have a genuine interest in the survival and recovery of the resident killer whales and in the

interpretation and application of SARA .

The respondents do not contest the applicants’ public interest standing before this Court. [ 7 ] The respondent Minister of Fisheries and Oceans is charged with the duty to protect the critical habitat of any aquatic species, including the resident killer whales. [ 8 ] The respondent Minister of the Environment, as the Minister responsible for the Parks Canada Agency, is charged with the duty to protect critical habitat on federal lands administered by Parks Canada, tiny portions of which overlap with the resident killer whales’ critical habitat at issue in this proceeding.

Southern and Northern Resident Killer Whales [ 9 ] Two distinct populations of killer whales, known as the northern residents and the southern residents (and herein jointly referred to as the resident killer whales) occupy the waters off the west coast of British Columbia. [ 10 ] The southern resident killer whale is an endangered species. Subsection 2(1) of SARA defines an “endangered species” as “a wildlife species that is facing imminent extirpation or extinction.” [ 11 ] The northern resident killer whale is a threatened species.

Subsection 2(1) of SARA defines a “threatened species” as “a wildlife species that is likely to become an endangered species if nothing is done to reverse the factors leading to its extirpation or extinction.” [ 12 ] The resident killer whale populations are considered at risk because of their small population size and low reproductive rate as well as their exposure to a variety of human-caused threats to both the whales and their habitat. These threats have the potential to prevent their recovery or to cause further declines in population.

Principal among these anthropogenic threats are reductions in the availability of salmon prey (i.e. food), environmental contamination and physical and acoustic disturbance. Listing and Recovery Planning for the Resident Killer Whales [ 13 ] SARA prescribes a process whereby species at risk are listed and given legal protections, with the objective of ensuring recovery of the species back to healthy population levels. To achieve this objective, a recovery strategy is developed and implemented for each species listed as endangered or threatened.

Central to the recovery process is the identification and protection of the species’ critical habitat. [ 14 ] Pursuant to the mandatory timelines under subsection 42(2) of SARA , the Department of Fisheries and Oceans (DFO) was required to include a proposed recovery strategy for the resident killer whales on the public registry by June 5, 2006. The SARA public registry is established under

section 120 for the purpose of facilitating access to documents relating to matters under the Act. [ 15 ] In 2004, DFO convened the Resident Killer Whale Recovery Team (Recovery Team). The Recovery Team, made up of leading independent and governmental experts, was tasked with creating a recovery strategy for the resident killer whales in accordance with SARA . [ 16 ] Over the next year, the Recovery Team met periodically to develop the recovery strategy.

The Recovery Team was instructed to identify the critical habitat of the resident killer whales as well as examples of activities likely to destroy critical habitat. [ 17 ] At meetings and in electronic communications, the Recovery Team discussed the biological or ecosystem features of critical habitat. The discussion of biological features of critical habitat focused on the association between salmon abundance and the use of an area by resident killer whales, as well as the acoustic and environmental quality of critical habitat. [ 18 ] The first draft of the recovery strategy was completed on March 15, 2005.

It identified critical habitat as well as threats to both the “abiotic” (i.e. geophysical) and “biotic” (i.e. biological) features of critical habitat. [ 19 ] Following extensive review and comment, a final draft recovery strategy was completed for submission to the Minister of Fisheries and Oceans on May 15, 2006 (May 2006 draft recovery strategy). The May 2006 draft recovery strategy identified critical habitat as a set of physical and biological features occurring at a specific geospatial location.

It also identified threats to those features. [ 20 ] The May 2006 draft recovery strategy was never delivered to the Minister. Instead, in August 2006, the Recovery Team was informed that the May 2006 draft recovery strategy had been edited and that information identifying critical habitat had been removed pursuant to DFO policy. [ 21 ] A lengthy dispute followed between members of the Recovery Team and DFO bureaucrats. In March 2007, the critical habitat

section of the May 2006 draft recovery strategy was reinstated. [ 22 ] In May 2007, the now-restored document was again sent out for review by government agencies. During the course of that review another attempt was made, this time by the Department of National Defence, to edit the critical habitat section. The proposed revisions related to the acoustic features of critical habitat and to threats to critical habitat caused by underwater noise. Members of the

Recovery Team successfully objected to many of the proposed editorial changes. [ 23 ] On June 21, 2007, pursuant to subsection 42(1) of SARA , DFO posted the Recovery Strategy for the Nothern and Southern Resident Killer Whales (Orcinus orca) in Canada (Proposed) to the public registry (Proposed Recovery Strategy). It was similar but not identical to the May 2006 draft recovery strategy. [ 24 ] Posting of the Proposed Recovery Strategy was followed by a public comment period that ended in August 2007.

According to the mandatory timelines under SARA , the final recovery strategy for the northern and southern killer whales should have been finalized 30 days later, by September 19, 2007. Instead, it was delayed as DFO bureaucrats once again attempted to make edits. [ 25 ] During the fall of 2007, DFO officials heavily edited the critical habitat

section of the Proposed Recovery Strategy. DFO removed all reference to two threats to critical habitat: acoustic degradation and reduction in the availability of salmon prey. Additionally, future scientific studies regarding these threats were removed from the proposed “schedule of studies to identify critical habitat” required under paragraph 41(1)( c .1). [ 26 ] Members of the Recovery Team strongly objected to these editorial changes and sought to resolve their concerns with DFO.

At some point before March 14, 2008, DFO reinstated most of the excised portions identifying noise and reduced availability of salmon prey as threats to critical habitat. On March 14, 2008, DFO posted the Recovery Strategy to the public registry [ Recovery Strategy for the Northern and Southern Resident Killer Whales (Orcinus orca) in Canada ]. Recovery Strategy Identifies Critical Habitat [ 27 ] As required by paragraph 41(1) (

c) of SARA ,

section 3 of the Recovery Strategy identified critical habitat for the resident killer whales, the components of the critical habitat and threats to critical habitat. [ 28 ] The geospatial location of critical habitat of the resident killer whales is identified on maps in Figures 4 and 5, and in the marine coordinates in Appendix B of the Recovery Strategy. [ 29 ] The components of critical habitat clearly include the presence and availability of salmon prey for the resident killer whales. [ 30 ] Threats to critical habitat (in

section 3.2) include diminished prey availability, chemical and biological contamination and acoustic degradation. 180 Days Later, DFO Must Protect Critical Habitat [ 31 ]

Section 58 of SARA required that, by September 10, 2008, the critical habitat identified in the Recovery Strategy be legally protected from destruction under subsection 58(5) . Legal protection of critical habitat can take one of two forms: direct protection under SARA or indirect protection under other Acts of Parliament. [ 32 ] Direct protection under SARA is engaged through the issuance of a protection order under subsection 58(4) .

A protection order applies the prohibition against destruction of critical habitat in subsection 58(1) to the critical habitat areas and components set out in the Protection Order . If critical habitat is not already protected, then a competent minister must issue a protection order. [ 33 ] Indirect protection under other federal laws is confirmed through a protection statement under paragraph 58(5) (

b) of SARA . A protection statement describes how critical habitat is already protected from destruction by provisions in or measures under other Acts of Parliament. A protection statement cites the other federal legislative provisions that already legally protect critical habitat from destruction. [ 34 ] On September 10, 2008, DFO bureaucrats delivered to the Deputy Minister of Fisheries and Oceans a memorandum explaining their recommendation for protection of critical habitat of the resident killer whales (protection statement memo). This memorandum recommended issuing a protection statement.

It attached a table containing a proposed list of tools available to protect critical habitat, as well as a draft protection statement for approval by the Minister’s delegate. [ 35 ] The applicants posit that the protection statement memo and accompanying attachments described the

section 58 legal duty to protect critical habitat as being limited to the protection of the “geophysical attributes” of the critical habitat. The applicants say that the protection statement memo and attachments consistently make a policy distinction, which is challenged here by the applicants.

The distinction made is between DFO’s duty to legally protect geophysical attributes of critical habitat, on one hand, and DFO’s discretion to “manage and mitigate” the biological, chemical and acoustic components of critical habitat on the other. [ 36 ] On September 10, 2008, the final Protection Statement was posted to the SARA public registry. The applicants say that the Protection Statement maintains the distinction between the duty to provide legal protection for the geophysical attributes of critical habitat and the discretion to “manage and mitigate” threats to biological and other ecosystem features.

Applications for Judicial Review [ 37 ] On October 8, 2008, a judicial review application was commenced challenging the lawfulness of the Protection Statement. In application T-1552-08, the applicants alleged that DFO erred in law and jurisdiction in issuing a protection statement that relies on non- binding policy, prospective legislation and ministerial discretion—none of which legally protect critical habitat within the meaning of

section 58 of SARA . The notice of application was amended on January 23, 2009. [ 38 ] By February 9, 2009, DFO had reversed itself, recommending that its Minister replace the Protection Statement with a protection order under SARA . [ 39 ] On February 13, 2009, DFO sought the co-operation of the Minister of the Environment, as the Minister responsible for Parks

Canada, to issue a joint order under subsections 58(4) and (5) of SARA . Alan Latourelle, CEO of Parks Canada made recommendations to the Minister regarding the proposed protection order in a February 13, 2009 memorandum (Latourelle memo). Paraphrased, this memorandum explains that: 1. DFO is currently facing a legal challenge in Federal Court regarding the Protection Statement. DFO is encouraging Parks Canada to issue a joint order quickly before DFO has to proceed any further with the existing lawsuit; 2.

A new protection statement from Parks Canada would be open to challenge on the same grounds as the Protection Statement issued by DFO; 3. DFO’s proposed protection order does not define which activities are prohibited as destructive of critical habitat. Enforcement of DFO’s proposed order might thus prove difficult. [ 40 ] Issuing a protection order under subsection 58(4) of SARA usually involves pre-publication in the Canada Gazette ,

Part I, to allow 30 days for public comment. However, on the recommendation of DFO officials, the ministers agreed to forego public consultation on the Protection Order . Thus, the applicants say they were denied any opportunity to comment on the Protection Order before it was finalized. [ 41 ] On March 4, 2009, the Protection Order was published in the Canada Gazette ,

Part II [SOR/2009-68]. The Protection Order states that the prohibition against destruction of critical habitat in subsection 58(1) of SARA applies to the critical habitat of the resident killer whales described in

Schedule I.

Schedule I is a list of marine co-ordinates for the geospatial location of critical habitat. [ 42 ] The Protection Order was published with an accompanying Regulatory Impact Analysis Statement (RIAS) [ C. Gaz. 2009.II.338]. The applicants take the position that the RIAS, quoted below, continues to reflect DFO’s distinction between its duties towards geophysical areas and its discretion to manage and mitigate the biological features of critical habitat [at page 340]: The Recovery Strategy identifies at

section 3 the critical habitats as defined geophysical areas where these populations concentrate. In addition 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 the Northern and Southern Resident Killer Whales. [ 43 ] On March 6, 2009, the applicants wrote to DFO advising that they had serious concerns that the Protection Order may not legally protect the biological elements of critical habitat.

The applicants also sought clarification on other matters, including whether DFO had abandoned its position that the laws and policies set out in the Protection Statement “legally protected” the critical habitat of resident killer whales. [ 44 ] On March 10, 2009, the Government of Canada responded, through counsel. As paraphrased by the applicants, the response stated that: 1. DFO characterizes the Protection Order as an “optional alternative” to the Protection Statement, rather than a required alternative given the unlawfulness of the Protection Statement; 2.

DFO refuses to disavow reliance on policy and discretionary tools that do not legally protect critical habitat in protection statements; and 3. DFO refuses to confirm that the Protection Order protects the biological features of critical habitat from destruction. [ 45 ] On April 3, 2009, the applicants filed the second judicial review application against DFO and the Minister of the Environment. The Protection Order application challenges DFO’s practice of limiting the application and scope of

section 58 of SARA to protect only geospatial areas and/or geophysical elements of critical habitat, and it challenges the application of this practice or policy to the Protection Order. Consolidation [ 46 ] On March 18, 2009, the respondents filed a motion to have the Protection Statement application in file No.

T-1552-08 dismissed on the ground of mootness. [ 47 ] On April 9, 2009, the applicants filed a motion seeking to have the two applications for judicial review consolidated. [ 48 ] By the order of Justice O’Reilly, the respondents’ motion to dismiss the Protection Statement application on the ground of mootness was denied. The applicants’ motion to consolidate the two applications into one proceeding was granted. While Justice O’Reilly held that the Protection Statement application in file No.

T-1552-08 was technically moot, he refused to strike the application so as to preserve this Court’s discretion to issue the relief sought in the Protection Statement application for judicial review. ISSUES [ 49 ] The issues on the application can be summarized as follows: 1. Whether the Court ought to exercise its discretion to hear the moot Protection Statement application; 2.

Whether the Minister of Fisheries and Oceans erred in issuing a Protection Statement that relies on policy and other non-statutory instruments, prospective laws and ministerial discretion to provide legal protection for critical habitat; 3. Whether there is a justiciable issue for review in the Protection Order application; 4. Whether the ministers erred in limiting the application of the Protection Order to the geophysical area to the exclusion of the other

components of critical habitat. [ 50 ] The following provisions of the Act are applicable in these proceedings [ subsection 41(4) (as am. by S.C. 2005, c. 2, s. 21 )]:

Definitions 2.

(1) The

definitions in this subsection apply in this Act . … “COSEWIC” « COSEPAC » “COSEWIC” means the Committee on the Status of Endangered Wildlife in Canada established by

section 14. … Contents if recovery feasible 41.

(1) If the competent minister determines that the recovery of the listed wildlife species is feasible, the recovery strategy must address the threats to the survival of the species identified by COSEWIC, including any loss of habitat, and must include (

a) a description of the species and its needs that is consistent with information provided by COSEWIC; (

b) an identification of the threats to the survival of the species and threats to its habitat that is consistent with information provided by COSEWIC and a description of the broad strategy to be taken to address those threats; (

c) an identification of the species’ critical habitat, to the extent possible, based on the best available information, including the information provided by COSEWIC, and examples of activities that are likely to result in its destruction; ( c . 1) a

schedule of studies to identify critical habitat, where available information is inadequate; (

d) a statement of the population and distribution objectives that will assist the recovery and survival of the species, and a general description of the research and management activities needed to meet those objectives; (

e) any other matters that are prescribed by the regulations; (

f) a statement about whether additional information is required about the species; and (

g) a statement of when one or more action plans in relation to the recovery strategy will be completed. Contents if recovery not feasible

(2) If the competent minister determines that the recovery of the listed wildlife species is not feasible, the recovery strategy must include a description of the species and its needs, an identification of the species’ critical habitat to the extent possible, and the reasons why its recovery is not feasible. Multi- species or ecosystem approach permissible

(3) The competent minister may adopt a multi-species or an ecosystem approach when preparing the recovery strategy if he or she considers it appropriate to do so. Regulations

(4) The Governor in Council may, on the recommendation of the Minister after consultation with the Minister responsible for the Parks Canada Agency and the Minister of Fisheries and Oceans, make regulations for the purpose of paragraph (1) (

e) prescribing matters to be included in a recovery strategy. Proposed recovery strategy 42.

(1) Subject to subsection (2), the competent minister must include a proposed recovery strategy in the public registry within one year after the wildlife species is listed, in the case of a wildlife species listed as an endangered species, and within two years after the species is listed, in the case of a wildlife species listed as a threatened species or an extirpated species. First listed wildlife species

(2) With respect to wildlife species that are set out in

Schedule 1 on the day

section 27 comes into force, the competent minister must include a proposed recovery strategy in the public registry within three years after that day, in the case of a wildlife species listed as an endangered species, and within four years after that day, in the case of a wildlife species listed as a threatened species or an extirpated species. … Destruction of critical habitat 58.

(1) Subject to this section, no person shall destroy any part of the critical habitat of any listed endangered species or of any listed threatened species — or of any listed extirpated species if a recovery strategy has recommended the reintroduction of the species into the wild in Canada — if (

a) the critical habitat is on federal land, in the exclusive economic zone of Canada or on the continental shelf of Canada; (

b) the listed species is an aquatic species; or (

c) the listed species is a species of migratory birds protected by the Migratory Birds Convention Act, 1994 . Protected areas

(2) If the critical habitat or a portion of the critical habitat is in a national park of Canada named and described in

Schedule 1 to the Canada National Parks Act , a marine protected area under the Oceans Act , a migratory bird sanctuary under the Migratory Birds Convention Act, 1994 or a national wildlife area under the Canada Wildlife Act , the competent Minister must, within 90 days after the recovery strategy or action plan that identified the critical habitat is included in the public registry, publish in the Canada Gazette a description of the critical habitat or portion that is in that park, area or sanctuary. Application

(3) If subsection (2) applies, subsection (1) applies to the critical habitat or the portion of the critical habitat described in the Canada Gazette under subsection (2) 90 days after the description is published in the Canada Gazette .

Application

(4) If all of the critical habitat or any portion of the critical habitat is not in a place referred to in subsection (2), subsection (1) applies in respect of the critical habitat or portion of the critical habitat, as the case may be, specified in an order made by the competent minister. Obligation to make order or statement

(5) Within 180 days after the recovery strategy or action plan that identified the critical habitat is included in the public registry, the competent minister must, after consultation with every other competent minister, with respect to all of the critical habitat or any portion of the critical habitat that is not in a place referred to in subsection (2), (

a) make the order referred to in subsection (4) if the critical habitat or any portion of the critical habitat is not legally protected by provisions in, or measures under, this or any other Act of Parliament, including agreements under

section 11; or (

b) if the competent minister does not make the order, he or she must include in the public registry a statement setting out how the critical habitat or portions of it, as the case may be, are legally protected. STANDARD OF REVIEW [ 51 ] The Supreme Court of Canada in Dunsmuir v. New Brunswick , 2008 SCC 9 , [2008] 1 S.C.R. 190 ( Dunsmuir ) held that a standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to the particular question before the court is well settled by past jurisprudence, the reviewing court may adopt that standard of review.

Only where this search proves fruitless must the reviewing court undertake a consideration of the four factors comprising the standard of review analysis. Applicants’ Arguments on Standard of Review [ 52 ] The applicants submit that DFO’s decision to rely on non-statutory instruments such as policies and ministerial discretion to provide legal protection in the Protection Statement is reviewable on a standard of correctness.

Similarly, the applicants contend that the ministers’ decision to limit the Protection Order to protect only geophysical parts of critical habitat requires review on a standard of correctness, since it is an error of

interpretation. See, for instance, Dunsmuir , above, at paragraphs 124 and 128 . [ 53 ] The applicants offer the following analysis to determine the appropriate standard of review based on the factors enumerated in Dunsmuir , above. First, the Act contains no privative clause, which demonstrates that Parliament did not intend to insulate decisions made under the Act from judicial review. [ 54 ] Second, the purpose of the Act is to prevent at-risk species from becoming extinct and to facilitate their survival, and

section 58 of the Act is integral to achieving the Act’s objectives. [ 55 ] Third, the questions at issue involve statutory

interpretation. As such, they are clearly more within the expertise of the Court than that of government bureaucrats. The Act is not a home statute to the respondents. Moreover, DFO did not consult its Recovery Team experts about either the Protection Statement or the Protection Order . As such, the applicants submit that it would be absurd to award deference to either decision on the basis of expertise. [ 56 ] Finally, this question involves issues of law and jurisdiction. Accordingly, a standard of correctness ought to apply.

In recent judicial review applications under the Act , the nature of the question has been a heavily weighed factor in determining the appropriate standard of review. See, for example, Alberta Wilderness Association v. Canada (Environment) , 2009 FC 710 , 94 Admin. L.R. (4th) 81 ( Alberta Wilderness Association ), at paragraphs 40–46 ; and Environmental Defence Canada v. Canada (Fisheries and Oceans) , 2009 FC 878 , 45 C.E.L.R. (3d) 161 ( Environmental Defence ), at paragraphs 31 and 44 . Based on the above factors, the applicants contend that correctness is the appropriate standard of review.

Respondents’ Arguments on Standard of Review [ 57 ] The respondents submit that there is no justiciable issue for the Court to review in this case and, as such, the issue of standard of review does not arise. However, following the oral hearing of this matter in Vancouver on June 14, 2010, the Court directed the respondents to address the merits of the applicants’ Protection Statement application. As part of their subsequent supplemental submissions, the respondents argue that the standard of review should be reasonableness.

Appropriate Standard of Review [ 58 ] I believe that the applicants are correct with regard to the appropriate standards of review for issues 2 and 4. [ 59 ] Considering whether the Minister of Fisheries and Oceans erred in issuing a protection statement that relies on policy and other non-statutory instruments is, essentially, an issue of statutory

interpretation. More simply put, if the Court chooses to exercise its jurisdiction to consider the first moot application, the Court must consider whether such non-statutory instruments fulfil the requirements to provide legal protection for critical habitat, pursuant to subsection 58(5) of the Act . This is an issue of statutory

interpretation that should be reviewed on a standard of correctness. See Dunsmuir , above. [ 60 ] I believe that statutory

interpretation is also the crux of issue 4. Consequently, correctness is also the appropriate standard for review in determining whether the ministers adhered to statutory requirements in issuing the Protection Order made pursuant to subsection 58(5) of the Act . ARGUMENTS The Applicants The Court should exercise its discretion to hear first moot application

[61] The applicants submit that the Court should hear and resolve all of the legal issues before it, since judicial clarification of therespondents’ duty to provide legal protection for critical habitat will have significant effects on the survival of all aquatic species at risk. [62] The first application before the Court raises an issue of statutory

interpretation: whether policies, prospective laws, discretionarylaws and provincial laws can be said to provide legal protection for critical habitat pursuant to

section 58 of the Act. This issue was notresolved by the subsequent Protection Order issued by the respondents. The applicants contend that this issue must be decided, anddeclaratory relief be given to guard against future violations of

section 58 of SARA. [63] DFO’s incorrect belief that

section 58 protects only geospatial areas of critical habitat arises in both applications and continues tolimit the scope of the Protection Order. Similar facts and legal issues are raised in both applications. Accordingly, judicial resources willbe well spent in resolving the two applications simultaneously. Hearing a moot application [64] Borowski v. Canada (Attorney General), (SCC), [1989] 1 S.C.R. 342 (Borowski), at page 353 sets out a two-step test to determine if the Court should exercise its discretion to hear a moot case: 1.

First, has the required tangible dispute disappeared and have the issues become academic (the live controversy test)? 2. Second, if the answer to 1 is yes, should the Court exercise its discretion to hear the case even though it may have become moot? To make its decision, the Court must consider the presence of an adversarial context, the concern for judicial economy, and the need forthe Court to be sensitive to its role.

See Borowski, above, at pages 353, 358–363. [65] In this instance, the applicants say that the adversarial context remains present because the parties still dispute the nature and thescope of the respondents’ duty under

section 58 of the Act. It is important for the Court to exercise its discretion to resolve this issuebecause the issue might otherwise evade review. While the respondents also attempted to strike the applicants’ application inEnvironmental Defence, above, the Court held in paragraph 2 of that case that “a review of the Minister’s decision-making under SARAapplied to the Nooksack Dace provides ample proof that the bringing of the present Application was absolutely necessary.” [66] In the case at hand, any legal uncertainty will have environmental costs.

Failure to address fully this consolidated proceedingwould risk providing less than full protection of critical habitat for vulnerable species. Moreover, this test case will have implications forall aquatic species. Endangered species do not have time to wait for DFO to “get it right”. Furthermore, not every protection statementissued can be challenged in court. As such, other unlawful protection statements could easily evade judicial review. [67] Although the dispute in the Protection Statement application is technically moot, the remaining issue is squarely within theCourt’s function.

Because the Protection Statement application raises facts and issues that overlap with the Protection Order application,it is efficient to resolve both applications together. [68] If the Protection Statement application is not resolved, it may immunize from judicial scrutiny DFO’s approach to protectionstatements. Furthermore, if the issue remains unresolved, the respondents will continue to rely on non-binding policies, prospective lawsand discretionary laws that do not legally protect critical habitat.

Clearly, the public interest will be served by providing judicial guidanceon the nature and scope of the respondents’ duty under

section 58 of the Act. Minister’s duty [69] The applicants submit that

section 58 imposes on both respondent ministers a duty to provide legal protection against destructionfor all components of a species’ critical habitat. Justice Campbell in paragraphs 4, 45–46 and 58 of Environmental Defence, above,determined that critical habitat encompasses not only a defined geographic area but also a set of essential components. The applicantscontend that, in the context of the Act, the destruction of critical habitat includes the destruction of the features and components of thathabitat.

Recovery Strategy [70] The Federal Court has held that it is mandatory to identify critical habitat in a recovery strategy; it is the Minister’s duty toidentify both the location and components of critical habitat. See Alberta Wilderness Association, above, at paragraphs 24–25 andEnvironmental Defence, above, at paragraph 61. [71] In the instant case, the Recovery Strategy identifies critical habitat as including areas in coastal waters where the resident killerwhales concentrate to feed on salmon. The presence and availability of salmon is a feature of this critical habitat.

The Recovery Strategyalso identifies key threats to components of the critical habitat, including reduced availability of prey, environmental contaminants, andphysical and acoustic disturbance. It is important that any measure taken under the Act fully and adequately addresses each of thesecomponents.

Protection Statement Protection Statement is unlawful [72] The applicants submit that the Protection Statement made by the Minister of Fisheries and Oceans is unlawful because it relieson non-statutory instruments, provincial laws, prospective laws and discretionary laws to protect critical habitat. [73] The applicants contend that a provision contained in a protection statement issued under paragraph 58(5)(

b) must meet thefollowing criteria: a. It must be a legal provision;

b. It must be a federal law (with the exception of

section 11 conservation agreements); c. The legal protection relied on must be in force at the time the protection statement is issued; d. Because the legal protection acts as a substitute for the prohibition in subsection 58(1) of SARA, it must be a mandatory andenforceable prohibition; e. The legal provisions must protect all components of the critical habitat. [74] Within the statutory scheme of the Act, a protection statement can act as a substitute for a protection order.

As such, theprovisions cited within a protection statement are intended to provide the same protection for critical habitat as would the provisions of aprotection order. [75] Parliament clearly intended that habitat protection be mandatory and meaningful and did not leave it to ministers to choosewhether or not to protect critical habitat. In the first reading of Bill C-5,

section 58 was weaker and offered more discretion: see Bill C-5,An Act respecting the protection of wildlife species at risk in Canada, 1st session, 37th Parliament (1st reading, 2 February 2001).However, some Parliamentarians objected to this discretion and pushed for mandatory protection of critical habitat. Consequently,amendments were proposed to strengthen protection for critical habitat, and these are reflected in

section 58 in its current form. [76] For a protection statement to act as a substitute for the mandatory enforceable legal protection of a protection order, the legalprovisions cited in a protection statement must be mandatory and enforceable.

However, the Protection Statement issued by the Ministerin the present case cites numerous non-statutory instruments, including: a. code of conduct and outreach initiatives; b. whale-watching guidelines; c. statement of practice regarding the mitigation of seismic sound in the marine environment; d. sensitive benthic areas policy; e. wild salmon policy; f. integrated fisheries management plans; and g. military sonar protocols. These instruments are not laws that legally protect critical habitat from destruction; rather, they are policies, which cannot bind theMinister and do not compel behaviour.

See Ahousaht Indian Band and Nation v. Canada (Attorney General), 2009 BCSC 1494, [2010] 1C.N.L.R. 1 (Ahousaht Indian Band), at paragraph 752; and Arsenault v. Canada (Attorney General), 2009 FCA 300, 1 Admin. L.R. (5th)91 (Arsenault), at paragraphs 33, 38, 43, leave to appeal to the S.C.C. requested. [77] In a few rare cases a guideline or a policy has been given legal effect by a court. However, in these instances the enabling statutemandated the issuance of the policy, making it a mandatory policy. Furthermore, a prohibition attaches for failure to follow such apolicy.

See, for example, Friends of the Oldman River Society v. Canada (Minister of Transport), (SCC), [1992] 1S.C.R. 3 (Oldman River), at pages 33, 35–36; and Glowinski v. Canada (Treasury Board), 2006 FC 78, 286 F.T.R. 217 (Glowinski), atparagraphs 40 and 43. This is not the case with the policies listed in the Protection Statement under review in this application. At thetime the Protection Statement was issued, some of the policies it cited were not yet finalized or implemented.

Moreover, some of thepolicies are simply not applicable to the resident killer whales’ critical habitat. [78] The applicants submit that a protection statement also cannot cite prospective laws, since provisions that rely on the prospectiveexercise of legislative authority cannot, and do not, legally protect until that authority is exercised. This finding has been upheld by theU.S. Federal Court in Greater Yellowstone Coalition, Inc. v. Servheen, 672 F.Supp.2d 1105 (D.

Mont. 2009) (Greater YellowstoneCoalition), at page 1116 in which the Court held that “[p]romises of future, speculative action are not existing regulatory mechanisms.”In the present case, the Protection Statement erroneously relies on speculative or future regulatory action to protect critical habitat undersubsection 58(5) of SARA. [79] The legal provisions cited in a protection statement must be mandatory and enforceable.

While the prohibition in subsection58(1) is engaged by a protection order, so too are sections 73 [as am. by S.C. 2005, c. 2, s. 23] and 74, which limit the Minister’s abilityto issue any permit that will affect critical habitat. Indeed, the Act provides that no permits can be issued that could jeopardize thesurvival and recovery of the species. [80] Furthermore, the provisions cited in the Protection Statement grant a broad, unstructured discretion to permit harmful activities,including those that would destroy critical habitat.

Discretionary protection does not legally protect critical habitat from destruction,since it is neither mandatory nor enforceable. [81] The Protection Statement also listed the Fisheries Act, R.S.C., 1985, c. F-14, the Canadian Environmental Assessment Act, S.C.1992, c. 37 (CEAA) and provincial laws as providing protection to the population in question. Each of these are addressed as follows, bythe applicants.

Fisheries Act [82] The applicants say that a proper evaluation of whether the Protection Statement meets the legal standard required pursuant tosection 58 of SARA demands a comparison between the legal provisions that the Statement cites and the protection provided by SARA.The applicants submit that there is a clear difference between the legal protection afforded critical habitat under subsection 58(1) of

SARA and the broad discretion under the Fisheries Act. [83] While the Fisheries Act and its associated regulations are designed to protect critical habitat, the regulatory scheme under theFisheries Act is highly discretionary. Furthermore, this discretion is not limited by policy or plans. See, for example, Carpenter FishingCorp. v.

Canada, (FCA), [1998] 2 F.C. 548 (C.A.) (Carpenter Fishing Corp.), at paragraphs 35 and 37 andAhousaht Indian Band, above, at paragraph 752. [84] The applicants draw particular attention to sections 35 and 36 of the Fisheries Act, which allow DFO a much broader discretionto authorize habitat destruction than is allowed under SARA. See, for example, Janice Walton, Blakes’ Canadian Law of EndangeredSpecies (Toronto: Carswell, 2007), at pages 2-31 to 2-33. Indeed, sections 35 and 36 of the Fisheries Act prohibit only unauthorizeddestruction of fish habitat, while SARA prohibits any destruction of critical habitat.

According to the applicants: SARA’s permitting provisions limit activities that could affect critical habitat and preclude authorization of any activity that couldjeopardize survival and recovery of the species. The s. 58(1) prohibition against destruction of critical habitat applies to all critical habitatand against any activity that might destroy it. [85] While it is possible to use the Fisheries Act to provide legal protection for critical habitat, the applicants contend that no suchaction has been taken.

As such, the applicants contend that, absent a specific regulation protecting critical habitat, the Fisheries Actcannot lawfully substitute for an order under SARA. Canadian Environmental Assessment Act [86] The Protection Statement also relies on the Canadian Environmental Assessment Act (CEAA) to provide legal protection forcritical habitat. However, the CEAA is largely a procedural statute that sets out a series of steps to be taken before projects may proceedat the discretion of the Minister. Consequently, the CEAA does not prohibit approval of environmentally destructive projects.

Provincial laws are not laws of Parliament [87]

Section 58 of the Act requires that critical habitat be protected under an “Act of Parliament”, or, in the alternative, under a section11 conservation agreement. As such, provincial laws and municipal laws should not be cited in a protection statement. Protection Statement fails to protect all components [88] The Protection Statement is unlawful because it provides legal protection for only certain elements or components of criticalhabitat.

In so doing, it fails to address the most significant threats to critical habitat, including reduction in the availability of prey, toxiccontamination, and physical and acoustic disturbance. [89] The first part of the Protection Statement purports to protect the “geospatial and geophysical attributes” of the critical habitatagainst threats from industrial activity, destructive fishing gear and vessel anchors.

According to the Recovery Strategy, these threats arenot the most significant to critical habitat, and yet they are the only activities for which the Protection Statement cites the legislation,regulations and/or policies to be used to protect the critical habitat. [90] The second part of the Protection Statement addresses degradation of the acoustic environment, degradation of marineenvironmental quality and declining availability of prey. It attempts to address these issues by listing tools that are, according to theProtection Statement, “available to manage and mitigate threats to [ecosystem] functions”.

The applicants submit that the divisionbetween the first and second parts of the Protection Statement reflects the unlawful policy distinction, which recognizes DFO’s duty toprotect geophysical components but ignores its duty to protect biological components of critical habitat. Protection Order [91] The applicants say that in creating a limited protection order that includes geophysical areas of critical habitat but excludesidentified components of the critical habitat, the respondent ministers have implemented an unlawful policy and thereby have failed torespond to a duty assigned them by statute.

See, for example, Attorney General of Canada v. Inuit Tapirisat of Canada et al., (SCC), [1980] 2 S.C.R. 735. [92] The Federal Court determined in Environmental Defence, above, that such policies are unlawful. Accordingly, the Court ought toconfirm that

section 58 of the Act requires legal protection of all components of critical habitat.

Interpretation of

Section 58 Bilingual

interpretation [93] The applicants contend that the proper

interpretation of

section 58 of the Act obliges the respondents to ensure legal protection ofall of the components of critical habitat. This

interpretation is supported by numerous grounds, including a plain language examination ofthat

section as well as the French version of

section 58 and the case of Environmental Defence, above. [94] The creation of a protection order under subsections 58(4) and (5) triggers the subsection 58(1) prohibition against thedestruction of critical habitat.

The applicants contend that the proper construction of the phrase “any part of the critical habitat” insubsection 58(1) includes any component of the critical habitat, since it is the combination of each component that makes up the criticalhabitat as a whole. [95] In this case, the resident killer whales’ critical habitat consists of prey availability, unpolluted water and a quiet environment.Indeed, the Recovery Strategy and other government publications note that these habitat components are necessary for the survival of thespecies.

[ 96 ] The term “part” in subsection 58(1) may be interpreted to mean “component”. See, for example, Merriam-Webster’s Collegiate Dictionary , 10th ed., s.v. “component” [Springfield, Mass.: Merriam-Webster, 1998]. Moreover,

section 58 uses the word “part” differently from the way it uses the word “portion.” According to the applicants, where Parliament intends to refer to a geospatial portion of critical habitat—so as to denote a sub-area—it refers to a “portion of the critical habitat”: see subsections 58(2) to (4). However, Parliament uses the word “part” in subsection 58(1) to refer to a constituent element or component. [ 97 ] Furthermore, the French version of

section 58 of the Act requires legal protection of all components of critical habitat. Accordingly, a bilingual

interpretation of

section 58 demonstrates that the respondents’ duty includes the protection of all components of the habitat. According to the Supreme Court of Canada in R. v. Daoust , 2004 SCC 6 , [2004] 1 S.C.R. 217, at paragraph 28 : We must determine whether there is an ambiguity, that is, whether one of both versions of the statute are “reasonably capable of more than one meaning”…. If there is an ambiguity in one version but not the other, the two versions must be reconciled, that is, we must look for the meaning that is common to both versions…. The common meaning is the version that is plain and not ambiguous…. [Citations omitted.] [ 98 ] When this approach is applied to the

interpretation of subsection 58(1) of SARA it becomes clear that the common meaning between both versions is a prohibition against the destruction of the components of critical habitat. While the English version of the Act states that no person shall destroy any part of the critical habitat, the French version states that “ il est interdit de détruire un élément de l’habitat essentiel ”. “ Élément ” is defined in Le Nouveau Petit Robert , 2002 [Paris: Dictionnaires Le Robert] as “

Partie constitutive d’une chose. 1 ♦ Chacune des choses dont la combinaison, la réunion forme une autre chose .” Furthermore, in a leading French-English dictionary, “ élément ” is translated to mean “component.” See Le Robert & Collins dictionnaire français-anglais, anglais-français senior , 4th ed. [Paris: Dictionnaires Le Robert, 1995], and Collins Robert French Dictionary , 7th ed., s.v. “ élément ” [New York: HarperCollins, 2005]. [ 99 ] Although “part” may be capable of being construed in more than one way within subsection 58(1) , “ élément ” is not; rather, “ un élément ” refers to one of the number of constituent parts or components that, in combination, form a whole. [ 100 ] This

interpretation is further supported by the broad structure of

section 58. The French version of

section 58 of the Act uses the term “

partie ” rather than “ élément ” to make reference to a sub-area or portion of critical habitat. In subsections 58(2) to (4), the word “

partie ” is consistently used as the French counterpart to the English word “portion”. [ 101 ] It becomes clear in applying bilingual

interpretation principles that the common meaning of “any part” and “ un élément ” includes all integral components of a species’ critical habitat. The case of Environmental Defence [ 102 ] The applicants submit that

section 58 of the Act must be given a purposive

interpretation that ensures meaningful legal protection, as occurred with paragraph 41(1) (

c) of SARA in Environmental Defence , above. Justice Campbell held in Environmental Defence that critical habitat is not just a geospatial area. Rather, Justice Campbell determined at paragraphs 57–66 that when identifying a species’ critical habitat, the Minister must identify both the location of the habitat as well as its essential attributes or features.

Identification of the components of critical habitat is undertaken to ensure that these components are later legally protected under the Act. [ 103 ] At paragraph 53 of Environmental Defence , Justice Campbell examined the relationship between the identified components of critical habitat and its geospatial coordinates: Except perhaps by nuclear Armageddon, one cannot destroy a place in its entirety. Nor can one destroy a set of geospatial co-ordinates. Rather, the destruction of critical habitat involves destruction of the components of that habitat.

Put concretely, to destroy a spotted owl’s habitat involves clear-cutting the old-growth forest it relies on for food and protection from predators. To destroy an endangered frog’s habitat may involve filling and paving a wetland and placing a shopping mall atop it. To destroy the Nooksack Dace’s habitat could involve removal of riparian vegetation, which the dace rely on to regulate temperature, erosion, and pollution; or removing water from the streambed.

Clear-cutting trees, filing wetlands and draining streams does not destroy the location; rather, it destroys the features and components that were relied on by endangered species. [ 104 ] Moreover, in making his decision, Justice Campbell considered the Convention on Biological Diversity , 5 June 1992, [1993] Can. T.S. No. 24 (entered into force 29 December 1993) and determined that critical habitat should be interpreted to include both its physical and biological features so as not to put Canada in breach of its international treaty obligations (paragraphs 38–39, 55, 62).

Because the Act was created in part to implement Canada’s commitments under the Convention on Biological Diversity , the Act should be interpreted in harmony with the treaty’s values and principles.

Unlawful limitation of the scope of the Protection Order [ 105 ] The applicants contend that the evidence before the Court, including the Regulatory Impact Analysis Statement (RIAS) in both official languages and DFO’s conduct and positions before and after the issuance of the Protection Order , demonstrates that the respondents have unlawfully limited the scope of the Protection Order. [ 106 ] The RIAS demonstrates the respondents’ decision to limit the Protection Order to protect only “geophysical area” of critical habitat [at page 340]: Critical habitat for the Northern and Southern Resident Killer Whales was identified in the Final Recovery Strategy posted on March 14, 2008 on the SARA Public Registry.

The Recovery Strategy identifies at

section 3 the critical habitats as defined geophysical areas where these populations concentrate. In addition, … 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. [ 107 ] This passage of the RIAS demonstrates both an error of law and an error of fact.

[108] While the respondents characterize their legal obligation as extending only as far as protecting “geophysical areas”, theyacknowledge that there are biological, acoustic and chemical components of critical habitat. However, despite recognizing componentfeatures, the respondents do not extend legal protection to these features. This is an error of law. [109] Also, the respondents do not properly understand the Recovery Strategy. One cannot argue that the Recovery Strategy, as awhole, identifies critical habitat as only an area. This is an error of fact. [110] A comparison of the French and English versions of the RIAS demonstrates that the respondents have misconstrued

section 58 ofSARA and, consequently, have misunderstood their duty under this section. [111] Furthermore, prior to the publication of the Protection Order DFO exerted bureaucratic pressure to weaken the legal protection ofcritical habitat and remove references to ecosystem features of critical habitat. [112] The respondents’ position that critical habitat is only a geospatial location did not change after the Protection Order waspublished, a position that DFO maintained in Environmental Defence, above. This reflects DFO’s legally incorrect understanding of thescope of its duty under

section 58 as well as the respondents’ intention to limit the Protection Order so as not to cover all physical andbiological components of the critical habitat. The Respondents [113] The respondents contend that the Protection Order provides the resident killer whales with the protection they require. No greaterprotection will be provided if the Court considers the moot Protection Statement, and there is nothing for the Court to review with regardto the Protection Order.

Court should not exercise its jurisdiction [114] Because Justice O’Reilly determined that the Protection Statement is moot, the Court must now decide whether the firstapplication made by the applicants is so exceptional that it justifies a departure from the general practice of striking moot cases. It is theapplicant’s burden to demonstrate that this is the case. See Maystar General Contractors Inc. v.

International Union of Painters andAllied Trades, Local 1819, 2008 ONCA 265, 90 O.R. (3d) 451, at paragraph 32. [115] The respondents submit that the adversarial context required by Borowski, above, does not exist in this case. There is no longerany live issue with respect to the Protection Statement since it has been replaced by the Protection Order.

The fact that the applicantsbelieve that they have an adversarial relationship with the Minister of Fisheries and Oceans is not an adequate reason for the Court tohear a moot case; rather, there must be consequences arising from the moot proceeding that justify hearing the matter. As stated byJustice Rothstein [as he then was] in Merck Frosst Canada Inc. v.

Canada (Minister of National Health and Welfare) (1997), (FC), 72 C.P.R. (3d) 468 (F.C.T.D.), at paragraph 15: … the continuing adversarial relationship does not simply mean that the parties are competitors or that they do not like each other or thatthere is other litigation pending between them. The adversarial relationship that must prevail must have some logical nexus to theproceedings that have become moot.

In this instance, there is no logical nexus between any adversarial relationship that the applicants believe exists and the ProtectionStatement application, which has been deemed to be moot. [116] There are no special circumstances in this case to justify the investment of further judicial resources. Because the ProtectionOrder contains a prohibition against the destruction of critical habitat, the Court’s decision on the Protection Statement application willhave no practical effect on the rights or obligations of the parties.

The Protection Order is broad, and declarations with regard to the toolsoutlined in the Protection Statement will not impact the protection provided by the Protection Order. [117] The circumstances leading to the Protection Statement application are unique and fact-specific. Likewise, each future protectionstatement made pursuant to SARA will be unique to the species at issue. [118] Moreover, the Protection Statement app

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