Bancroft v. Nova Scotia (Lands and Forests), 2020 NSSC 175

SUPREME COURT OF Nova Scotia Citation: Bancroft v. Nova Scotia (Lands and Forests) , 2020 NSSC 175 Date: 20200529 Docket: HFX 484556 Registry: Halifax Between: Robert Bancroft, Federation of Nova Scotia Naturalists, Blomidon Naturalists Society and The Halifax Field Naturalists Applicants v. Nova Scotia Minister of Lands and Forestry and The Attorney General of Nova Scotia Representing Her Majesty the Queen in Right of the Province of Nova Scotia Respondents v. East Coast Environmental Law Association

(2007) Intervenor Judge: The Honourable Justice Christa M. Brothers Heard: September 23 and October 1, 2019, in Halifax, Nova Scotia Additional Submissions: Final Decision: February 14, 2020 May 29, 2020 Counsel: Jamie Simpson, for the Applicants Jeremy Smith, for the Defendants James Gunvaldsen Klaassen and Sarah McDonald, for the Intervenor UNLESS someone like you cares a whole awful lot, nothing is going to get better. It’s not. [Dr.

Seuss – The Lorax, 1971] Introduction [ 1 ] When government is entrusted, through legislation, with duties and responsibilities, but fails to discharge them, there must be recourse. This is such a case. The Notice of Judicial Review alleges a suite of failures by government, specifically, long-term, systemic failures to fulfill legal obligations under the Endangered Species Act , SNS 1998, c 11 (the ESA ). Then, after this Judicial Review was commenced, the government undertook a flurry of activity in an inadequate and transparent attempt to correct its failures ex post facto .

While the court cannot interfere if government conduct is reasonable, if it is not, this court must and will require government to fulfill its legislative duties. Background [ 2 ] This is an application for judicial review of Ministerial decisions under the ESA . The Applicants are Robert Bancroft, a wildlife biologist; the Federation of Nova Scotia Naturalists; the Blomidon Naturalists Society; and the Halifax Field Naturalists. The

Intervenor, the East Coast Environmental Law Association (2007), is a registered charity concerned with the development and implementation of environmental laws in Atlantic Canada. [ 3 ] The Minister of Lands and Forestry (the Minister) is responsible for implementing the ESA . The Applicants say the Minister has failed to implement the ESA as it pertains to six representative species: Mainland Moose, Ram’s-head Lady Slipper, Canada Warbler, Black Ash, Wood Turtle, and Eastern Wood Pewee. Each of these species is native to Nova Scotia and is listed as endangered, threatened, or vulnerable under the ESA .

The Applicants seek a declaration that the Minister’s failure to implement the ESA , specifically

section 15 , is unlawful and unreasonable; an order of mandamus ; and a supervisory order by which the court would retain jurisdiction and require the Minister to produce status reports on the implementation of

section 15. [ 4 ] As I will explain in these reasons, I have concluded that the Minister has failed to meet certain statutory duties under the ESA , and that remedies are required to correct this situation. The Nova Scotia Endangered Species Act [ 5 ] The ESA codifies aspects of the National Accord for the Protection of Species at Risk , which Nova Scotia endorsed in 1996. Under the Accord, the provincial and federal governments agreed to share responsibility for the protection of wildlife in Canada, particularly species at risk of extinction or extirpation. The purpose of the ESA is set forth at

section 2 : 2

(1) The purpose of this Act is to provide for the protection, designation, recovery and other relevant aspects of conservation of species at risk in the Province, including habitat protection, while recognizing the following: (

a) the goal of preventing any species in the Province from becoming extirpated or extinct as a consequence of human activities; (

b) the conservation of species at risk is a key component of a broader strategy to maintain biodiversity and to use biological resources in a sustainable manner; (

c) the commitment of Government to a national co-operative approach for the conservation of species at risk, as agreed to in the National Accord for the Protection of Species at Risk; (

d) all Nova Scotians share responsibility for the conservation of species at risk and governments have a leadership role to play in this regard; (

e) Nova Scotians be provided with the opportunity for meaningful participation in relation to conservation of species at risk; (

f) the aboriginal peoples of the Province have an important role in conserving species at risk; (

g) the importance of promoting the purposes of this Act primarily through non-regulatory means such as co-operation, stewardship, education and partnerships instead of punitive measures, including such preventative actions as education, incentives, sustainable management practices and integrated resource management; and (

h) the precautionary principle that a lack of full scientific certainty must not be used as a reason for postponing measures to avoid or minimize the threat of a species at risk in the Province. [ 6 ]

Section 3 of the ESA defines three categories of species listing under the ESA relevant to this application: endangered, threatened, and vulnerable species: (d) "endangered species" means a species that faces imminent extinction or extirpation and is listed as an endangered species pursuant to

Section 12; ... (r) "threatened species" means a species that is likely to become endangered if the factors affecting its vulnerability are not reversed and is listed as a threatened species pursuant to

Section 12; (s) "vulnerable species" means a species of special concern due to characteristics that make it particularly sensitive to human activities or natural events and that is listed as a vulnerable species pursuant to

Section 12. [ 7 ] The ESA creates a Species-at-risk Working Group of six “recognized scientific experts in the status and population biology of plants, animals, other organisms and their habitats or in the conservation biology, ecology and geography of plants, animals and other organisms”, appointed by the Minister (s. 9(4)). The Working Group advises the Minister on Species at Risk, as described at s. 10: Functions of Group 10

(1) The Group shall (

a) provide the Minister with a categorized list of the species at risk in the Province, which list shall include those species native to the Province that are listed nationally as species at risk; (

b) advise the Minister annually of any addition or deletion of a species to or from the list referred to in clause (

a) or of any changes in the status of a listed species; (

c) provide the Minister with a written

summary of the rationale for listing, adding, deleting or changing the status of a species; (

d) make recommendations to the Minister regarding the content and implementation of recovery plans; and

(

e) provide advice respecting the conservation and management of species at risk, and their habitats, in the Province.

(2) The Group shall base its decisions to list species pursuant to clause (1)(

a) and to add or delete species or to change the status of a listed species pursuant to clause (1)(

b) upon scientific information and traditional knowledge as documented in peer reviewed status reports. [ 8 ] The Minister has the power to list an “endangered or threatened species where, in the opinion of the Minister, there is threat to the survival of the species” (s. 11(1)), notwithstanding s. 10. In either case, the species listed are deemed to be at risk, pursuant to s. 12(1): 12

(1) Where the Group provides the Minister with a categorized list of species at risk in the Province, with any additions to or deletions from the list or with any changes in the status of a listed species or where the Minister lists endangered or threatened species pursuant to

Section 11, the species listed from time to time are deemed to be the listed species at risk for the purpose of this Act. [ 9 ] When this Judicial Review was commenced, more than 60 species were listed as endangered, threatened, or vulnerable. Of the species with which this application is specifically concerned, the Canada Warbler, Mainland Moose, and Ram’s-head Lady Slipper are listed as endangered; the Black Ash and Wood Turtle as threatened; and the Eastern Wood Pewee as vulnerable. [ 10 ] Where a species is listed as endangered or threatened, the Minister is required, pursuant to s. 15 of the ESA , to appoint a recovery team and prepare a recovery plan.

Section 15 addresses the Minister’s duties where a species has been listed as endangered or threatened under

section 12: 15

(1) The Minister shall (

a) within one year of the listing of an endangered species; and (

b) within two years of the listing of a threatened species, appoint a recovery team and prepare a recovery plan for the species.

(2) The Minister may appoint to a recovery team any person whom the Minister considers to be interested in the recovery of the particular species for which the recovery team is appointed and the team shall include an appropriate diversity of expertise.

(3) The recovery team shall assist the Minister in developing and implementing the recovery plan. [ 11 ] A recovery plan is “a statement of needs and actions to be undertaken for the recovery of an endangered or threatened species” (s. 3(n)). The content and objectives of a recovery plan – and the Minister’s duties in that respect – are set out at ss. 15(4)-(9): 15 ...

(4) A recovery plan prepared pursuant to subsection (1) shall (

a) identify the needs of and threats to an endangered or threatened species; (

b) identify the viable status needed for recovery; (

c) identify options for the recovery of the endangered or threatened species; (

d) identify the costs and benefits of the options referred to in clause (c); (

e) recommend a course of action or a combination of actions for the recovery of an endangered or threatened species; (

f) recommend a

schedule for implementation of the recovery plan including a prioritized listing of recommended actions; (

g) identify habitat of the endangered or threatened species; and (

h) identify areas to be considered for designation as core habitat.

(5) A recovery plan may include provisions respecting one or more endangered or threatened species and may, where the Minister considers it appropriate, include ecosystem management in the recovery plan.

(6) The Minister may determine the feasibility of implementing any recovery plan or any portion of a recovery plan.

(7) With the advice of the Group, the Minister may, in determining the feasibility of implementing a recovery plan or any portion of a recovery plan, take the following factors into consideration: (

a) whether scientific evidence indicates that the species referred to in the recovery plan is naturally becoming extinct; (

b) biological, technical and economic factors affecting the recovery of the species; and (

c) the status of the species elsewhere.

(8) The Minister may, to the extent possible, prepare a recovery plan in co-operation with other jurisdictions where the endangered or threatened species is also found.

(9) Where a recovery plan is in existence before the coming into force of this Act or where a recovery plan has been prepared in another jurisdiction for the endangered or threatened species, the Minister may adopt that recovery plan in lieu of the requirements of subsection (1). [ 12 ] In

summary, the Minister is required to appoint a recovery team for a species listed as endangered (within one year) or threatened (within two years). Within the applicable timeframe, the Minister and the recovery team shall also prepare a recovery plan. Where another jurisdiction has prepared a recovery plan, the Minister may decide to adopt it.

No consequences are specified for failing to appoint a recovery team or produce a recovery plan within the specified timeframes. [ 13 ] Certain provisions of the ESA give the Minister discretion, notably s. 15(6), which provides that the Minister “ may determine the feasibility of implementing any recovery plan or any portion of a recovery plan.” Specific factors that the Minister must consider when determining feasibility include scientific evidence, technical or economic factors, and the status of the species elsewhere (s. 15(7)).

The Minister is not obliged to implement a plan that, in his or her opinion, is not feasible. [ 14 ]

Section 15 also contemplates the preparation of a management plan for a vulnerable species, defined at s. 3(

j) as “a statement of needs and actions to be undertaken to keep a vulnerable species from becoming at increased risk...” Subsection 15(10) states that the Minister “may appoint a management team and shall, within three years of the listing of a vulnerable species, prepare a management plan for the species.” [ 15 ] Pursuant to s. 15(10), then, the Minister may appoint a management team for a vulnerable species, and shall , within three years of the listing, prepare a management plan.

By contrast, for endangered and threatened species, the Minister shall appoint a recovery team within the relevant timeframe (s. 15(1)). [ 16 ] Finally, ss. 15(11) and (12) address the ongoing review of recovery plans and management plans, and the scope of the Minister’s implementation duties:

(11) Recovery plans and management plans shall be reviewed every five years to determine the progress of the recovery of the species and whether any changes or modifications are required.

(12) The Minister shall ensure the implementation of the portions of the recovery or management plan which are provincial responsibilities and which, in the Minister's discretion, are considered feasible. Issues [ 17 ] The Applicants raise several issues, summarized as follows:

(1) Whether the Minister’s failure to appoint a recovery team for Canada Warbler, or to appoint a recovery team and prepare a recovery plan within the required timeframe for the Ram’s-head Lady Slipper, was reasonable (s. 15(1));

(2) Whether the Minister’s

interpretation of “core habitat” in the recovery plans for Black Ash and Mainland Moose was reasonable (s. 15(4)(h));

(3) Whether the Mainland Moose “review” published by the Minister was a reasonable under s. 15(11); and

(4) Whether the Minister’s “adoption” of federal recovery plans for the Eastern Wood Pewee and the Wood Turtle was reasonable under s. 15(9).

Standard of review [ 18 ] Before embarking on the substantive issues, I must determine the applicable standard (or standards) of review. The parties did not agree on the standard of review, and were given the opportunity to provide post-hearing submissions in view of the recent decision of the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 , which they did. [ 19 ] I conclude that the applicable standard of review for the Ministerial decisions in this case is reasonableness.

The majority in Vavilov held that there is “a presumption that reasonableness is the applicable standard whenever a court reviews administrative decisions” (para. 16).

The presumption may be rebutted in two circumstances: first, where the legislature indicates that “a different standard or set of standards to apply” or where a statutory appeal is provided, and second, where “the rule of law requires that the standard of correctness be applied.” This will be the case for “constitutional questions, general questions of law of central importance to the legal system as a whole and questions related to the jurisdictional boundaries between two or more administrative bodies” (para. 17). [ 20 ] The Applicants argue that the

interpretation of ESA terms such as “shall” and “adopt” as applied to ministerial duties is a question of central importance to the legal system, so that the standard is correctness. This mischaracterizes the reach of this proceeding. Nothing before the court suggests that the outcome as it relates to these two terms in the context of the ESA will have implications for constitutional or general law beyond the relevant legislation. [ 21 ] The Applicants have not rebutted the presumption of reasonableness.

Therefore, the standard of review is reasonableness for all issues. [ 22 ] The majority in Vavilov stated that review for reasonableness “aims to give effect to the legislature’s intent to leave certain decisions with an administrative body while fulfilling the constitutional role of judicial review to ensure that exercises of state power are subject to the rule of law” (para. 82). The majority continued: [83] It follows that the focus of reasonableness review must be on the decision actually made by the decision maker, including both the decision maker’s reasoning process and the outcome.

The role of courts in these circumstances is to review, and they are, at least as a general rule, to refrain from deciding the issue themselves. Accordingly, a court applying the reasonableness standard does not ask what decision it would have made in place of that of the administrative decision maker, attempt to ascertain the “range” of possible conclusions that would have been open to the decision maker, conduct a de novo analysis or seek to determine the “correct” solution to the problem...

Instead, the reviewing court must consider only whether the decision made by the administrative decision maker — including both the rationale for the decision and the outcome to which it led — was unreasonable. [ 23 ] That is not to say administrative decision makers are immune from review. The court must determine whether the decision is internally coherent and has a rational chain of analysis that is justified in relation to the facts and law: [86] Attention to the decision maker’s reasons is part of how courts demonstrate respect for the decision-making process...

In Dunsmuir , this Court explicitly stated that the court conducting a reasonableness review is concerned with “the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes”... Reasonableness, according to Dunsmuir , “is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process”, as well as “with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”...

In short, it is not enough for the outcome of a decision to be justifiable . Where reasons for a decision are required, the decision must also be justified , by way of those reasons, by the decision maker to those to whom the decision applies. While some outcomes may be so at odds with the legal and factual context that they could never be supported by intelligible and rational reasoning, an otherwise reasonable outcome also cannot stand if it was reached on an improper basis. .... [102] To be reasonable, a decision must be based on reasoning that is both rational and logical.

It follows that a failure in this respect may lead a reviewing court to conclude that a decision must be set aside. Reasonableness review is not a “line-by-line treasure hunt for error”... However, the reviewing court must be able to trace the decision maker’s reasoning without encountering any fatal flaws in its overarching logic, and it must be satisfied that “there is [a] line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived”...

Reasons that “simply repeat statutory language, summarize arguments made, and then state a peremptory conclusion” will rarely assist a reviewing court in understanding the rationale underlying a decision and “are no substitute for statements of fact, analysis, inference and judgment... [Emphasis in original; some citations omitted.] [ 24 ] The majority in Vavilov noted that not only must the decision display logical reasoning, but it “must be justified in relation to the constellation of law and facts that are relevant to the decision” (para 105).

Adhering to the relevant factual and legal constraints is a hallmark of a reasonable decision. Such constraints include the governing statutory scheme; other relevant statutory or common law; the principles of statutory

interpretation; the evidence before the decision maker and facts of which the decision maker may take notice; the submissions of the parties; the past practices and decisions of the administrative body; and the potential impact of the decision on the individual to whom it applies. These elements are not a checklist for conducting reasonableness review, and they may vary in significance depending on the context.

They are offered merely to highlight some elements of the surrounding context that can cause a reviewing court to lose confidence in the outcome reached. [para. 106] [ 25 ] Given that decision makers’ powers derive from statute, “the governing statutory scheme is likely to be the most salient aspect of the legal context relevant to a particular decision” (para 108). When a decision maker interprets their own statute, they must remain within the scope authorized by the act: [110] Whether an

interpretation is justified will depend on the context, including the language chosen by the legislature in describing

the limits and contours of the decision maker’s authority. If a legislature wishes to precisely circumscribe an administrative decision maker’s power in some respect, it can do so by using precise and narrow language and delineating the power in detail, thereby tightly constraining the decision maker’s ability to interpret the provision. Conversely, where the legislature chooses to use broad, open-ended or highly qualitative language — for example, “in the public interest” — it clearly contemplates that the decision maker is to have greater flexibility in interpreting the meaning of such language.

Other language will fall in the middle of this spectrum. All of this is to say that certain questions relating to the scope of a decision maker’s authority may support more than one

interpretation, while other questions may support only one, depending upon the text by which the statutory grant of authority is made. What matters is whether, in the eyes of the reviewing court, the decision maker has properly justified its

interpretation of the statute in light of the surrounding context. It will, of course, be impossible for an administrative decision maker to justify a decision that strays beyond the limits set by the statutory language it is interpreting. [ 26 ] The majority in Vavilov commented on the complications of applying a reasonableness standard to statutory

interpretation. Courts are accustomed to dealing with statutory

interpretation “at first instance or on appeal ... where they are expected to perform their own independent analysis and come to their own conclusions” (para. 114). Judicial review for reasonableness is different: [116] ... Where reasonableness is the applicable standard on a question of statutory

interpretation, the reviewing court does not undertake a de novo analysis of the question or “ask itself what the correct decision would have been”... Instead, just as it does when applying the reasonableness standard in reviewing questions of fact, discretion or policy, the court must examine the administrative decision as a whole, including the reasons provided by the decision maker and the outcome that was reached . [117] A court interpreting a statutory provision does so by applying the “modern principle” of statutory

interpretation, that is, that the words of a statute must be read “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: .. . Parliament and the provincial legislatures have also provided guidance by way of statutory rules that explicitly govern the

interpretation of statutes and regulations... [118] This Court has adopted the “modern principle” as the proper approach to statutory

interpretation, because legislative intent can be understood only by reading the language chosen by the legislature in light of the purpose of the provision and the entire relevant context... Those who draft and enact statutes expect that questions about their meaning will be resolved by an analysis that has regard to the text, context and purpose, regardless of whether the entity tasked with interpreting the law is a court or an administrative decision maker. An approach to reasonableness review that respects legislative intent must therefore assume that those who interpret the law — whether courts or administrative decision makers — will do so in a manner consistent with this principle of

interpretation. .... [120] But whatever form the interpretive exercise takes, the merits of an administrative decision maker’s

interpretation of a statutory provision must be consistent with the text, context and purpose of the provision. In this sense, the usual principles of statutory

interpretation apply equally when an administrative decision maker interprets a provision . Where, for example, the words used are “precise and unequivocal”, their ordinary meaning will usually play a more significant role in the interpretive exercise... Where the meaning of a statutory provision is disputed in administrative proceedings, the decision maker must demonstrate in its reasons that it was alive to these essential elements. [121] The administrative decision maker’s task is to interpret the contested provision in a manner consistent with the text, context and purpose, applying its particular insight into the statutory scheme at issue. It cannot adopt an

interpretation it knows to be inferior — albeit plausible — merely because the

interpretation in question appears to be available and is expedient. The decision maker’s responsibility is to discern meaning and legislative intent, not to “reverse-engineer” a desired outcome. [Emphasis added. Citations omitted.] [ 27 ] Though Vavilov provides some clarity for cases where the decision maker has interpreted a statutory provision, this is a balancing act. The reviewing court must avoid conducting a de novo statutory

interpretation analysis and holding the decision maker to that standard. On the other hand, the court must be wary of a reverse-engineered analysis in favour of a desired outcome. The majority acknowledged that in some cases there will only be one reasonable construction: [124] Finally, even though the task of a court conducting a reasonableness review is not to perform a de novo analysis or to determine the “correct”

interpretation of a disputed provision, it may sometimes become clear in the course of reviewing a decision that the interplay of text, context and purpose leaves room for a single reasonable

interpretation of the statutory provision, or aspect of the statutory provision, that is at issue : Dunsmuir , at paras. 72-76. One case in which this conclusion was reached was Nova Tube Inc./Nova Steel Inc. v. Conares Metal Supply Ltd. , 2019 FCA 52 ., in which Laskin J.A., after analyzing the reasoning of the administrative decision maker..., held that the decision maker’s

interpretation had been unreasonable, and, furthermore, that the factors he had considered in his analysis weighed so overwhelmingly in favour of the opposite

interpretation that that was the only reasonable

interpretation of the provision... As discussed below, it would serve no useful purpose in such a case to remit the interpretative question to the original decision maker. Even so, a court should generally pause before definitively pronouncing upon the

interpretation of a provision entrusted to an administrative decision maker . [Emphasis added.] [ 28 ] In most cases, the starting position for a reasonableness review is the decision-maker’s reasons, although reasons are not always required, depending on the level of procedural fairness owed ( Vavilov at para. 77 ). In this case, reasons were not provided, but the Applicants do not allege a lack of procedural fairness.

The majority in Vavilov noted the difficulty arising from absence of reasons: [137] Admittedly, applying an approach to judicial review that prioritizes the decision maker’s justification for its decisions can be challenging in cases in which formal reasons have not been provided. This will often occur where the decision-making process does not easily lend itself to producing a single set of reasons, for example, where a municipality passes a bylaw or a law society renders a decision by holding a vote...

However, even in such circumstances, the reasoning process that underlies the decision will not usually be opaque. It is important to recall that a reviewing court must look to the record as a whole to understand the decision, and that in doing so, the court will often uncover a clear rationale for the decision ... For example, as McLachlin C.J. noted in Catalyst , “[t]he reasons for a

municipal bylaw are traditionally deduced from the debate, deliberations, and the statements of policy that give rise to the bylaw”... In that case, not only were “the reasons [in the sense of rationale] for the bylaw . . . clear to everyone”, they had also been laid out in a five- year plan...

Conversely, even without reasons, it is possible for the record and the context to reveal that a decision was made on the basis of an improper motive or for another impermissible reason, as, for example, in Roncarelli . [138] There will nonetheless be situations in which no reasons have been provided and neither the record nor the larger context sheds light on the basis for the decision. In such a case, the reviewing court must still examine the decision in light of the relevant constraints on the decision maker in order to determine whether the decision is reasonable.

But it is perhaps inevitable that without reasons, the analysis will then focus on the outcome rather than on the decision maker’s reasoning process . This does not mean that reasonableness review is less robust in such circumstances, only that it takes a different shape. [Emphasis added] [ 29 ] Therefore, even where there are no reasons, the decision must display a coherent basis that considers the relevant factual and legal constraints. Instead of reasons, the reviewing court will focus on the record and the outcome.

A lack of reasons does not enable the reviewing court to speculate and invent reasons that cannot be supported. With all of this in mind, I will review the Minister’s acts and omissions on the basis of the standard of reasonableness.

(1) Whether the Minister’s failure to appoint a recovery team for Canada Warbler, or to appoint a recovery team and prepare a recovery plan within the required timeframe for the Ram’s-head Lady Slipper, was reasonable (s. 15(1)). [ 30 ]

Section 15 of the ESA sets out the duties of the Minister when a species is listed as endangered or threatened. The Minister shall “appoint a recovery team and prepare a recovery plan” for an endangered species within one year (s. 15(1)(a)) and for a threatened species within two years (s. 15(1)(b)). A recovery plan states the “needs and actions to be undertaken for the recovery of an endangered or threatened species” (s. 3(n)), and its required contents are set out at s. 15(4).

Section 15 also sets forth the Minister’s powers and duties in determining the feasibility of implementing a recovery plan or a part thereof, and indicates implementation to the extent that they are feasible (ss. 15(6)-(7), (12)). The Minister is authorized to prepare a recovery plan in co-operation with another jurisdiction “to the extent possible” (s. 15(8), and to adopt an existing plan from another jurisdiction (s. 15(9)). There are Ministerial duties for ongoing review of recovery plans and management plans (ss. 15(11)).

C ertain provisions of the ESA give the Minister discretion, such as s. 15(6), providing that the Minister “ may determine the feasibility of implementing any recovery plan or any portion of a recovery plan”.

For endangered and threatened species, however, the Minister shall appoint a recovery team and prepare a recovery plan, within the required timelines. [ 31 ] The Respondents say the federal Species At Risk Act, SC 2002, c. 29 (the SARA ) affects ESA duties, since the ESA contemplates work in conjunction with other jurisdictions, creating efficiencies and assisting with interjurisdictional approaches to species at risk, as suggested by s. 2 (c). This inter-governmental approach was discussed in Centre québécois du droit de l'environnement c.

Canada (Ministre de l'Environnement) , 2015 FC 773 : 10 Parliament and the provincial or territorial legislatures are gambling that the governments and people concerned will step up before the decline of a species in Canada becomes irreversible, which is why it is important that the departments and ministries concerned adopt recovery strategies and action plans as soon as possible. … [Emphasis added] [ 32 ] The purpose of the co-operative approach is to ensure the speedy recovery of Canadian species, which do not respect borders.

The habitats that the species rely on also do not respect borders. [ 33 ] Not all equivalent legislation contains the firm timelines found in the ESA . Some statutes have no timeline provisions, or use more permissive language (i.e. “may”). The Newfoundland and Labrador Endangered Species Act , S.N. 2001, c E-10.1 is similar to the ESA , in that it says the Minister “shall” release a recovery plan within two years of a species being designated as threatened or endangered (s. 14(2)).

Unlike the ESA , however, it qualifies the Minister’s duty to ensure that a plan is published within the timeline: 14(3) If the minister cannot release the recovery plan within the time specified in subsection (2), he or she may delay the release of the recovery plan for up to 6 months in the case of an endangered species and one year in the case of a threatened species and shall notify the public of the reason for the delay. [ 34 ] There is no such exception in the ESA . Notably, the Newfoundland exception only grants the Minister six months for endangered species, not an indefinite period.

The Ontario Endangered Species Act, 2007 , S.O. 2007, c 6 , allows the Minister to delay publishing a strategy indefinitely, but the Minister must, within the time limit, publish an estimate of when the strategy will be prepared, along with the reasons for the delay (s. 11(5)). The Nova Scotia ESA contains no equivalent provision. [ 35 ] The issue is whether the Minister’s failure to appoint a recovery team within the required timeframe for Canada Warbler, or to appoint a recovery team and prepare a recovery plan within the required timeframe for the Ram’s-head Lady Slipper, was reasonable under s. 15(1) (

a) of the ESA . [ 36 ] The Canada Warbler, a bird, was listed as endangered in 2013. The Minister had one year to appoint a recovery team pursuant to section 15(1) (a). No recovery team was appointed until March 2019, shortly after the Applicants filed this judicial review in January 2019. This appointment was some five years after the timeframe contemplated by the ESA . The Respondents say the Minister adopted a federal Recovery Action Plan for the Canada Warbler in 2016 . [ 37 ] The Ram’s-head Lady Slipper, a flower, was listed as endangered in 2007.

As with the Canada Warbler, the Minister had one year to appoint a recovery team and publish a recovery plan. The Minister neither appointed a recovery team nor prepared a plan in 2008. According to the Record, a draft recovery plan was created in 2009. There is nothing in either the Record or submissions to explain why this plan was never finalized. [ 38 ] The Minister appointed a “Plants Recovery Team” in May 2019, whose mandate includes several species of flora, including the

Lady Slipper. This appointment is more than 11 years outside the ESA timelines. Still, no recovery plan has been prepared for theRam’s-head Lady Slipper. The Respondents say a recovery plan is pending from the recovery team. What of the 11 years that elapsedbetween the designation of the species and the appointment of the team? [39] The legislature used the word “shall” in s. 15(1) of the ESA to impose the relevant timelines on the Minister. Subsection 9(3) ofthe

Interpretation Act, R.S.N.S. 1989, c 235, states that, “[i]n an enactment, “shall” is imperative and “may” is permissive.” It is clearthat s. 15(1) does not grant discretion to the Minister as to whether or not to comply with his or her obligations. The Federal Court said inDavid Suzuki Foundation v. Canada (Fisheries and Oceans), 2010 FC 1233, varied on other grounds, 2012 FCA 40, referring to thefederal SARA, that “critical habitat protection under SARA must be mandatory and not discretionary. Parliament did not intend to allowministers to “choose” whether to protect critical habitat” (para. 299).

The same can be said about the Legislature’s intentions in the ESA. [40] The Respondents argue, however, that “shall” can be either “mandatory” or “directory”. If the provision was mandatory, theMinister would lose jurisdiction upon failure to comply. The Minister’s apparent

interpretation is that “imperative” in the

InterpretationAct may also be mandatory or directory. British Columbia (Attorney General) v Canada (Attorney General), (SCC),[1994] 2 S.C.R. 41, sheds some light on this distinction. In that case, Iacobucci J., for the majority, cited (at 122-124) Reference reManitoba Language Rights, (SCC), [1985] 1 S.C.R. 721, where the court stated that the “doctrinal basis of themandatory/directory distinction is difficult to ascertain” but appeared to lie in “serious general inconvenience or injustice”, as describedin Montreal Street Railway Co. v. Normandin, (UK JCPC), [1917] A.C. 170 (P.C.).

Justice Iacobucci concluded: In other words, courts tend to ask, simply: would it be seriously inconvenient to regard the performance of some statutory direction as animperative? There can be no doubt about the character of the present inquiry. The "mandatory" and "directory" labels themselves offer no magicalassistance as one defines the nature of a statutory direction. Rather, the inquiry itself is blatantly result-oriented... Thus, the manipulation of mandate and direction is, for the most part, the manipulation of an end and not a means.

In this sense, to quoteagain from Reference re Manitoba Language Rights, supra, the principle is "vague and expedient" (p. 742). This means that the courtwhich decides what is mandatory, and what is directory, brings no special tools to bear upon the decision. The decision is informed bythe usual process of statutory

interpretation. But the process perhaps evokes a special concern for "inconvenient" effects, both public andprivate, which will emanate from the interpretive result. [Emphasis added] [41] In Waterman v. Waterman, 2014 NSCA 110, the majority of the Nova Scotia Court of Appeal considered themandatory/directory distinction, emphasizing the importance of a contextual view as required by the modern principle of statutoryinterpretation (paras. 28-34). Speaking for the majority, Beveridge J.A. quoted the Supreme Court of Canada decision in Blueberry RiverIndian Band v.

Canada (Department of Indian Affairs and Northern Development), (SCC), [1995] 4 S.C.R. 344, wherethe majority confirmed that “the object of the statute, and the effect of ruling one way or the other, are the most important considerationsin determining whether a directive is mandatory or directory” (para. 42, cited in Waterman at para. 34). [42] The distinction between “mandatory” and “directory” has the following implication in this context: if, for example, including“core habitat” in a recovery plan is mandatory, and the Minister publishes a recovery plan that does not set out any core habitat, thenarguably the rest of the recovery plan for that species is ultra vires and therefore invalid.

If the provision is directory, the Minister doesnot lose jurisdiction and the rest of the plan may stand. The analysis is outcome-oriented because the main distinction betweenmandatory and directory is whether the result is “inconvenient.” I infer that the Minister, through assessment of the statutory frameworkand relevant case law, concluded that adhering to the ESA timelines was directory, not mandatory. The parties agree that the Ministerdoes not lose jurisdiction.

But this does not end the analysis on this issue. [43] In Western Canada Wilderness Committee v Minister of Fisheries and Oceans and Minister of the Environment, 2014 FC 148, itwas unnecessary to decide whether “shall” was directory or mandatory, as the parties agreed that the ministers did not lose jurisdictionwith expiry of the SARA time periods, and could continue developing recovery strategies after their expiry.

The court held that neitheroutcome rendered the timelines optional: 100 Given the parties' agreement on this point, I do not need to decide whether the timelines contained in sections 42 and 132 ofSARA are mandatory or directory. However, the fact that the timelines may be directory rather than "mandatory" (in the legal sense) doesnot mean that they are optional, or that the responsible Ministers do not have to comply with them.

Indeed, counsel for the Ministersacknowledged that the Ministers are indeed required to comply with the statute in this regard. 101 To state the obvious, the Species at Risk Act was enacted because some wildlife species in Canada are at risk.

As the applicantsnote, many are in a race against the clock as increased pressure is put on their critical habitat, and their ultimate survival may be at stake. 102 The timelines contained in the Act reflect the clearly articulated will of Parliament that recovery strategies be developed forspecies at risk in a timely fashion, recognizing that there is indeed urgency in these matters.

Compliance with the statutory timelines iscritical to the proper implementation of the Parliamentary scheme for the protection of species at risk. [underlining added; italics inoriginal] [44] While not necessary to decide given the parties’ acknowledgement, I conclude that “shall” in the ESA is directory. This does notmean the Minister has discretion not to comply. The Respondents concede that the legislature’s use of “shall” leaves no such discretion.Counsel agreed that it was imperative for the Minister to meet the deadlines, that the Minister failed to meet them, that this failure was

unlawful, and that if it was found to be unreasonable, a declaration should result. The parties agree, and I conclude, that the Ministerdoes not lose jurisdiction over the protection of species by failing to comply with this imperative obligation. It was clearly not thelegislature’s intention (as manifested, for instance, in the purpose provisions of the ESA as considered through the modern principle ofstatutory

interpretation) that the Minister would lose jurisdiction under the ESA by failing to meet timelines. I note here as well that theabove

interpretation of “shall” will apply throughout the discussion of the ESA in this decision. [45] The Minister’s

interpretation of “shall” as directory is reasonable. However, it does not follow that the failure to meet directorytimelines without explanation – such as lack of resources – is reasonable. Counsel for the Respondents cited several somewhat vaguesuggestions of limited departmental resources in the Record as justification for the delay.

Counsel was unable to point to anything in theRecord that could specifically relate the failure to comply with the timelines in respect of any of the named species to resource issues.Unlike in Western Canada Wilderness Committee, the Minister did not provide affidavits from departmental staff offering evidence oflimited resources. Furthermore, this submission is contrary to the agreed facts.

The Ram’s-head Lady Slipper waited 11 years for arecovery team until resources were suddenly made available shortly after this judicial review was filed. [46] The Minister and the Department must uphold the law, all the more so when their duties are as plain as they are in this case. Ifthey conduct themselves unlawfully without good reason, the court must hold them to account.

As the Supreme Court of Canada said inInuit Tapirisat of Canada v Canada (Attorney General), (SCC), [1980] 2 SCR 735, at 752: … in my view the essence of the principle of law here operating is simply that in the exercise of a statutory power the Governor inCouncil, like any other person or group of persons, must keep within the law as laid down by Parliament or the Legislature.

Failure to doso will call into action the supervising function of the superior court whose responsibility is to enforce the law, that is to ensure that suchactions as may be authorized by statute shall be carried out in accordance with its terms, or that a public authority shall not fail to respondto a duty assigned to it by statute. [47] There is nothing in either the Record or submissions to explain the failure to meet the Minister’s statutory duty on this issue. Without an explanation, the court is left with nothing.

I cannot speculate and consequently, I conclude that this failure to take actionunder the statute was unreasonable.

(2) Whether the Minister’s

interpretation of “core habitat” in the recovery plans for Black Ash and Mainland Moose was reasonable (s.15(4)(h)). [48] Section 15(4)(

h) of the ESA states that a recovery plan pursuant to s. 15(1) shall “identify areas to be considered for designationas core habitat”. The term “core habitat” is defined at s. 3(

b) to mean “specific areas of habitat essential for the long-term survival andrecovery of endangered or threatened species and that are designated as core habitat pursuant to

Section 16 or identified in an order madepursuant to

Section 18”. [49] From a plain reading of the above sections, it is apparent that the Minister must ensure that recovery plans identify areas thatmay later be considered for designation as core habitat. The core habitat for a species is the specific area essential for its survival thathas been designated under the ESA. Subsection 16(2) allows the Minister to designate “specific physical areas or landforms of theProvince as core habitat” and to enter into agreements with landowners over these areas.

Subsection 16(3) adds that core habitat “shallnot include the entire geographical range that can be occupied by the threatened or endangered species unless inclusion is consideredessential for the survival of the species.”

Section 18 allows the Minister to designate core habitat where the species is only provisionallylisted as endangered or threatened. Sections 16 and 18 are discretionary. According to the Applicants’ oral submissions, no land, publicor private, has ever been designated as “core habitat” for any species in Nova Scotia. [50] Due to the cooperative nature of the national statutory regime for endangered species, cases interpreting the federal SARA willbe of guidance in reviewing the Minister’s decision.

The SARA defines “critical habitat” as “the habitat that is necessary for the survivalor recovery of a listed wildlife species and that is identified as the species’ critical habitat in the recovery strategy or in an action plan forthe species” (s. 2(1)). Both statutes require the minister to ensure that core or critical habitat is identified in recovery plans or strategies.The SARA goes further in addressing how critical habitat is identified: 41

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

c) an identification of the species’ critical habitat, to the extent possible, based on the best available information, including theinformation 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... [51] The federal Minister has no discretion not to include critical habitat despite a lack of adequate information. “Critical habitat”was discussed in Centre québécois du droit de l'environnement, supra: [10] Parliament and the provincial or territorial legislatures are gambling that the governments and people concerned will step upbefore the decline of a species in Canada becomes irreversible, which is why it is important that the departments and ministriesconcerned adopt recovery strategies and action plans as soon as possible.

That being said, before going any further, it is important not toconfuse the residence of an individual with the critical habitat of a species. Under the federal Act, the concept of “residence” refers to “adwelling-place, such as a den, nest or other similar area or place, that is occupied or habitually occupied by one or more individualsduring all or part of their life cycles, including breeding, rearing, staging, wintering, feeding or hibernating”...

By contrast, the concept of“critical habitat” is much broader: it refers to “the habitat that is necessary for the survival or recovery of a listed wildlife species andthat is identified as the species’ critical habitat in the recovery strategy or in an action plan”... [Emphasis in original.] [52] While the federal Act is relevant to our analysis, the two regimes have substantive differences. Under SARA, the federal minister

has several positive duties once a recovery strategy or action plan that identifies critical habitat is published. The minister has 180 days to ensure that critical habitat areas on Crown lands receive federal protection (s. 58(5)). If any portion of the critical habitat remains unprotected after 180 days, the minister must publish a report every 180 days on the steps taken to protect the species (s. 63).

The purpose of this is to ensure all critical habitat is protected in some way (s. 57). [ 53 ] Unlike the SARA , there are no direct consequences to identifying some areas of core habitat in a recovery plan under the ESA . Doing so does not further compel the Minister to act in any way. The Minister retains discretion to designate specific physical areas as core habitat in s. 16. In Nova Scotia, the areas to be identified in a recovery plan are not yet designated as core habitat. [ 54 ] The purpose

section of the ESA recognizes “the precautionary principle that a lack of full scientific certainty must not be used as a reason for postponing measures to avoid or minimize the threat of a species at risk in the Province” (s. 2(h)).

The Intervenors submit that the “precautionary principle” is a “fundamental and widely recognized principle of Canadian environmental law.” They cite 114957 Canada Ltée (Spraytech, Société d'arrosage) v Hudson (Town) , 2001 SCC 40 , where L’Heureux-Dubé J. said, for the majority (citations omitted): 32 Scholars have documented the precautionary principle's inclusion "in virtually every recently adopted treaty and policy document related to the protection and preservation of the environment"...

As a result, there may be "currently sufficient state practice to allow a good argument that the precautionary principle is a principle of customary international law"... [ 55 ] In Wilderness Committee, supra , the court held that waiting for consensus among stakeholders and improved scientific data is not an excuse to avoid provisions of the SARA : 71 Insofar as the scientific basis for the proposed recovery strategies is concerned, I agree with the applicants that "the perfect should not become the enemy of the good" in these cases .

Section 38 of SARA (which incorporates the "precautionary principle" into the Act) is very clear: the preparation of a recovery strategy for a species at risk "should not be postponed for a lack of full scientific certainty". 72 The precautionary principle was discussed by the Supreme Court of Canada in 114957 Canada Ltée (Spray-Tech, Société d'arrosage) v. Hudson (Ville) , 2001 SCC 40 , [2001] 2 S.C.R. 241 (S.C.C.) .

Citing the Bergen Ministerial Declaration on Sustainable Development (1990), the Court noted that "[e]nvironmental measures must anticipate, prevent and attack the causes of environmental degradation".

As a result, "[w]here there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation": at para. 31 73 Indeed, as Justice Russell observed in his decision in the Orca case, " [e]ndangered species do not have time to wait for [the competent minister] to 'get it right' ": at para. 66. [Emphasis added] [ 56 ] The precautionary principle is a legislative tool that prevents governments from pointing to imperfect data as an excuse for failing to implement a statutory duty.

Protecting habitat is a key component of the legislation, which has as its aim the protection and management of vulnerable species in Nova Scotia. The Minister must ensure that recovery plans identify areas that may later be designated as core habitat. A lack of full scientific certainty may not be used as an excuse for failing to meet the ESA ’s purposes. [ 57 ] The Applicants say the Minister breached the statute by failing to ensure that “core habitat” is clearly delineated in the recovery plans for Black Ash and Mainland Moose.

While the recovery plan for Black Ash “provides a partial definition” of core habitat, they say, it “does not identify areas to be considered for designation as core habitat for the species.” As for the Mainland Moose, the recovery plans do not set out any core habitat, which the Minister concedes. The Applicants argue that because

section 15 uses the word “shall”, the inclusion of core habitat in a recovery plan is imperative, and the Minister had no discretion to omit core habitat from the recovery plans. They rely on the precautionary principle for the proposition that a lack of scientific certainty may not be used to avoid the duty of including core habitat in a recovery plan. Black Ash [ 58 ] In 2013, the Black Ash tree was designated as threatened under the ESA . In 2015, the Minister published a recovery plan and action plan for Black Ash.

In its discussion of core habitat, the plan does not refer to any specific area, location, or landform, but explains over several paragraphs why identifying specific areas of core habitat is not feasible. The main issue raised is a lack of data.

The report states that “[t]hese factors, plus a lack of clear understanding as to what is necessary to recover the species suggest that there is currently insufficient information to provide a complete definition of core habitat, although a more complete definition may be possible in the future.” [ 59 ] The Respondents say the 2015 recovery plan for Black Ash satisfies the requirements of the ESA , but say that identifying specific areas in Nova Scotia as core habitat for the Black Ash is not feasible. They concede that “shall” is imperative and not discretionary. However, they argue that the Applicants’

interpretation of the Minister’s duty under these provisions would “mandate action where there is no scientific basis for the action.” [ 60 ] The Respondents say a lack of full scientific certainty “does not encapsulate situations in which there is a complete lack of scientific support for something.” Other sections of the ESA , specifically sections 11 and 18 , could allow a zealous Minister to take steps to protect a species with no scientific basis to do so, but these sections have safeguards – for example, if the Minister lists a species as endangered without scientific evidence, that listing expires in one year. There are no such safeguards in

section 15 . [ 61 ] Finally, the Respondents say that when a species is at risk, its habitat is already protected by

section 13, which prohibits

harming endangered and threatened species and their dwelling places. The Respondents say the decision not to identify specific “core habitat” is reasonable in light of the Record. [ 62 ] As discussed above, the meaning of “shall” is imperative. The Minister has no discretion to avoid this duty. Therefore, the Minister must ensure that published recovery plans identify areas which the Minister may later consider for designation as core habitat. To do otherwise is not a reasonable

interpretation of the Minister’s statutory duty. The areas identified must be specific enough to put the Minister in a position to designate core habitat. Therefore, to comply with s. 15(4) (h), recovery plans must identify “specific physical areas and landforms” consistent with s. 16. [ 63 ] The Respondents point to the interim recommendations in the recovery plan as satisfying s. 15(4) (h), specifically the following: On an interim basis , the definition of core habitat needs to balance the immediate need for Emerald ash borer management and the long- term need for core habitat to support species recovery.

To this end, it is recommended that individual seed-bearing trees be protected with a 150m buffer from forest harvest and industrial activity that may harm the tree or its surrounding habitat . Long distance dispersal distances for ashes is up to 150 m in the direction of the prevailing winds (e.g., Schmiedel et al. 2013), so the buffered area should support recruitment if it occurs and maintain localized habitat conditions. Given the proximity of some of these trees to streams and wetlands, some consideration should be also given to the maintenance of watercourses near seed trees.

To prevent net loss of individual Black ash trees (non-seed-bearing trees), activities that may result in mortality (e.g. forestry, road construction, infilling of swamps) should plant replacement trees in suitable relatively undisturbed habitat. Replacement rates should be related to seedling survival (e.g. transplant 5 seedlings to 1 lost tree). Benedict (2003) suggests that the desired plant density at emergence in 30 to 45 plants/m 2 or 10 to 15 seedlings/ft 2 .

Seedlings should be planted 3 to 4.5 m (10 to 15 ft) apart for reforestation and basket materials projects. [Emphasis added.] [ 64 ] This, the Respondents say, shows that the recovery team was working to compile essential information, even though “it was not possible to provide a final definition of core habitat.” [ 65 ] Under s. 15(4)(h), a recovery plan must “identify areas to be considered for designation as core habitat.” Pursuant to s. 16(2), “where the Minister considers it necessary for the purpose of implementing a recovery plan, the Minister may designate specific physical areas or landforms of the Province as core habitat.” When ss. 15(4)(

h) and 16(2) are read together with the definition of “core habitat” at s. 3(b) (“specific areas of habitat...”), it is clear that the recovery plan must identify specific physical areas or landforms. Without that information, the Minister is not in a position to determine whether to exercise his or her discretion under s. 16(2) to designate a land area as core habitat for the purpose of implementing the recovery plan. [ 66 ] Nothing else in the Black Ash recovery plan sets out specific areas or landforms that could be used for designation.

In the recovery plan, under the status column for “Identify native seed-bearing Black ash and maintain them through stewardship programs”, it says, “Not yet underway”. The recovery plan notes that “Black ash habitat has not been described in a Nova Scotia context and the preferred habitat is unclear”. It outlines the various threats to the species’ survival, including habitat loss, forestry, climate change, and invasive beetles. [ 67 ] One of the four key conditions for recovery of the species is ensuring the viability of seed-bearing trees. Therefore, protecting these seed-bearing trees is essential.

The plan notes (p. 5) that although “Black ash is known from 35-40 sites in 11 counties of Nova Scotia[,] mature individuals are rare and only 12 are known to occur. Total number of known trees in Nova Scotia is approximately 1000”. Those twelve trees are the only seed-bearing trees verified in the province (p. 6).

At page 7, there is a map of Nova Scotia with dots that show the known distribution of Black Ash according to the records for which coordinates were available, but it does not provide the locations of known seed-bearing trees. [ 68 ] The recovery plan’s authors suggest that prospective Wildlife Habitat and Watercourse Regulations “may provide some protection to trees found within 20m of streams greater than 50 cm in width” but would not protect “trees along smaller streams or shrug swamps” (pp. 10-11).

The plan appears to contemplate that some areas where trees are known to occur will be protected by future regulations. Five years later, however, those regulations do not exist. [ 69 ] Counsel for the Respondents was asked where the Court could find the Minister’s justification for this decision. Counsel pointed to the Record. The information contained therein will weigh heavily in this Court’s analysis. [ 70 ] The lack of available information is reflected throughout the recovery plan.

There are, however, a passages that could contradict the conclusion that it is impossible to identify any areas to be considered for core habitat. At page 6, the plan indicates, “only 12 seed-bearing trees are known to occur (i.e., verified)”. At page 23, it states, “Locations and ownership of properties with seed-bearing trees are mostly known”. Given the “interim recommendation” that seed-bearing trees receive a 150m buffer of protection, this suggests that it would be possible to identify the locations of some of these trees, but those locations are not identified in this plan.

Consequently, the Minister could not use the information provided to later designate any areas as core habitat. There is nothing in the Record to explain why these specific areas were not identified in the recovery plan. [ 71 ] There is no apparent support in the Record for the claim that institutional restraints, such as lack of resources, are at fault for this failure to observe statutory requirements. No affidavits were provided by the Respondents to support the assertion that resources are scant, unlike in Western Canada Wilderness Committee .

In view of this lack of explanation, I cannot conclude that the Minister’s failure to include areas to be considered for core habitat designation in the recovery plans for Black Ash was reasonable. [ 72 ] Although the Respondents say the ESA ’s definition of “core habitat” necessarily means that it must also be designated as such (unlike the SARA definition of “critical habitat”), that does not mean that s. 15(4)(

h) is rendered meaningless. The issue is not whether specific areas have been designated, but whether specific areas have been identified . Having reviewed other sections in the ESA dealing with core habitat, it is clear that the information in the recovery plan must be sufficient to allow the Minister to designate specific

physical areas or landforms in the province. That is not possible if no specific areas have been identified. Given the above discussion regarding ensuring government actors comply with the rule of law, and the precautionary principle, it cannot be said that the Minister’s actions here were a reasonable

interpretation of the statutory duties, particularly where the recovery plan itself suggests that more specific information is available. Mainland Moose [ 73 ] The Mainland Moose was listed as endangered in 2003. A recovery team was appointed in 2004 and a recovery plan was prepared in 2007, but not approved until 2012. While this population once thrived in the province, it “has experienced significant and continuous decline over the past thirty years”. As of 2003, the population was around 1,000-1,200, and that number has not been revised.

According to the 2003 data, Moose distribution has remained largely the same since aerial surveys were taken in the 1960s. Localized groups occupy “the northern Cobequid Hills and Pictou-Antigonish Highlands, the southwestern interior in and around the Tobeatic Wildlife Management Area, and scattered pockets along the eastern shores of Guysborough, Halifax, Shelburne, Queens and Yarmouth counties”. A map sets out population estimates by area.

Threats are complex and poorly understood, but appear to include disease, parasites, poaching, road access to moose habitat, development, forest practices, and climate change. Throughout the plan, lack of data is cited frequently (see, e.g., pp. 219-220). [ 74 ] The Nova Scotia government made efforts to help the struggling Moose population for several decades, with few positive results. Moose hunting was closed in 1937 in recognition of the decline in population. Efforts to monitor and protect the population are cited from the 1960s and 1970s.

Key information regarding habitat is still lacking, however, and no core habitat has been identified. Under the heading for “core habitat”, the recovery plan refers to the ESA definition, and says: ... Under the NSESA, the province of Nova Scotia may identify “core habitat” for provincially endangered species. Insufficient qualitative, quantitative, spatial and temporal information exists at this time necessary to identify core habitat for mainland moose. Moose use a broad array of habitat types that are variable in space and time.

Significant information gaps surrounding the life history, landscape ecology and biology of mainland moose will need to be addressed before core habitat can be defined. [ 75 ] The wording of the plan (i.e. using “may” when the ESA says “shall”) indicates a non-imperative

interpretation by the drafters of the report regarding setting out core habitat for the Mainland Moose. [ 76 ] The recovery plan states that a portion of the land used by Mainland Moose is protected by other legislation, including the Wildlife Act , R.S.N.S. 1989, c 504 , the Forests Act , R.S.N.S 1989, c. 179 (or the Forest Enhancement Act , R.S.N.S. 1989, c. 178 ), the Off-highway Vehicles Act , R.S.N.S. 1989, c. 323 , and the Wilderness Areas Protection Act , S.N.S 1998, c. 27 .

Neither the plan nor counsel’s submissions explain how these statutes specifically help Moose or their habitat. [ 77 ] Outside of this report, other instances of studying Moose include a two-page 2012 document entitled “Endangered Mainland Moose Special Management Practices”, showing a map of Nova Scotia with large coloured patches to mark “Significant Mainland Moose Concentration Areas”. There is a short comment above the map, stating, in part: Moose population concentration areas were identified using a scientifically-based geographic model, expert review, and the best available data.

The model included an estimate of total occupied range, relative population density, and significant population concentration areas. It was developed using 3272 moose observational records compiled between 1999 and 2011. [ 78 ] The document includes several preservation recommendations, such as ensuring a 250m buffer of trees at the edge of any forest harvest for Moose habitat. [ 79 ] There is also an “Action Plan” for the Moose, dated for 2014-2018. According to the Respondent, this document reviews the 2007 plan for species recovery.

The plan indicates that progress was made on understanding the distribution, but getting reliable data on the Moose population remains a top priority. Field surveys were ongoing. There was otherwise no further update on “core habitat” in the 2014-2018 plan. [ 80 ] Counsel for the Respondents concedes that it was not possible to identify specific core habitat for Mainland Moose “due to the ecology of the species.” The Respondents say it is not proper for the court to question the expertise of the scientists who drafted the report.

It is not clear, though, how this comports with the precautionary principle or the overall aims of the ESA . As noted in Wilderness Committee , supra , perfection should not become the enemy of the good. Even where there is a lack of useful information, it is the Minister’s duty to ensure this information is gathered before the expiry of the timeframe. There is likely no entity better situated to get this information than the Minister and his appointed teams.

If the Minister is simply unable or unwilling to ensure some core habitat is set out in a recovery or management plan, then he will be in breach of the ESA . [ 81 ] The Record provides no explanation for why, despite efforts to support the population from the 1930s, comprehensive data around Moose population has not been generated. There is no specific evidence of a lack of resources that affected the ability to obtain or develop data.

Recognizing that collecting data on a small roving population of Moose has inherent difficulties, no explanation has been provided as to why there is still, in the Respondent’s words, “a complete lack of scientific basis for designating any geographic area as core habitat for the Mainland Moose”. [ 82 ] In short, there is no explanation for the breach of s. 15(4)(

h) as it relates to the Mainland Moose. With no explanation from the Minister, I conclude that omitting core habitat decision was unreasonable in view of the Minister’s statutory duties.

(3) Whether the Mainland Moose “review” published by the Minister was reasonable under s. 15(11). [ 83 ] Subsection 15(11) of the ESA requires that “[r]ecovery plans and management plans shall be reviewed every five years to determine the progress of the recovery of the species and whether any changes or modifications are required”. The ESA does not define “review”, nor does the term appear in this context anywhere else in the ESA . The purpose of the review is to determine the progress of

species recovery and whether any changes are necessary. Given the above analysis, review of the recovery and management plans is imperative after five years. If no review occurs, the Minister is in breach of this section. [ 84 ] The Mainland Moose recovery plan was prepared in 2007, meaning a review was due in 2012. There are two documents in the Record that the Respondents suggest meet this requirement.

With respect to the 2012 “Endangered Mainland Moose Special Management Practices”, counsel submits that “while perhaps not explicitly a full review,” it shows that “facets of the 2007 Recovery Plan were being reviewed, considered, and applied.” This would be five years after the 2007 plan was released, though counsel also concedes that this 2007 plan was not formally approved until 2012. The Respondents also point to the “Action Plan for the Recovery of the Eastern Moose ( Alces alces americana ) in Mainland Nova Scotia,” dated 2014-2018.

The Action Plan purports to “complement” the 2007 recovery plan “by reporting on progress achieved to date on the actions identified in the Recovery Plan and by identifying the specific tasks and actions required to move forward and achieve the recovery objectives”. The report includes a table of action items with status updates. The Respondents also point out that a new recovery team was appointed for the Mainland Moose in August 2019, with updates pending.

The Respondent submits that this “is logical given that there would be new information on Mainland Moose in the intervening time, making it more logical to revise a status report than simply review a recovery plan.” [ 85 ] The Applicants say no meaningful review has occurred. They say the 2014-2018 plan is not a review of the 2007 plan, but only an extension. It does not address whether actions taken under the 2007 plan were appropriate or out of date. The new report does not review population estimates, which are based on 2003 data (although the 2012 document relies on Moose observations from 1999-2011).

The Applicants also cite the 2018 Departmental Report on Recommendations of the Auditor General which states that the Moose plan is “out of date” and is “to be revised” by June 2018 (p. 543). It appears that the Department is implementing actions based on a 12-year-old plan with 16-year-old population data. [ 86 ] Under the SARA , the federal minister must report on the implementation and progress of every recovery strategy within five years of it being published, and that report must be published (s. 46).

A SARA recovery strategy sets out essential features of the species, and an action plan sets out specific actions in relation to a recovery strategy. The minister must prepare one or more action plans per recovery strategy ( s. 47 ). Action plans must also be reported on every five years. Therefore, the SARA contemplates publication of a report on each species’ review, dealing with implementation of the recovery strategy or action plan and discussing its progress towards the objectives.

The review report must also discuss any ecological and socio-economic impacts incurred as a result of the plan being implemented ( s. 55 ). [ 87 ] Unlike the SARA system, there is no requirement to create an action plan for a recovery plan under the ESA . In 2016, the Minister published an action plan, which appears to align with the definition of action plan under the SARA . In considering whether the 2016 action plan may be deemed a “review” under the ESA , a review of other provincial endangered species legislation is helpful.

While some statutes require the minister to review a plan or strategy after five years (e.g. the Ontario Endangered Species Act at s. 12.2 ), only the federal SARA requires the minister to produce a published report or document. [ 88 ] Vavilov indicates that the decision maker’s task is to “interpret the contested provision in a manner consistent with the text, context and purpose, applying its particular insight into the statutory scheme at issue” (para. 121).

There is little authority on the meaning of “review” in the context of endangered species legislation that would provide guidance on whether the Respondents’ proposed

interpretation is reasonable. The term has, however, been considered in other areas. In Saskatoon (City) v Plaxton (1989), 33 C.P.C. (2d) 238, 1989 CarswellSask 235 (Sask. C.A.) , a personal injury settlement provided that payment of the solicitor/client account would be subject to review and approval by a public trustee. Cameron J.A., for the majority, discussed the term “review” outside of an adjudicative context: 26 The words, too, are not altogether free of ambiguity. "Review" is occasionally taken in popular use as meaning little more than a first instance "looking over" or "examination".

In its legal sense, of course, it usually means more than that, as implying a formal, second instance "re-examination" or "reconsideration", with a view to revision or redetermination if something be found wrong or lacking ... [ 89 ] I also consider other

definitions of “review.” For instance, The Concise Oxford Dictionary of Current English , 8th ed., defines “review” as a transitive verb as follows: 1. Survey or look back on 2. Reconsider or revise 3. Hold a review of (troops etc.) 4. Write a review (of a book, play, etc.) 5. View again [ 90 ] Definition (2) is most instructive here, suggesting a two-pronged understanding of “review”, similar to the discussion in Plaxton : it can mean looking something over again (i.e. reconsidering), and may also mean actual revision. I conclude that a reasonable

interpretation of “review” under the ESA is more than “looking over”, but also requires reconsideration and, if necessary, revision to address changing circumstances. This

interpretation comports with the purpose of the ESA , which is to ensure the protection of species in a timely manner. [ 91 ] Unlike the SARA , the ESA does not expressly require the Minister to produce a report or document as a result of statutory review. Although, there is some qualifying language in s. 15(11), the form of the review is open to

interpretation by the Minister, though transparency and public accountability would suggest that there should be some public indication that a review occurred. Otherwise, there is little guidance regarding what “review” looks like under the ESA , suggesting the legislature intended to give the Minister a degree of discretion. [ 92 ] The Respondents rely on the 2012 “Special Management Practices” document and the 2014-2018 Action Plan as documents

constituting a “review”. I also have regard to the Departmental Report on Recommendations of the Auditor General, which updates the status of Moose recovery, and the 2011 Memo from the recovery team to Bob Petrie, which refers to the 2007 plan and indicates that different population census methodology is needed. [ 93 ] Based on the principles of statutory

interpretation and taking into account the applicable standard of review, I conclude it was open to the Minister to interpret the term “review” as something less substantive than what the Applicants call for. Considering the various documents put forward by the Respondents to demonstrate review of the Mainland Moose plan, it is reasonable to conclude that a review occurred with the 2014-2018 action plan. Although that document does not expressly deal with whether changes or modifications of the 2007 plan are required, it can be inferred that the recovery team concluded that no major changes were necessary.

The Applicants have not provided any authority for their assertion that a review must be critical of the original plan. The Minister’s broader

interpretation of “review” is not precluded by the ESA or by any relevant factual or legal constraints. The Minister’s conclusion that the documents provided, specifically the 2014-2018 action plan, constitute a “review” as required by s. 15(11) of the ESA is reasonable. [ 94 ] That being said, the Respondents’ brief confirms that the 2012 document is not a “full review.” I would agree. It is a two-page document that makes no reference to the 2007 plan and that uses different population data, from observations in 1999-2011 as opposed to the 2003 data relied on in the 2007 recovery plan. Because this document does not address developments since 2007, it does not fall within a reasonable

interpretation of a “review” under the ESA . [ 95 ] As a result of this characterization of the 2012 document, the review did not occur until 2013, when the 2014-2018 Action Plan was published. Therefore, the review was late by one year under the five-year timeline. There being no explanation for this failure to comply with the statute, I must conclude that the failure to complete the review within the statutory timeline was unreasonable.

(4) Whether the Minister’s “adoption” of federal recovery plans for the Eastern Wood Pewee and the Wood Turtle was reasonable under s. 15(9). [ 96 ] The Applicants allege that the Minister unreasonably failed to produce a recovery plan for the Wood Turtle within the required timeframe ( s. 15(1) (b)) and to produce a management plan for the Eastern Wood Pewee within the required timeframe (s. 15(10)) was unreasonable. The Respondents assert that the Minister adopted a federal plans in respect of these two species. Subsection 15

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