Comments on: Is SARA growing teeth? http://ablawg.ca/2009/07/28/is-sara-growing-teeth/ Thu, 17 May 2012 19:52:30 +0000 http://wordpress.org/?v=2.3.3 By: Shaun Fluker http://ablawg.ca/2009/07/28/is-sara-growing-teeth/#comment-67482 Shaun Fluker Wed, 29 Jul 2009 05:15:41 +0000 http://ablawg.ca/2009/07/28/is-sara-growing-teeth/#comment-67482 It will be interesting to follow whether this goes to the Federal Court of Appeal - which since at least as far back as its 1996 Express Pipelines decision has asserted that "reasonable people can and do disagree on the adequacy of evidence" and, i believe, has also asserted strongly that the Court is not "an academy of science". I agree that Justice Zinn is second-guessing the Minister's assessment of the evidence - suggesting that available science (set out in the Recovery Strategy) makes it possible to identify critical habitat - and is accordingly not shy in merging science and law in his reasoning. Certainly a more intrusive judicial review concerning SARA than I expected given previous Federal Court decisions considering the legislation. Zinn J.'s analysis does seem somewhat involved for a deferential 'reasonableness" review under Dunsmuir - little or no deference shown here in my view. Wouldn't be suprised if this is overturned on appeal based on this (mis?)application of reasonableness. Hopefully I'm wrong as that result would be very disappointing since i agree with you Nigel that Zinn J.'s decision holds true to the intentions of SARA. It will be interesting to follow whether this goes to the Federal Court of Appeal - which since at least as far back as its 1996 Express Pipelines decision has asserted that “reasonable people can and do disagree on the adequacy of evidence” and, i believe, has also asserted strongly that the Court is not “an academy of science”. I agree that Justice Zinn is second-guessing the Minister’s assessment of the evidence - suggesting that available science (set out in the Recovery Strategy) makes it possible to identify critical habitat - and is accordingly not shy in merging science and law in his reasoning.

Certainly a more intrusive judicial review concerning SARA than I expected given previous Federal Court decisions considering the legislation. Zinn J.’s analysis does seem somewhat involved for a deferential ‘reasonableness” review under Dunsmuir - little or no deference shown here in my view. Wouldn’t be suprised if this is overturned on appeal based on this (mis?)application of reasonableness. Hopefully I’m wrong as that result would be very disappointing since i agree with you Nigel that Zinn J.’s decision holds true to the intentions of SARA.

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