By: Shaun Fluker and Drew Yewchuk
Decisions Commented on: Federation of Nova Scotia Naturalists v. Canada (Environment and Climate Change), 2025 FC 983; Kebaowek First Nation v. Canada (Attorney General), 2025 FC 472
This post briefly summarizes two recent federal court decisions relating to critical habitat under the Species at Risk Act, SC 2002, c 29 (SARA). These decisions add to a long list of federal court decisions adjudicating the interpretation of SARA provisions, resulting from litigation initiated by environmental non-government organizations (ENGOs) seeking judicial orders that force federal Ministers to interpret SARA in accordance with its purpose, implement SARA without undue delay, or frankly take any measures whatsoever under SARA to protect listed species at risk and their critical habitat (ABlawg has commented on many of these decisions, see for example two 2024 posts written by Drew Yewchuk here and here). Federal officials have impaired the effectiveness of SARA with peculiar interpretations that obstruct the application of legislation’s protection measures for species at risk. While the two decisions commented on here relate to species at risk in Ontario and Nova Scotia, both decisions will impact the application of SARA in Alberta and likely have implications for coal exploration and development along the Eastern Slopes of the Rocky Mountains and UCP government’s policy push to open up the Eastern Slopes to coal under the coal industry modernization initiative.
Federation of Nova Scotia Naturalists v. Canada (Environment and Climate Change), 2025 FC 983
A SARA recovery strategy must include “an identification of the species’ critical habitat, to the extent possible, based on the best available information” (at para 11; SARA, s.41(1)(c)). Amazingly, and after not one but two federal court decisions issued almost concurrently back in 2009 on the issue of critical habitat identification in a recovery strategy (see Alberta Wilderness Association v Canada (Environment), 2009 FC 710 (CanLII) and Environmental Defence Canada v Canada (Fisheries and Oceans), 2009 FC 878 (CanLII)), ENGOs still need to litigate in order to force federal officials to comply with this obligation in a recovery strategy.
Federation of Nova Scotia Naturalists v Canada (Environment and Climate Change), 2025 FC 983 (Federation of Nova Scotia Naturalists) decided by Justice Richard F. Southcott, is a challenge to the identification of critical habitat in the 2022 recovery strategy for the Piping Plover, an endangered migratory shorebird whose summer habitat consists of beaches across Canada including Alberta. There are three subspecies of plover in present in Canada, and this litigation concerned the coastal plover populations in Québec and Atlantic Canada. The Piping Plover is best known from videos of plovers running back and forth on a beach to avoid incoming waves. The applicants were a non-profit society and a charity dedicated to environmental protection (at paras 5-6).
The dispute arose when a 2022 recovery strategy amended and replaced a 2012 recovery strategy, and the 2022 recovery strategy changed the methodology for identifying critical habitat for the plovers. The 2012 recovery strategy used an ‘area of occupancy’ methodology to identify entire areas of beach occupied by a nesting pair since 1991 (at para 14) with GPS coordinates, including inter-tidal zones from the low water mark to the transition from sand to vegetation (at paras 15-18) throughout Atlantic Canada and Quebec. In contrast, the 2022 recovery strategy used a ‘bounding box’ methodology to identify beach areas as mapped polygons with coordinates but only designated critical habitat to exist within those polygon areas where specified biophysical features and attributes are present (at paras 20 – 24). Justice Southcott reproduces the following extract from the 2022 amended recovery strategy which succinctly describes a bounding box approach:
Critical habitat for the [Plover] is identified as all areas of suitable habitat (Table 5) within the defined 1 x 1 grid squares (C-3 – 86). Suitable habitat relates to areas possessing a specific set of biophysical attributes required for [Plover’s] life processes as summarized in Table 5. Note that not all attributes in Table 5 must be present in order for an area to be identified as critical habitat. If the area is capable of supporting [Plover], it is considered critical habitat for the species, even though some of the associated attributes might be missing. (at para 24)
The Applicants argued the bounding box methodology fails to identify critical habitat with the necessary clarity and precision of location and boundaries needed to facilitate the implementation and enforcement of habitat protection measures under SARA; the bounding box methodology is both too narrow and underinclusive at identifying critical habitat (at paras 25, 34, 61).
The bounding box methodology is much less precise at identifying critical habitat than the area of occupancy method, because in order to locate and identify critical habitat using a ‘bounding box’ you need to be located within a mapped grid square AND be at a location where vaguely described attributes or features (for instance, ‘gently sloping foredune’ or ‘sparsely vegetated’ for the plovers) are present. Whereas the 2012 recovery strategy identified a beach that is critical habitat, the 2022 recovery strategy identifies a beach that contains critical habitat (at para 64, 65).
The importance of the description of critical habitat in a recovery strategy cannot be understated since legal protection for critical habitat under SARA depends entirely on the identification of that habitat in a recovery strategy (at para 72). The Applicants asserted it would be difficult to envision a coherent description on signage to inform the public that a beach is critical habitat:
To illustrate this risk, the Applicants ask the Court to contemplate the sort of signage that enforcement officials might post at an Atlantic Canadian beach to advise potential beachgoers of the presence of critical Plover habitat and a resulting prohibition against its destruction. The Applicants submit that, if the relevant critical habitat were identified through the methodology employed in the [2012] Recovery Strategy, the sign could simply say that the beach at which it is posted is critical habitat, the destruction of which is prohibited.
In contrast, the Applicants submit that, under the [2022] Amended Recovery Strategy, the sign would have to refer to the presence of critical habitat at the beach and instruct the beachgoer and to avoid destroying areas at the beach demonstrating attributes such as gently sloping foreshore (< 9%), sparse vegetation (< 20% within at least 25 m2), relatively wide backshore, and presence of suitable invertebrate prey resources. The Applicants argue that, without a biology degree, the beachgoer would be unable to understand whether any particular part of the beach is indeed critical habitat. (at paras 74, 75)
The Applicants sought (a) an order quashing the 2022 critical habitat identification and sending it back to the Minister for reconsideration; (b) a declaration the critical habitat identification in the 2022 Recovery Strategy is contrary to SARA; and (c) a more general declaration that the bounding box approach to critical habitat identification is contrary to the SARA. In support of their request for declaratory relief, the Applicants submitted affidavit evidence showing the bounding box methodology is now used to identify critical habitat in recovery strategies for other species at risk under SARA, and that this identification is referentially incorporated into critical habitat protection orders made under section 58 of SARA (at paras 43-49).
The parties and the Court struggled to understand exactly what the bounding box methodology means for critical habitat identification and protection. This is perhaps because the bounding box methodology has no basis in the literature (see Phillip Meintzer, “Muddying the Waters? The ‘Bounding Box Approach’ to Critical Habitat Identification”, (2022) 30:2 Wildlands Advocate at 22-23), and seems to be a methodology curiously unique to SARA recovery strategies. Ultimately, Justice Southcott explained this as a dispute over the drafting of the recovery strategy rather than the science on identifying critical habitat (at paras 87, 94).
The Applicants had clearly articulated the problem with the 2022 critical habitat identification during the comment period on the draft amended recovery strategy required by section 43 of SARA, and Justice Southcott concluded that the Minister could “not demonstrate any meaningful engagement with the central issues and concerns raised by the Applicants” (at paras 95-102). Accordingly, Justice Southcott concluded the decision was unreasonable as it did not “intelligibly respond to the principal concerns raised by the Applicants in their submissions to the Minister through the public consultation process leading to the publication of the Amended Recovery Strategy.” (at para 4) Justice Southcott quashed the 2022 critical habitat identification and returned it to the Minister for reconsideration, subject to a ten-month suspension to avoid a gap in habitat protection for the Piping Plover (at para 104-107).
Justice Southcott found the submissions were not detailed enough in relation to other species to make any general conclusions or orders on the use of the bounding box approach (at para 110) and accordingly declined to grant declaratory relief that the bounding box methodology frustrates the purpose of SARA. However, Justice Southcott did suggest:
However, if the reconsideration of the Amended Recovery Strategy that results from the Judgment in this matter confirms that improved drafting of that document is necessary in order to reflect the Minister’s intentions surrounding critical habitat identification for Plover, the Respondent may consider it prudent to review other recovery strategies to the same end. (at para 111)
Kebaowek First Nation v Canada (Attorney General), 2025 FC 472
The decision of Justice Russel W. Zinn in Kebaowek First Nation v Canada (Attorney General) is the first judicial consideration of section 73 of SARA. Section 73 is crucial to conflicts between critical habitat protections and activities that would damage habitat because section 73 gives a federal Minister the power to override the species and habitat protections in SARA and authorize an activity that kills species or destroys critical habitat. The exercise of this power is subject to strict conditions including that the impact to the species or critical habitat would not jeopardize the survival or recovery of the species. Or at least, these conditions should be read strictly. In David Suzuki Foundation v Canada (Fisheries and Oceans), 2012 FCA 40 (CanLII) at paragraphs 121-125, the Federal Court of Appeal suggested in obiter that section 73 permits to destroy critical habitat should only be issued in limited circumstances. Justice Zinn here seems to adopt a similarly narrow reading in describing section 73 as “carving out a tightly bounded space in which otherwise prohibited activities may be conducted, but only if the Act’s protective mandates are advanced.” (at para 37)
SARA section 73(3) reads:
(3) The agreement may be entered into, or the permit issued, only if the competent minister is of the opinion that
(a) all reasonable alternatives to the activity that would reduce the impact on the species have been considered and the best solution has been adopted;
(b) all feasible measures will be taken to minimize the impact of the activity on the species or its critical habitat or the residences of its individuals; and
(c) the activity will not jeopardize the survival or recovery of the species.
The applicants challenged a permit issued in March 2024 by the Minister of Environment and Climate Change Canada that allowed Canadian Nuclear Laboratories Ltd. to construct a near surface disposal facility for low-level radioactive waste at a laboratory site by the Chalk River in Ontario (at paras 1-2). The disposal facility required 37 hectares and would have damaged or destroyed the habitat of species at risk listed under SARA. The permit allowed impacts to Blanding’s Turtle, Little Brown Myotis, and Northern Myotis (at para 19).
The section 73 permit was issued without reasons, so the record of decision consisted of materials that informed the Minister’s decision including a department memorandum, science reviews, and a public notice (at para 18). Generally, the record explained the threats posed to the listed species by the activity, mitigation measures proposed by the applicant, alternatives considered, and why impacts to the listed species and their habitat would be low such that the permit could be issued (at paras 19-26).
Justice Zinn found the decision was unreasonable on two grounds under section 73(3)(a). First, because the consideration of alternative sites had been limited to sites already owned by the owner of the laboratory site (at para 49), and this limited consideration of alternative sites had wrongly elevated “logistical concerns above ecological imperatives in the evaluation of “all reasonable alternatives” (at para 52). Second, because the Minister had not provided any reasoned explanation for how socio-economic and logistical factors were weighed against species conservation, despite evidence that these economic factors were determinative in the decision to issue the permit, and that this was a departure from prior interpretations of the Minister that the ‘best solution’ is the one that includes species conservation as a determinative factor (at paras 53-61).
Kebaowek should help in ensuring section 73 permits focus on what is best for the species and its habitat, rather than the logistics of the project. As an example of how this decision should refocus a consideration of alternatives and best solutions under section 73, a permit issued in 2021 to authorize harm to Westslope Cutthroat Trout habitat in Banff National Park in order to make way for the expansion of a parking lot acknowledged the project would exacerbate the decline of the trout because of habitat loss but dismissed alternatives and mitigation measures that would adversely impact the expansion project:
Alternatives: Increasing the size of the vegetation buffer between the parking lot and the aquatic habitat was examined. This option is not considered feasible without compromising the operations of the parking lot. Therefore, the project relies on grading, containing and treating the parking lot runoff via below ground stormwater management, using oil grit separator devices, to achieve reduced impacts to the Healy Creek and is considered the most viable solution.
Mitigations: A range of mitigations have been included in the project conditions to minimize the impacts to critical habitat such as, erosion and sediment controls, augmentation of riparian area plantings, improved snowplowing procedures to reduce pollution along with installation and improvements to the storm water management system of the parking lot.
Jeopardy to Survival or Recovery of the Species: While the project is likely to contribute to ongoing adverse effects to critical habitat cumulatively with other projects and uses in area of the local subpopulations of Westlope Cutthroat Trout and Bull Trout, it is unlikely this localized destruction (approximately 2%) will be enough to jeopardize the survival and recovery of the species.
(Explanation for issuing permit (BNP-1497) pursuant to the provisions of section 73 of SARA – Bull Trout, Westslope Cutthroat Trout, online: here (emphasis added).
While the section 73 permit was quashed in Kebaowek, it is debatable whether this decision truly interprets section 73 as a “tightly bound space” for avoiding SARA’s strict protections for species at risk. Justice Zinn rejected the applicant’s arguments under section 73(2) and (3), which are far more important from a species and habitat protection perspective: effective mitigation measures and no jeopardy to survival or recovery (at paras 62-84). Justice Zinn also seems to place an evidentiary burden on the applicants to prove jeopardy (at paras 71-74), when section 73(3)(c) should clearly be read as placing the burden on the Minister. Perhaps most significantly, this decision does not consider section 73(2) at all, which requires the activity authorized by a SARA section 73 permit to either be for scientific research or benefit the affected species, or if it is neither of these, be such that the impact on the species is “merely incidental” to the activity itself. The proposed work here can hardly be seen as merely incidental when the footprint of the project results in direct critical habitat loss. For some further discussion on how these conditions in section 73 should be read, see a submission to Environment Canada made by the University of Calgary Public Interest Law Clinic on behalf of the Timberwolf Wilderness Society and the Alberta Wilderness Association back in 2016 here.
Implications for Coal Exploration and Development Along the Eastern Slopes of the Rocky Mountains
We first encountered the bounding box methodology for identifying critical habitat in our work with the University of Calgary Public Interest Law Clinic as legal counsel for the Timberwolf Wilderness Society concerning the recovery strategy for the Alberta population of Westslope Cutthroat Trout. In the course of this work, we discovered that between 2017 and 2019 federal officials with the Department of Fisheries and Oceans collaborated extensively with Alberta Forestry, Fish and Wildlife and Environment officials to decide on how or whether to include riparian lands in the description of cutthroat habitat in the recovery strategy. We learned that Alberta had presented federal officials with four options for riparian critical habitat identification, including the use of a bounding box. In 2019, the department of Fisheries and Oceans published an amended recovery strategy that changed critical habitat identification that reflect influence by Alberta on federal officials, including a shift from an ‘area of occupancy’ to the ‘bounding box’ methodology for identifying habitat:
The critical habitat’s functions, features and attributes have been identified using the bounding box approach. This means that critical habitat is not comprised of the entire area within the identified boundaries but only those areas within the identified geographical boundaries where the described biophysical feature and function it supports occur, as described in Table 2. Note that this approach differs from the approach described in Part 2, section 4.0, which states that an area of occupancy approach was used to identify critical habitat.
(Fisheries and Oceans Canada. 2019. Recovery Strategy and Action Plan for the Westslope Cutthroat Trout (Oncorhynchus clarkii lewisi) Alberta population (also known as Saskatchewan-Nelson River populations) in Canada. Species at Risk Act Recovery Strategy Series. Fisheries and Oceans Canada, Ottawa at 18, online: here)
This shift in Westslope Cutthroat Trout recovery strategy to a bounding box methodology is exactly what happened in the Piping Plover recovery strategy. Other species in Alberta that have critical habitat identified using the bounding box include the Athabasca Rainbow Trout. Federation of Nova Scotia Naturalists likely means these recovery strategies will need to be updated or amended in a manner that will make ambiguously identified critical habitat more clearly identified in mapped areas a recovery strategy.
This should have implications for coal exploration and development work that is proposed in areas of critical habitat for listed freshwater fish in the Eastern Slopes, and in particular designated critical habitat for Westslope Cutthroat Trout and Bull Trout. This habitat must surely constitute “areas of high environmental sensitivity” in Category 2 lands for which no coal exploration or development is permitted and also be areas where “proper assurances for environmental protection” are required in Category 3 and 4 lands under the 1976 Coal Policy. This was clearly the case in the Grassy Mountain project application which the Alberta Energy Regulator denied in 2021, largely on the basis of adverse impacts to Westslope Cutthroat Trout critical habitat (see Justice for the Westslope Cutthroat Trout at Grassy Mountain).
Federation of Nova Scotia Naturalists is also notable for the way it applies the standard of reasonableness to the obligation to take comments on draft recovery strategies (SARA, s.43) When submitting comments on a draft recovery strategy, there is often a sense that the comments will be ignored – in our experience, significant changes to recovery strategies between the draft version and final version are rare. Federation of Nova Scotia Naturalists makes a terrific contribution to species conservation by establishing that a Minister needs to actually read, understand, and meaningfully engage with the comments they receive. Federation of Nova Scotia Naturalists shows that submitting well-drafted and well-informed comments on species recovery strategies is not a waste of time: it is possible to have recovery strategies quashed if the Minister ignores compelling comments about the draft – a result that can be directly attributable to the ‘robust’ reasonableness review established by the Supreme Court of Canada’s decision in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 (CanLII) (see in particular Vavilov at paragraphs 127 and 128 regarding an obligation of a statutory decision-maker to be responsive to issues raised before them).
Kebaowek will also be important when the showdown between SARA and coal exploration and development work resumes, because it does indicate the federal court will enforce limits on SARA section 73 permits to harm species at risk. However as noted above, Kebaowek is only a partial statement in this regard because the decision does not contain a full discussion of the requirements for SARA permits to harm species at risk or their habitats, and in particular does not address effective mitigation and no jeopardy requirements for section 73 permits in subsection (2). Kabaowek also leaves unanswered how section 73(3)(a) will be applied when a permit is applied for in the context of a project with a location that is fixed in advance – like coal mines in Alberta’s eastern slopes. What counts as a “reasonable alternative” in that context? It appears the answer will very likely be in whether a project proponent can be convincing with a habitat offset proposal.
This is part of what effectively blocked the Grassy Mountain mine, at the joint AER-federal project assessment hearing, federal officials gave evidence that the coal mine footprint was alongside Gold Creek, which holds one of only ten remaining Westslope Cutthroat Trout populations in Alberta considered to be viable in the long term. Federal officials also submitted that any overall negative impacts to the Gold Creek population would jeopardize the survival or recovery of the species, the proposed mine had high potential to jeopardize the species because the project footprint overlapped Westslope Cutthroat Trout habitat, and the effectiveness of the proponent’s mitigation and offsetting plans was uncertain (see DFO 2020. Assessment of the Ecological Impact of the Grassy Mountain Coal Project on Westslope Cutthroat Trout in the Blairmore and Gold Creek Watersheds, Alberta. DFO Can. Sci. Advis. Sec. Sci. Resp. 2020/052 at 12-20, online: here)
Specifically in relation to offsets, the joint AER-federal panel noted as follows:
We note that DFO has clearly indicated that offsetting measures should be constructed and proven effective prior to project impacts occurring on WCT habitat. This will support a determination that the survival and recovery of WCT will not be jeopardized. DFO has stated that this is a precondition that must be met prior to issuing a permit under section 73 of SARA, which we understand is a requirement for the project to proceed.
Report of the Joint Review Panel: Benga Mining Limited Grassy Mountain Coal Project, 2021 ABAER 010 at para 1301, online: here.
In simple terms with respect to habitat, an effective offset (commonly referred to as a ‘biodiversity offset’) is an activity to restore or create an amount of habitat that is at least equal to that lost in development, such that there is no net loss, or ideally a net gain, of habitat. In fact, it will likely be impossible for coal project proponents to meet a requirement that an offset be effective prior the construction of any new mines along the Eastern Slopes, given the magnitude of impacts to instream habitat in critical habitat within the project footprint of known proposals.
Whether or not a strict position that offsets be proven effective prior to the commencement of the project will remain in place is yet to be determined. Federal officials increasingly encourage project proponents to rely on biodiversity offsets to achieve no net environmental loss (for some discussion see Biodiversity Offsets and the Species at Risk Act (Canada)) and a SARA section 73 permit that authorizes harm to a species or its critical habitat because of a coal mine will almost certainly need to rely on offsets to show that harm will not jeopardize the recovery or survival of a species. Then again, maybe not if the coal project is designated to be a ‘national interest project’ under the Building Canada Act. As explained by our colleagues Professors David Wright and Martin Olszynski in Bill C-5: Move Fast and Make Things, or Move Fast and Break Things? and A Radical Departure: Remarks on Part II of Bill C-5 (the Building Canada Act) , section 7 in the Building Canada Act can effectively oust SARA section 73 requirements and allow for the killing of endangered species or destruction of critical habitat without any meaningful legal guardrails, and the barest of democratic ones (see section 8.1 of the Building Canada Act).
Thanks to Professor Martin Olszynski for helpful feedback on the Building Canada Act.
This post may be cited as: Shaun Fluker and Drew Yewchuk, “Recent Developments on Protection of Critical Habitat under the Species at Risk Act and Implications for Coal in Alberta” (7 July 2025), online: ABlawg, http://ablawg.ca/wp-content/uploads/2025/07/ Blog_SF&DY_SARA.pdf
To subscribe to ABlawg by email or RSS feed, please go to http://ablawg.ca
Follow us on Twitter @ABlawg