Category Archives: Protection of Species

Fisheries Act Review Should Be Evidence-Based

By: Martin Olszynski

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Matter Commented On: Standing Committee on Fisheries and Oceans Review of the Fisheries Protection Provisions (section 35) of the Fisheries Act R.S.C. 1985 c. F-14.

Consistent with the Prime Minister’s mandate letter to the Minister of Fisheries and Oceans and the Liberal government’s announcement this past summer of a broad review of the federal environmental and regulatory regime, the Standing Committee on Fisheries and Oceans (FOPO) is about to begin its review of the changes to the habitat protection provisions of the Fisheries Act introduced by the previous Conservative government back in 2012. I have previously blogged about those changes here and here, and eventually wrote an article about them. What follows is a letter that I recently sent to FOPO with respect to the scope of its review, urging it to ensure that it has the evidentiary foundation necessary to make its review meaningful. Continue reading →

Habitat Protection for the Westslope Cutthroat Trout in Alberta

By: Shaun Fluker

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Matter Commented On: Critical Habitat of the Westslope Cutthroat Trout (Oncorhynchus clarkii lewisi) Alberta Population Order, SOR/2014-241 (November 20, 2015)

On December 2, 2015, the Minister of Fisheries and Oceans Canada published a critical habitat protection order issued under sections 58(4) and (5) of the Species at Risk Act, SC 2002, c 29 (SARA) covering identified critical habitat for the westslope cutthroat trout located on Alberta public lands. Over the last 12 months the Faculty’s Environmental Law Clinic assisted the Alberta Wilderness Association and the Timberwolf Wilderness Society in their efforts to see this Order issued by the Minister. This comment revisits the process that ultimately led to this Order and describes the Order itself. At the outset it is worth noting this is only the second critical habitat protection order issued to date under sections 58(4) and (5) of SARA, and the first such order to be applied on provincial lands.

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Justice for the Western Chorus Frog?

By: Shaun Fluker

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Case Commented On: Centre Québécois du droit de l’environnement v Canada (Environment), 2015 FC 773 (CanLII), TransCanada PipeLines Limited King’s North Connection Pipeline Project (July 2015), GHW-001-2014 (National Energy Board)

These two decisions were issued about a week apart in late June, and have nothing in common except for the fact that both concern the threatened Western Chorus Frog species in Canada. Québécois du droit de l’environnement v. Canada (Environment) is a Federal Court judgment issued by Justice Martineau ordering the federal Minister of the Environment to reconsider her refusal to issue an emergency protection order for the Western Chorus Frog under section 80 of the Species at Risk Act, SC 2002, c 29. The King’s North Connection Pipeline Project decision issued by the National Energy Board under section 58 of the National Energy Board Act RSC 1985, c N-7 exempts TransCanada from having to obtain a certificate under section 31 and thus effectively approves the construction of an 11 kilometre gas pipeline thru known habitat for the Western Chorus Frog in southern Ontario. I consider these posts together as a means for another comment on the intersection between species at risk protection and development in Canada. These decisions also demonstrate that species at risk issues can arise in congested urban areas, not just in the far away wilds.

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Is the Federal Government Intent on Hurrying Along the ‘Sixth Extinction’?

By: Martin Olszynski

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Legislation Commented On: Species At Risk Act, SC 2002 c 29

Sitting on a shelf in my office – unread since roughly this time last year – is Elizabeth Kolbert’s book The Sixth Extinction: An Unnatural History. Ms Kolbert’s book recently won the Pulitzer Prize for non-fiction, having been described by its judges as “an exploration of nature that forces readers to consider the threat posed by human behaviour to a world of astonishing diversity.” Also sitting on my computer’s desktop – unfinished since this past December – has been a blog post about the federal government’s failure to list species under the Species At Risk Act (SARA) since 2011, notwithstanding the fact the scientific body responsible for recommending listing, the Committee on the Status of Endangered Wildlife in Canada (COSEWIC), has made 67 such recommendations since that time (all of which was reported in the Globe and Mail here; after this story broke three bat species were listed, but to my knowledge the government hasn’t changed its basic position, as further discussed below). My plan was to read Ms. Kolbert’s book and use it to frame a post describing yet another example of the federal government’s total disregard for the rule of law when it comes to species at risk (see e.g. here). But I am already late to the party and, having just blogged about environmental-law-as-process and its implications for the environment, it seems to me that such a post makes for a reasonable Exhibit A. The fact that I have a huge pile of marking sitting in front of me right now is also not irrelevant.

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Northern Gateway Approved Despite Uncertain Environmental Effects: Is This What Sustainable Development Looks Like?

By: Shaun Fluker

PDF Version: Northern Gateway Approved Despite Uncertain Environmental Effects: Is This What Sustainable Development Looks Like?

Decision commented on: National Energy Board, Northern Gateway Decision Statement

On June 17, 2014 the National Energy Board issued a decision statement to Enbridge under section 54(1) of the Canadian Environmental Assessment Act, 2012, SC 2012, c 19, s 52 announcing that the federal Governor in Council had approved the Northern Gateway pipeline subject to the 209 conditions recommended by the Northern Gateway panel (The panel report was the subject of earlier ABlawg comments here and here). The Governor in Council accepted the panel’s recommendations that the pipeline will have significant adverse environmental effects to populations of woodland caribou and grizzly bears, but that these effects are justified in the circumstances. I will comment on this approval by comparing it to another major resource project decision issued on the very same day, June 17, 2014 – albeit one issued on the other side of the globe in New Zealand.

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