The Federal Court of Canada has delivered a landmark decision in the case of Western Canada Wilderness Committee v Canada (Environment and Climate Change), 2024 FC 167. This case centers on a critical challenge to the government's approach to protecting the habitats of migratory birds listed under the Species at Risk Act (SARA). At the heart of this legal battle is the Minister of Environment and Climate Change Canada's (ECCC) 2022 Protection Statement, which narrowly interpreted critical habitat protections, focusing mainly on “nests.”
It is unknown at this time whether the Minister will appeal but for the time being this decision represents a win for Migratory Birds and environmental protection.
The litigation focused on the 2022 Protection Statement issued by the Minister under section 58(5.2) of SARA. The first paragraph of the Protection Statement explained that the document would describe how the critical habitat contemplated by subsection 58(5.2) of the SARA was protected on non-federal land in Canada.
The second paragraph quoted language from paragraph 58(5.2)(b), which was the provision relied upon by the Minister in issuing the Protection Statement. Paragraph 58(5.2)(b) stated that if a recommendation for the protection of a listed species was not made pursuant to paragraph 58(5.2)(a), the competent minister must have included in the public registry a statement setting out how the critical habitat (that is habitat to which the Migratory Birds Convention Act applies), or portions of it, as the case may be, are legally protected. This statement had to be made within the 180 days described below.
The third, and critical, paragraph of the Protection Statement is provided as follows:
This statement therefore applies to those portions of critical habitat of migratory birds listed as endangered, threatened, or extirpated on Schedule 1 of SARA that are protected under the Migratory Birds Convention Act, 1994, for which the critical habitat description includes a nest. For clarity, the language “habitat to which that Act applies” refers to the nest only.
The Memorandum to the Minister that accompanied the initial version of the Protection Statement reiterated that protection for the nests of the migratory birds listed under the SARA was already legally in place on non-federal land, pursuant to section 33 of that legislation, as well as section 6 of the Migratory Birds Regulation. The memorandum also noted that the Applicants disagreed with the interpretation that the critical habitat contemplated by section 58(5.2) was confined to “nests.”
The Statement's interpretation by the Minister, particularly concerning the habitat protection of endangered, threatened, and extirpated migratory birds, sparked controversy for its narrow scope—limiting critical habitat protection predominantly to “nests.”
The single, over-arching issue in this proceeding was whether the Protection Statement was reasonable. More specifically, the Applicants submitted that the Minister's determination that the obligations contemplated by subsection 58(5.2) of the SARA were fulfilled by the Protection Statement was unreasonable.
The Federal Court found the Minister's interpretation of subsection 58(5.2) of the Species at Risk Act (SARA), which limited critical habitat protection to “nests,” to be unreasonably narrow. This interpretation failed to cover the broader and essential habitat needs critical for the survival and recovery of the species in question, notably the Marbled Murrelet. The court held that such a restrictive view contradicts the objectives of SARA and the ecological realities of species conservation, posing significant risks to migratory birds across Canada, including those in habitats within Alberta, such as the Bank Swallow, Barn Swallow, and others.
The Minister's decision was criticized for not adequately considering the applicants' detailed submissions or the substantial evidence regarding the challenges associated with nest detection and the broader issue of habitat loss and degradation. This oversight disregarded key environmental and ecological insights into species recovery, undermining the Protection Statement's rationale and justification.
The applicants maintained that the Protection Statement and the memoranda to the Minister, which were part of the “decision” under review in this proceeding, failed to address the significant issues they had raised regarding the correct interpretation of subsection 58(5.2) of the SARA. They submitted that this oversight constituted a second and independent reason why the Minister's decision was unreasonable. The judge agreed with their assessment.
The applicants stated that the Minister had not considered evidence indicating that habitat loss and degradation were a key threat to the survival and recovery of most at-risk migratory birds affected by the Protection Statement. The Federal Court agreed with this assessment.
It could be suggested that the Federal Court's decision to set aside the Protection Statement for redetermination signifies a call for a more expansive and ecologically informed approach to habitat protection under SARA. This decision could lead to the suggestion that a reevaluation of how critical habitats are defined and protected ought to take place. This of course can have implications on land use planning and development across Canada.
Furthermore, the decision underscores the judiciary's role in holding government actions accountable to legislative intentions and environmental commitments and can serve as one example of how parties, including Indigenous organizations, advocacy groups, etc., could rely on the judiciary in such circumstances if needed.
The case highlights the potential opportunity for the development and implementation of recovery strategies and action plans for listed species across Canada. The case also emphasizes the potential role of organizations to advocate for broader interpretations of habitat protection that consider the unique ecological significance of the lands and species they represent.
This decision and its implications extend far beyond the courtroom. This ruling is not just a victory for migratory birds and their habitats, it is a call for a shift in how we, as a society, approach environmental protection and conservation. The court has underscored the inadequacy of piecemeal protections in the face of ecological realities.
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