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Court finds 'enormous systemic problem' in enforcement of Species at Risk Act

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OTTAWA - A Federal Court judge has ruled that the environment minister and the fisheries minister both broke the law by failing to enforce the Species at Risk Act.

In a case covering four species that Justice Anne Mactavish calls "the tip of the iceberg," the court found there's a major systemic problem in the two ministries charged with protecting endangered and threatened wildlife.

The 47-page ruling released Friday states that "public officials are not above the law. If an official acts contrary to a statute, the courts are entitled to so declare."

At issue was a challenge brought by five environmental organizations, who asked the court to enforce provisions under the Species at Risk Act.

The groups cited four particular species: the nechako white sturgeon, the pacific humpback whale, the marbled murrelet and the southern mountain woodland caribou.

In every case, the government had failed to propose recovery strategies after the species were formally identified, missing statutory deadlines by up to six and half years.

"It is simply not acceptable for the responsible ministers to continue to miss the mandatory deadlines that have been established by Parliament," Mactavish wrote.

A spokeswoman for Environment Minister Leona Aglukkaq responded to the judgment by acknowledging that recovery strategies or management plans are currently required for 192 species, of which 163 are overdue.

"Environment Canada has significantly accelerated its progress in recent years and has published 85 strategies and plans in the last three years," Jennifer Kennedy said in an email.

"It is also finalizing a posting plan to ensure transparency with respect to upcoming recovery documents and progress in reducing the number of overdue recovery documents over the next few years."

The judgment cited evidence those recovery plans could have an impact on the approval of the Northern Gateway pipeline, which will affect all four of the species cited in the case.

As Mactavish ruled, "the absence of posted recovery strategies deprives the ministers of considerable leverage in dealing with the impact of industrial development on species at risk."

The judgment found the government did not contest the evidence — "although they do deny that recovery strategies have been intentionally delayed in order to facilitate industrial development."

Stewart Elgie, a professor of environmental law at the University of Ottawa, characterized the judgment as "a stern wake-up call to the government."

In an interview, Elgie likened species on the list to critical-care patients at a hospital emergency ward.

"If we don't act quickly, some of them face real risk of extinction, so this kind of delay — five years or more — threatens the very survival of some Canadian wildlife species."

He said when the legislation came into force in 2003, some 200 threatened species required protection plans and created an immediate backlog. A one-time injection of serious funding could help Environment Canada and Fisheries and Oceans catch up, and Elgie argues it would be money well spent.

"The cost of doing that is cheap compared to the cost of what it will take to bring these species back if we let them get to the brink of extinction," he said.

In her judgment, Mactavish pointedly noted that lack of resources for the government departments came up time and again in testimony.

Yet the Conservative government counsel, she wrote, "advised the court that he had been specifically instructed not to raise a lack of resources as a justification for the delay in posting proposed recovery strategies for the four species."

Mactavish ruled "there is clearly an enormous systemic problem within the relevant ministries."

There is no penalty for the government missing its deadlines under the Species at Risk Act, but the court did award costs of $22,500 to the five groups that brought the suit.

The groups that challenged the government include the David Suzuki Foundation, Greenpeace Canada, the Sierra Club of British Columbia, the Western Canada Wilderness Committee and Wildsight.

They issued a statement on Friday declaring victory and expressed hope the federal government would act to protect at risk species.

"The Canadian government now needs to ramp up its efforts to finalize recovery strategies for the more than 160 other species at risk that need protection,” Gwen Barlee, a spokesperson for the Wilderness committee, said in the statement.

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