Species at Risk Court Case – A Summary

March 1, 2020

Soren Bondrup-Nielsen

The following is a summary of the Species at Risk court case largely lifted from The Honourable Justice Christa M. Brothers' ruling, published by The Courts of Nova Scotia (https://decisia.lexum.com/nsc/nssc/en/item/479814/index.do).

On 24 January, 2019, Jamie Simpson of Juniper Law, on behalf of Bob Bancroft, Federation of Nova Scotia Naturalists, Blomidon Naturalists Society and Halifax Field Naturalists filed for a judicial review of omissions by the Nova Scotia Minister of Lands and Forestry to take mandatory actions pursuant to the Endangered Species Act (ESA), with the Supreme Court of Nova Scotia.

The Endangered Species Act requires the Minister of Lands and Forestry, when a species is listed, to take a number of actions such as forming recovery teams, writing recovery strategies, protecting core habitat, reviewing progress. The lawsuit alleged that the Minster of L&F had largely failed in applying SAR, required by law.

At the time of filing the lawsuit, we believed that 33 species were listed as endangered, threatened and vulnerable for which the Minister was in arrears in respect of mandatory requirements under ESA. However, the lawsuit focused on six species, representative of the failure of the Minister of Lands and Forestry in applying ESA, including mainland moose, Ram’s-head lady slipper, Canada warbler, black ash, wood turtle, and eastern wood pewee.

The hearing took place September 23 and October 1, 2019, and Justice Brothers released her decision 29 May, 2020.

Justice Brothers prefaces her decision with the following quote:

UNLESS someone like you cares a whole awful lot, nothing is going to get better. It’s not. [Dr. Seuss – The Lorax, 1971]

The Introduction to the ruling states:

“When government is entrusted, through legislation, with duties and responsibilities, but fails to discharge them, there must be recourse. This is such a case. The Notice of Judicial Review alleges a suite of failures by government, specifically, long-term, systemic failures to fulfill legal obligations under the Endangered Species Act, SNS 1998, c 11 (the ESA). Then, after this Judicial Review was commenced, the government undertook a flurry of activity in an inadequate and transparent attempt to correct its failures ex post facto. While the court cannot interfere if government conduct is reasonable, if it is not, this court must and will require government to fulfill its legislative duties.”

Further, Justice Brothers state: “As I will explain in these reasons, I have concluded that the Minister has failed to meet certain statutory duties under the ESA, and that remedies are required to correct this situation.”

The report is 58 pages long and goes into detail in examining the failings by the Minister of Lands and Forestry. Justice Brothers agreed with just about all our (the applicants) points and dismissed most of the Minister’s (the respondents) counter arguments.

Justice Brothers concludes: “In accordance with the foregoing reasons [almost 58 pages of legal language weighing the evidence], the application for judicial review is allowed in part. The Minister’s conduct in failing to observe non-discretionary, statutory duties imposed by section 15 of the ESA was unreasonable. The Respondents did not provide evidence that would explain the repeated failures to uphold the clear language of the statute, whether due to lack of resources or other reasons. The Minister’s conduct is therefore unreasonable …”

The document is available to the public (see above) and it is quite interesting to read. One can easily jump over the very technical parts and focus on the essential aspects of the case – enjoy!


This article was published in the Spring 2020 Newsletter