Documents Reveal Governments Acting to Undermine Species Law

In a closely-watched lawsuit about the endangered Nooksack dace, leading environmental groups will present new evidence in Federal Court tomorrow (Tuesday, September 9 at 11 a.m. at 701 West Georgia Street in Vancouver) that the provincial and federal governments have colluded in refusing to identify the habitat needed for the survival of endangered species. The Species at Risk Act (SARA) requires critical habitat to be identified, to the extent possible, in all recovery strategies for endangered and threatened species.

"We are hopeful that the court will allow this important lawsuit to proceed," said Lara Tessaro, Staff Lawyer with Ecojustice. "When independent scientists are ordered to remove information that is vital to the recovery of species at risk, this Court becomes the last line of defence for endangered species."

Ecojustice filed the lawsuit against the Minister of Fisheries and Oceans on behalf of four conservation groups: Environmental Defence, Georgia Strait Alliance, the David Suzuki Foundation and the Wilderness Committee. The lawsuit, filed in August 2007, alleges the failure of Fisheries and Oceans (DFO) to identify the critical habitat of the Nooksack dace in a recovery strategy released last year.

On Tuesday, DFO will argue that the lawsuit is now moot because the government has released a revised recovery strategy for the dace that re-inserted the critical habitat information prepared by recovery team scientists. Ecojustice will present evidence, however, showing that the federal government is following a policy of not identifying critical habitat, unless forced to do so by legal action. Far from an isolated instance of refusing to comply with SARA, the Nooksack dace strategy is evidence of a systematic failure to respect the law, and therefore the groups will argue that the court should hear the case.

Court documents, some obtained under Freedom of Information, show that federal and BC governments have agreed to prevent critical habitat from being mapped out in recovery strategies for species at risk in BC. In June 2006, an email from a DFO Regional Director of Policy ordered that critical habitat information be removed from all recovery strategies for all BC endangered and threatened aquatic species. Following this directive, critical habitat information was stripped out of the recovery strategies for many species: from Nooksack dace and sticklebacks up to southern resident orcas.

"We now know that both levels of government are actively working to ensure that species at risk in BC are not protected," say Gwen Barlee, National Policy Director with the Wilderness Committee. "Without a dramatic change in policy, and clear direction from the courts, we are going to see an increase in loss of species in this province, species we'll never get back."

The new evidence includes recent criticism by the Commissioner of the Environment and Sustainable Development, who issued a report documenting systematic failures of Canadian agencies to identify critical habitat. As of June 2007, there should have been 228 recovery strategies, but the government had completed just 55, with only 16 containing critical habitat. The exclusion of critical habitat from the recovery strategies makes it nearly impossible to protect at risk species.

"Without the identification of critical habitat, there is little point in developing a recovery strategy, as industrial development impacting those habitats can proceed unfettered," says John Werring, Salmon Conservation Biologist with the David Suzuki Foundation. "The fact that governments are colluding to take this approach is troubling."