Ecojustice Case – Nature Case Status: Victory

Nooksack dace lawsuit win protects habitat critical to endangered species

Ecojustice lawyer Lara TessaroLara TessaroLawyer
BC creek
BC creek. Photo: James Chen via Shutterstock

More than 80 per cent of Canada’s species at risk are endangered primarily because of habitat loss. The longer we wait to identify and protect their critical habitat, the less chance they have of surviving, let alone recovering.

In the case of the Nooksack dace, scientists on the recovery team mapped the exact location of its critical habitat and included those maps in a draft recovery strategy, but officials from the Department of Fisheries and Oceans removed this information from the final recovery strategy. The Nooksack dace is an example of a systematic failure by the federal government to identify and protect critical habitat for endangered species.

Why was Ecojustice involved?

Under the federal Species at Risk Act (SARA), identification of habitat critical to a species’ survival is required by law. SARA requires critical habitat to be identified in recovery strategies to the fullest extent possible.

Environmental groups filed a lawsuit against the federal Minister of Fisheries and Oceans for refusing to identify critical habitat — contrary to scientific advice — and weakening the recovery for the Nooksack dace, an endangered fish that lives in small streams in B.C. Fraser Valley, east of Vancouver.

The lawsuit argues that failure to identify critical habitat in the recovery strategy represents a refusal by the federal government to enforce SARA.

The Nooksack dace case concluded Sept. 10, 2009 with a sweeping judgment in our client’s favour.

What does this victory mean?

The judgment means that government must identify critical habitat to the greatest extent possible, and cannot use scientific uncertainty to delay critical habitat identification.

The ruling pinpointed the government’s unlawful habit of failing to identify critical habitat and described the case as “a story about the creation and application of policy by the Minister in clear contravention of the law, and a reluctance to be held accountable for failure to follow the law.”

As a result of this win, numerous other recovery strategies for species ranging from tiny snails to massive whales will have to be strengthened.

The Nooksack dace judgment embraces a definition of critical habitat that includes essential ecological attributes needed for an endangered species to survive. This will assist many species — including resident killer whales that need protection from acoustic disturbances, pollution and depletion of salmon prey.

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