Naturalists sue province for failing to protect endangered species

Another branch of the McNeil government is being taken to court, this time for not doing enough to protect and preserve endangered species such as the mainland moose, barn swallow, monarch butterfly, and hoary willow. A judge will review the alleged failure of the Lands and Forestry Minister to take actions mandated under the Endangered Species Act for plants and animals identified as either endangered, threatened, or vulnerable.

Wildlife biologist Bob Bancroft, the Federation of Nova Scotia Naturalists, the Blomidon Society of Naturalists, and the Halifax Society of Naturalists have asked the Nova Scotia Supreme Court to review “omissions” under the Act and impose deadlines on the government to comply with its own legislation within six to 18 months following the court’s decision.

Lawyers for the Province have filed a response describing such an order as  “inappropriate” and that the court lacks jurisdiction to set such deadlines, although no reason was given.

A date for the judicial review will be set after April 18. That’s when a judge will decide whether to grant intervenor status to the East Coast Environmental Law Association. During a brief court appearance earlier this week, the lawyer for ECELAW, James Klaassen, said the non-profit group wishes to enter an affidavit. It’s based on its 2019 research that shows 11 more species have been added to the “at risk” list in the past four years.

Bancroft, a public educator who retired after working as a wildlife biologist for the previous Department of Natural Resource and worked on the team struck to save the mainland moose from 2004-2012, sent a letter to Lands and Forestry Minister Iain Rankin outlining the groups’ concerns last December. The letter received no response. In the statement of claim, the naturalists’ groups note the same shortcomings had been raised previously by the auditor-general in his 2016 report, Section 3, and in a 2015 report by the East Coast Environmental Law Association entitled “Protected on Paper Only: Evaluation of Nova Scotia’s legal obligations to protect and recover mainland moose and other species-at-risk.”

“Mr. Bancroft, the Federation of Nova Scotia Naturalists, the Blomidon Naturalists Society, and the Halifax Field Naturalists bring this Application because they have a legitimate stake (expertise and a history of involvement) in the serious, justiciable issue of timely action for species-at-risk under the Endangered Species Act, and because there is no other practical way to bring this issue to Court,” reads the statement of claim. “The Minister has not responded satisfactorily to calls to meet the legal obligations to species-at-risk under the Endangered Species Act and therefore the Applicants believe that judicial intervention is necessary.” 

The naturalists’ claim states as of January 1, 2019, there are 34 listed endangered, threatened and vulnerable species for which the Minister is in arrears in respect of mandatory requirements under the Endangered Species Act.

Under the Act, recovery teams and recovery plans are supposed to be in place one year after a species is identified as endangered, with a review every five years to assess progress. Plans are supposed to be in place within two years for threatened species and within three years for plants and animals classified as vulnerable. If these rules sound overly bureaucratic, they exist as an accountable means toward achieving biodiversity — a goal endorsed by the Lahey Report on Forestry and accepted by the McNeil government in December.

“Protecting ecosystems and biodiversity should not be balanced against other objectives or values,” said author Bill Lahey. “Instead, protecting and enhancing ecosystems should be the objective (the outcome) of how we balance environmental, social, and economic objectives and values in practicing forestry in Nova Scotia.”

This lawsuit is about walking that walk.

To avoid overburdening the court, the naturalists chose six of 36 vulnerable, threatened or endangered species to demonstrate omissions by Lands and Forestry (as required by the Endangered Species Act) to adequately protect wildlife.

• Example #1: The Mainland Moose: The animal was declared endangered in 2003. In 2004 a recovery team was appointed. But it wasn’t until 2007 that a recovery plan was in place, and it wasn’t reviewed until 2014 (7 years later, a breach of Sec. 15(11) which requires reviews every 5 years). Naturalists say the 2007 recovery plan did not identify core habitat as required under the Act, Section 15(4). 

In its response to the allegation, the government skirted the “core habitat” issue, but did not dispute the timeline.

Lands and Forestry response: “A recovery team was appointed in 2004 and a recovery plan was prepared in 2007 (the “Mainland Moose Recovery Plan”). The Mainland Moose Recovery Plan identified a need to improve understanding of habitat suitability, availability, and selection, and to thereafter take further action. An Action Plan based on the Mainland Moose Recovery Plan was released in 2014. The Action Plan was based on a review of the 2007 Mainland Moose Recovery Plan.”

• Example #2:  Naturalists say: “The Ram’s-head lady slipper, a small orchid, was listed as endangered in 2007; a recovery team has not been appointed and a recovery plan has not been prepared, both of which were due in 2008 pursuant to Section 15(1)(a) of the Endangered Species Act”.

Lands and Forestry response: “Ram’s-head lady slipper: a recovery team has not been appointed and a recovery plan has not been prepared.”

• Example #3:   Naturalists say Canada warbler, a forest songbird, was listed as endangered in 2013; a recovery plan was prepared by Environment Canada in 2016; a recovery team, due in 2014, has not been appointed as required, pursuant to Section 15(1)(a).

Lands and Forestry response: “Canada warbler: A draft recovery strategy was formally endorsed on November 10, 2014. A recovery plan prepared by Environment Canada with involvement from the Province of Nova Scotia has been in place since March 2016.”

The government response makes no mention of a recovery team.

• Example #4:  Naturalists say: Black ash was listed as threatened in 2013; a recovery team was appointed, and a recovery plan prepared in 2015; the recovery plan does not identify core habitat as required, pursuant to Section 15(4)(h).

Lands and Forestry response: “There was an Interim Recovery Team identified for the preparation of the Black Ash Recovery Plan. A recovery plan was prepared in 2015 and identifies areas to be considered as core habitat.”

• Example #5:   Wood turtle was listed as threatened in 2013; Naturalists say a recovery team was appointed; a draft recovery plan has been prepared by Environment Canada but has yet to be adopted by the federal government. The recovery plan was due in 2015 and has not been prepared as required, pursuant to Section 15(1)(b).

Lands and Forestry response: “Wood turtle: A proposed Federal Recovery Strategy was posted on February 1, 2016. It is understood that the release of the Final Recovery Strategy will take place during Spring 2019. The Province has been involved in the preparation of the strategy and formally endorsed its posting for public consultation on November 10, 2014.”

• Example #6:  Eastern wood peewee, a forest songbird, was listed as vulnerable in 2013; a management plan was due in 2016 and has not been prepared as required, pursuant to Section15(10), according to Naturalists. 

Lands and Forestry response: “Eastern wood peewee: Efforts are ongoing to work co-operatively with the Federal government on a management plan.”

Taken as a whole, the government’s response to the  examples above can be summed up in the following line: “The Respondents state that work in the area of species at risk is ongoing and that where required, recovery teams are expected to be in place in the near future.”

That’s not fast enough for a coalition of nature-loving enthusiasts frustrated by what it sees as the government’s inattention to protecting the forest’s inhabitants from the largely unchanged practices of the forestry companies. “The Applicants note that while this matter is limited to 6 species, there appears to be a systemic failure within the Department of Lands and Forestry to fulfill the Department’s mandatory legal obligations under the Act.”.

For its part, the McNeil government has yet to set a timeline for how long it might take to deliver changes in line with the recommendations contained in the Lahey Report.