“Nature won.”
That’s how retired wildlife biologist Bob Bancroft reacted to a judge’s decision on Friday which essentially orders the Department of Lands and Forestry to obey provincial law when it comes to protecting endangered, threatened, and vulnerable species.
There are 60 plants and animals identified under Nova Scotia’s Endangered Species Act. But the judicial review brought by Bancroft, the Federation of Nova Scotia Naturalists, the Blomidon Naturalists’ Society, and the Halifax Field Naturalists focused on six representative species: the mainland moose, the Canada warbler, the black ash, the Ram’s-head lady slipper, the woodland turtle, and the Eastern wood pewee.
“This is a landmark victory for the province’s endangered species. The court’s decision reinforces the fact that stopping biodiversity loss is urgent and important, and in order to do so the government must take seriously its duty to follow existing species protection laws,” said Sarah McDonald, an EcoJustice lawyer who participated in the court case on behalf of the East Coast Environmental Law Association, an intervenor.
Bancroft was slightly more pessimistic in tone, after thanking the lawyers and Justice Christa Brothers.
“Citizens and nature groups like Nature Nova Scotia should not have to go to court to force governments to enforce their own laws,” said Bancroft. “Sadly, this judgment will not spell the end of the battle. The recent name-change from “Forests” to “Forestry” pretty well summarizes the industrial interests that dominate within the Department of Lands and Forestry. Even the Wildlife Division has been trampled in the rush to flatten public forests for private profits, transforming our forests and their habitats into degraded, soil-challenged moonscapes.”
This was the first court case involving Nova Scotia’s Endangered Species Act which, for 20 years, has literally been “the law of the land.” The goal of the legal action was to shame the government into living up to its legal obligations to protect biodiversity. After the review was filed in January 2019, the province named recovery teams and established recovery plans to assist seven species listed as threatened or endangered. It also introduced a new Biodiversity Act.
The naturalists groups, represented by lawyer Jamie Simpson, argued that the Department of Lands and Forestry failed to establish recovery plans, or designate area for core habitat for the mainland moose within timelines set out in the Endangered Species Act. The Act gives the government a year to come up with a recovery plan for endangered species, two years for threatened plants and animals, and three years for vulnerable species. With respect to all six species named in this case, Justice Christa Brothers ruled the province did not act within the prescribed timelines.
Brothers concluded those timelines are not optional. She quoted from a decision involving the federal Species At Risk Act in which the judge hearing a case brought by the Western Canada Wilderness Committee had this to say about the purpose of those timelines:
The timelines contained in the Act reflect the clearly articulated will of Parliament that recovery strategies be developed for species at risk in a timely fashion, recognizing that there is indeed urgency in these matters. Compliance with the statutory timelines is critical to the proper implementation of the Parliamentary scheme for the protection of species at risk.
In her 58-page decision, Brothers reviewed evidence from the Lahey Report in 2018, which “cited numerous failures of the government to meet its obligations under the Endangered Species Act,” as well as the 2016 auditor general’s report that noted “the Department does not track when plans are developed and when reviews are due.”
In 2019, The East Coast Environmental Law Association’s update “Protected on Paper: Species at Risk” found 19 species where management plans were overdue. Brothers noted that with respect to the six species in the case before her, the province’s lawyer Jeremy Smith had not put forward “reasons” or explanations for why the timelines could not be met.
“Counsel for the Respondents cited several somewhat vague suggestions of limited departmental resources in the Record as justification for the delay,” wrote Brothers. “Counsel was unable to point to anything in the Record that could specifically relate the failure to comply with the timelines in respect of any of the named species to resource issues.”
And Brothers was not impressed by the province’s attempt to play catch-up after the court action was filed:
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 fulfil legal obligations under the Endangered Species Act. Then, after this Judicial Review was commenced, the government undertook a flurry of activity in an inadequate and transparent attempt to correct its failures.
In response to the Supreme Court decision, Department of Lands and Forestry communications advisor Lisa Jarrett emailed to say: “The province has just received the ruling today and is currently reviewing it to determine next steps.”
Brothers rejected a request by the applicants to “supervise” the actions of the Department of Lands and Forestry and require status reports every six months to ensure the Department complies with the court order to follow the rules in the Endangered Species Act. Brothers ruled that was unnecessary.