“Who speaks for the mainland moose and Canada warbler?” asks judge

Nova Scotia Supreme Court Justice Christa Brothers will decide whether the Minister of Lands and Forestry has failed to live up to the obligations set out in the Endangered Species Act to protect wildlife in the province. “We seek the Court’s assistance as a last resort,” said lawyer Jamie Simpson, representing the Federation of Nova Scotia Naturalists, the Blomidon Naturalists’ Society, and the Halifax Field Naturalists during yesterday’s hearing.

Simpson says the judicial review became necessary after the Department of Lands & Forestry (DLF, formerly Natural Resources) has repeatedly not met timelines that would have established plans and appointed recovery teams to protect endangered and threatened species such as the mainland moose, songbirds such as the Canada warbler and Eastern wood pewee, the wood turtle, and rare plants such as the Ram’s-head lady slipper (a type of orchid), and the black ash tree.

The hearing is an attempt to convince a court to order the DLF to “get serious” about its responsibilities under the Act, said Simpson. These include taking action within one year for endangered species, two years for threatened species, and three years for vulnerable species. The lawyer introduced a 2016 provincial auditor’s report which noted the department “does not track when plans are developed and when reviews are due.”

A 2015 report from the non-profit group East Coast Environmental Law (ECELAW) called “Protected on Paper Only: Evaluation of Nova Scotia’s legal obligations to protect and recover mainland moose and other species at risk” was updated this year and found management plans for 19 species were overdue. Professor Bill Lahey’s 2018 report on the State of Forestry cited “numerous failures of the government to meet its obligations under the Endangered Species Act.”

One of the most egregious examples concerns the mainland moose. Simpson told the court we don’t know how many there are today. It was listed as endangered in 2003 after a study by wildlife biologist Bob Bancroft estimated their number at 1,000-1,200. In 2004, a recovery team was appointed in keeping with the legislation. In 2007, a plan was created that the law says must be reviewed every five years to monitor whether the moose is making a comeback or continuing to decline. Twelve years later, the plan has not been reviewed nor identified core habitat as required.

The Canada warbler songbird was declared endangered in 2013 and no recovery plan has yet been established — the wood turtle was listed as a threatened species in 2013 and no recovery plan was in place two years later. The DLF position is that it was waiting to adopt the federal government’s plan for the turtle. Unfortunately for the turtle, that plan arrived two years after the deadline set out in the province’s Endangered Species Act, one of the first in the country passed in 1999.

The East Coast Environmental Law Association is an intervenor in this case. ECELAW lawyer James Gunvaldsen Klaassen says respecting timelines is at the heart of this case because “they are there to deal with a crisis.” Klassen stated the appointment of “recovery teams” for the Ram’s-head lady’s slipper was 11 years late. He said the “new” or reconvened recovery team appointed last month for the mainland moose should have acted 15 years ago.

“While it is better late than never to have teams appointed,” Klaassen told the court, “it was still illegal and declarations by this court may serve to deter similar actions by the government in the future.”

Since the Lahey report a year ago (it insisted the province pay more attention to biodiversity and avoid destroying core habitat) and the judicial review launched in January of 2019 by environmental groups, the McNeil government has introduced a new Biodiversity Act and promised to appoint seven new recovery teams.

The position of the province put forward by lawyer Jeremy Smith involves some nuanced hair-splitting. Smith did not object to the three nature-loving groups who claimed to be acting in the public interest when they asked the court to review whether the minister is meeting his responsibilities under the Act. Instead Smith argued the groups do not have “a clear and legal right” to force the minister to obey the rules.

“These applicants aren’t the mainland moose, they aren’t the lady’s slipper, and they aren’t the Eastern Pee-wee,” said Justice Christa Brothers with a trace of annoyance. “If they aren’t in court because they represent the public interest, why are they here? When the issue is regarding endangered species and they can’t mount a challenge themselves, who can?”

The province argues the timelines established and set out in the Endangered Species Act are “directive” rather than mandatory. The judge asked for specific reasons why DLF would fail to establish plans identifying core habitat or to appoint recovery teams within one to three years. The province says the reasons generally fall into two categories: waiting for the federal government to create a plan or insufficient scientific information on which to identify core habitat (on Crown or privately-owned land) as part of a recovery plan for a threatened plant or animal.

This is the first time Nova Scotia’s Endangered Species Act has been tested in court. Jeremy Smith argued that in the case of the black ash tree, the thousand or so rare trees cover a wide-ranging area and have not been inventoried by foresters, which is the reason why no core habitat (which might help nurse the species back to health) has been identified since the tree was classified as a threatened species in 2013.

Lawyers for the environmental groups countered, saying the location of black ash trees in Nova Scotia have in fact been mapped and a dozen seed-bearing trees located. A decision by the federal court with respect to the interpretation of the federal Endangered Species Act has ruled that “the preparation of a recovery strategy should not be postponed for reason of lack of scientific certainty.”.

The province will resume and complete the presentation of its case on October 1.