Historical Judgment on the Protection of Species at Risk

OTTAWA – In a landmark judgment rendered two years to the day following the announcement of an emergency order to protect the Chorus Frog in La Prairie, Federal Court Judge René Leblanc concluded that the emergency order provision of the Species at Risk Act to protect a species and its habitat on private tenure is constitutional and not a disguised expropriation. The judgment also confirms that the specific prohibitions of the emergency order, and consequently the associated offenses and penalties, are valid in criminal law.

The Canadian Parks and Wilderness Society (CPAWS) welcomes this important judgment. For Mr. Frédéric Paquin, the lawyer who pleaded the case that led to the emergency order in La Prairie in 2016, the Leblanc judgment not only confirms the validity of the emergency decree for the Chorus Frog, but also clarifies the scope of the Species at Risk Act outside federal lands.

“This is a landmark decision that is extremely well-grounded on the legal merits of the emergency order process, as well as on the federal government’s legitimacy to intervene to protect all species at risk and their habitats throughout the country, ” said Paquin.

Mr. Paquin also notes that the judgment provides some interesting guidelines on the conditions for the use of an emergency order or other “safety net” measures under the Species at Risk Act.

“Essentially, a measure will be valid if it is complementary and ensures the survival or recovery of a species at risk, even if it overturns prior authorizations issued by a provincial or municipal authority,” says Paquin.

Referring to several recent decisions, Justice Leblanc states in his judgment that the protection of biodiversity is now a fundamental societal value and that the application of environmental law must evolve in this direction. For Alain Branchaud, biologist and director of the Quebec section of the Canadian Parks and Wilderness Society (SNAP Québec), this judgment marks a new era in the protection of species at risk. Judge Leblanc has greatly advanced our understanding of how the Species at Risk Act is implemented in ruling that the emergency order does not constitute a disguised expropriation, even in the absence of compensation.

“For too long, authorities have been reluctant to protect the habitats of species at risk for fear of prosecution. This judgment changes the game and establishes that the protection of a habitat for survival or recovery has its own value, “said Alain Branchaud.

Florence Daviet, Director of the CPAWS Forests Program and a member of the Species at Risk Act Advisory Committee, notes that this Federal Court decision will have significant and positive implications for troubled species across Canada. The Leblanc judgment confirms that a safety net type measure must be used sparingly and that the various levels of government must work together to avoid such remedies.

“This is a good reminder to provincial and territorial governments that they need to review the instruments available to protect species at risk and their habitats and to work to fill gaps quickly,” says Florence Daviet. “The release of critical habitat protection reports is a perfect mechanism to collaborate and conduct this review.”

The need to release these reports is the result of an agreement between Environment and Climate Change Canada and CPAWS this past May, and are due to be released by June 2019.

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