Court orders N.S. government to better protect endangered species

A Nova Scotia Supreme Court justice says the province has failed to live up to its self-prescribed legal obligations to protect species at risk, and has ordered the minister of lands and forestry to fulfil those duties. 

A group of environmental advocates launched a judicial review in January 2019, alleging a slew of failures under the Endangered Species Act dating back to the early 2000s. The case went to a hearing for two days last fall.

There were 60 species listed as endangered, threatened or vulnerable when the judicial review began, but the case narrowed in on six "representative" species — the Canada warbler and eastern wood peewee, both songbirds; the black ash and ram's head lady slipper, both plants; the wood turtle and the iconic mainland moose.

Justice Christa Brothers prefaced her 58-page written ruling, released Friday, with a quote from the 1971 Dr. Seuss fable of environmental degradation and activism, The Lorax. The quote read, "UNLESS someone like you cares a whole awful lot, nothing is going to get better. It's not."

No justification for delay

The case focuses on the minister's obligation to appoint teams of experts and create plans for protecting species within one to three years of adding the species to the at-risk list. The greater the risk a species faces, the faster the minister is supposed to act.

For some of the case species, teams were appointed and plans drafted, but the applicants argued that the government acted too slowly or ineffectively, or both. 

Brothers said lawyers for the province "cited several somewhat vague suggestions of limited departmental resources in the Record as justification for the delay."

But, she said, none of the lawyers' evidence "could specifically relate the failure to comply with the timelines in respect of any of the named species to resource issues."

In the case of the ram's head lady slipper, which was listed endangered in 2007 and appointed a new recovery team in May 2019, Brothers said resources were "suddenly made available shortly after this judicial review was filed."

"What of the 11 years that elapsed between the designation of the species and the appointment of the team?" Brothers asked rhetorically in her decision.

Government failures are chronic, systemic

Brothers concluded that all the evidence pointed to "a chronic systemic failure to implement action required under the [Endangered Species Act.]"

Brothers pointed to a 2016 report of the provincial auditor general, a 2018 followup report from the department and the 2018 Lahey report on ecological forestry as further evidence of the systemic and longstanding nature of the failures.

She also noted that the applicants and other groups had written letters to the department between 2012 and 2018, demanding action on species protection, which she said further justified the court order.

Applicant happy with the outcome

Among the applicants in the case is wildlife biologist Bob Bancroft. The others are the Federation of Nova Scotia Naturalists, of which Bancroft is the president, the Blomidon Naturalists Society and the Halifax Field Naturalists. 

The applicants asked for three types of remedies to the government's failings. Brothers didn't comply with all of them, but Bancroft said he was "100 per cent" satisfied with the outcome.

Bancroft and his fellow applicants asked the court to recognize a failure to protect each of the six named species, which Brothers did, and to order the minister to act, with deadlines. Brothers eliminated the deadlines from her orders.

Bancroft conceded that the department is in the best position to determine how long the work will take, and said Brothers "is just giving them a chance to get their act together and head in a direction that isn't outrageous."

Bancroft is a former employee of the Department of Lands and Forestry, which was called the Department of Natural Resources in his time, and worked on the mainland moose recovery team for eight years.

He said he eventually left the government, in part, because he was frustrated with a lack of progress.  

"We didn't accomplish anything," he said.

"It is really sad that citizens and nature groups like [the Federation of Nova Scotia Naturalists] have to go to court to force governments to enforce their own laws, but I don't see an end to it."

Province reviewing the ruling

A spokesperson for the Department of Lands and Forestry said the province is reviewing the Supreme Court decision "to determine next steps."

Sarah MacDonald, a lawyer with Ecojustice, which represented the East Coast Environmental Law Association, an intervenor in the case, said she would be surprised by an appeal on the part of the province. She said she thinks the decision was "quite solid."

MacDonald said the ruling was significant because it marks the first time a court has interpreted the Endangered Species Act.

"This sets the first precedent interpreting this piece of legislation and it will essentially help define any future litigation under this statute," said MacDonald. 

"And hopefully it will now clarify for the province how they're required to behave in implementing the statute."

The applicants also asked the court to supervise the province in its fulfilment of the obligations to protect the six named species, but Brothers rejected that. She said it would be onerous for both the court and the government. 

Declaring the province's failures and ordering the minister to act "should achieve justice here," Brothers said.

"This does not, of course, mean that supervision could never be appropriate in applications of this kind. Time will tell."