News Room
Government ‘erred in law’ handling fisheries case
It's not every day the federal government admits in court that it has acted illegally.
But that's what has happened in an unusual case before the Federal Court of Canada in which four environmental groups accused the Department of Fisheries and Oceans of failing to abide by the Species At Risk Act (SARA).
The test case focuses on the plight of a tiny, obscure fish known as the Nooksack dace, which is clinging to existence in a few streams in the Fraser Valley just outside Vancouver.
But Rachel Plotkin, biodiversity policy analyst with the David Suzuki Foundation, said the case has a larger importance beyond the little dace.
"In some ways, the fate of other species, such as the humpback whale, rests on the dace," she said. "Through this case, we are hoping for judicial guidance to make it very clear to DFO that it must obey the law and identify the habitat that marine species need to survive and recover."
The court, which will hear key arguments today, is being asked to review and comment on the failure of DFO to identify critical habitat when it drafted a recovery strategy for the endangered dace. Under SARA, the government must come up with plans to save endangered species - but environmental groups have been complaining for years that the government has been drafting plans that are so flawed they are meaningless.
The problem, the environmental groups say, is that the government routinely fails to identify critical habitat, even when, as in the case of the Nooksack dace, biologists know precisely where the fish live and what habitat needs to be protected to ensure their continued survival.
Environmental Defence Canada, Georgia Strait Alliance, Western Canada Wilderness Committee and the David Suzuki Foundation joined forces two years ago to hire the law society Ecojustice Canada to take the government to court over the issue. Earlier actions launched concerning the spotted owl and the piping plover were discontinued, leaving the dace as the first test case to make it to a final hearing.
The Nooksack dace matter could end early too, however, because DFO has recently filed a memorandum of fact with the court in which it concedes "the Minister erred in law, acted unreasonably ... considered irrelevant matters ... [and] acted without jurisdiction," when a decision was made to delay critical habitat identification.
Having admitted such egregious behaviour, the government then asked the Federal Court to bring the case to a close. In simple, non-legal words, the argument might be reduced to this: "We were wrong to not identify the critical habitat. Now let's move on."
But Lara Tessaro, a lawyer with Ecojustice, doesn't want the matter to end there and she will argue for a continuance in court today.
"What DFO is doing here is trying to dictate the terms of its defeat," she said of the government's admission that it acted illegally.
Ms. Tessaro said by conceding its error, DFO is seeking to focus the case on that one, narrow issue, and bring the matter to a quick close by arguing it has admitted fault.
