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Wildlife - Species at Risk Act (SARA). Canadian Nuclear Laboratories Ltd. v. Canada (Attorney General)
In Canadian Nuclear Laboratories Ltd. v. Canada (Attorney General) (Fed CA, 2026) the Federal Court of Appeal dismissed an appeal from a JR, where the JR quashed "a decision by the Minister of Environment and Climate Change Canada (Minister) to issue a permit under the Species at Risk Act" where the "permit authorized CNL to carry out activities associated with the construction of a near-surface disposal facility for low-level radioactive waste at the Chalk River site".
Here the court considered the federal Species At Risk Act (SARA) permit regime:[2] Under the SARA, before a permit can be issued, the Minister is required to find that "“all reasonable alternatives to the activity that would reduce the impact on the species have been considered and the best solution has been adopted”": SARA, s. 73(3)(a). ....
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A. The Statutory Scheme
[5] The stated purposes of the SARA are to prevent wildlife species from being extirpated or becoming extinct, to provide for the recovery of wildlife species that are extirpated, endangered or threatened by human activity, and to manage species of special concern to prevent them from becoming endangered or threatened: SARA, s. 6. It was enacted, in part, to implement the Convention on Biological Diversity, 11 June 1992, Can. T.S. 1993/24, which commits Canada to developing strategies and programs for conservation and the sustainable use of biological diversity: Groupe Maison Candiac Inc. v. Canada (Attorney General), 2020 FCA 88 at para. 37 [Groupe Maison Candiac], citing SARA, preamble.
[6] Species may be listed for protection under the SARA by Cabinet on the Minister’s recommendation: SARA, s. 27(1). Once a species is listed, the SARA prohibits killing, harming and capturing the species (subsection 32(1)); possessing or trading the species (subsection 32(2)); damaging or destroying the species’ residences (section 33) and damaging or destroying the species’ critical habitat (section 56): see Groupe Maison Candiac at para. 38.
[7] Under the SARA, the Minister may enter an agreement or issue a permit authorizing a person to engage in an activity affecting a listed wildlife species, any part of its critical habitat or the residences of its individuals: SARA, s. 73(1). The agreement may be entered or the permit issued only if the Minister is of the opinion that: (a) the activity is scientific research relating to the conservation of the species and conducted by qualified persons, (b) the activity benefits the species or is required to enhance its chance of survival in the wild, or (c) affecting the species is incidental to carrying out the activity: SARA, s. 73(2).
[8] The permit was issued to CNL under paragraph 73(2)(c), which calls for a balancing of interests—affecting the species at risk must be "“incidental”" to carrying out the activity. I agree with the Federal Court that while the top priority of the SARA is the protection of species at risk, "“Parliament has also recognized the potential need to harmonize conservation with societal and economic realities stemming from human activities”": FC Reasons at para. 36.
[9] Criteria for entering an agreement or issuing a permit are set out in subsection 73(3):Pre-conditions
Conditions préalables
"73 (3) The agreement may be entered into, or the permit issued, only if the competent minister is of the opinion that"
"73 (3)"" Le ministre compétent ne conclut l’accord ou ne délivre le permis que s’il estime que :"
"(a) all reasonable alternatives to the activity that would reduce the impact on the species have been considered and the best solution has been adopted;"
"a)"" toutes les solutions de rechange susceptibles de minimiser les conséquences négatives de l’activité pour l’espèce ont été envisagées et la meilleure solution retenue;"
"(b) all feasible measures will be taken to minimize the impact of the activity on the species or its critical habitat or the residences of its individuals; and"
"b)"" toutes les mesures possibles seront prises afin de minimiser les conséquences négatives de l’activité pour l’espèce, son habitat essentiel ou la résidence de ses individus;"
"(c) the activity will not jeopardize the survival or recovery of the species."
"c)"" l’activité ne mettra pas en péril la survie ou le rétablissement de l’espèce." [10] In this appeal, only the pre-conditions in paragraph 73(3)(a) are in issue. It prescribes one aspect of the balancing the Minister must conduct in allowing activity to proceed that affects a listed wildlife species while ensuring adequate safeguards for the species’ protection.
[11] The English text of paragraph 73(3)(a) provides that a permit may only be issued where the competent minister is of the opinion that "“all reasonable alternatives to the activity that would reduce the impact on the species have been considered and the best solution has been adopted”". The French version lacks an equivalent to the English word "“reasonable”", requiring: "“""toutes les solutions de rechange susceptibles de minimiser les conséquences négatives de l’activité pour l’espèce ont été envisagées et la meilleure solution retenue""”". However, the respondents do not rely on the difference in wording to suggest that the Minister ought to have considered more than "“all reasonable alternatives”" for the disposal facility site. Accordingly, I do not address this difference in language any further.
[12] Where an agreement is entered into or a permit is issued under subsection 73(1), it must contain any terms and conditions governing the activity that the Minister considers necessary for protecting the species, minimizing the impact of the authorized activity on the species or providing for its recovery: SARA, s. 73(6). The Minister must also include on the public registry an explanation of why the agreement or permit was entered into or issued, taking into account the matters referred to in subsection 73(3): SARA, s. 73(3.1).
[13] At the relevant time, section 79 of the SARA provided that every authority making a determination about a designated project under the Canadian Environmental Assessment Act, 2012, S.C. 2012, c. 19, s. 52 (CEAA 2012) had to consider the project’s effects on listed wildlife species and ensure that measures were taken to mitigate those effects: see S.C. 2012, c. 19, s. 59. At para 38-76 the court walks through it's interpretation of SARA s.73(3)(a), here in an appellate review of the Federal Court's JR reasons.
The court then continues to consider the adequacy of the 'public registry' posting regarding the permit issuance:D. The Public Notice
[77] Before concluding, I will comment on the public notice. When a permit is issued, the Minister is required to include in the public registry an explanation of why it was issued, taking into account the matters referred to in subsection 73(3): SARA, s. 73(3.1). Like other filings on the public registry, the subsection 73(3.1) requirement facilitates transparency and accountability when the government authorizes conduct affecting listed species at risk: Canada, House of Commons Debates, 37th Parl., 1st Sess. (19 February 2001) at 1755 (Hon. David Anderson, Minister of the Environment); see also Vavilov at para. 79, citing Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817 at para. 39 (S.C.C.). When the Minister decides to exempt an activity that adversely affects an endangered species from prohibitions in the SARA, the public must be told why.
[78] Here, the public notice repeats the statutory requirements of paragraph 73(3)(a) and says little more. It mentions that facility type, design, location and site options were considered and that the option expected to have the least impact on the species at risk was retained.
[79] The notice lacks any meaningful explanation as to how the pre-conditions for the permit were satisfied or of the considerations justifying endangerment of the listed species. This insufficiency defeats the very purpose of having a public registry that includes reasons for why a permit was issued. The Minister’s explanation in the public notice must be better.
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