Federal Court protects western chorus frog, restricts development

On June 22, 2018, Canada’s Federal Court released its ruling in Le Groupe Maison Candiac Inc. v Canada (Attorney General)[1] (“Maison Candiac v Canada”), a decision allowing the federal government to restrict development on private land under the Species at Risk Act[2] (“SARA”) to protect the western chorus frog. The decision weighs heavy on a number of industries, including on developers, as they consider the scope and implications of emergency orders designed to protect at-risk species under SARA.

Emergency order to protect frog issued in 2016

On July 8, 2016, the Governor in Council, on the recommendation of the Minister of Environment and Climate Change, Catherine McKenna, issued an emergency order prohibiting excavation, deforestation and construction within a two-square-kilometre area in the municipalities of La Prairie, Candiac and St-Philippe, Quebec to protect the frog and its habitat (“2016 Emergency Order”).[3]

The western chorus frog (pseudacris triseriata) is listed on the SARA List of Endangered Species as “Threatened” in the provinces of Ontario and Quebec. This tiny amphibian is olive and brown-coloured, grows to be approximately 2.5 centimetres long, and lives and breeds in wetlands.[4]

The frog’s populations have declined significantly in Ontario and Quebec in the last few decades. The Ministry of the Environment and Climate Change has emphasized that the greatest loss of habitat in this region occurred in and around La Prairie, where nearly 60% of its suitable habitat was lost between 1992 and 2013. In addition, habitat in suburban areas of southwestern Quebec is being destroyed so quickly that populations are in danger of extirpation by 2030.[5]

Maison Candiac brought judicial review application

When the 2016 Emergency Order was issued, Le Groupe Maison Candiac Inc. (“Maison Candiac”) was forced to reduce its residential development by 171 units.[6] At the time, Maison Candiac’s development was already under construction and had the approval of the local municipalities and Quebec’s environment ministry.

To contest the 2016 Emergency Order, Maison Candiac brought a judicial review application to the Federal Court, arguing that the Order should be rescinded for two reasons: 

  1. the 2016 Emergency Order is constitutionally invalid because subsection 80(4)(c)(ii) of SARA, which allows the federal government to issue emergency orders, exceeds Parliament’s jurisdiction; and
  2. even if it is constitutional, the 2016 Emergency Order constitutes a form of expropriation without adequate compensation given that Maison Cardiac is being deprived of the use intended when it was purchased.[7]

Federal Court dismisses Maison Candiac’s application

Justice LeBlanc rejected both of Maison Candiac’s arguments and dismissed the application, leaving the 2016 Emergency Order intact.

Regarding the constitutionality argument, Justice LeBlanc found that subsection 80(4)(c)(ii) of SARA was comfortably within the federal government’s jurisdiction over criminal law and otherwise did not intrude into the jurisdiction of the provinces.[8] He further found the subsection was protected by the doctrine of ancillary powers, including jurisdiction over peace, order and good governance.[9]

Regarding the expropriation argument, Justice LeBlanc found that the 2016 Emergency Order did not amount to expropriation that required compensation.[10] He explains that Parliament already provided in express terms a mechanism for compensation under SARA that applied in “extraordinary circumstances”.[11]

Not the first Federal Court ruling on western chorus frog protection

Exactly three years before the Maison Candiac v Canada ruling, on June 22, 2015, the Federal Court released a ruling in Centre Quebecois du Droit de L ’Environment et al v Minister of the Environment et al[12] (“Centre Quebecois v Canada”), condemning the former Minister of the Environment, Leona Aglukkaq, for her inaction on the western chorus frog file.

In Centre Quebecois v Canada, two environmental conservation non-profits brought a judicial review application against the Minister Aglukkaq for refusing to recommend to the Governor in Council that an emergency order be issued under s. 80 of SARA to protect the western chorus frog. Justice Martineau allowed the application, set aside Minister Aglukkaq’s order and referred the matter back to the Minister of the Environment for determination within six months. Minister McKenna issued the 2016 Emergency Order shortly after she was appointed in 2015 and as a result of this Court decision.

Other emergency orders issued under SARA

The 2016 Emergency Order is one of only two emergency orders for species protection currently issued since SARA was enacted in 2002, and is the first time an emergency order has been used to block a development on private land.

The first emergency order issued under SARA was for the protection of the Greater Sage-Grouse in Alberta and Saskatchewan on November 20, 2013 (“2013 Emergency Order”).[13]

A third emergency order is expected following Minister McKenna’s declaration on May 8, 2018 that the Woodland Caribou (Southern Mountain population) is facing imminent threats to its recovery and that federal cabinet will be asked for approval of an emergency order.[14]

Future restrictions on development due to species at risk and broader implications

This case is of interest to real estate developers and to other industries that develop or use land, as it signals the potential for current and future restrictions on development based on the presence of species at risk.

Our firm remains at the forefront of these emergency orders, including through its representation of the City of Medicine Hat in its judicial review and constitutional challenge to the 2013 Emergency Order. Our colleagues Kara Smyth, Kimberly Howard and Timothy Froese successfully resisted a summary dismissal motion brought by the Crown, and have commenced an action in the Alberta Court of Queen’s Bench for compensation based on de facto expropriation principles.

Additionally, this case is significant in demonstrating the Federal Court’s willingness to rely on the federal criminal law power and the federal peace, order and good governance power to found the basis for the federal government’s jurisdiction over environmental matters. This precedent is likely to be relevant in other constitutional challenges, such as the Saskatchewan Government’s recently launched reference at the Saskatchewan Court of Appeal to challenge the federal government’s ability to impose a carbon tax on the province.[15]

Please continue to check our ERA blog or subscribe to the blog for notifications as we continue to monitor recent developments under SARA, including if this Maison Candiac v Canada ruling is appealed to the Federal Court of Appeal.

 

[1] Le Groupe Maison Candiac Inc. v Canada (Attorney General), 2018 FC 643 (“Maison Candiac v Canada”).

[2] Species at Risk Act, S.C. 2002, c. 29 (“SARA”).

[3] Emergency Order for the Protection of the Western Chorus Frog, SOR / 2016-211 (“2016 Emergency Order”).

[4] Maison Candiac v Canada at para 20.

[5]Modification of the effective date of the emergency order for the protection of the Western Chorus FrogEnvironment and Climate Change Canada (July 11, 2016).

[6]The tiny frogs that stopped bulldozers: Construction halted on Quebec development to save themNational Post (June 23, 2016).

[7] Maison Candiac v Canada at para 4 and 41.

[8] Maison Candiac v Canada at para 123.

[9] Maison Candiac v Canada at para 168.

[10] Maison Candiac v Canada at para 193.

[11] Maison Candiac v Canada at para 204.

[12] Centre Quebecois du Droit de L ’Environment and Nature Quebec v Minister of the Environment and Attorney General of Canada, 2015 FC 773 (“Centre Quebecois v Canada”).

[13] Emergency Order for the Protection of the Greater Sage-Grouse, SOR/2013-202 (“2013 Emergency Order”).

[14]McKenna declares B.C.’s mountain caribou under imminent threat” CTV News (May 8, 2018).

[15]Province Challenging Federal Government’s Ability to Impose a Carbon TaxGovernment of Saskatchewan (April 25, 2018).

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