Ecojustice Case – Nature Case Status: Victory

Fighting for emergency protections for the greater sage-grouse

Barry RobinsonBarry RobinsonLawyer
Sean NixonLawyer
Melissa GorrieLawyer
Photo: © Wayne Lynch

Decline of Greater sage-grouse populations in Canada demanded federal emergency order.

In 2012, Ecojustice helped four conservation groups take the federal Minister of the Environment to Federal Court over his continued failure to fulfill his duties under the Species at Risk Act (SARA) and protect Canada’s endangered greater sage-grouse. The groups sought a court order to force the minister to recommend that Cabinet make an emergency order under SARA to protect the iconic Prairie bird and its habitat.

After nearly two years of legal wrangling by Ecojustice lawyers, the federal government finally issued an emergency order for the sage-grouse in 2013.

Then, the City of Medicine Hat and an oil and gas company launched a legal challenge of the federal emergency order and a challenge to the SARA provisions that allowed the government to issue the order in the first place, arguing that they were outside the jurisdiction of Parliament and therefore unconstitutional. (City of Medicine Hat et a.l v Attorney General of Canada et al.)

Ecojustice lawyers,  on behalf of Alberta Wilderness Association, Wilderness Committee, Nature Saskatchewan and Nature Canada — intervened in this subsequent case to support the federal government’s position that the emergency order (and the provisions of SARA on which it relies) should stand.

In July 2020, the main parties in this case reached a settlement agreement and both the City of Medicine Hat and the oil and gas company discontinued their case. As a result, there are no longer any remaining constitutional challenges to emergency order protections under SARA.

This is good news for the sage grouse – it means their federal protections will remain in place – and for at-risk species across Canada.

Why did Ecojustice get involved?

Ecojustice initially got involved because we believe that when there is evidence of serious threats to an endangered species, the federal government must be held accountable if it ignores its own laws and fails to act. Later, we intervened to uphold the government’s emergency order and make sure sage grouse protections stood.

The sage-grouse, which was once found in sage-brush grasslands across the country, is now found only in parts of southeastern Alberta and southwestern Saskatchewan, where it receives little protection from the provincial governments. Nearly 90 per cent of Canada’s sage-grouse population died off between 1988 and 2006 as a result of oil, gas and other development in the areas where sage-grouse spend the winter, breed, nest and raise their young. The emergency order endeavours to save the endangered bird from extinction by restricting construction and loud industrial noise near its habitat during certain times of the year.

The emergency order applies to 1,276 square kilometers of provincial Crown land and 356 square kilometers of federally protected land, which includes land leased by the federal government from the provinces. Private land is not covered by the Order.

What does this win mean?

Ecojustice scored an early victory on our sage grouse file when our lawyers made sure the Canadian government introduced emergency protections for an endangered species for the first time in history. Further, the Court of Appeal’s decision sets an important precedent; it makes clear that the courts can review ministerial decisions, that ministers must be open and transparent about their decisions, and that they cannot hide behind a vague and unfounded claim of cabinet confidence in an attempt to avoid judicial review.

Now that the challenge to that order is over, the sage grouse have a greater chance of recovering. On a broader level, the courts have also confirmed that the federal government unquestionably has the power to protect at-risk species and their habitat on provincial and private lands, thanks to a separate Federal Court of Appeal case out of Quebec. This means emergency protection orders like the one for the sage grouse are unlikely to be successfully challenged on constitutional grounds in the future.

Canadian populations of sage grouse are generally calculated by counting the number of males at “leks,” sage grouse mating grounds, in the spring. In the years following the emergency order, sage grouse numbers did improve steadily.

Unfortunately, for couple of years leading up to 2020, the counts have not been promising, partly due to bad winter weather. Thanks to the emergency order, however, there is hope for the species. Before the order was in place, sage grouse were on the road to disappearing from Canada. Now, they have a fighting chance.

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Protecting the Sage-Grouse

October 30,2014

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