Fighting for emergency protections for the greater sage-grouse

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.

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.