By Canadian Press

‘They do not act:’ Another lawsuit seeks to force federal species protection

Feb 11, 2019 | 10:34 AM

The federal government is facing more legal problems over an alleged and ongoing failure to enforce its own environmental laws.

“This is a chronic problem with both Environment Canada and (Fisheries and Oceans),” said David Mayhood of the Timberwolf Wilderness Society. “They simply do not act until somebody takes them to court.”

On Monday, the society filed an application in Federal Court to try to force Fisheries and Oceans Minister Jonathan Wilkinson to step in to protect the habitat of native cutthroat trout along the eastern slopes of Alberta’s Rocky Mountains.

The application notes the species has been considered threatened under the Species At Risk Act since 2013.

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A recovery plan for the fish was filed the following year. Under the act, the minister was required to file a plan for implementing a strategy by March 2015.

“The action plan is just about four years overdue,” said Mayhood.

The society wants Wilkinson to release a draft plan to protect the cutthroats, which have already been wiped out from large parts of their original range and are threatened by forestry, industrial development and hybridization with non-native species such as rainbow trout.

It’s the latest in several similar attempts to get the federal government to follow its own legislation.   

In late January, a lawsuit was filed to try to force Environment Canada to follow terms of the Species At Risk Act that require Ottawa to protect Alberta caribou herds after a study concluded the province has failed to do so.

Shaun Fluker of the University of Calgary Public Interest Law Clinic, which is representing the society, counts at least a dozen similar lawsuits that have been filed since 2007.

“That’s a pretty remarkable number,” he said. “There could be dozens more, but I think there’s only so much capacity to do this stuff.”

In 2014, Federal Court Justice Anne Mactavish said there was a systemic problem in the two ministries that are supposed to protect endangered and threatened wildlife. Some recovery strategies were overdue by as many as 6 1/2 years at that point.

At the time, strategies or management plans were overdue for 163 out of 192 species — a ratio that Fluker said remains “in the ballpark.”

Other federal bodies have failed to follow the act. The Trans Mountain pipeline’s expansion approval was overturned partly because the National Energy Board’s project assessment didn’t consider species-at-risk obligations toward killer whales.

Meanwhile, provinces keep approving development.

Alberta’s energy regulator approved oilsands projects in caribou range considered crucial before plans were worked out to conserve it.

It’s currently considering an application for a coal mine near one of the most productive streams for cutthroats.   

“It seems that provincial regulators proceed as if none of this is happening on the endangered species file,” said Fluker.

Last fall, a study found endangered species listed under the act written to protect them have declined an average of 28 per cent since 2007.

Cutthroats are no different. A 2015 study found virtually all southern Alberta streams that spawn native trout were threatened by industrial development or overuse. Damage results from logging roads, energy development, off-highway vehicle trails and agricultural effluent.

The eastern slopes of the Rockies have some of the highest road densities in North America.

Mayhood said the need for action on native cutthroats is urgent.

“(Populations) are extremely vulnerable because they’re so small.”

— Follow Bob Weber on Twitter at @row1960

Bob Weber, The Canadian Press