Ecojustice Blog – Nature Posted on August 9, 2013 (updated: February 17, 2015)

Call it a win-win for Greater-sage-grouse and Canadians

Melissa GorrieLawyer

It just so happens that an important court win for Canada’s endangered Greater sage-grouse may be an even bigger victory for champions of government transparency and accountability.

Earlier this year we took then-federal environment minister Peter Kent and Environment Canada to court for what we argued was an unreasonable claim of Cabinet confidence.

In 2012, Ecojustice filed a Federal Court application seeking a court order to force Environment Minister Peter Kent to recommend emergency protections for sage-grouse and the habitat the prairie birds need to survive and recover. The federal government responded by saying that the Minister’s plans (or lack thereof) for protecting the sage-grouse were part of a “Cabinet decision-making process” and therefore could not be disclosed to the public or reviewed by the court. 

At the time, shortly after one of the biggest environmental law rollbacks in Canada’s history, we called it a troubling example of the federal government’s lack of transparency around its decisions to (not) protect the environmental.

Happily, it turns out the Federal Court of Appeal agreed with our assessment and has ordered the government to make public the Minister’s decision on whether to recommend emergency protections for the sage-grouse. In its reasons for judgement, the court explained that:

“If the position asserted by the [federal government] is correct, it would have the effect of sheltering from review every refusal to make a recommendation for an emergency order. This cannot be so.”

The court’s decision sets an important precedent moving forward. It makes it clear that ministerial decisions (or lack thereof) are reviewable by the courts and sends a message to the federal government that its officials must be open and transparent about their decisions and cannot hide behind the cloak of Cabinet confidence.

The National Post’s Kelly McPharland summed up it nicely: “Well, duh.”

The plight of the sage-grouse presents one of the most compelling cases for federal intervention under the Species at Risk Act that Ecojustice lawyers and scientists have ever seen.

Since 1988, more than 90 percent of these prairie birds — which once numbered in the thousands and could be found throughout British Columbia, Alberta and Saskatchewan’s sage-brush grasslands — have died off. Fewer than 100 birds are estimated to still remain in Canada.

Provincial laws have failed to protect the sage-grouse, leading to dramatic population declines and necessitating emergency intervention by the federal government under the Species at Risk Act.

Meanwhile, industrial activity, particularly oil and gas development, continues to threaten the survival and recovery of the birds, best known for their elaborate courtship dance. Research shows that when confronted with oil and gas development sage-grouse chicks fail to survive, and adults abandon their leks (central courting and breeding grounds) and other habitats crucial to their survival.

Time is of the essence for the sage-grouse. If the federal government and new Environment Minister Leona Aglukkaq fail to implement emergency protections for the sage-grouse now, scientists say the quirky prairie birds will disappear from Canada within the next 10 years.

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