Protection of the Copper Redhorse’s Critical Habitat
More than 100 months late, and approximately 4 months after the filing of an application for judicial review, the federal Minister of Fisheries and Oceans and the Minister of Environment finally signed the Ministerial Order activating the prohibition on the destruction of the copper redhorse critical habitat under the Species at Risk Act.
How the action began
On January 7, 2021, the Canadian Parks and Wilderness Society (CPAWS) and the Centre québécois du droit de l’environnement (CQDE) filed an application for judicial review in Federal Court against the federal Minister of Fisheries and Oceans.
The plaintiffs have risen to the defence of the copper redhorse (Moxostoma hubbsi), an endangered species of fish. It is the only fish with an exclusive range in Quebec. Its range is limited to a freshwater section of the St. Lawrence River between Lake St. Louis and Lake St. Pierre and a few of its tributaries, including the Richelieu River. The protection of the copper redhorse’s critical habitat is essential to ensure its survival and recovery.
Through this action, CPAWS and the CQDE sought the implementation of subsection 58(5) of the Species at Risk Act. This subsection provides that the Minister of Fisheries and Oceans must implement a mechanism for the protection of the critical habitat of a designated species at risk within 180 days of the listing of the species’ recovery strategy.
The federal government was contravening its own Species at Risk Act with respect to the critical habitat of the copper redhorse, a fish species found in only one place in the world, in Quebec. In fact, the Minister was more than eight years late in meeting her obligation to activate the prohibition against the destruction of the copper redhorse’s critical habitat.
On June 20, 2012, the then Minister placed the copper redhorse recovery strategy on the public registry of species at risk. Under the legislation, the federal Minister responsible for Fisheries and Oceans should have issued a Ministerial Order to protect the critical habitat of this species no later than 180 days after that date, i.e. December 17, 2012. This Ministerial Order is intended to completely prohibit the destruction of “components” of this habitat, which has been defined by federal scientists.
With this application, CPAWS and the CQDE were seeking a Court order directing the Minister of Fisheries and Oceans to implement a mechanism to protect the critical habitat of the copper redhorse, as prescribed by the Species at Risk Act. In addition, they were seeking a declaratory judgment recognizing that the Minister has acted unlawfully by failing to do so within the prescribed time frame.
A decisive victory
The adoption of the Ministerial Order by the federal government is a major victory for the copper redhorse, especially in the context of the Port of Montreal expansion project in Contrecoeur, which threatened the integrity of the species’ critical habitat. TJL is proud to have contributed!
CPAWS, the CQDE and TJL’s lawyers remain vigilant, however, regarding any permit application that could result in the destruction of critical habitat for the copper redhorse. The conditions for issuing such an authorization, provided for in section 73 of the Species at Risk Act, are strict and clearly indicate that an authorized activity cannot jeopardize the survival or recovery of the species.