Advocates credit the Minister of Fisheries with enforcing the Species At Risk Act to save trout threatened by Alberta industry. It follows a 2015 lawsuit that cited cabinet for breaking its own laws intended to protect fish and wildlife in peril.
“We are monitoring this and will step up if more legal action needs to be taken,” said Prof. Shaun Fluker, of the University of Calgary’s law faculty; “There are far-reaching effects – and that’s why they have been reluctant to issue the order.”
The Alberta Wilderness Society and Timberwolf Wilderness Society sued cabinet for failing to issue a required order to save the Westslope Cutthroat Trout, the only trout species native to Alberta’s Oldman and Bow River systems. The fisheries department in 2014 published a recovery strategy for the threatened fish, but then failed to issue any order prohibiting mining, logging or other activity threatening the trout’s critical habitat.
The Species At Risk Act obliges cabinet to “prevent wildlife species from being extirpated or becoming extinct; provide for the recovery of wildlife species that are extirpated, endangered or threatened as a result of human activity; and to manage special of special concern to prevent them from becoming endangered or threatened.”
Fisheries Minister Hunter Tootoo issued the critical habitat order last November 20 two weeks after being sworn to cabinet. “It affects the ability to change the character of environmental protection along the Eastern Slopes of the Rockies,” said Prof. Fluker.
Scientists counted only 51 surviving “genetically pure” Cutthroat Trout in nine lakes at Banff National Park, and the upper Bow and Oldman River systems.
‘Not Just A Technical Breach’
“This order does nothing to solve the problem; it just makes it easier to improve the situation,” said David Mayhood, aquatic ecologist with the Timberwolf Wilderness Society. “The order is stringent and doesn’t allow for much leeway. They basically have to prosecute if people continue damaging these critical habitats.”
Advocates cited industrial threats to trout habitat including hydroelectric dams, roads, a proposed open-pit coal mine and “other linear disturbances”. “The basic problem is they don’t have an action plan,” Mayhood said. “Most of what they are doing now is a holding action.”
A federal judge in 2014 also concluded regulators failed to comply with the Act in meeting deadlines to save British Columbia wildlife in peril. Ecojustice sued in Federal Court, saying cabinet had needlessly delayed recovery plans for species at risk including the Pacific Humpback Whale; Nechako White Sturgeon; Southern Mountain Caribou; and the Marbled Murrelet, a small coastal bird listed as threated in 2003.
“The federal government blasted through deadlines required by Parliament,” Sean Nixon, counsel for Ecojustice, said in an earlier interview; “This isn’t just a technical breach of the statute. The timelines are there for a reason: delays harm species. The longer you wait to address a problem, the more the species declines.”
In the Ecojustice case, Justice Ann Mactavish ruled it was “simply not acceptable for the responsible Ministers to continue to miss the mandatory deadlines that have been established by Parliament.”
“To state the obvious, the Species At Risk Act was enacted because some wildlife species in Canada are at risk,” wrote Mactavish; “Many are in a race against the clock as increased pressure is put on their critical habitat, and their ultimate survival may be at stake.”
By Kaven Baker-Voakes 
