Introduction

On June 22, 2018, the Federal Court of Canada released its ruling in Groupe Maison Candiac Inc. v. Canada (Attorney General).¹ The Honourable Mr. Justice Leblanc dismissed an application for judicial review² sought by Groupe Maison Candiac (“Groupe Candiac”) challenging the federal government’s power to limit development on private land under the Species At Risk Act³ [SARA]⁴. More specifically, Justice Leblanc ruled that the federal government’s ability to issue an emergency order under section 80 of SARA on provincial land does not violate the division of powers in the Constitution Act of 1867 and does not amount to an unlawful form of expropriation without compensation.

Species At Risk Act 

The purposes of SARA are to prevent “species from being extirpated or becoming extinct, to provide for the recovery of wildlife species that are extirpated, endangered or threatened as a result of human activity and to manage species of special concern to prevent them from becoming endangered or threatened”.⁵ Section 80(2) of SARA provides that an emergency order can be issued to protect any species in Schedule 1 of SARA that “faces imminent threats to its survival or recovery”.⁶ On July 8, 2016, the Governor in Council, on the recommendation of the Minister of Environment and Climate Change, Catherine McKenna, issued an emergency order for the Western Chorus Frog.⁷ It created 1.85 km2 of protected area in the South Shore of Montreal. This resulted in an immediate prohibition of any development in this area. The Minister also announced that the owners of properties located within the protected area were not to be compensated.

The Western Chorus Frog

The Western Chorus Frog (Pseudacris triseriata) is a small smooth-skinned tree frog that varies in colours from green-grey to brown.⁸ It is easily distinguished from most other tree frogs by three dark stripes on its back.⁹ The adult size does not exceed four centimeters. This small amphibian inhabits different types of wooded and wetland areas such as marshes, swamps, and woodland ponds.¹⁰

According to the Committee on the Status of Endangered Wildlife in Canada (“COSEWIC”),  the Western Chorus Frog’s population has declined in Quebec, Ontario and northern New York state.¹¹ The decrease in population has been associated with habitat loss and fragmentation.¹² The largest population of the species is found in the South Shore of Montreal, which led to this case involving a housing development proposed by Groupe Candiac.

Groupe Candiac Asked the Court to Cancel the Emergency Protection Order

The emergency order prevented completion of a housing development that was already underway and Groupe Candiac maintained that it consequently lost approximately 20 million dollars.¹³ Groupe Candiac asked the Court to cancel the emergency order pursuant to section 18.1 of the Federal Court Act as it believed the order to be invalid.¹⁴ Groupe Candiac claimed it was adopted for the purpose of preventing them from building on the land, which they argued was beyond the scope of the federal government’s constitutional powers. Groupe Candiac also maintained that the order constituted an illegal form of expropriation without compensation.¹⁵

What does this mean for Saskatchewan?

Although SARA was enacted in 2002, there has only been one other successful emergency order issued prior to this case.¹⁶ In November 2013, the first emergency order issued under SARA was implemented in Alberta and Saskatchewan for the protection of the Greater Sage-Grouse.¹⁷ Generally, the prohibitions offered under SARA are limited to protecting species on federal lands and under federal authority.¹⁸ However, section 80(4)(c) authorizes the federal government to identify habitats managed under a provincial government that require protection for endangered species and to prohibit activities on provincial land.¹⁹ It might seem surprising to the general public that the federal government has only exercised this power twice, but the intrusive nature of this power and uncertainty around its constitutionality are likely both reasons why it has rarely been used until recently.

This victory for the implementation of SARA will be of interest to Saskatchewan farmers, real estate developers, and others involved in provincial land use activities. The Federal Court clearly indicated here that it is well within the federal government’s constitutional powers to implement an emergency order and attendant restrictions on the development of private property on provincial land as deemed necessary.²⁰ This ruling could also play a role in the Saskatchewan Court of Appeal’s reference case on the federal government’s ability to legislate a mandatory carbon tax on all Canadian provinces as it addresses the nature and scope of Parliament’s constitutional powers over environmental matters. Saskatchewanians will have to wait to see if our Court of Appeal takes a similarly generous approach to the question of federal powers as the Federal Court did in this case.