Court case challenges federal failure to protect Nooksack dace: Backgrounder

Aug 22, 2007

Sierra Legal on behalf of the Wilderness Committee, Environmental Defence, and Georgia Strait Alliance, last week started a court case in Federal Court against the Minister of Fisheries and Oceans’ decision to release the National Recovery Strategy for the Nooksack Dace without including the location of its critical habitat. The following provides background to this case.

  • The federal Species at Risk Act (SARA), which came into force in 2003, is Canada’s national law to protect endangered species.
  • One of the main tools used in SARA to help an endangered species survive and recover is the recovery strategy – this is a document written by experts on that species which reviews the biology and current status of the species, what it needs to survive and recover, and what has caused it to become endangered. Later planning documents, known as action plans, can provide a more detailed plan for survival or recovery.
  • SARA explicitly recognizes that conserving a species’ habitat is key to its conservation. SARA requires that the habitat necessary for an endangered species’ survival or recovery (called "critical habitat") be identified in the recovery strategy for that species "to the extent possible, based on the best available information".
  • Protection of critical habitat under SARA occurs only if it is identified in a recovery strategy or action plan. Unlike recovery strategies which must be prepared according to mandatory timelines, SARA contains no time limits for preparing action plans. Thus, failure to identify critical habitat at the recovery strategy stage, risks indefinite delay in its eventual identification and protection.
Systemic failure to identify critical habitat in recovery strategies
  • 84% of Canada’s species at risk are endangered primarily because of habitat loss. The longer we wait to identify and protect their critical habitat, the less chance they have of surviving, let alone recovering.
  • Let the federal government is not identifying critical habitat in many of the recovery strategies that it releases. Although recovery strategies have been finalized for 37 species, 19 of them do not identify critical habitat.
  • Often it is not a lack of scientific knowledge that is standing in the way. For instance, the Piping Plover is one of the best studied of all bird species. Its habitat is known to a remarkable extent, in part because naturalists have, for decades, visited the Plovers’ nesting, breeding and feeding sites in an attempt to count every single Piping Plover in Canada. Yet its critical habitat was not identified in its recovery strategy until a lawsuit was filed.
  • In the case of the Nooksack dace, scientists on the recovery team mapped the exact location of its critical habitat and included those maps in a draft recovery strategy, but DFO officials removed this information from the final recovery strategy. The Nooksack dace is an example of a systematic failure by the federal government to identify and protect critical habitat for endangered species.
Feds’ own report confirms our concerns
  • Our concerns are echoed by a 2006 independent review of the implementation of SARA commissioned by the federal government. This review concluded that recovery strategies were not identifying critical habitat as mandated, and warned that this failure could jeopardize the implementation of SARA.
Nooksack dace facts
  • The Nooksack dace is a small minnow-like fish less than 15cm long.
  • Nooksack dace in Canada are found only in four lowland streams in the Fraser Valley of BC.
  • Nooksack dace share their habitat with Cutthroat Trout, juvenile Coho Salmon, Lamprey, Sculpins, and the Salish Sucker (another endangered native fish).
Threats to Nooksack dace habitat
  • Habitat loss is the key threat to survival for the Nooksack dace.
  • The Committee on the Status of Endangered Wildlife in Canada (COSEWIC), Canada’s official national body responsible for assessing species at risk, wrote in 1996 in its Status Report on the Nooksack Dace:

"…, habitat suitable for adult Nooksack Dace will continue to decrease and the species probably will go extinct in Canada in the next one or two decades. … Habitat loss through human disturbance is the greatest threat facing the Nooksack Dace in British Columbia. Housing developments, shopping malls and industrial parks are replacing fields and wooded areas in the range of this species at a dizzying pace. … The shrinking Canadian [Nooksack dace] populations are sandwiched between a deteriorating environment upstream and unsuitable habitat downstream."

COSEWIC’s Status Report