Environment Minister Steven Guilbeault broke the law when he waited eight months to recommend an emergency order protecting British Columbia’s endangered spotted owls, a federal court judge has ruled.
Environmental group Wilderness Committee argued the delay was unreasonable and unlawful. Justice Yvan Roy agreed, saying Guilbeault had formed an opinion that the species faced imminent threats to its survival and recovery months before he made a formal recommendation.
Roy found Guilbeault had violated the Species at Risk Act.
“Once [there is] the opinion that the threats are about to happen, the Act says that the recommendation must be made. There is [an] emergency,” Roy wrote in a June 7 decision.
“I find it difficult to fathom how a period of more than eight months could be reasonable once the opinion has been formed.”
The Wilderness Committee is calling the decision a “historic and critical win” for the spotted owl, while the federal government says it’s “carefully considering” it.
1 wild-born spotted owl in Canada
The spotted owl is one of Canada’s most endangered species, according to the B.C. government. It has been considered endangered since the inception of the Species at Risk Act in 2003, with only one wild-born owl currently believed to be left in the country, on the Spuzzum First Nation near Hope, B.C.
It’s believed that as many as 1,000 spotted owls once lived in B.C. forests before industrial logging, according to the province. B.C. has been trying to boost populations with a captive breeding facility in Langley, which is currently home to about 30 owls. It released two into the wild last year.
In January 2023, Guilbeault said the spotted owl faced “imminent threats to its survival” should logging activities continue in two watersheds within Spuzzum territory in the Fraser Canyon, around 130 kilometres northeast of Vancouver, according to documents presented to the federal court.
The next month, it was announced in a letter from the Canadian Wildlife Service that Guilbeault would recommend the federal cabinet issue an emergency order to prevent logging in the area.
Chief James Hobart with the Spuzzum First Nation is calling out the federal government after it decided not to issue an order to help protect the northern spotted owl. The population of the birds, which live in old-growth forests, has dwindled to just three in the wild in Canada.
An emergency order is a powerful tool that would remove provincial decision-making powers and allow Ottawa to have a say on logging and other provincial matters.
However, the recommendation wasn’t made until late September. The cabinet ultimately rejected issuing the order.
Ottawa’s defence
The federal government defended the delay in court by saying Guilbeault had to supply a “more fulsome record” to cabinet rather than his recommendation and needed time to conduct a socio-economic analysis and consult the B.C. government and affected First Nations.
But Roy was not convinced, saying emergency orders requires urgency.
“The machinery of government cannot undermine the clear statutory obligations made to the minister,” Roy wrote.
“Process must serve the legal obligation; it is not for the legal obligation to adjust to some process. The tail cannot be wagging the dog.”
CBC News requested an interview with Guilbeault but was told he was not available. In a statement, his ministry said the federal government is “committed to supporting” the spotted owl.
“Since 2021, Canada has provided over $5 million in contributions to the government of British Columbia and to Indigenous peoples in support of spotted owl recovery efforts,” the ministry said.
It has about a month to appeal the court’s decision.
‘Really happy with the decision’
Joe Foy, protected areas campaigner with the Wilderness Committee, said the group is “really happy with the decision” and is hopeful it will influence the federal government’s actions related to spotted owl protections in the future.
“I would think that from now on, the minister and subsequent ministers will follow the law and when they make an emergency finding, they will quickly go to cabinet to sound the alarm,” Foy told CBC News.
Spuzzum First Nation Chief James Hobart is calling on the federal and provincial governments to do more to protect spotted owls.
“First Nations have been doing all the work while the federal and provincial governments have paused, second-guessed and minimized our efforts around something that is incredibly sacred to us,” Hobart said in a news release Monday.
CBC has contacted the provincial government for comment.