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Federal Court judge finds minister took too long in case of endangered spotted owl

A judge has sided with a British Columbia group that argued the federal environment minister took too long by waiting more than eight months to recommend an emergency protection order for the endangered northern spotted owl.

Ottawa Federal Court Justice Yvan Roy found Steven Guilbeault’s recommendation to cabinet did not meet his responsibilities under the Species at Risk Act for what is believed to be B.C.’s last wild spotted owl.

The minister must recommend a protection order if he determines that a species is facing imminent threats to its survival or recovery, and the judgment says the law does not impose any timelines, allowing some time to gather information.

Cabinet ultimately decided not to issue an emergency order to protect the birds, but the petition launched by the Wilderness Committee argued Guilbeault had taken too long between deciding the owl faced imminent threats and making his recommendation.

Government lawyers had argued that it takes time to bring a matter before cabinet and there are requirements to gather information to present a fulsome picture, including socio-economic analysis and consultation with Indigenous Peoples.

However, the judge found “that argument must itself be tempered” by the purpose of the species-at-risk law, which establishes the need for urgent action.

“I find it difficult to fathom how a period of more than eight months could be reasonable once the opinion has been formed,” Roy wrote in his June 7 decision.

“Either the threats are imminent or not.”

The judge acknowledged that the minister is entitled to interpret the species-at-risk law, but wrote that “the interpretation must be reasonable.”

The act includes a provision for an emergency order to be repealed if the minister and cabinet decide a species is no longer in imminent danger, Roy noted.

“The recommendation to repeal once the imminent threat is no longer, makes it equally mandatory for the minister to act,” Roy wrote. “That constitutes in my view another signal that the initial recommendation must be done very quickly.”

The judge described B.C.’s spotted owl as a “highly endangered” species.

There is only one known wild spotted owl, a female, in the area of the province’s Fraser Canyon where cabinet was considering for emergency protection.

Two male owls raised in captivity had also been released, but a statement from the provincial government in May 2023 said they had both been found dead.

Roy also awarded costs in the case to the Wilderness Committee.

This report by The Canadian Press was first published June 11, 2024.

Brenna Owen, The Canadian Press

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