3 total
Mandamus compelling Bank Swallow recovery strategy dismissed for lack of standing and prior demand.
The applicants sought an order of mandamus to compel the Minister of Environment and Climate Change to prepare a recovery strategy, an action plan, and designate critical habitat for the Bank Swallow, a threatened species under the Species at Risk Act.
While the court recognized a public legal duty for the Minister to issue a recovery strategy and found an unreasonable two-year delay, the application was dismissed.
The court held that the request for an action plan and habitat designation was premature until the recovery strategy was posted.
Furthermore, the applicants lacked both direct standing and public interest standing, and failed to make a prior demand, which are required elements of the test for mandamus.
Interlocutory injunction against intervener private developer to halt construction pending mandamus application under SARA dismissed.
The applicants, landowners adjacent to a proposed private racetrack development, sought an interlocutory injunction to prevent the intervener from proceeding with construction pending the determination of their application for mandamus against the Minister of Environment and Climate Change under the Species at Risk Act to protect Bank Swallow habitat.
The Court dismissed the motion, finding the applicants had not established irreparable harm with clear and convincing evidence, as there was no imminent risk of destruction of critical habitat before the mandamus application was heard, and the balance of convenience favoured the intervener, a private landowner with valid provincial and municipal approvals.
Duty to consult does not apply to Parliament’s law-making process.
An Indigenous rights-holder sought judicial review over the federal law-making process, alleging a duty to consult before introduction and enactment of omnibus environmental legislation that could affect Treaty 8 harvesting rights.
A majority held the reviewing court lacked jurisdiction under the Federal Courts Act because the impugned ministerial conduct was legislative in character and not reviewable as action of a federal board, commission, or tribunal.
The Court further held the duty to consult does not attach to the legislative process itself, given separation of powers, parliamentary sovereignty, and parliamentary privilege.
The appeal was dismissed, while leaving open that enacted legislation may still be challenged through constitutional and other established remedies where rights are adversely affected.
