A Win in the Federal Court for the Piping Plover, and for Government Accountability
Photo credit: Nick Hawkins, "Piping plover (Charadrius melodus) along the Southshore of Nova Scotia, Canada”
A Win in the Federal Court for the Piping Plover, and for Government Accountability
July 21, 2025
In an important win for species at risk protection in Canada, the Federal Court has ruled that the Minister of Environment and Climate Change acted unreasonably when redefining critical habitat for the endangered Piping Plover (melodus subspecies).
East Coast Environmental Law and the Federation of Nova Scotia Naturalists were represented by Ecojustice in the judicial review. We argued that the changes to the Plover’s recovery strategy introduced vague criteria to identify critical habitat that would be difficult to enforce and would result in less protected habitat for the species that is already at risk of extinction.
The Piping Plover is in danger of extinction
The Piping Plover is an endangered shorebird that nests on wide coastal beaches in Atlantic Canada and Québec and feeds on marine life in the intertidal zone. The small, sandy-gray shorebird camouflages with its shoreline habitat, making it difficult to spot for prey and birdwatchers alike. The species depends on intact coastal beaches for its survival.
Despite extensive conservation efforts, the Plover is in rapid decline. Coastal development, coastal activities, and climate change continue to infringe on the Plover’s habitat and disrupt its breeding. Between 2006 and 2016, the number of breeding pairs dropped by more than 30% according to the Canadian Wildlife Service.
The Species at Risk Act provides legal protection for Piping Plover critical habitat
The Plover is listed as endangered under Canada’s Species at Risk Act (“SARA”), meaning the species is “facing imminent extirpation or extinction”.i Once a species is listed as endangered, SARA requires the responsible Minister to prepare a strategy for the recovery of the species.
A core part of the recovery strategy is the identification of the species’ critical habitat: the areas that are necessary for the species’ survival or recovery. Once critical habitat is identified in a recovery strategy, SARA imposes legal obligations on the responsible Minister to ensure it is legally protected, including:
publishing an action plan with proposed measures to protect the critical habitat,
if the critical habitat is within a federal protected area: publishing a description of the critical habitat in the Canada Gazette to prohibit destruction of that critical habitat,
if the critical habitat is not within a federal protected area but is on federal land or is for an aquatic species: issuing an order to protect critical habitat that is not already legally protected,
for migratory bird species that are also protected under the Migratory Birds Convention Act, 1994, including the Plover, with critical habitat that is not on federal land: recommending an order to the Governor in Council to legally protect remaining portions of unprotected critical habitat to which the Migratory Birds Convention Act applies, and
reporting on the steps taken to protect critical habitat.
Considering that habitat destruction is the number one driver of species decline, critical habitat protection is the heart of SARA and the legal protections for it all flow from its identification in the recovery strategy. Vague or ambiguous critical habitat descriptions undermine both enforcement of legal protections and the recovery of the species.
The Minister weakened the Plover’s critical habitat identification in 2022, and we challenged the change
The Plover’s original recovery strategy was published in 2012. It clearly identified the Plover’s critical habitat as the entire beach area, from the low water mark to the upper beach, on specific listed beaches. Experts had identified what specific areas the Plover required for its survival and those areas were identified in the recovery strategy. This clarity facilitated execution, enforcement, and public education of critical habitat protection.
But in 2022, the Minister proposed an amended recovery strategy that replaced the critical habitat identification with a new “bounding box” approach. The new approach identifies 1km grid squares and describes the Plover’s critical habitat as only the parts of those grid squares that meet certain technical and vague criteria. Instead of identifying the area that is the critical habitat, the amended strategy appears to identify areas that could contain critical habitat leaving it unclear where exactly the criteria are satisfied. Without clarity, SARA’s habitat protection tools cannot work effectively.
Under SARA, proposed recovery strategies and amendments must undergo a public consultation process. During that process, East Coast Environmental Law and the Federation of Nova Scotia Naturalists expressed our concerns about the new approach: it undermines the purposes of SARA for being too vague, difficult to follow and enforce, and for arbitrarily reducing the total area of critical habitat.
Our concerns were ignored, and the amended recovery strategy was ultimately published.
In response, we launched a judicial review, represented by Ecojustice, asking the Court to:
declare that the new critical habitat identification was unreasonable and contrary to SARA,
declare that the bounding box approach to critical habitat identification for any listed species is contrary to SARA, and
quash the decision and send the matter back to the Minister for reconsideration.
The Federal Court found that the Minister’s decision was unreasonable
The Court agreed with us: the Minister’s decision was unreasonable. To be “reasonable”, administrative decisions such as this one must be transparent, intelligible, and justified. The Court found that the Minister’s decision was not reasonable because it “entirely fail[ed] to engage with the key issues” we raised during the public consultation period. While recognizing that these decisions should be science-based rather than consensus-based, the Court highlighted that:
“[…] the principles of justification and transparency […] require that an administrative decision-maker’s reasons meaningfully account for the central issues and concerns raised by the parties, in order to demonstrate that the decision-maker has actually listened to the parties and has been alert and sensitive to the matter before it.”ii
In light of these findings, the Court quashed the Minister’s decision to amend the recovery strategy and ordered the Minister to reconsider it in accordance with the Court’s decision and with attention to our concerns. The new decision will have to demonstrate how the Minister grappled with these concerns. To avoid a potential gap in protection of the Plover, the Court gave the Minister 10 months to make a new decision.
In an unexpected turn of events, counsel for the Minister during the hearing suggested that the new recovery strategy intended to identify entire beaches as critical habitat, like the 2012 version, but that the amended strategy does so with more precision. This was the first we had heard of this interpretation. The Court expressed skepticism about this interpretation and suggested that perhaps a re-drafting of the strategy to clarify this intention could solve our dispute. With this unexpected alignment on how critical habitat should be identified, the larger question of whether the bounding box approach aligns with SARA was left undecided.
The ruling sends an important message
The ruling sends a clear signal to government: public consultations must be genuine, and decisions must be transparent. It also sends an important reminder to everyone who cares about environmental protection:
Your voice matters and engagement in environmental decision-making can lead to meaningful change.
For now, we celebrate this step forward for species at risk protection and accountability and watch closely to see how the government responds to the Court’s decision.
[i] The definition of an “endangered species” in section 2 of the Species at Risk Act, S.C. 2002, c. 29.
[ii] Federation of Nova Scotia Naturalists v. Canada (Environment and Climate Change), 2025 FC 983 at paragraph 99, citing Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at paragraphs 127-128 .
Richelle Martin
Staff Lawyer