Tiny fish, big legal win
The Nooksack dace was the subject of a court ruling that represents increased habitat protection.
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Updated: September 25, 2009 4:44 PM
A court ruling involving an obscure Lower Mainland minnow is being hailed as a much broader legal victory that will force better protection of other endangered species.
The Nooksack dace is found in Bertrand, Fishtrap and Pepin creeks – streams that flow through Langley or Abbotsford and across the border into the Nooksack River in Washington State – as well as the Brunette River that drains Burnaby Lake.
Environmentalists have been fighting to protect the habitat of the tiny fish, which is considered threatened by urbanization, pollution and fluctuating water levels.
A federal court ruling Sept. 9 found the Department of Fisheries and Oceans failed to identify the critical habitat of the Nooksack dace, a move that would have triggered more specific protection of the fish under Canada’s Species at Risk Act.
Christianne Wilhelmson of the Georgia Strait Alliance said the decision may force DFO to start delivering real protection for everything from endangered plants to whales.
Scientists had mapped the locations of Nooksack dace habitat – which crosses 650 private properties in the Lower Mainland – and included those maps in a draft recovery strategy.
But the habitat maps were removed by DFO officials when the final recovery strategy was published.
The court ruled it was illegal for DFO to follow a policy of removing or suppressing habitat information from the recovery strategies it is required to enact – not just for Nooksack dace, but for all aquatic species at risk in B.C.
The lawsuit was brought in 2007 by Ecojustice lawyers on behalf of the David Suzuki Foundation, Environmental Defence, the Georgia Strait Alliance and the Wilderness Committee.
Ecojustice lawyer Lara Tessaro said the groups will press DFO to rewrite the affected strategies for other endangered species within 90 days.
Those species include the sea otter, leatherback turtle, transient killer whale, northern abalone, the Morrison Creek lamprey, the Cultus pygmy sculpin and several types of stickleback found in Enos Lake, Paxton Lake or Vananda Creek.
“DFO has a pattern of resistance here,” Tessaro said. “But the court has made it clear the law trumps DFO’s policies.”
Protection of Nooksack dace habitat could pit the species against the rights of private homeowners in the Fraser Valley.
“What the dace ultimately needs to survive is intact riparian vegetation along the creeks where they live,” Tessaro said.
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