Federal Court Considers Adequacy of Canada's Protection of Northeastern Alberta's Caribou

Written By Brad Gilmour and Marianne (Chuck) Davies

On June 22 and 23, 2011, the Federal Court heard an application by a group of three Treaty 6 and Treaty 8 First Nations¹ and a group of two environmental organizations,² which sought relief for alleged breaches by the federal Minister of Environment (M) under the Species at Risk Act (SARA).³ Although the decision of the Court was reserved and it is not known when it will be released,⁴ in light of the impacts it could have on industry in northeastern Alberta, oil sands operators are likely to be watching for this decision with anticipation.

Background

In 2003, Woodland Caribou were listed as threatened under the SARA and, accordingly, the M was to have prepared a recovery strategy for the species by 2007. However, no recovery strategy has been prepared and, until one is created, none of the critical habitat protection mechanisms within the SARA can be implemented.

In July and August of 2010, a consortium of four Treaty 6 and Treaty 8 First Nations groups,⁵ and three environmental groups⁶ submitted letters to the M detailing what they described as imminent threats to caribou and requesting the M make a recommendation to Federal Cabinet to issue an emergency order to protect the habitat of seven caribou herds located in northeastern Alberta.⁷ The M did not respond to either letter and, subsequently, the judicial review applications were filed in which the applicants sought:

1. A declaration that the M missed the statutory deadline for issuing the recovery strategy; and
2. An order compelling the M to recommend the Federal Cabinet issue an emergency order to protect the herds.

The declaration was sought with the purpose of holding future decision-makers accountable to statutory time limits (particularly with respect to time-sensitive matters involving the SARA), while the order was the applicants' principal focus in their efforts to protect the herds.

In March 2011, the M formed the opinion that there was no imminent threat to the recovery of caribou and that there was no need to make a recommendation to the Federal Cabinet regarding the issuance of an emergency order.

The Recovery Strategy

With respect to the failure to issue a recovery strategy in advance of the deadline, the Respondent Attorney General argued that the delay stemmed from the inadequacy of available information to create a strategy in such a complex area and noted that the final recovery strategy is expected to be released by the end of this summer.

The applicants argued that there is currently sufficient information available to finalize a recovery strategy and that, in any event, there is no discretion afforded to the M. The applicants relied on the words of the relevant SARA provision, “the competent minister must include a proposed recovery strategy in the public registry…” by 2007, as well as a prior Federal Court decision⁸ in which the Court, considering another SARA provision using the word must, found that there is no opportunity for political or socioeconomic consideration in the context of a mandatory provision.

In response to a concern over the potential impact of the Court's decision on oil sands activity, the applicants emphasized that the application was to consider only whether the M was in breach of his duties under the SARA and not whether an injunction should be issued against oil sands activity. In addition, the applicants argued that any political and economic considerations (including regarding oil sands activity) may be appropriate at the Federal Cabinet level in determining whether an emergency order should be issued, but not by the M at the recommendation stage.

The Emergency Order Recommendation

The SARA provides that the M must recommend an emergency order if he is of the opinion that there are imminent threats to the survival or recovery of the species. According to the applicants, the M is required to recommend an emergency order be issued so long as he is of the opinion that the recovery of caribou is threatened and that, with all of the scientific evidence available, the only logical opinion is that caribou are in imminent danger of recovery. Among the issues addressed during the hearing were the definitions of imminent and recovery.

The Meaning of Imminent

There was significant debate between the parties as to the proper interpretation of imminent. According to the applicants, so long as it could be demonstrated that one of the herds is in imminent threat of extirpation, this is sufficient to require the recommendation of an emergency order. The Attorney General argued, however, that the SARA required a consideration of the national population of the SARA-listed species, rather than of a specific region or herd and that, given the relatively strong caribou numbers in eastern Canada, there was a sufficient basis for the M to have formed an opinion that there was no imminent threat to the species as a whole.

In response to a concern regarding the possibility that this decision will have far-reaching impacts, the applicants attempted to limit the scope of the Court's ruling, by suggesting the overwhelming evidence of the threat to the caribou's recovery made the circumstances unique. The First Nations applicants also argued that the requirement that the SARA be examined through the constitutional lens accorded where Aboriginal rights are concerned makes the case further unique.

The Meaning of Recovery

The parties additionally debated the proper interpretation of the word recovery. According to the Attorney General, a determination of whether there was an imminent threat to recovery of a species could not be made until the recovery strategy was released. However, the applicants argued this was an illogical interpretation since the purpose of the emergency order provision is to provide temporary relief for critical habitat, pending the release of a recovery strategy.

Conclusion

If the Court does not dismiss the application, there are at least two options it may take in fixing relief. These include:

1. Requiring the M to recommend to the Federal Cabinet the issuance of an emergency order in respect of the herds; or
2. The remittance of the matter to the M with instructions to reconsider whether to recommend the issuance of an emergency order.

The applicants expressed concern regarding the latter of these options and the potential for further delay with the likely result that no different opinion from the M would be forthcoming.

Although the SARA typically applies only to federal lands, the emergency order provision permits the Federal Cabinet to issue an order that applies to non-federal lands and that prohibits activities (such as resource development) that may adversely affect the species and any habitat necessary for the survival or recovery of that species. As a result, if the Court's decision results in the issuance of an emergency order by the Federal Cabinet in respect of the herds, there may be consequences for resource developers (including oil sands operators) with operations on provincial Crown lands in northeastern Alberta.

If an emergency order is issued by the Federal Cabinet, it is likely to remain in place until at least such time as the recovery strategy for the caribou is finalized. Notably, once the emergency order is no longer in place, the prohibition provisions of the SARA apply only to federal lands and not to provincial Crown lands. While there is a safety net provision in the SARA which would permit the application of the SARA to non-federal lands, a number of additional steps must first be taken in addition to the implementation of a recovery strategy that identifies critical habitat in northeastern Alberta, including:

1. A determination by the M that the identified critical habitat is not being effectively protected by Alberta law;
2. A recommendation by the M to Federal Cabinet that it issue an order; and
3. The issuance of an order by Federal Cabinet making it an offence to destroy the identified critical habitat in Alberta on non-federal lands.

Notes

1. The First Nations applicants comprise Members of Athabasca Chipewyan First Nation, Beaver Lake Cree Nation, and Enoch Cree Nation.
2. The Environmental applicants comprise the Alberta Wilderness Association and Pembina Institute for Appropriate Development.
3. S.C. 2002, c 29.
4. At the conclusion of the hearing, the Court reserved its decision and, although it is unclear when a judgment will be issued, the Court expressed a desire to issue a decision as soon as possible.
5. Athabasca Chipewyan First Nation, Beaver Lake Cree Nation, Enoch Cree Nation, and Chipewyan Prairie Dene First Nation.
6. Alberta Wilderness Association, Pembina Institute, and Sierra Club Prairie.
7. The herds are: Red Earth, West Side Athabasca River, Richardson, East Side Athabasca River, Cold Lake Air Weapons Range, Nipisi, and Slave Lake.
8. Environmental Defence Canada v. Canada (Minister of Fisheries and Oceans), [2009] F.C.J. No. 1052, 2009 FC 878.