Canada: Federal Court Declines To Compel Minister To Recommend Emergency Order For Boreal Caribou

Copyright 2011, Blake, Cassels & Graydon LLP

Originally published in Blakes Bulletin on Environmental Law, August 2011

On July 28, 2011, the Federal Court issued a decision regarding the power of the federal Environment Minister to issue emergency orders to protect the habitat of endangered species under the Species at Risk Act (SARA). The case revolved around the boreal caribou, which are listed as "threatened" under SARA and for which Environment Canada has been working on a recovery strategy for a number of years. The decision, while demonstrating continued dissatisfaction with the manner in which Environment Canada has approached its duties under SARA, confirmed that consideration of whether there is an imminent threat to the survival or recovery of a species relates to the species as a whole, as opposed to local populations. The decision contains some significant statements regarding the manner in which SARA is to be interpreted.

BACKGROUND

SARA requires recovery strategies to be developed for species which are listed as "endangered" or "threatened". Among other things, recovery strategies set recovery objectives for the species and, where possible, identify critical habitat. Until such habitat is identified, there are no actions the federal government can take to protect it, unless there is an emergency order from the cabinet.

The recovery strategy for the boreal caribou was required to be prepared by Environment Canada by 2007; however, because of the extensive scientific review and ongoing consultations being carried out, it has not yet been released.

Earlier this year, responding to petitions from a number of First Nations and environmental non-governmental organizations (ENGOs), the Environment Minister, Peter Kent, made a determination that a recommendation for an emergency order under SARA was not required. The Minister determined that, although the boreal caribou in Alberta appeared to be at greater risk of extirpation, the species is robust in other parts of the country and thus there is no imminent danger to the survival and recovery of the species as a whole.

At issue in the case was a question of whether, given the scientific information before the Minister, he should have made the recommendation to the federal cabinet for an emergency order protecting the habitat of seven herds of the boreal caribou in northeastern Alberta. The Court application was brought by three First Nations and two ENGOs (the Applicants). In addition to the request for a recommendation for an emergency order, the Applicants also requested an order for Environment Canada to post the recovery strategy on the SARA Registry.

IMMINENT DANGER TO A SPECIES REQUIRES ANALYSIS AT A SPECIES RATHER THAN A POPULATION LEVEL

The Court confirmed that the assessment of whether a species is facing an imminent threat to its survival or recovery relates to the species as listed under SARA (i.e., the entire species) and not to individual herds or local populations. While the Court agreed that an order can be made to protect local herds or their habitat, the determination of whether the order should be recommended is at the species level. The Court also confirmed that even if the Minister recommends an emergency order, the federal cabinet is not required to make it.

The key significance of this aspect of the judgment is that consideration of whether a species faces imminent danger to its survival or recovery is not based upon recovery of all of its subpopulations to self-sustaining levels through current ranges, but upon the population at a national level. There are a variety of places in SARA that require analysis of whether there is a threat to the survival or recovery of a species, such as the conditions for issuing permits, and it would appear this decision is likely to inform decision-making under these as well.

COURT WILL NOT DIRECT AN OPINION OF THE MINISTER

The Court held that while the Minister is required to make a recommendation to the federal cabinet for an emergency order if he or she is of the opinion that a species faces an imminent threat, the reliance on the Minister's opinion means that the decision has an element of discretion that precludes the court from ordering the Minister to make the decision in a particular way.

There are a number of provisions in SARA which require the Minister of Environment to reach an opinion on whether there is sufficient protection for species in provinces or territories, and, if there is not, to recommend the federal cabinet make orders which could potentially impose restrictions on the provinces' ability to manage resources within their jurisdiction. Permits are also issued based upon the opinion of the Minister. The confirmation of the inability of the Court to compel the Minister to make a decision in a particular manner when there is an opinion involved, limits actions that could be taken by groups that may seek to have SARA's prohibitions applied to public and private lands in a province or that wish to challenge permitting decisions.

However, while the Court held it was not able to compel the Minister to exercise his discretion in a particular way, it also agreed with the Applicants that the decision the Minister made regarding the boreal caribou in Alberta was confusing, as the facts set out in the decision did not seem to support his final conclusion. For this reason, the Court determined that it was appropriate to order the Minister to reconsider his opinion and, presumably, to provide clearer reasons for whatever conclusion he does eventually reach. In that way, the Court confirmed it is imperative that opinion decisions be based upon supportable facts, and that such facts be clearly articulated by the decision-maker.

CROWN'S HONOUR TOWARDS FIRST NATIONS IS RELEVANT WHEN INTERPRETING SARA

The Court also held that the Minister's decision that the treaty rights of the First Nations were not relevant to the determination of whether the boreal caribou faces imminent danger to its survival or recovery was incorrect.

This conclusion was based on two general observations by the Court:

• the nature of the treaty right to hunt was originally granted by the Crown to preserve the First Nations' traditional way of life; and
• in all of its dealings with First Nations, including interpreting statutory provisions that impact treaty or aboriginal rights, the Crown must act in a manner that maintains the Crown's honour towards First Nations.

The Court went on to note that the Minister should have assessed the extent to which the ongoing "violation" of SARA – by failing to post a recovery strategy and continued inaction with respect to boreal caribou –would be inconsistent with the honour of the Crown. The Court emphasized that its decision was limited to a finding that the Minister was wrong to conclude that these matters were not relevant to his interpretation of SARA and should not be taken to suggest that a proper consideration of the treaty rights or the Crown's honour would necessarily have led to a particular opinion by the Minister.

COURT PUTS PRESSURE ON ENVIRONMENT MINISTER TO GET RECOVERY STRATEGY COMPLETED

As noted above, the Court was asked to make an order for Environment Canada to complete the draft recovery strategy and post it to the SARA Registry as required by the legislation. This posting will commence a mandatory public comment period. However, as the Minister had informed the Applicants that the recovery strategy was to be completed in the summer of 2011, the Court deferred making the order, but stated it will reconsider it after September 1, 2011. It thus appears that the government has a month to get the proposed strategy officially posted or potentially face a court order to do so.

RECOVERY IN SARA NOT RESTRICTED TO OBJECTIVES SET IN RECOVERY STRATEGIES

The First Nations and ENGOs urged the Court to interpret the meaning of the word "recovery" in SARA to mean the objectives which are established in a recovery strategy. The Court found this position to be inconsistent with SARA, stating that while recovery objectives identified in recovery strategies are relevant to the consideration of whether there is an imminent danger to the recovery of a species, they are not the sole factor to be considered.

Unfortunately, the Court did not elaborate on what other factors besides the recovery strategy objectives might be relevant to considering whether SARA's requirements to recover a species are met. This aspect of the decision highlights the ongoing confusion as to what exactly the word "recovery" in SARA means, and, if anything, provides more support for an argument that SARA either needs amending or, at the very least, clarification through regulation or policy development.

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