In 2003, Woodland Caribou, Boreal population, were listed as threatened under the Species at Risk Act (SARA).1 On August 26, 2011, the federal Minister of Environment (MOE) released the Proposed Recovery Strategy for the Woodland Caribou.2 The Proposed Recovery Strategy identifies the critical habitat of 57 local populations of Woodland Caribou in seven provinces and two territories across Canada.
The Proposed Recovery Strategy, which is open for public comment until October 25, 2011, is summarized below.
The Proposed Recovery Strategy
According to the Proposed Recovery Strategy, the recovery of Woodland Caribou is technically and biologically feasible across the species' ranges. The primary threat to most Woodland Caribou local populations is identified as unnaturally high predation rates as a result of habitat loss, degradation, and fragmentation, which threat can purportedly be avoided or mitigated through coordinated land use planning and habitat restoration and management, in conjunction with predator management where local population conditions warrant such action.
The 57 local populations of Woodland Caribou identified in the Proposed Recovery Strategy are classified as falling into one of the following three categories:
1. Self-sustaining (17 local populations);
2. Not self-sustaining and identified as connectivity populations (12 local populations); and
3. Not self-sustaining but not identified as connectivity populations (28 local populations).
Of the 12 local populations identified in Alberta, none fall into the first category as self-sustaining, five fall into the second category,3 and seven fall into the third category.4
For the first category populations (the 17 self-sustaining local populations), critical habitat is identified as 65 percent of the undisturbed habitat within the range of the local population. Accordingly, land use will not be permitted to the extent it results in the reduction of undisturbed habitat to a number below 65 percent. However, as discussed below, while the identified critical habitat includes both federal and provincial lands, the restrictions regarding development on Crown lands under the SARA only apply on federal lands, without further action being taken by the federal government.
For the second category populations (the 12 local populations prioritized to recover to self-sustaining levels, in order to maintain a connected population of caribou), critical habitat is identified as the existing undisturbed habitat. Accordingly, land use that results in the destruction or disturbance of habitat will not be permitted in respect of these local populations unless and until the goal of 65 percent undisturbed habitat is reached in respect of the particular local population. Since these local populations are currently identified as having undisturbed habitat below 65 percent, there may be land use implications for projects proposed in areas where these local populations occur.
However, for the third category populations (those 28 local populations that were found not to represent connectivity populations), such as those populations which are present in the area where much of the oil sands activities take place, critical habitat is identified as follows:
1. Where the amount of undisturbed habitat is 65 percent or more, the amount of critical habitat is 65 percent undisturbed habitat within the range of the population. No activities will be permitted that reduce undisturbed habitat below 65 percent;
2. Where the amount of undisturbed habitat is more than five percent and less than 65 percent, the amount of critical habitat required initially is the undisturbed habitat. This may be decreased in an amendment to the recovery strategy should jurisdictions provide a plan that will support stabilized local populations through the use of mortality and habitat management tools; and
3. Where the amount of undisturbed habitat is five percent or less, the amount of critical habitat is all existing habitat and no development can take place in these areas. Jurisdictions must continue to use mortality and habitat management tools to ensure these populations remain stable.
Of the seven third-category populations identified in Alberta, only the Little Smoky population (located near Jasper) is identified as having five percent or less of undisturbed habitat, such that the existing habitat in the area is all critical habitat and destruction of any Woodland Caribou habitat on federal lands will therefore be prohibited. The remaining six third-category populations in Alberta have between five percent and 65 percent undisturbed habitat. As a result, the Proposed Recovery Strategy contemplates continued development on the habitat of these remaining herds—so long as the province provides plans to support stabilized local populations through the use of mortality and habitat management tools.
Criticism of the Proposed Recovery Strategy
The Proposed Recovery Strategy is not without its critics. On the day of the Proposed Recovery Strategy's release, both Ecojustice and the Pembina Institute issued statements identifying the Proposed Recovery Strategy as being insufficient to meet its supposed purpose of recovering the Woodland Caribou.5 According to Ecojustice, the Proposed Recovery Strategy is "barely a survival plan" and is not in compliance with the SARA. As a result, Ecojustice indicates that it is reviewing its legal options. According to the Pembina Institute, the federal government has written off "virtually all of the habitat that supports Alberta's caribou herds in order to promote irresponsible levels of oilsands development".
Subsequent to the close of the comment period, the Proposed Recovery Strategy must be finalized and, according to the Proposed Recovery Strategy, the government will use the Recovery Strategy to develop one or more action plans, which it expects to release in 2013.
Significantly, the SARA prohibitions against destroying Woodland Caribou and their critical habitat would, without further action, apply only to federal lands and not to provincial Crown lands. While there is a safety net provision 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 final recovery strategy, including:
1. A determination by the MOE that the identified critical habitat is not being effectively protected by provincial law;
2. A recommendation by the MOE to Federal Cabinet that it issue an order making it an offence to destroy caribou critical habitat on non-federal lands of the province in question; and
3. The issuance of an order by Federal Cabinet making it an offence to destroy the identified critical habitat on non-federal lands in the province.
Without the issuance by Federal Cabinet of such an order, the Recovery Strategy and any actions plans will not apply to non-federal lands in a province.
Another option available to make the SARA protections apply to non-federal lands is the emergency order provision, which requires the MOE to recommend to Federal Cabinet the issuance of an emergency order if he is of the opinion that there are imminent threats to the survival or recovery of the Woodland Caribou. Upon consideration of the MOE's recommendation, the Federal Cabinet may 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. Significantly, in March 2011, the MOE formed the opinion that there was no imminent threat to the recovery of Woodland Caribou and that there was no need to make a recommendation to the Federal Cabinet. However, on July 28, 2011, the Federal Court ordered the MOE to reconsider his decision.6 For more detail on the Court's decision and the SARA emergency order provision generally, please see the previous Bennett Jones Update, " Federal Court Releases Decision on the Government's Protection of Northeastern Alberta's Caribou" (August 15, 2011).
Whether and exactly how provincial governments, environmental groups, and First Nations will respond to the release of the Proposed Recovery Strategy is still unknown. What is clear, however, is that the issue of the protection of Woodland Caribou and their habitat is very much alive. As a result, it continues to be important for resource developers with projects that may impact Woodland Caribou and their habitat to continue to follow the development of this issue as the Recovery Strategy is finalized and action plans are developed, and as provincial governments respond with any land use, habitat restoration and management plans.
1. S.C. 2002, c. 29, s. 37.
2. Environment Canada. 2011. Recovery Strategy for the Woodland Caribou, Boreal population (Rangifer tarandus caribou) in Canada [Proposed]. Species at Risk Act Recovery Strategy Series. Environment Canada, Ottawa. vi + 55 pp. Available on the Species at Risk Public Registry at: http://www.sararegistry.gc.ca/document/dspDocument_e.cfm?documentID=2253 .
3. The Bistcho, Yates, Caribou Mountains, Red Earth, and Richardson local populations.
4. The Chinchaga, Little Smoky, West Side Athabasca River, East Side Athabasca River, Cold Lake, Nipisi, and Slave Lake local populations.
5. See: The Pembina Institute, Sustainable Energy Solutions, Simon Dyer, "Pembina reacts to draft Woodland Caribou Recovery Strategy", August 26, 2011, available at: http://www.pembina.org/media-release/2257 and Ecojustice, "Proposed caribou recovery strategy violates SARA", August 26, 2011, available at: http://www.ecojustice.ca/media-centre/press-releases/proposed-caribou-recovery-strategy-violates-sara
6. Allan Adam et al. v. Minister of the Environment et al., 2011 FC 962.
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