In this decision, three First Nations and two environmental
non-governmental organizations asked the Federal Court to, among
other things, compel the minister of the environment (Minister) to
recommend to the Governor in Council that it issue an emergency
order under section 80 of the Species at Risk Act, S.C.
2002, c. 29 (SARA) for the protection of the boreal caribou herds
in northern Alberta, which are part of a population of caribou
listed as threatened under SARA.
Pursuant to section 80(2) of SARA, the Minister was required to
make such a recommendation "if he or she is of the opinion
that the species faces imminent threats to its survival or
recovery." After reviewing the request, the Minister concluded
that there were no imminent threats to the national survival or
recovery of boreal caribou in Canada, and declined to make the
Environment Canada considered all herds in northern Alberta to
be facing an elevated risk of extirpation, and, that the
"Seven Herds" that were the subject matter of the
application had numbers that were insufficient for these
populations to be self-sustaining.
Notwithstanding the above, the Minister concluded there were no
imminent threats to the survival of boreal caribou on the basis
that the current range and conditions were sufficient for 27 of the
57 boreal caribou herds in Canada. Moreover, although the Minister
accepted that the recovery of the Alberta herds would be extremely
challenging, that an existing gap in boreal caribou distribution
would widen, and that the extirpation of the Seven Herds would
impact boreal caribou populations in the Northwest Territories,
British Columbia and Saskatchewan, the Minister concluded that the
population in Manitoba and eastern Canada, which appeared healthy,
could allow Canada to maintain a self-sustaining population of
boreal caribou. On that basis, the Minister concluded that there
were no imminent threats to the recovery of boreal caribou.
The Federal Court noted that in the context of the decision as a
whole, the conclusion reached by the Minister was unexplainable and
essentially "came out of the blue." On the basis of the
facts before the Minister, it was not apparent to the Court how the
Minister could have reasonably concluded that there were no
imminent threats to the national recovery of boreal caribou. The
Court also held that, in interpreting the obligations under section
80(2), the Minister had erred by failing to consider the First
Nation Applicants' rights to hunt under Treaty 8. In
the circumstances, the Federal Court set aside the decision and
referred the matter back to the Minister for reconsideration in
accordance with the Court's reasoning.
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