Woodland caribou (and their habitat) are quickly becoming a critical environmental challenge for mining projects in northeastern British Columbia and northern Canada, generally.
Two recent decisions illustrate the impact that woodland caribou may have on future developments: West Moberly First Nations v. British Columbia (Chief Inspector of Mines) (West Moberly), 2011 BCCA 247 and Adam v. Canada (Environment) (Adam), 2011 FC 962. The West Moberly case dealt with impacts from a proposed exploration program on a small herd of woodland caribou from the Southern Mountain population in northeastern British Columbia. The Adam decision dealt with the general viability of seven herds of woodland caribou from the boreal population in northern Alberta. These cases are summarized on pages 5 and 6.
West Moberly
In West Moberly, the British Columbia Court of Appeal upheld a lower court finding that the Province of British Columbia had breached its duty to consult the West Moberly First Nations in the course of issuing approvals for a bulk sampling1 and advanced exploration program2 on a mining project operated by First Coal Corporation in northeastern British Columbia. The Court considered the impact of the proposed exploration program on a small herd of woodland caribou from the Southern Mountain population, consisting of only 11 members at the time of the hearing, and the corresponding impact on the West Moberly First Nations' treaty right to hunt.
The decision provides a stark example of the extra level of regulatory and legal scrutiny that can be brought to bear on a proposed activity that may have an impact on even small numbers of caribou and their habitat. The decision also highlights the degree to which courts are willing to referee and insert themselves into the Crown's consultation processes with First Nations in respect of such matters.
The Province has applied to the Supreme Court of Canada for leave to appeal the West Moberly decision and the decision to grant leave is pending.
With this case pending before the Court, it is likely that development projects in northeastern British Columbia that may impact on woodland caribou or their habitat, will experience regulatory delays. This could be the result of healthy regulatory caution or the result of unwarranted regulatory paralysis. Leadership from the British Columbia government is needed in the form of a rational management and recovery program that can fill the policy gap that currently exists in respect of mining activities and woodland caribou management in northeastern British Columbia.
The British Columbia government, along with other jurisdictions in Canada, has made a commitment to the long term protection of caribou. In 2009, the British Columbia government endorsed the Mountain Caribou Recovery Implementation Plan, which included commitments to protect areas of high value habitat from logging and road building, and the management of human recreation and predator populations to reduce disturbances of mountain caribou. While the British Columbia government has reached out to the mining industry, it has not formally announced any additional initiatives in response to the West Moberly decision and the concerns of First Nations about the depleted Southern Mountain population. Given the current impediments to permitting mining activities in the region, we expect the British Columbia government will, in the near future, introduce new initiatives governing mineral development activities in relation to their impacts on woodland caribou and their habitat.
Species at Risk Act
Given the importance of woodland caribou to First Nations in many regions of northern Canada, West Moberly highlights the potential for government regulation in respect of threatened or endangered species. In particular, in the face of threats to woodland caribou and their habitat, legislation such as the federal Species at Risk Act (SARA)3 may start to play a more important role in the management of caribou populations and activities that impact them, especially if the provinces are not seen as doing their part. The Adam case, discussed below, indicates that this new regulatory scrutiny is already occuring.
Under SARA, wildlife species whose populations are considered to be at risk are categorized as "extirpated," "endangered," "threatened," or of "special concern" in descending order of concern. SARA in turn prohibits a number of activities in relation to listed species, including prohibitions on the killing or harming of the species or the destruction of critical habitat that has been identified in any of the plans required under SARA. The federal government has immediate responsibility under SARA for listed species located on federal lands, as well as, for all migratory birds and aquatic species.
For species listed under SARA but not covered by this federal responsibility, the provinces and territories are given the first opportunity to protect them through their own laws. Where such laws are not enacted, however, SARA allows the Governor in Council to apply SARA's prohibitions, making it an offence to, among other things, damage or destroy the residence of a listed endangered or threatened species. In addition, the federal government has certain emergency powers to protect species at risk.
To our knowledge, SARA has not yet been applied to fill gaps in provincial regulation. With pressure from First Nations mounting, however, if British Columbia does not step forward with a workable plan for the Southern Mountain population of woodland caribou, pressure may come to bear on the federal government to take steps to manage the population under SARA.
Under SARA, the federal government is required to develop a recovery strategy for any wildlife species listed as threatened or endangered. Currently, the federal Ministry of the Environment is in the process of formulating a recovery strategy for British Columbia's Southern Mountain population. There has been no announcement as to when this strategy will be formally filed. The federal government appears to be allowing British Columbia to develop its plan for caribou management with a view to relying on such a plan to satisfy its species at risk concerns.
Adam
In Adam, three First Nations and two environmental non-governmental organisations (ENGOs), apparently dissatisfied with the Province of Alberta's strategy for protecting and enhancing caribou populations, filed applications in the Federal Court seeking to force the federal government to take steps under SARA to protect seven herds of caribou (Seven Herds) that are part of the boreal population of woodland caribou, listed as threatened under SARA.
In Adam, the three First Nations and the ENGOs sought, among other things:
- a declaration that the minister of the environment (Minister) had failed to prepare a recovery strategy for caribou within the time prescribed under SARA;
- an order in the nature of mandamus compelling the Minister to comply with his obligations under section 80(2) of SARA to make a recommendation to the Governor General to issue an emergency order for the protection of the Seven Herds; and
- a declaration that the Minister's failure to recommend an emergency order under section 80(2) of SARA was unlawful and unreasonable.
While not entirely successful on their challenge, the First Nations and the ENGO's were successful in having the Court set aside the Minister's decision not to recommend that the Governor in Council issue an emergency order under SARA. The Court did so on two bases: (i) in interpreting the requirements of section 80(2) – "that the species faces imminent threats to its survival or recovery" – the Minister had erred in failing to consider the First Nations' Treaty right to hunt; and (ii) that the Court could not understand how, on the evidence before the Minister, the Minister could have reasonably come to the conclusion that there were no imminent risks to the national recovery of boreal caribou. The Federal Court noted that in the context of the Minister's decision as a whole, his conclusion was unexplainable and essentially "came out of the blue." As a result, the Minister's decision was set aside and referred back to the Minister to reconsider.
In September 2011, following the Federal Court's decision, the Minister issued a draft Recovery Strategy for the Woodland Caribou, Boreal population in Canada (Recovery Strategy). The Recovery Strategy does not appear to have been finalized, and, according to motion materials filed by the applicants on January 24, 2012, the Minister has not yet reconsidered his decision about whether or not to recommend that the Governor in Council issue an emergency order under SARA.
This case illustrates how SARA may play a more significant role in resource development decisions going forward.
Could the woodland caribou be Canada's Spotted Owl and play the defining role in resource development that the Spotted Owl played in the United States?
Footnotes
1. 50,000 tonnes of coal
2. 173 drill holes and five trenches
3. S.C. 2002, c. 29
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