A trend towards enhanced regulatory protection of vulnerable
species appears to be emerging at both the federal and provincial
levels in Alberta.
On September 19, 2013, Alberta Environment and Sustainable
Resource Development ("AESRD") reported that an
Enforcement Order ("Order") has been issued against an
energy company operating in the province for alleged contraventions
of the Public Lands Act. The alleged contraventions relate
to the company constructing an active oil well that is allegedly
not in accordance with regulated setback limits to protect
ferruginous hawk populations. Although the company submitted a
wildlife survey as part of the approval process, AESRD states that
"the survey was not comprehensive enough and did not identify
the hawk nest on the site".
The terms of the Order are likely to cause significant impact to
the company's operation. The Order cancels the company's
Mineral Surface Lease at the site and requires the company to
submit a plan to AESRD showing how the site will be restored to its
original condition and a final report when the restorative actions
have been completed. There is an appeal process for Orders of this
nature. However, it is important to recognize that filing an appeal
does not stay the Order, absent an additional order to that effect
which must be specifically sought by the affected party, and which
is often difficult to obtain. This means that in most cases, the
terms of the Order must be satisfied even if there is a pending
The recent actions to protect ferruginous hawks align with the
current federal-provincial initiative to protect the woodland
caribou in Alberta. In August 2013, AESRD announced the formation
of two multi-stakeholder advisory groups to participate in the
planning process to create action plans for the Little Smoky / A La
Peche and Cold Lake caribou ranges, as required under Environment
Canada's National Recovery Strategy for Woodland Caribou in
Canada (boreal population). The planning process is intended
Range plans describing how caribou habitat will be managed over
space and time to effectively protect critical habitat needed for
self-sustaining populations; and
Action plans that evaluate socioeconomic costs and benefits,
show how performance will be monitored and address the measures
needed to achieve the population objectives.
The formation of additional advisory groups for other caribou
herd ranges is anticipated to happen sometime in 2014.
The recent actions by the Alberta regulator, AESRD, are in line
with the emerging trend of taking steps to protect vulnerable
species at the federal level. On September 17, 2013, federal
Environment Minister, Leona Aglukkaq, announced that an order will
be issued in the coming months imposing restrictions on
developments on federal and provincial Crown lands in Alberta and
Saskatchewan as a measure to protect the greater sage grouse. The
greater sage grouse is listed as an endangered species under
Canada's Species At Risk Act. The impending order
would be the first of its kind issued by the federal regulator,
Environment Canada, under the Species At Risk Act.
The announcement to protect the greater sage grouse comes after
environmental groups, represented by Ecojustice, took legal action
to compel the federal government to enforce the Species At Risk
Act and protect this vulnerable species. Similar legal actions
have been commenced by environmental groups across Canada in recent
years with some success, showing an increasing movement towards
private groups and citizens taking legal action to seek to compel
the federal government to fulfill what those groups or citizens
perceive to be the federal government's legislative
These recent developments in Alberta and elsewhere in Canada
indicate an emerging trend for enhanced species protection and a
legal mechanism by which environmental groups may be able to
influence government actions. This trend has the potential to
impact industrial and resource development going forward.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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