Woodland Caribou vs. Everybody

16 Dec Woodland Caribou vs. Everybody

Woodland Caribou vs. Everybody

When you think of Canada and its wildlife, there are a few iconic animal species that might immediately come to mind. Perhaps you think of the beaver, the grizzly bear, or the orca, or perhaps, you think of the Woodland caribou. Woodland caribou are rarely seen and yet they are one of the most recognizable of Canadian animal species – featured on our 25 cent coin. They are also at risk and the species’ survival relies upon relatively intact old growth forests – habitat features that are becoming increasingly rare in Alberta and Canada.[1]

Caribou are key to the Canadian wilderness in part due to caribou’s historical connection with Canada’s Indigenous and Inuit peoples and in part due to their migratory patterns and far-reaching ranges which mean that caribou herds can be found across the country. However, caribou are also susceptible to impacts from development which destroy their habitat and leave them vulnerable to predators. This has certainly been the case for Alberta’s Woodland Caribou.

In recognition of this precarious status, in 2002, the Committee on the Status of Endangered Wildlife in Canada (COSEWIC), whose job it is to assess species across Canada and determine whether they should be included on the list of species at risk under the Species at Risk Act (SARA),[2] recommended that woodland caribou (one subspecies of caribou) be classified as threatened.[3] This may have been the first time they were formally recognized by COSEWIC, but the species had actually been recognized as threatened much earlier – provincially the need for special management had already been recognized by the late 1970s.[4]

The COSEWIC classification spurred a certain process under SARA, first requiring the federal cabinet to create and release a federal recovery strategy which would describe plans for the recovery of the species.[5] However, despite deadlines built into the SARA, delays ensued and the recovery strategy was not actually released until 2012 – a decade later.[6] The overall recovery goal identified in this report was to achieve self-sustaining populations (using 65% undisturbed habitat as a benchmark) in all boreal caribou ranges throughout their current distribution in Canada, to the extent possible.[7] Even after the recovery strategy was finally released, change was exceedingly slow and to this day little has actually been done to protect caribou habitat across the country – despite many previous court appearances.

To encourage faster progress, in spring 2017 the Canadian Parks and Wilderness Society (CPAWS) filed an application for judicial review arguing that the federal minister was not making sufficient efforts to protect boreal caribou.[8] CPAWS argued that under SARA, the federal environment minister is required to form an opinion about whether or not the caribou’s critical habitat is protected and to report on any progress that has been made.[9] This lawsuit prompted the Canadian Government to finally release the Report on the Progress of Recovery Strategy Implementation for the Woodland Caribou (Rangifer tarandus caribou), Boreal population, in Canada for the period 2012-2017.[10]

This report reiterated the 2012 recovery strategy’s goal of 65% undisturbed habitat and outlined the importance of range planning on a local level in order to meet this goal.[11] It made note of any progress that had already occurred and, notably, it emphasized the fact that in 2012, 21 of 51 ranges had 65% or greater undisturbed habitat while by 2017 this number had already dropped to just 19 of the 51 ranges.[12] Even this single statistic highlights the immediate need for increased habitat protection.

At the same time as this report was being released, another important deadline from the 2012 federal recovery strategy for the Woodland Caribou had come and gone. The Recovery Strategy called on the provinces to release their own strategic plans for the recovery of caribou herds on their respective provincial lands by October 2017.[13] However, by the end of 2017 it appeared that most provinces were still nowhere close to meeting this deadline. Alberta was one of the provinces that did not complete their required range plans by the deadline[14] and when Alberta finally released a plan, it was an overarching draft ‘plan to plan’ rather than specific plans for each caribou range.[15] As of the end of 2019, the Alberta government has still not yet released any final range plans.

With provincial range plans outstanding, the government of Alberta and the federal government instead released a draft Section 11 Agreement for the Conservation and Recovery of the Woodland Caribou in Alberta (“caribou section 11 agreement”).[16] A Section 11 Conservation Agreement is a tool enabled by the Species at Risk Act which allows an agreement on plans for species at risk conservation to be reached between the federal Minister and any government in Canada, for the benefit of that species.[17] According to the Government of Canada, a Section 11 Conservation Agreement “must provide for the taking of conservation measures consistent with the purposes of the Act, and may include measures with respect to protecting the species’ habitat, including its critical habitat.”[18]

A Section 11 Conservation Agreement may also include measures for monitoring the status of the species; developing and implementing education and public awareness programs; developing and implementing recovery strategies, action plans, and management plans; and undertaking research projects in support of recovery efforts for the species.[19] Additionally, sections 58 and 61 of the SARA indicate that a Section 11 Conservation Agreement can serve as a mechanism to protect critical habitat.[20]

Notably, the caribou section 11 agreement is not legally binding and does not create any new legal powers or duties on the part of the parties.[21] Despite this, the caribou section 11 agreement is being lauded as a positive step forward; although it is just one of many options the federal government may use under the SARA to protect Woodland Caribou.

So what specifically does the caribou section 11 agreement do?

Considering the years long lead up to this agreement, it might be assumed that the caribou section 11 agreement is extensive and provides strong protections for caribou. However, despite being a positive step forward, there is still a lot of work to be done. The overall goal of the caribou section 11 agreement is stated as being “to articulate the actions the Parties will take over the next five years to support the conservation and recovery of local Woodland Caribou populations to self-sustaining status in the long term, in line with the population and distribution objectives and critical habitat outcomes outlined in the federal Recovery Strategies and aligned with A Woodland Caribou Policy for Alberta.”[22] It does not, however, include specific plans for individual caribou herds and instead imposes timelines for the completion of these necessary range plans. Some focuses of the caribou section 11 agreement include:

• Completing forest harvest sequencing plans;[23]
• Continuing critical habitat restoration;[24]
• Evaluating project approval conditions for their effects on caribou;[25]
• Continuing wolf population management techniques;[26]
• Establishing a rearing facility;[27]
• Monitoring caribou population and distribution;[28] and
• Completing sub-regional plans which would include caribou recovery outcomes.[29]

One of the most glaring omissions from the caribou section 11 agreement is the lack of provisions that call for immediate action. This is particularly egregious because caribou were first federally listed as a species at risk in 2002 and much of this agreement continues to push range planning into the future, with some range plans expected to be completed no sooner than 5 years from now – pushing the completion of these plans to more than 20 years after that initial listing.

The agreement also lacks concrete steps for interim habitat protection. This omission begs the question of what is going to protect caribou as the government works out future range plans? Interim protection could take many forms such as a continuation of the moratorium on new oil leases in caribou ranges[30] or controls and limits on the amount of forest harvest allowed in a range.

What else could the federal government do?

Keeping these critiques in mind, the following section will highlight some of the other ways that the federal government could choose to intervene in the protection of Alberta caribou. This is not necessarily an exhaustive list; however, it does serve to demonstrate that there are other legally available options, some of which may lead to faster protection for caribou.

Before diving into some of the other options, it is important to note that there is some lack of clarity about section 11 agreements and their effect on some of the following tools. Sections 61 and 58 of the SARA both impose certain obligations on the Minister to ensure that critical habitat is protected. However, in both of these provisions, section 11 agreements are flagged as one way for the government to avoid other critical habitat obligations.

For example, section 61 requires the Minister to recommend a critical habitat protection order if critical habitat is not being protected. However, it also states that this protection may come from a section 11 agreement – thereby limiting the requirement for a recommendation to be issued.[31] It is unclear whether these allowances would apply to all section 11 agreements or would instead be limited to only those that are found to be adequate substitutions for protections under the Act.[32] At this time, there has not yet been a determination of this nor has the current Alberta caribou section 11 agreement been evaluated within this context (as none have moved beyond the draft stage).

Notwithstanding this potential effect, the following sections remain important legislative tools for the protection of caribou.

Section 61 – Critical Habitat Protection Order

Protection for species at risk under the SARA includes a prohibition against destroying any part of the habitat of a species (on federal land) that has been classified as endangered or threatened by a province or territory.^[33] This subsection is reserved for habitat that has been identified as essential to the survival or recovery of the species on federal lands in the province/territory, however, it does not automatically apply to provincial or private land. Unfortunately, despite these legislative limitations, species at risk do not abide by federal land borders.

Recognizing this, section 61 of SARA provides a safety net for the protection of critical habitat by enabling the extension of prohibitions to provincial land.

A section 61(1) order can be recommended by the Minister, if they are of the opinion that there are no provisions in the SARA or any other Act of Parliament that protect the particular portion of critical habitat and the laws of the province or territory do not effectively protect the critical habitat.[34] Discretion to issue an order then lies with the Governor in Council (i.e. federal Cabinet) – a political, rather than legal, hurdle.

Section 80 – Emergency Orders

Another option is found in section 80 of the SARA – the emergency order provision. Like a section 61 order, section 80 enables the Governor in Council to issue emergency orders, extending the SARA’s protections to a particular species, and all of its critical habitat, regardless of whether that habitat is located on federal or provincial lands.^[35]

The recommendation for an emergency order can be made if the Minister forms the opinion that the species in question faces an imminent threat to its survival or recovery, threats which are not being adequately constrained by provincial authorities.^[36] The emergency order may then identify habitat necessary for the survival of the species and include provisions “prohibiting activities that may adversely affect the species and that habitat”.^[37]

Sections 34 & 35

A similar section, sections 34 and 35 enable the Governor in Council, again upon Ministerial recommendation, to make an order extending certain protections (such as prohibitions against killing, harming, and damage to residence) to species at risk on land in a province or territory that is not under federal jurisdiction and to species that are not an aquatic species or species of migratory birds.^[38] An order of this sort can be made if the Minister is of the opinion that the laws of the province or territory do not effectively protect the species or the residences of its individuals.^[39]

Unfortunately, all of the above noted sections are rarely used to apply prohibitions to public land. To date, emergency orders have only been issued in relation to Greater Sage-Grouse (that applies to public land) and to the Western Chorus Frog. A critical habitat order has been issued in relation to Westslope Cutthroat Trout in Alberta (and several other aquatic species in the country).

In Alberta, the only example of an emergency order being used was for the protection of the sage-grouse – a small bird species in Southern Alberta. In the case of the sage-grouse, the federal government imposed an emergency order only after ENGOs had gone to the federal court to push for more action on the sage-grouse file.[40] In this case, the emergency order was imposed on an area of about 1,000 square km of provincial land and approximately 350 square km of federal land. Both the City of Medicine Hat and the receiver for an insolvent oil & gas company are challenging the order in Federal Court. If this proceeds to a decision it will be an important case to illustrate the extent to which the federal government can use these orders. This is important because in the case of caribou, for example, the impacts of an order like this would be far reaching.

For a more in depth look at the sage grouse case check out our blog post Habitat, what habitat?

Most recently in the caribou saga, several environmental groups and First Nations are seeking action by the federal Minister of Environment and Climate Change to employ some protection measures under SARA, beyond those actions included in the caribou section 11 agreement .[41] In particular, they are asking the Federal Government to use the section 61 provisions to protect caribou’s critical habitat on provincial land.[42] As this lawsuit progresses through the court process, the provincial and federal governments remain focused on the caribou section 11 agreement. However, the existence of the caribou section 11 agreement does not mean that further federal action is impossible nor does it mean that groups cannot argue for further protections in court.

Overall, it is relatively agreed upon that dealing with species at risk requires governments to move quickly, as every year that goes by means less and less time to act. The federal government has heard this reprimand before and even the federal court has made this clear stating that “the Species at Risk Act was enacted because some wildlife species in Canada are at risk” noting that “many are in a race against the clock”.[43] Thus, despite the caribou section 11 agreement being an important tool to push for government action and compliance, it also pushes a difficult and important job down the road. These delays rarely help a species at risk.

[1] Environment Canada, “Scientific Assessment to Inform the Identification of Critical Habitat for Woodland Caribou (Rangifer tarandus caribou), Boreal Population, in Canada – 2011 Update” (2011) online: https://www.registrelep-sararegistry.gc.ca/document/doc2248p/toc_tdm_st_caribou_e.cfm.

[2] Species at Risk Act, SC 2002, c 29, ss 14-15 [SARA].

[3] SARA, supra note 2, s 27; COSEWIC, “Assessment and Update Status Report on the Woodland Caribou Rangifer tarandus caribou” (2002) online: http://www.sararegistry.gc.ca/virtual_sara/files/cosewic/sr_woodland_caribou_e.pdf.

[4] Alberta Wildlife Status report No. 30, January 2001 Status of the Woodland Caribou Rangifer Trandus Caribou in Alberta https://open.alberta.ca/dataset/48a2fd97-a38d-43a8-82de-592748287cd9/resource/69667fdd-53f8-4eba-bf68-22fc757d38cd/download/2001-sar-statuswoodlandcariboualberta-jan2001.pdf.

[5] SARA, supra note 2, s 30.

[6] Environment Canada, “Recovery Strategy for the Woodland Caribou (Rangifer tarandus caribou), Boreal Population in Canada” (2012) online: http://www.sararegistry.gc.ca/virtual_sara/files/plans/rs_caribou_boreal_caribou_0912_e1.pdf [Recovery Strategy for the Woodland Caribou].

[7] Ibid at vi.

[8] Canadian Parks and Wilderness Society, “CPAWS takes federal Minister to court over Boreal Caribou Habitat Protection” (20 April 2017) online: http://cpaws.org/news/cpaws-takes-federal-minister-to-court-over-boreal-caribou-habitat-protectio; Peter Zimonjic & Susan Lunn, “Environmental group sues Catherine McKenna for failing to report on efforts to save caribou habitat” (20 April 2017) CBC News online: https://www.cbc.ca/news/politics/boreal-woodland-caribou-mckenna-sue-1.4076743.

[9] Ibid.

[10] Environment Canada, “Report on the Progress of Recovery Strategy Implementation for the Woodland Caribou (Rangifer tarandus caribou), Boreal population, in Canada for the period 2012-2017”, (2017) online: http://registrelep-sararegistry.gc.ca/virtual_sara/files/Rs-ReportOnImplementationBorealCaribou-v00-2017Oct31-Eng.pdf.

[11] Ibid.

[12] Ibid at i-vi.

[13] Recovery Strategy for the Woodland Caribou, supra note 6 at 39.

[14] Susan Lunn, “Woodland caribou continue to decline as provinces fail to meet protection deadline” (31 October 2017) CBC News online: http://www.cbc.ca/news/politics/boreal-caribou-province-deadline-1.4380050.

[15] Alberta Environment and Parks, “DRAFT Provincial Woodland Caribou Range Plan” (2017) online: https://open.alberta.ca/dataset/932d6c22-a32a-4b4e-a3f5-cb2703c53280/resource/3fc3f63a-0924-44d0-b178-82da34db1f37/download/draft-caribourangeplanandappendices-dec2017.pdf.

[16] Environment and Climate Change Canada & Alberta Environment and Parks, “Agreement for the Conservation and Recovery of Woodland Caribou in Alberta” (2019) at s 2 online: https://s3.ca-central-1.amazonaws.com/ehq-production-canada/documents/attachments/9ecbfb20e698045df5b405746711e4cdd8a27abc/000/018/338/original/Section_11_Draft_Agreement_English.pdf?1565197516 [Agreement for the Conservation and Recovery of Woodland Caribou in Alberta].

[17] SARA, supra note 2, s 11.

[18] Environment and Climate Change Canada, “Policy on Protecting Critical Habitat with Conservation Agreements under Section 11 of the Species at Risk Act [Proposed]” (2016) Species at Risk Act: Policies and Guidelines Series. Environment and Climate Change Canada, Ottawa.

[19] SARA, supra note 2, s 11(2).

[20] Ibid, ss 58 & 61.

[21] Agreement for the Conservation and Recovery of Woodland Caribou in Alberta, supra note 16, s 4.2.

[22] Ibid, s 2.

[23] Ibid, Appendix B.

[24] Ibid, s 8.3.1.2.

[25] Ibid, Table B, B.5.

[26] Ibid, Table C, C.1.1.

[27] Ibid, Table C, C.2.1.

[28] Ibid, Table D.

[29] Ibid, Table A, A.1.

[30] Bob Weber, “Alberta praised for putting a hold on new energy leases in caribou ranges” (11 May 2018) The Globe and Mail online: https://www.theglobeandmail.com/news/national/alberta-praised-for-putting-a-hold-on-new-energy-leases-in-caribou-ranges/article11717739/.

[31] Ibid, 61(4)(a).

[32] Canada (Fisheries and Oceans) v David Suzuki Foundation, 2012 FCA 40 at paras 118 & 119.

[33] SARA, supra note 2, s 60(1) – this subsection is for habitat that has been identified as essential to the survival or recovery of the species on federal lands in the province/territory. It does not apply to aquatic species or protected migratory birds. Subsection 61(1) includes habitat that is not part of federal lands but only if an order of Governor in Council is passed for the species (except for aquatic species and migratory birds).

[34] SARA, supra note 2, s 61(4).

[35] Ibid, s 80(1).

[36] Ibid, s 80(2).

[37] Ibid, s 80(4).

[38] Ibid, ss 34(1) & 35(1).

[39] Ibid, ss 34(3) & 35(3).

[40] Sean Nixon & Randy Christensen, “Protecting the Sage-Grouse” Ecojustice online: https://www.ecojustice.ca/case/protecting-the-sage-grouse-2/.

[41] Melissa Gorrie, Liat Podolsky, & Barry Robinson, “Protecting boreal caribou in Alberta” Ecojustice online: https://www.ecojustice.ca/case/protecting-boreal-caribou-in-alberta/.

[42] Letter from Ecojustice to The Honourable Catherine McKenna Minister of Environment and Climate Change (27 November 2017) online: https://www.ecojustice.ca/wp-content/uploads/2017/11/Letter-to-Minister-Catherine-McKenna-regarding-the-protection-of-critical-habitat-for-boreal-caribou-in-Alberta.pdf.

[43] Western Canada Wilderness Committee v Canada (Fisheries and Oceans), 2014 FC 148 at para 101 & 102. See also the ELC’s blog “The Federal Court finds delay by the government under the Species at Risk Act”.

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