Another step in the long, slow road to protect Woodland Caribou in Alberta: Draft Regulatory Details Released

20 Aug Another step in the long, slow road to protect Woodland Caribou in Alberta: Draft Regulatory Details Released

Woodland caribou – an iconic Canadian species – has been legally recognized as a threatened species under Alberta’s Wildlife Act since 1985. By June 2018, the federal government released a statement recognizing that the southern mountain population of woodland caribou are facing imminent threats to its recovery.  Despite this recognition, only small, hesitant steps have been taken to achieve self-sustaining woodland caribou herds and meet long-term habitat requirements in Alberta.  The latest step is the release of draft regulatory details required to implement two caribou subregional plans as part of the Lower Athabasca Regional Plan (LARP) under the Alberta Land Stewardship Act (ALSA).

A Brief History of Caribou Recovery Planning in Alberta

Legislation addressing species at risk exists at provincial and federal levels, with the provincial Wildlife Act and the federal Species at Risk Act (SARA).  While SARA is dedicated species at risk legislation, the Wildlife Act is primarily aimed at wildlife management and hunting regulation with some provisions for species at risk (mainly, a prohibition against willful disturbance or destruction of the house, nest or den of a listed species).

Under SARA, once a species is listed as threatened or endangered under the Act, prohibitions against harming individuals or destroying nests, dens and the like apply.  Some provisions enable the protection of critical habitats and the issuance of emergency orders. As well, and most relevant to this blog discussion, is the requirement to undertake recovery planning with the aim of addressing threats to endangered and threatened species to allow recovery of their populations.  While the provincial Wildlife Act enables recovery planning, it is not a requirement under SARA.

There were some attempts at caribou recovery planning dating back to the 1980s (for example, the Proposal to designate Alberta’s Caribou as a Threatened Specie) and later with the 2004-05 – 2013/14 Alberta Woodland Caribou Recovery Plan and the 2011 Woodland Caribou Policy for Alberta.  However, for this blog post, the road begins in 2020 with the Agreement for the Conservation and Recovery of the Woodland Caribou in Alberta between the federal and provincial governments.  This agreement – made under section 11 of SARA – arose because Alberta had failed to complete caribou range plans as required under the 2012 federal recovery strategy for the boreal population of woodland caribou, which had been developed pursuant to SARA requirements.  This agreement aims to recover “woodland caribou local populations to naturally self-sustaining status, consistent with the population and distribution objectives and critical habitat outcomes” outlined in the 2012 federal recovery strategy and the 2011 provincial policy.

As part of this agreement, Alberta is required to implement subregional plans for the caribou ranges identified in the plan (see Alberta Caribou Ranges map) by 2025. These ranges have been organized into 11 subregional planning areas, including the Cold Lake and Bistcho subregions, the only caribou subregions for which subregional plans and draft regulatory details have been released (see below).

Alberta Environment and Parks, Government of Alberta (2020) Caribou Sub-Regions in Alberta. https://www.alberta.ca/system/files/custom_downloaded_images/aep-caribou-sub-regions-alberta-map.pdf

How do the Cold Lake and Bistcho Lake subregional plans fit in?

As mentioned, the Cold Lake and the Bistcho Lake subregional plans are intended to be incorporated into the LARP.  But what does this mean exactly?

The ALSA is Alberta’s primary land use planning legislation for private and public lands.  The province is divided into seven regions for planning purposes, and a regional plan will be developed for each area.  Each regional plan includes a strategic plan, an implementation plan, and a regulatory details plan.  The strategic plan includes the vision for the region’s future and desired regional outcomes.  The implementation plan includes regional objectives, strategies and actions to support the regional vision and outcomes.  The regulatory details – the only legally binding portion of a regional plan – enable the regional plan’s strategic direction, strategies and actions.  Under the umbrella of a regional plan, there may also be environmental management frameworks, subregional plans, issue-specific plans and local plans.

The Cold Lake and Bistcho Lake subregional plans are to be incorporated into the LARP by amendments to that plan passed by Order-in-Council (i.e. an order made by the provincial Cabinet under the authority of ALSA). The portions of the subregional plans reflected in the regulatory details will be legally enforceable.  Other portions of the subregional plans will act as policy to guide decision-making around land use in the Cold Lake and Bistcho Lake subregions.

An Overview of the Bistcho Lake and Cold Lake Subregional Plans

The Cold Lake subregional plan and the Bistcho Lake subregional plan were completed in 2022 with the intention of being adopted as part of the LARP (see Government of Alberta Fact Sheet).

Although these subregional plans were initiated as part of caribou recovery planning, they do not solely address caribou recovery but have broader management provisions. Both plans focus on three strategic management objectives:

• support economic opportunities that provide benefits to local municipalities, Indigenous peoples and the rest of Alberta;
• consolidate development and restore footprint over time to support landscape intactness and naturally self-sustaining plant and wildlife populations; and
• support recreational, cultural and traditional land use.

With respect to caribou, both plans reference the Government of Alberta’s “2019 commitment to achieving and maintaining naturally self-sustaining woodland caribou populations” (both plans on page 6).  The subregional plans define a “self-sustaining local population (caribou)” as a “local population of caribou that on average demonstrated stable or positive population growth over the short-term (≤20 years) and is large enough to withstand random events and persist over the long-term (≥50 years) without the need for ongoing active management intervention” (Cold Lake plan on page 48; Bistcho plan on page 49).

In terms of woodland caribou recovery, the plans aim to meet or exceed provisions contained in the federal and provincial recovery plans by ensuring that habitat conditions improve over time and that caribou populations can persist while their habitat is conserved and recovered.  The expected outcome is to “enable habitat to consistently recover towards a minimum level of 65% undisturbed critical habitat within 50-100 years while ensuring there is sufficient biophysical critical habitat required by caribou to carry out life processes necessary for their survival and recovery” (both plans at page 8).  Given the definition of a self-sustaining local population, this suggests that the ultimate outcome is to achieve 65% undisturbed critical habitat within 50-100 years to allow naturally self-sustaining local populations (i.e. no active management interventions such as wolf culls or husbandry activities).  In the meantime, efforts will be made to maintain and increase critical habitat (albeit below 65%) and active management interventions may still be used.

Both plans address a variety of activities in the subregions, including energy and mineral activities, pipeline development and maintenance, geophysical exploration, forestry, surface material extraction (sand, gravel, borrow and peat), and transmission lines.  Other considerations include Indigenous land uses, access management, riparian areas, recreation and tourism areas, livestock grazing and restoration of legacy seismic lines.  Natural disturbances – such as fires, insects and pathogens – are also addressed in the subregional plans.

Caribou habitat considerations are explicitly discussed in relation to access management planning, mineral dispositions, oil sands, pipeline construction and operations, and forestry activity in both plans. For instance, there is a fair bit of discussion around forestry activities in the caribou ranges, noting that forest harvesting strategies have been adapted in caribou ranges in light of the large areas of undisturbed habitat of mature and old coniferous forest required by caribou (Cold Lake pages 25 to 28; Bistcho Lake at pages 28 to 30).

There is extensive discussion regarding oil and gas activities in both subregional plans.  It is noted that, in 2016, the sale of Crown mineral rights in all caribou ranges was restricted to minimize disturbances as planning was underway.  It is indicated that this restriction may be lifted in specified parts of the subregions once the subregional plans are adopted as part of LARP (Cold Lake on pages 17-18; Bistcho Lake on page 24).

The Cold Lake subregional plan indicates that any new petroleum and natural gas tenure in a caribou range must have a no-surface-disturbance restriction (plan on page 21 and regs. on s. 61). However, the Bistcho Lake subregional plan only indicates that petroleum and natural gas activities will be managed to reduce footprints and increase undisturbed habitat (page 24).  Both plans indicate that public land dispositions on an ecosite capable of producing caribou biophysical habitat must be restored to that condition (Cold Lake at page 40; Bistcho Lake at 38), a requirement reflected in both draft regulatory details.

For coal, metallic and industrial minerals, any proposed activities in caribou ranges will be subject to an evaluation of the projected footprint against current disturbance forecasts to ensure that the activity does not conflict with caribou recovery objectives (Cold Lake on page 21; Bistcho Lake on page 25). Specific requirements are also set for pipeline construction and operations within the caribou habitat (Cold Lake on pages 22 to 23; Bistcho Lake on pages 25 to 26).  These requirements pertain to revegetation, width of residual linear corridors, and access.

Only the Cold Lake subregional plan addresses other anthropogenic disturbances (such as wind and solar farms) and oil sands development.  For other anthropogenic disturbances in caribou ranges which are not explicitly identified in the subregional plans, the proposals will be based on provincial policy. They will be subject to an evaluation of the projected footprint against current disturbance forecasts to ensure that the activity does not conflict with caribou recovery objectives (Cold Lake on page 38).

In terms of oil sands development, the Cold Lake plan indicates that the government “has worked with the energy industry to develop scenarios for the subregion. When combined with restoration and reclamation activities, these scenarios align with the provincial caribou objectives and federal woodland caribou recovery requirements over the long term” (page 18): what these “scenarios” are is not outlined.  There is also a requirement to restore an ecosite capable of producing caribou biophysical habitat back to that condition prior to receiving a reclamation certificate for an in-situ oil sands operation (page 19).

It should be noted that not all provisions outlined in the subregional plans are reflected in the draft regulatory details (in fact, the subregional plans explicitly note that some items are not meant to be included in the regulatory details).  The parts of the subregional plan included in LARP as regulatory details will be legally enforceable. In contrast, the remainder of the subregional plan provisions will provide policy guidance for land use decision-making in the subregions.

An Overview of the Draft Regulatory Details

As mentioned, the Cold Lake and Bistcho Lake subregional plans are intended to be incorporated into the LARP by amendments to that plan passed by Order-in-Council.

The Cold Lake subregional plan is to be incorporated as Part 9 of LARP’s regulatory details, and the Bistcho Lake subregional plan as Part 10.  Those portions of the subregional plans not incorporated as part of the regulatory details will provide policy guidance but will not be legally enforceable).

Both Parts 9 and 10 of the draft regulatory details define “caribou biophysical habitat” as:

habitat containing characteristics required by boreal caribou (Rangifer tarandus) to carry out life processes necessary for survival and recovery within caribou ranges in Alberta as identified through the methodology and classification system published by the Department, as amended or replaced from time to time.

This definition is important as it provides the basis for restoration requirements in disturbed caribou ranges. Essentially, there are instances in which a disturbed area capable of providing caribou biophysical habitat must restored to that state.  These instances include, among others, the end of life of surface material dispositions within five years after a new transmission line is energized or a pipeline installation is completed and within three years of the expiry of an exploration approval.  The subregional plans note that transmission lines (which are located high above ground) and pipelines (which may be located below ground) both provide opportunities to reduce surface footprint without impacting the infrastructure.  This means vegetation may be retained or restored along transmission line corridors to reduce impacts while allowing the infrastructure to remain active (Cold Lake plan on pages 22 & 33; Bistcho Lake on pages 25 & 34).

There are regulatory details provided in both Parts 9 and 10 pertaining to:

• setbacks from waterbodies and watercourses;
• access management;
• rules for restoration and other matters relating to sand and gravel operations, temporary field authorizations, formal dispositions, surface material dispositions, peat, transmission lines, pipelines, seismic exploration, oil sands (only in Part 9), and petroleum and natural gas projects;
• Part 9 prohibits the issuance of grazing dispositions in caribou ranges and
• forestry activities within the caribou range.

For activities that are not otherwise regulated under Parts 9 or 10, dispositions may not be issued within a caribou range unless the area in the proposed disposition does not reduce the total undisturbed habitat forecasted in the relevant disturbance chart.  For Cold Lake, these are:

For Bistcho Lake, this is:

For Bistcho Lake, there are provisions which prohibit the issuance of hunting licenses or permits, dispositions under the Public Lands Act, and travel other than by foot on Kirkness Island (a.k.a. Moose Island). This reflects that this area is to be reserved as a wildlife sanctuary and is an example of Indigenous-led conservation efforts (see Bistcho Lake plan on page 13).

What next?

Obviously, the immediate next step on this long, slow road is for the draft regulatory details to be passed into law by the Alberta government.   Public consultation on the draft regulatory details closed July 8^th, so this is probably a little bit in the future (but not too far, we hope).

After that, it is essential that progress be made on the remaining 9 caribou subregions which Alberta has committed to provide and implement by 2025.  Woodland caribou are a threatened species – and have been recognized as such for decades – recovery actions cannot be delayed longer. It is time to speed up progress on the road to self-sustaining caribou populations in Alberta.

Cover Photo by M L on Unsplash

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