Written By Brad Gilmour and Chuck Davies

In 2003, Woodland Caribou were listed as threatened under the Species at Risk Act (SARA),¹ meaning a recovery strategy for the species was to have been prepared by the federal Minister of Environment (M) by 2007. However, no such recovery strategy has been prepared to date.

In July and August of 2010, a consortium of Treaty 6 and Treaty 8 First Nations and environmental groups submitted letters to the M detailing what they described as imminent threats to the Woodland Caribou, and requesting the M make a recommendation to Federal Cabinet that it issue an emergency order to protect the habitat of seven caribou herds located in northeastern Alberta. In March 2011, the M formed the opinion that there was no imminent threat to the recovery of caribou and that there was no need to recommend that Federal Cabinet issue an emergency order.

In a judicial review application brought by First Nations and environmental groups and heard by the Federal Court of Canada on June 22 and 23, 2011, the applicants sought: 

1. An order compelling the M to recommend the Federal Cabinet issue an emergency order to protect the herds; and
2. A declaration that the M missed the statutory deadline for issuing the recovery strategy.

For more detail on the background of the application and associated proceedings, please see the previous Bennett Jones Update, Federal Court Considers Adequacy of Canada's Protection of Northeastern Alberta's Caribou (June 30, 2011).

On July 28, 2011, the Court released its decision² in which it:

1. Set aside the M's decision not to recommend to the Federal Cabinet the issuance of an emergency order and remitted the matter back to the M for reconsideration in accordance with the Court's reasons; and
2. Deferred making a decision on whether to issue a declaration regarding the M's failure to release a recovery strategy for the caribou until September 1, 2011.

Each finding is considered below.

Emergency Order

The Court set aside the M's decision not to recommend to the Federal Cabinet that it issue an emergency order, and remitted the issue back to the M for reconsideration on two principal grounds.

First, mindful of a previous Supreme Court of Canada decision in which the Court held that interpretations of statutory provisions which impact on treaty or Aboriginal rights must be approached in a manner that maintains the integrity of the Crown, the Court found the M had “clearly erred” in failing to consider treaty rights and the honour of the Crown in interpreting his mandate under the emergency order provision of the SARA. The Court further found that, on reconsideration, the M must consider both the impact the herds' extirpation would have on the Aboriginal way of life; and to what extent the ongoing violation of the SARA (by failing to post a recovery strategy) and continued inaction with respect to the caribou would be consistent with the honour of the Crown, an issue the Court suggested was reviewable on a standard of correctness.

Second, the Court found that the M's decision contained no meaningful discussion of the basis for the conclusion there are no imminent threats to the national recovery of the caribou. In that regard, the Court noted that the applicants, the public, and the Court were left to speculate as to:

1. The scientific basis for the conclusion that it is possible to maintain a self-sustaining population of caribou in eastern Canada and the basis upon which it was concluded that the eastern population could provide the basis for achieving a national recovery objective;
2. The content of the national recovery objective and approaches that would be constrained by the extirpation of the seven herds and the likelihood of achieving a national recovery objective if the seven herds become extirpated; and
3. The basis upon which the M's conclusion was considered to be consistent with the language of the emergency order provision and the purposes of the SARA.

As a result, the Court directed the M to reconsider the matter of whether to recommend to the Federal Cabinet the issuance of an emergency order, which reconsideration is to be conducted in accordance with the Court's reasons.

Recovery Strategy

The Court's decision to defer its consideration of whether to issue a declaration that the M missed the statutory deadline for issuing the recovery strategy was based in large part on the fact that the Attorney General, on behalf of the M, committed to the recovery strategy being released by the end of the summer. It is unclear from the decision what will happen should the M be further delayed in delivering the recovery strategy; however, it is anticipated that in those circumstances, the applicants would seek a decision from the Court.

Conclusion

Although the emergency order decision was remitted to the M for reconsideration, the M may nevertheless decide not to recommend to Federal Cabinet the issuance of an emergency order. In that regard, if the M considers all relevant factors (including potential impacts on treaty and aboriginal rights which engage the honour of the Crown), and provides meaningful reasons to support his opinion, a decision not to recommend the issuance of an emergency order may be supportable. Even if the M forms the opinion that an emergency order ought to be recommended, it remains open to the Federal Cabinet to evaluate all available information, including the impacts an emergency order would have on resource development and other public interest factors, and refuse to issue such an order. Significantly, the Court provided no timeline within which the M must reconsider the issue.

Regardless of whether an emergency order is issued, a recovery strategy for Woodland Caribou is likely to be released in the near future. If one is not released by the September 1, 2011, deadline set out in the Court's decision, it will be open to the applicants to seek a further direction from the Court as to a declaration regarding the M's failure. It will be important for resource developers with projects that may impact Woodland Caribou habitat to continue to follow the development of this issue and, in particular, the purported release of a recovery strategy this September.

Notes

1. S.C. 2002, c 29.
2. Allan Adam et al. v. Minister of the Environment et al., 2011 FC 962.