In the wake of two major species at risk victories in the Federal Court of Canada in 2009 it is time to re-examine how well Canada is implementing the Species At Risk Act and how well Alberta is utilizing the Wildlife Act in the context of one of Canada’s most iconic animals: the Woodland Caribou.
The Alberta Woodland Caribou has been listed as threatened since 1987 and is currently designated as threatened in Schedule 6 of the Wildlife Regulation in Alberta. However the Alberta Wildlife Act provides no specific habitat protections for endangered species. Instead, it mandates the creation of an Endangered Species Conservation Committee that reviews and advises on any recovery plan prepared by the Minister of Sustainable Resources. While the Wildlife Act provides that provincial recovery plans may identify critical habitat for endangered species it is not required to do so. The Alberta Woodland Caribou Recovery Plan (2004-2014) committed to create range plans and set habitat targets but does not even mention critical habitat. The plan was adopted except for the parts that require a moratorium on development in Caribou ranges, after which the recovery team was disbanded and replaced with the Alberta Caribou Committee, which has a socioeconomic mandate.
Federally, the Woodland Caribou is also listed as two separate subcategories, the southern mountain population, and the boreal population both of which are listed as threatened. Under the federal Species At Risk Act (SARA) the federal government is legally obligated to create a recovery strategy. This strategy must identify the critical habitat of the species based on the best available information and it must be drafted within a mandatory timeframe. Once a recovery strategy is approved, the Act protects the critical habitat of the species by prohibiting its destruction.
Last year in Alberta Wilderness Association Assn. v. Canada (Minister of Environment), 2009 FC 710 a recovery strategy was prepared for the Lesser Sage Grouse but it did not identify critical habitat locations. Justice Zinn held that there was no discretion to omit critical habitat locations due to scientific uncertainty, and that the Minister was obligated to use the best available information to identify critical habitat.
In Environmental Defence v. Minister of Fisheries and Oceans 2009 FC 878, Justice Campbell of the Federal Court ruled that the failure of that Minister to identify critical habitat in a recovery strategy for the Nooksack Dace, a listed fish under SARA in BC was “a story about the creation and application of policy by the Minister in clear contravention of the law, and a reluctance to be held accountable for failure to follow the law.” In that case the recovery team provided maps, which were removed from the draft recovery strategy.
The story of the Woodland Caribou is similar to that of other listed species. The mandatory date for posting a national recovery strategy for Woodland Caribou came and went on June 5, 2007. Only after that deadline passed did an assessment of critical habitat begin. It wasn’t until 2009 that a “peer review” of critical habitat assessment was released but even this declared that the assessment “does not provide enough guidance as to the amounts or spatial distribution of habitat disturbance that can be tolerated.” Accordingly no critical habitat areas are identified in any draft or final recovery strategy. It appears that no federal recovery strategy is planned to be complete until 2011.
Is there really any reasonable basis for asserting that there is no information available with which to identify critical habitat locations for Woodland Caribou in Canada? From the information contained in the federal scientific peer review of 2009, CPAWS has constructed a compelling critical habitat map. Numerous studies identify range maps and other spatial information about the location of Woodland Caribou. In the 2002 assessment of the species, the Committee on the Status of Endangered Wildlife in Canada (COSEWIC) stated that:
…over the past decade, considerable knowledge of caribou distributions and ecology has been acquired. In many areas there is sufficient knowledge to sustain caribou and limited development. The results of scientific research and other forms of knowledge only lack application.
As the Woodland Caribou is highly at risk from habitat loss, it has been suggested that the entire existing range should be designated critical habitat, and if range information is not available, general occupancy information should be sufficient. Given that the definition of critical habitat in the SARA includes areas needed for both survival and recovery of a species, the identification of at least the existing range as critical habitat based on the best available information would seem to be a reasonable suggestion. In Alberta this is even easier to argue since none of the remaining herds in Alberta are self-sustaining and therefore critical habitat may well need to include considerable additional areas for recovery and survival.
In light of all of this information, the suggestion that no one knows where any of the critical habitat of the Woodland Caribou is in any part of Canada, is arguably without any air of reality. Indeed, according to media reports it was Environment Canada, not the scientific recovery team that put the “not enough information” disclaimer into the “scientific peer review”.
This type of problem was partially tackled in the US for Woodland Caribou with a lawsuit in 2009 against the US Fish and Wildlife Service by the US organization Defenders of Wildlife under that country’s legislation. This action resulted in a settlement which obligated the Fish and Wildlife Service to reconsider a critical habitat determination by 2011 and a final designation by 2012.
However without evidence regarding why maps were not produced the issue of whether we know enough about critical habitat for the Woodland Caribou may be difficult to resolve in Canada. The Woodland Caribou example also presents legal complexity because in addition to adding the “not enough information” disclaimer, Aboriginal consultation is cited as a reason for delay.
Here, the real question for the SARA is whether such consultation is legally necessary or even logical as a precondition for creating even a draft map of critical habitat. There was already some aboriginal consultation during the 2002 COSEWIC assessment for Woodland Caribou. More importantly, Aboriginal consultation on this matter can only be meaningful if Aboriginal people know where critical habitat is likely to be identified so they know what site-specific rights may be affected and what areas merit addition or deletion based on traditional knowledge. Withholding this information would seem to violate the information sharing requirements of a valid consultation process. Moreover, Aboriginal cultural and harvesting rights are likely to be irreversibly prejudiced by delay in habitat identification. The SARA itself recognizes this and addresses the best approach for consultation by providing for extensive consultation at various other stages including a national aboriginal committee and a traditional knowledge committee. One also wonders why aboriginal people were not adequately consulted during the two-year critical habitat peer review that was already conducted. In any case, unless Aboriginal groups lend their support to urgent critical habitat identification, the use of this rationale certainly adds legal complexities that might force environmentalists to take uncomfortable and legally complex positions to enforce the SARA protections for this iconic species.
In Alberta, land use planning has already begun under the new Alberta Land Stewardship Act. It is vital to the ultimate integrity of these plans that they include critical habitat identification as a priority. Without this effort, the affected Alberta regions will be unprepared for the consequences when the legal requirements of the SARA are ultimately implemented. Alberta needs to come to terms with species at risk critical habitat legal requirements to plan the future effectively.