Biodiversity, Declaratory Relief, Constitutional, Contract, Jurisdiction, Evidence, Standing, Damages, Forests, Remedies
In this decision, three First Nations and two environmental non-governmental organizations asked the Federal Court to, among other things, compel the minister of the environment (Minister) to recommend to the Governor in Council that it issue an emergency order under section 80 of the Species at Risk Act, S.C. 2002, c. 29 (SARA) for the protection of the boreal caribou herds in northern Alberta, which are part of a population of caribou listed as threatened under SARA. Pursuant to section 80(2) of SARA, the Minister was required to make such a recommendation “if he or she is of the opinion that the species faces imminent threats to its survival or recovery.” After reviewing the request, the Minister concluded that there were no imminent threats to the national survival or recovery of boreal caribou in Canada, and declined to make the recommendation. Environment Canada considered all herds in northern Alberta to be facing an elevated risk of extirpation, and, that the “Seven Herds” that were the subject matter of the application had numbers that were insufficient for these populations to be self-sustaining. Notwithstanding the above, the Minister concluded there were no imminent threats to the survival of boreal caribou on the basis that the current range and conditions were sufficient for 27 of the 57 boreal caribou herds in Canada. Moreover, although the Minister accepted that the recovery of the Alberta herds would be extremely challenging, that an existing gap in boreal caribou distribution would widen, and that the extirpation of the Seven Herds would impact boreal caribou populations in the Northwest Territories, British Columbia and Saskatchewan, the Minister concluded that the population in Manitoba and eastern Canada, which appeared healthy, could allow Canada to maintain a self-sustaining population of boreal caribou. On that basis, the Minister concluded that there were no imminent threats to the recovery of boreal caribou. The Federal Court noted that in the context of the decision as a whole, the conclusion reached by the Minister was unexplainable and essentially “came out of the blue.” On the basis of the facts before the Minister, it was not apparent to the Court how the Minister could have reasonably concluded that there were no imminent threats to the national recovery of boreal caribou. The Court also held that, in interpreting the obligations under section 80(2), the Minister had erred by failing to consider the First Nation Applicants’ rights to hunt under Treaty 8. In the circumstances, the Federal Court set aside the decision and referred the matter back to the Minister for reconsideration in accordance with the Court’s reasoning.