First Nations respond to victory in Federal Court caribou case
Court finds federal environment Minister acted unlawfully in refusing to recommend emergency order for woodland caribou
July 29, 2011 – Victoria, BC – Athabasca Chipewyan First Nation, Beaver Lake Cree Nation and Enoch Cree Nation received a favourable judgment from the Federal Court of Canada late yesterday afternoon.
Mr. Justice Paul Crampton held that federal environment Minister Peter Kent “clearly erred” in refusing to recommend an emergency order for boreal caribou in northeastern Alberta. The Court wrote: “… the Minister clearly erred in reaching his decision by failing to take into account the First Nations Applicants’ Treaty Rights and the honour of the Crown in interpreting his mandate under [the federal Species at Risk Act].”
The Court set aside (or overturned) the Minister’s decision, and sent the matter back to the Minister for reconsideration in light of the Court’s reasons.
The Court noted the federal government’s various concessions in the case, including that: caribou are threatened by habitat loss; all 13 herds of caribou in Alberta are at elevated risk of local extinction (largely because of industrial development in their habitat); the population and habitat conditions of all the herds in northeastern Alberta are “insufficient for those herds to be self sustaining”; there is a developing gap in caribou distribution in Canada centred around northeastern Alberta (the area of intensive tar sands activity); and Alberta’s failure to protect caribou will likely have consequences for the national population of the species.
The Court then went on to say: “I acknowledge that it is not immediately apparent how, given the foregoing facts, the Minister reasonably could have concluded that there are no imminent threats to the national recovery of boreal caribou.” (See paragraphs 48-49 of the judgment.)
The federal government conceded in the Court case that it was more than four years past the mandatory statutory deadline for completing a recovery strategy for boreal caribou. Further relief may follow from the Federal Court if the environment Minister does not complete a proposed recovery strategy by September 1st of this year.
“As for what this Court decision means, this is a very useful step towards protecting caribou in northeastern Alberta and towards respecting First Nations’ rights in the area,” said lawyer Jack Woodward, counsel for the First Nations Groups. “But we’ll have to see what the environment Minister does in response to the case: the ball is now back in his court.”
“We’re pleased the court recognized the importance of the Species at Risk Act,” stated Ron Lameman, advisor to Beaver Lake Cree Nation Chief and Council. “And in issuing this judgement has required the federal environment minister to properly reconsider the looming crisis for the woodland caribou – an animal vital to our livelihood.”
George J. Poitras
Mikisew Cree First Nation
“It would be easier just to fold our hands and not make this fight…, to say, I, one man, can do nothing. I grow afraid only when I see people thinking and acting like this. We all know the story about the man who sat beside the trail too long, and then it grew over and he could never find his way again. We can never forget what has happened, but we cannot go back, nor can we just sit beside the trail.”
– Poundmaker, Cree Chief