First Nations launch legal action to protect caribou

Three First Nations, supported by two environmental groups, have begun court action to protect woodland caribou in the northeastern part of the province.

Lawyers for Beaver Lake Cree Nation, Enoch Cree Nation, and Athabasca Chipewyan First Nation and the environmental groups Alberta Wilderness Association and Pembina Institute appeared in federal court in Edmonton on Sept. 8 and made application for the federal government to develop an emergency response plan to protect the habitat of the caribou and to prepare a long overdue caribou recovery plan under the Species at Risk Act.

Photo caption:  Beaver Lake Cree Nation Chief Al Lameman (centre) speaks flanked by AFN Alberta Regional Chief George Stanley (left) and First Nations’ counsel Jack Woodward.Jack Woodward, of Woodward and Company, legal counsel for the First Nations, said the action his clients are calling for is supported by precedent set by the Supreme Court in 2005 in favour of treaty rights for the Mikisew Cree First Nation in northern Alberta. Photo by: Shari Narine

“The Supreme Court was clear about that. These treaty rights are constitutionally protected. They were the highest kind of law in Canada, supersede federal legislation, supersede provincial legislation. They’re protected under the constitution and they’re not just rights to go out hunt game in a place where the land hasn’t been cleared. They included protection of enough habitat so there’s a meaningful supply of animals,” said Woodward.

The court challenge was launched eight days after a deadline imposed on Environment Minister Jim Prentice by the First Nations went unanswered.

In a 14-page letter dated July 15 and sent to Prentice by First Nations legal counsel Woodward and Company, a 45-day deadline was given to Prentice “to comply with your mandatory statutory duties under s. 80(2) of the Species at Risk Act, by recommending to the federal Cabinet that it make an emergency order to protect woodland caribou and their habitat from any further industrial development in the full ranges of the remaining herds in northeastern Alberta (or in a wider area).”

If action wasn’t taken, the letter said the First Nations would have “no option but to compel you to comply with your statutory duties by court order.”

 “We’re using this process to force the government to live up to their own laws that they’ve put in place for themselves,” said Ron Lameman, advisor to the Beaver Lake Cree Nation.

Despite recommendations that came in 2005 from its own woodland caribou recovery team, the provincial government continues to approve oil and gas leases as well as timber allocations in the northeastern part of Alberta and in woodland caribou habitat.

Under the Species at Risk Act, the federal government has the right to take action to protect endangered or threatened species, said Lameman. Boreal or woodland caribou were listed as a threatened species when the SARA came into force in 2002.

The First Nations and environmental groups are also asking for the court to impose a moratorium on further development until the judicial review is completed as well as review any approvals already given that may be contrary to the 2005 recommendations.

Under the federal act, Environment Canada had until June 2007 to prepare a recovery strategy for the caribou. But the strategy has been delayed with the department citing more time needed to collect scientific data and to consult with the public and First Nations.

Barry Robinson, staff lawyer for Eco Justice, said the two environmental groups he is representing have been concerned about the caribou issue for several years now.
“We were aware that the First Nations were going to write a letter and we thought it was the right time and supportive of the First Nations’ letter to have the environmental groups bring this forward,” said Robinson.
The application filed by the environmental groups clearly makes reference to the treaty rights held by the First Nations, said Robinson.

Last year, the Beaver Lake Cree Nation commissioned a report of the woodland caribou in BLCN’s traditional territory. BLCN commissioned Dr. Stan Boutin, a leading expert in the field and also consulted by the provincial government.  Boutin noted that the two herds were declining significantly, stating a 71 per cent decline in one herd and 74 per cent decline in the other.

“(Boutin’s report) says that unless something is done in the not so distant future, it’s going to be too late to save the caribou,” said Lameman. “I think that will be a travesty if that happens.”

Lameman said the caribou are historically, culturally and spiritually important to his people.

The federal government has 60 days to provide affidavits to the federal court. If the issue proceeds, it could end up in court in six to eight months.