Giving legal effect to the designation of the Grizzly Bear as an endangered species under the Wildlife Act (Alberta)

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Decision considered: Shell Canada – Application for licenses in the Waterton Field, 2011 ABERCB 007

In March 2008 the Alberta department of Sustainable Resource Development (“SRD”) issued the Alberta Grizzly Bear Recovery Plan 2008-2013 (“SRD Grizzly Bear Recovery Plan“) under section 6 of the Wildlife Act, RSA 2000, c. W-10. The goal of the SRD Grizzly Bear Recovery Plan is to restore and ensure the long-term viability of a self-sustaining grizzly bear population in Alberta (SRD Grizzly Bear Recovery Plan at page 20). On June 9, 2010 the Minister of Sustainable Resource Development enacted the Wildlife (Endangered Animal, 2010) Amendment Regulation, Alta Reg 86/2010 which designates the grizzly bear as an endangered species under the Wildlife Act. In this comment, I set out how this designation in law implicates the decision-making powers of the Energy Resources Conservation Board (“ERCB” or “Board”).

Over the last decade the Government of Alberta has expressed significant concern for the viability of the grizzly bear population in Alberta. SRD issued 2 status reports (2002 and 2010) on the species (2010 Grizzly Bear Status Report), and the overall message is that grizzly bear numbers are in decline because of increasing human activities in what is left of grizzly bear habitat in Alberta. The 2010 Status Report states “[r]ecent population estimates clearly point out that grizzly bear density in Alberta is negatively correlated with the level of human access” (at para 22) and “[h]uman-caused mortality, especially of adult females, is the primary factor limiting grizzly bear populations” (at para 27). The June 2010 legal designation of the grizzly bear as an endangered species together with the SRD Grizzly Bear Recovery Plan are important steps by the Alberta government towards fulfilling its commitment to provide legal protection for an endangered species under the 1996 Federal-Provincial Accord for the Protection of Species at Risk and the 1992 UN Convention on Biological Diversity.

There are many reasons besides the rule of law for why the Alberta government would take steps to restore and ensure the long-term viability of grizzly bears in Alberta. I will set out two here. First, ecologists believe the grizzly bear is a ‘keystone’ or ‘umbrella’ species – which means a viable population of grizzly bears on the landscape is a reliable indicator of ecological integrity for the landscape as a whole. In other words, the government achieves its mandate of sustainable resource development by ensuring such development does not adversely affect the grizzly bear population and its habitat. Second, the grizzly bear is perhaps one of the last vestiges of the disappearing Canadian wilderness and the enrichment it provides. In his 2010 book The Grizzly Manifesto: In Defence of the Great Bear author Jeff Gailus recounts the value in sighting a grizzly bear in the wild: “Like having a child, encountering a grizzly bear in the wild is something you can anticipate with the common sense of the conscious mind, but when it finally arrives, you discover one of the few experiences that actually surpass what you had imagined.” (The Grizzly Manifesto (Rocky Mountain Books 2010) at 22 – The Grizzly Manifesto is a finalist in the 2011 Alberta Reader’s Choice Awards). In short, Alberta is a lesser place without a self-sustaining population of grizzly bears on the land.

So how does this affect the ERCB? To answer this question, I will use the Board’s recent decision to license an exploratory sour gas well (WT68 well or Project) in the Castle region west of Pincher Creek (Shell Canada – Application for licenses in the Waterton Field, 2011 ABERCB 007). Expert evidence tendered at the hearing, including written correspondence from a senior wildlife biologist for SRD, confirmed the WT68 well site is located on lands which are important grizzly bear habitat. In its Decision, the ERCB determined that the Project will have surface impacts that result in a loss of grizzly bear habitat (Decision at paras 63, 64 and 74), and that the Project will increase human activity on existing access routes into grizzly bear habitat (Decision at para 84). The Board’s findings concerning Project impacts on grizzly bears are set out in two paragraphs of its Decision (paras 63 and 64):

The Board notes that Dr. Gilbert stated that grizzly bear denning locations are not limiting and the email from the SRD regional biologist indicated that the area is highly productive for grizzly bears. Thus, although there may be some incremental loss of grizzly bear habitat, it is likely that foraging habitat is extensive, and the Board expects that loss of habitat due to this project will not be significant.

The Board notes that Shell indicated that its mitigations were focused on reducing new access and that it was contributing to maintaining grizzly bear habitat on a regional basis by reclaiming older sites at Waterton 6 and Waterton 12. The Board finds this is an acceptable approach.

One of the legal questions here is whether the ERCB has met its statutory obligation under section 3 of the Energy Resources Conservation Act, RSA 2000, c. E-10 to have regard for the effect of its Decision on the grizzly bear species and its habitat. In my opinion the Board erred in law with this finding by: (1) failing to reference or give effect to the legal status of the grizzly bear as an endangered species under the Wildlife Act; (2) accepting any loss of important habitat for a listed endangered species as a reasonable and acceptable outcome; (3) failing to have adequate regard for the objectives and guidelines of the SRD Grizzly Bear Recovery Plan.

Those readers interested in species protection law in Alberta and its implications generally in law and policy may wish to participate in a one-day CLE seminar that will take place at the Faculty of Law on May 19, 2011 (For more information and details on registration see here). The keynote speaker will be Dr. Stephen Herrero who will speak on the science and law of protecting grizzly bears in Canada and the United States. Seminar presentations will include an overview of species at risk legislation in Alberta and Canada and the application of species at risk laws on project planning, property rights, aboriginal rights, and provincial water management.

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About Shaun Fluker

B.Comm. (Alberta), LL.B. (Victoria), LL.M. (Calgary). Associate Professor. Please click here for more information.
This entry was posted in Administrative Law, Protection of Species. Bookmark the permalink.

5 Responses to Giving legal effect to the designation of the Grizzly Bear as an endangered species under the Wildlife Act (Alberta)

  1. Pingback: ERCB rules for Shell, against Alberta’s threatened grizzly bears « Northern Exposure

  2. Great analysis of this decision Shawn, I wish I could attend the species at risk law seminar it looks great!

  3. Barrie Gilbert says:

    Prof. Fluker’s argument makes eminently good sense to me as the grizzly bear “expert” giving testimony for 2 of the interveners (wiki: “An expert can be, by virtue of credential, training, education, profession, publication or experience, believed to have special knowledge of a subject beyond that of the average person, sufficient that others may officially (and legally) rely upon the individual’s opinion.)
    Although the ERCB hearings claim to be “quasi-legal” proceedings I was astonished at the W68 Shell hearing that almost all of my presentation was prevented. I had expected to show photographs of evidence of grizzly bears using the immediate area of the proposed sour gas well-site (active den, grizzly hair from the den entrance, fresh grizzly bear droppings (scat); a day-bed nearby and very fresh fecal matter on the roads going to the site. The chairman halted my presentation after Shell’s lawyer objected that Shell’s team of lawyers had not seen this evidence in my written submission which I prepared prior to a site visit in September. The chairman chose to focus on irrelevant speculation that I offered about alleged limited den sites.
    I trust that Prof. Fluker’s cogent argument will win the day.

  4. Nigel Douglas says:

    In Petro Canada/ Suncor’s Sullivan application (13 sour gas wells and 37 km of pipeline in southern Kananaskis Country), their EA found that “effects on grizzly bear mortality risk are predicted to be high in magnitude, regional in extent and long-term in duration.” But that didn’t stop ERCB approving the development (Decision 2010-022).

  5. Mike Sawyer says:

    All good points Shaun… But with all due respect, it’s a bit like arguing about how many angels can fit through the eye of a needle.

    As a layperson who has participated in many regulatory proceedings in front of the ERCB, NRCB, NEB and others, I have come to believe there are systemic legal and sociopolitical issues that need to be openly discussed both within the legal community and throughout society at large. First, any objective observer of ERCB decision making and organizational behaviour can only conclude that they demonstrate all of the classic symptoms of regulatory capture. The concept of regulatory capture is well known to US legal practitioners but conspicuously absent from the discussion here in Canada. I believe there are systemic reasons for this which I could go into but that is probably best left for some other time… My second point is that it is the firmly established practice of the Canadian judiciary, and the Canadian legal profession as a whole, to show near absolute deference to quasi-judicial decision makers, or to government decision makers. This is, to say the least, very problematic and I submit, generally unwarranted and undeserved. Until the causes, nature, and public interest implications of regulatory capture become part of our legal landscape, the issues demonstrated in the ERCB Waterton 68 decision will continue ad infinitum. In the meantime, we are left with a growing sense of queasiness that comes with the realization that the public has nothing but contempt for captive quasi-judicial bodies such as the ERCB.

    [edited]

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