By: Shaun Fluker

PDF Version: Canada and Alberta Agree to More Pie-In-The-Sky on Woodland Caribou

Agreement Commented On: Agreement for the conservation and recovery of the Woodland Caribou in Alberta entered into by Canada and Alberta on October 19, 2020 (the “Canada-Alberta Agreement on Woodland Caribou”)

Decisions Commented On: Canada Energy Regulator Report – Nova Gas Transmission GH-003-2018 (February 2020) and Order-in-Council PC 2020-811 (19 October 2020)

On October 23, Alberta and Canada announced they had finalized an agreement under section 11 of the federal Species at Risk Act, SC 2002, c 29 (SARA) concerning the threatened woodland caribou in Alberta. As I predicted here several years ago, this agreement is the federal government’s response to Alberta’s failure to implement recovery measures and habitat protection for caribou in accordance with the SARA recovery strategy, which clearly documents the Alberta populations as the most at-risk of all the woodland caribou remaining in Canada. This comment examines the actual significance of this agreement for the protection of remaining caribou habitat in Alberta. The short answer is that the caribou would be wise to hold off on celebrating this announcement. This section 11 agreement is unlikely to amount to much, if anything, for them in terms of actual habitat protection on the ground. No one should be fooled by the applause from industry or the self-congratulatory remarks made by our politicians: this agreement is yet another shameful exercise by those who merely want to give the appearance of effective public policy on reversing the decline of woodland caribou populations in Canada. It will do nothing to change the steadfast reliance by regulators on ‘manage and mitigate’ measures – as demonstrated most recently by the Canada Energy Regulator in its Nova Gas Transmission Report GH-003-2018 – that have proven to be overwhelmingly ineffective.

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By: Shaun Fluker

PDF Version: The Cost of Justice for the Western Chorus Frog

Case Commented On: 9255-2504 Québec Inc. v Canada, 2020 FC 161 (CanLII)

This decision is a bit dated as it was issued back in January, but an English translation was only recently published and it caught my attention because I have been following the saga of the western chorus frog under the Species at Risk Act, SC 2002, c 29 (SARA) for several years (see Justice for the Western Chorus Frog? and More Justice for the Western Chorus Frog). In many ways, the case of the western chorus frog encapsulates the SARA story since it was enacted back in 2003: politics over science; missed statutory deadlines; and inadequate funding. SARA has certainly systematized efforts to develop recovery frameworks for threatened species and provided some additional transparency. However, the legislation has done very little to actually protect critical habitat beyond what would already be available under protected area or wildlife legislation. 9255-2504 Québec Inc. v Canada offers a glimpse into the question of who pays the cost of protecting critical habitat for a threatened species. The judgment also includes an unusual amount of detailed testimony from federal officials on how SARA has been applied in this case. Accordingly, this is an important decision not just for the western chorus frog but for all SARA-listed species and those interested in following the application of SARA generally.

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By: Shaun Fluker

PDF Version: Sentencing Lake Louise Ski Resort Under the Species at Risk Act and A Comment on the Federal Environmental Damages Fund

Case Commented On: R v The Lake Louise Ski Area Ltd, 2018 ABPC 280 (CanLII)

In December 2017, the Lake Louise Ski Resort pled guilty to unlawfully cutting down and damaging 148 trees without a permit during the summer of 2013 in the Ptarmigan Chutes area of the resort. Some of the trees cut were whitebark pines, a species listed as endangered under the federal Species at Risk Act, SC 2002, c 29 (SARA). Section 32 of SARA prohibits any conduct that harms the endangered whitebark pines and section 97 makes it an offence to contravene this prohibition. Most of the trees cut at the resort were not from an endangered species, but were nonetheless cut down without authorization from Parks Canada, and thus Lake Louise also contravened section 10 of the National Parks General Regulations, SOR/78-213, which is an offence under section 24(2) of the Canada National Parks Act, SC 2000, c 32 (Parks Act). On November 30, 2018 Judge Heather Lamoureux of the Provincial Court of Alberta sentenced Lake Louise to a $1.6 million penalty under SARA for cutting the whitebark pines, and a $500,000 penalty under the Parks Act for unlawful cutting of the other trees, for a total penalty of $2.1 million which will be directed into the federal Environmental Damages Fund. Lake Louise has since filed an appeal with the Court of Queen’s Bench seeking to have this total penalty reduced to $200,000. Continue reading →