New litigation launched to challenge minister’s decision on caribou protection

Swan River First Nation has signed on to new litigation challenging Environment Minister Peter Kent’s decision to not issue an emergency order to protect woodland caribou.

“When we participated in the Northern Gateway hearing process, we identified the Little Smoky herd and the inaction around that. So that’s where we now started to get involved because we now know there are other Nations also challenging that,” said Leon Chalifoux, Chief of Swan River First Nation.

On Feb. 23, counsels for the four Alberta First Nations and two environmental groups (Alberta Wilderness Association and Pembina Institute) filed a notice of application in federal court for a second judicial review of the minister’s decision not to issue an emergency order under the Species At Risk Act as well as challenge the delay in presenting the recovery strategy.

The decision to pursue a second litigation instead of continuing with the initial court action was strategic, said Jenny Biem, counsel with Woodward and Company, which is representing the First Nations of Athabasca Chipewyan, Beaver Lake Cree, Swan River and, also new to the litigation, Cold Lake. Enoch First Nation is no longer involved in legal action.

“Because the minister advised us of his decision, we only had a 30-day time frame to bring new litigation to challenge the new decision. We could have waited, but had we waited, we would have risked getting into a motion war with Canada … saying we hadn’t met the deadline … so that’s why we had to bring it quickly,” said Biem.

In mid-January, Kent upheld the earlier decision of his predecessor to not to issue an emergency order to protect the woodland caribou. Federal Court Justice Peter Crampton said the federal environment minister of the time had “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).”

Kent was directed to provide the reason for his decision. That has yet to come.

“The document is still in the process of being posted, but it should be up soon. There were a few procedural issues that delayed its posting,” said Adam Sweet, press secretary for the minister, in an email interview.

In February, Kent announced a further delay in developing a recovery strategy for the woodland caribou. Feedback from the public on the Proposed Recovery Strategy for Woodland Caribou, Boreal Population was extended by 120 days, pushing the deadline to Feb. 22. With 14,000 submissions received, Kent added an additional 30 days to the timeline in order to assess the feedback received.

“In the next couple of weeks, we will find out if those 30 days will be adequate. We are working as quickly as possible, but we do have a responsibility to consider every one,” said Sweet.

Chalifoux said he considers himself an optimist but doesn’t know what to expect with the newest litigation and the latest attempts to protect the woodland caribou. It is obvious, he said, that Kent has still not considered Treaty rights, although the judge instructed him to.

“Our way of life, our people are important to us, our resources are important to us. This is what we have preserved back in 1899, that our ways were to continue as long as the sun shines and the river flows. So the more animals and stuff they take away from us, it’s not leaving anything. We may have a Treaty, but we won’t have anything to use that Treaty on,” he said.