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Significant Federal and Provincial Government Actions to Protect Vulnerable Species

20-Sep-13

by Sean Parker

A trend towards enhanced regulatory protection of vulnerable species appears to be emerging at both the federal and provincial levels in Alberta.

On September 19, 2013, Alberta Environment and Sustainable Resource Development (“AESRD”) reported that an Enforcement Order (“Order”) has been issued against an energy company operating in the province for alleged contraventions of the Public Lands Act. The alleged contraventions relate to the company constructing an active oil well that is allegedly not in accordance with regulated setback limits to protect ferruginous hawk populations. Although the company submitted a wildlife survey as part of the approval process, AESRD states that “the survey was not comprehensive enough and did not identify the hawk nest on the site”.

The terms of the Order are likely to cause significant impact to the company’s operation. The Order cancels the company’s Mineral Surface Lease at the site and requires the company to submit a plan to AESRD showing how the site will be restored to its original condition and a final report when the restorative actions have been completed. There is an appeal process for Orders of this nature. However, it is important to recognize that filing an appeal does not stay the Order, absent an additional order to that effect which must be specifically sought by the affected party, and which is often difficult to obtain. This means that in most cases, the terms of the Order must be satisfied even if there is a pending appeal.

The recent actions to protect ferruginous hawks align with the current federal-provincial initiative to protect the woodland caribou in Alberta. In August 2013, AESRD announced the formation of two multi-stakeholder advisory groups to participate in the planning process to create action plans for the Little Smoky / A La Peche and Cold Lake caribou ranges, as required under Environment Canada’s National Recovery Strategy for Woodland Caribou in Canada (boreal population). The planning process is intended to achieve: 

  • Range plans describing how caribou habitat will be managed over space and time to effectively protect critical habitat needed for self-sustaining populations; and
  • Action plans that evaluate socioeconomic costs and benefits, show how performance will be monitored and address the measures needed to achieve the population objectives.

The formation of additional advisory groups for other caribou herd ranges is anticipated to happen sometime in 2014.

The recent actions by the Alberta regulator, AESRD, are in line with the emerging trend of taking steps to protect vulnerable species at the federal level. On September 17, 2013, federal Environment Minister, Leona Aglukkaq, announced that an order will be issued in the coming months imposing restrictions on developments on federal and provincial Crown lands in Alberta and Saskatchewan as a measure to protect the greater sage grouse. The greater sage grouse is listed as an endangered species under Canada’s Species At Risk Act. The impending order would be the first of its kind issued by the federal regulator, Environment Canada, under the Species At Risk Act.

The announcement to protect the greater sage grouse comes after environmental groups, represented by Ecojustice, took legal action to compel the federal government to enforce the Species At Risk Act and protect this vulnerable species. Similar legal actions have been commenced by environmental groups across Canada in recent years with some success, showing an increasing movement towards private groups and citizens taking legal action to seek to compel the federal government to fulfill what those groups or citizens perceive to be the federal government’s legislative obligations.

These recent developments in Alberta and elsewhere in Canada indicate an emerging trend for enhanced species protection and a legal mechanism by which environmental groups may be able to influence government actions. This trend has the potential to impact industrial and resource development going forward. For further information about this recent development in environmental law and how you operation may be affected, please contact Ron Kruhlak in Edmonton, Gavin Fitch in Calgary, John Donihee in Yellowknife, or any member of our Energy & Environmental Regulatory Practice Group.

 

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