In March the West Moberly First Nation won a precedent setting victory in the BC Supreme Court for the threatened Burnt Pine caribou herd – putting the brakes on a coal mine being developed in the herd’s critical habitat. This court challenge was funded in part through West Coast Environmental Law’s Environmental Dispute Resolution Fund and argued by the lawyers at Devlin Gailus. As we posted at the time:
[T]he judge … suspended [the mines permits], and ordered that within 90 days the provincial government should develop a plan to address the West Moberly’s concerns about the Caribou herd, and that:
This accommodation should be the expeditious implementation of a reasonable, active, program for the protection and augmentation of the Burnt Pine herd.
On Friday, June 18th, the province finalized and approved a plan, which unfortunately relies on killing wolves more than on serious restrictions on development in the caribou’s habitat.
Consultations in the development of the plan started well. Five of the province’s scientists and 
two representatives of the West Moberly First Nation formed a joint “Knowledge Team” which collectively identified what was required, from a scientific and traditional knowledge perspective, to protect and augment the Burnt Pine herd. The result was a set of recommendations which, if adopted, would provide strong protection for core Burnt Pine herd habitat, as well as pave the way for the recovery of other nearby caribou herds; however, since the majority of the area is not considered “core” habitat, the recommendations left open the possibility of development in much of the region.
Not satisfied with the recommendations of experts, however, the provincial government then developed three other watered-down versions of the Knowledge Team’s recommendations. In particular, the revised versions (referred to in government documents as “Options 1 and 2”) eliminated the Knowledge Team’s recommendation to protect the core habitat of the Burnt Pine herd in all areas in which industry has tenure (legal rights to exploit natural resources such as logging, mining, oil and gas extraction, etc). Perversely, the government’s briefing notes for these options acknowledge that the area which would not be protected “contains the wintering area receiving predominate use [by the caribou] in recent years.”
Option 1, which is the option which the BC Cabinet adopted, is the weakest of the four. It will:
- Protect, for a minimum of five years, slightly more than half of the core caribou habitat identified by the Knowledge Team as required for the Burnt Pine herd’s recovery, excluding the areas most urgently needing protection and most used for winter range; after the 5 years the area protected will be reviewed;
- Rely heavily on aggressive hunting, including aerial hunting, and other population control of wolves and predators, clearly a controversial approach that does little to address many of the underlying causes of the declining herd populations.
- Propose that industrial operations follow untested and largely ineffective “best management practices” when working in and around caribou habitat; and
- Promise that future planning will further address concerns about the health and survival of the Burnt Pine herd and other threatened herds in the region.
The government, in what is best described as an understatement, acknowledges that “there is still a risk that the Burnt Pine herd may continue to decline,” and that that protecting the full habitat identified as necessary for the survival of the herd would “greatly reduce” this risk.
The government’s own scientists have repeatedly stated that allowing further destruction of core habitat of this small threatened herd is incompatible with the objective of caribou recovery.
Chief Roland Willson, reacting to the cabinet decision, said:
[The Knowledge Team’s] plan would have protected critical habitat and decreased the need for predator management. Instead, Cabinet approved a plan that flies in the face of scientific and traditional knowledge, proposing little else but 30 years of aggressive wolf culling. … BC’s own caribou experts agree that this option won’t recover, protect, or increase caribou. Quite simply, this approach is caustic to our culture, politically unpalatable, and technically impossible.
So does the provincial government’s “option 1” live up to Justice Williamson’s order to develop a “reasonable, active, program for the protection and augmentation of the Burnt Pine herd”? West Coast agrees with Chief Willson that it does not.
Justice Williamson, in his landmark judgment, stated:
a balancing of the treaty rights of Native peoples with the rights of the public generally, including the development of resources for the benefit of the community as a whole, is not achieved if caribou herds in the affected territories are extirpated.
In our view the province knows, or should know, that it is selecting an option that will not prevent the extirpation of the herd, and will not achieve the protection and augmentation of the herd.
The West Moberly First Nations have not announced their next step; however, with the provincial government arguably failing to live up to court orders, it would be no surprise if they go back to court.
In other News
Ironically, on Monday the province sent out a press release applauding itself for taking action to protect caribou. This announcement is not directly related to the Burnt Pine herd, and seems to be related to a much broader, but as yet unreleased, provincial boreal caribou strategy. We are still gathering information about this new initiative and will post our analysis as soon as possible.