Challenge to Sage Grouse Protection Order

By Meredith James

In December, the Federal Government followed through on its commitment (and obligation) to introduce an Emergency Protection Order for the Greater Sage Grouse, a species on the verge of extinction in Canada. Earlier this month, however, the City of Medicine Hat and LGX Oil & Gas Inc. filed an application in Federal Court seeking a judicial review of the Order.

The Emergency Protection Order

The Emergency Order for the Protection of the Greater Sage-Grouse sets out areas of Crown land in southern Alberta and Saskatchewan in which certain activities are now prohibited, including:

·   killing or moving sagebrush plants, native grasses or native forbs (herbaceous flowering plants);

·   installing or constructing fences;

·   installing or constructing loud structures or machines;

·   constructing a new road or widening an existing road; and

·   installing or constructing structures, other than fences, greater than 1.2 m in height.

·   operating load facilities or machines for 1.5 hours both at dawn and dusk during April and May.

The Order allows for exemptions in “certain circumstances or locations” as well as for pre-existing residential buildings and agricultural operations, and their immediate areas.

In effect, these prohibitions would restrict oil and gas developments on Crown land that is sage grouse habitat. The Order makes no extra commitment to restoration or research.

The Application for Judicial Review

The application reportedly ”asks the court to quash, alter or suspend the order for six months so the federal environment minister can consult with [the City and LGX]“. The City and LGX say they have already undertaken a number of steps to protect the sage grouse such as:

“[R]efraining from drilling during important parts of the sage grouse’s life cycle, removing equipment from leases, conducting pre-drilling wildlife surveys, adopting minimal disturbance practices, abandoning wells near leks (mating sites) and sponsoring sage-grouse research.”

Conclusion

Existing efforts to protect the sage grouse have not been effective. We hope that the application for judicial review does not delay the long overdue protection measures, set to come into effect on February 18. Rather, the Order should be the first in a series of steps to bring this species back from the brink.

    Dianne Saxe, Ontario Environmental LawyerReprinted with permission from the Environmental Law and Litigation Blog.

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