U.S. hunting outfitter uses NAFTA to challenge N.W.T. caribou policy

An American hunting outfitter is trying to use the North American Free Trade Agreement to fight what he considers misguided northern wildlife management.

An American hunting outfitter is trying to use the North American Free Trade Agreement to fight what he considers misguided northern wildlife management.

A move by the Northwest Territories to revoke caribou tags for non-resident hunters is effectively the same as shutting down his business, says John Andre, who operates two hunting camps in the territory from his headquarters in Montana.

His allotment of caribou tags would go from 420 a year at its peak to zero under a proposal now before a northern regulatory board.

“They confiscated my business,” he says. “My intent is to be compensated.”

His notice of intent, recently filed with the federal deputy attorney general, seeks compensation of more than $8 million. But what Andre really wants is for Ottawa to review the territory’s belief that caribou herds are shrinking.

Andre depends on an annual allotment of caribou tags to serve big-game hunters who come to his camps. But the yearly tags to non-aboriginal hunters have been gradually scaled back as the Northwest Territories tries to relieve pressure on its once-mighty herds.

Biologists say nine of Canada’s 11 caribou herds are in decline. The Bathurst herd of the central barrens, they say, dropped from 120,000 animals in 2006 to 32,000 three years later. The Beverly herd to the east — 280,000 strong 15 years ago — has virtually disappeared.

Caribou herds have always fluctuated, but biologists suspect a combination of climate change, industrial development and hunting may be preventing them from bouncing back as they have in the past.

In December, the territorial government restricted hunting of the herds. Although local Dene and Metis can continue to harvest caribou, they now face quotas. Non-aboriginal hunting of some herds was virtually eliminated.

But Andre has long maintained that there are plenty of caribou. The herds have shifted their range further east and biologists are simply looking in the wrong place, he says.

Frustrated in his attempts to get territorial biologists to agree, he hopes his NAFTA filing will get the attention of federal wildlife officials.

“Maybe this will help force that. Somebody needs to take a look at what’s going on up there.”

Andre’s lawyer, Cyndee Cherniak, confirmed the NAFTA process gives Ottawa the right to examine the underlying issue.

“This does allow a different body to come in and participate in this discussion,” she said from Toronto.

Notice of intent is the first step in the NAFTA arbitration process. It tells the affected government that a dispute has arisen and authorizes it to look into the issue.

Still, while Andre may win a new hearing for his arguments, he’s unlikely to get any money, said lawyer and NAFTA expert Todd Weiler.

“He doesn’t have a leg to stand on when it comes to questioning government policies that benefit First Nations,” said Weiler.

NAFTA does allow government to enact regulations that have a valid policy purpose and that don’t single out any particular business.

“With respect to the expropriation allegation, I’m very skeptical,” Weiler said.

Cherniak knows her client is in tough. The Canadian government has won 90 per cent of all complaints brought against it.

Andre said he’s done with caribou outfitting and is just trying to recoup his investment — as well as make it possible for Canadian outfitters affected by the ban to receive compensation.

“I’m hoping it will pressure the N.W.T. to compensate the other outfitters who don’t have the same protection against expropriation that I do.

“I may never go to the N.W.T. again.”