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Endangered Species Act itself endangered by ministerial exemptions

FindLaw Canada,
Miriam Yosowich,
April 19 2016

How effective is the 2007 Endangered Species Act in protecting species at risk in Ontario?

It doesn’t seem to be very effective because of a provincial regulation that that allows major industries to essentially bypass the act, and be subject to only minimal restrictions.

Environmental groups Ontario Nature and the CPAWS Wildlands League, are in the Ontario Court of Appeal today to try to have the provincial regulation overturned.

The purpose of the ESA is to prevent damaging or killing endangered or threatened species in Ontario and applies to everyone, including major industries. The Ministry of Natural Resources had to give permission if a person, business, or industry wanted to undertake an activity forbidden by the ESA. For example, under the ESA it is forbidden to “damage or destroy the habitat of. . .a species that is listed on the Species at Risk in Ontario List as an endangered or threatened species.”

That changed in July 2013 when a new regulation was introduced that granted major industries exemptions allowing them to violate the ESA without needing to get permission from the ministry. That includes activities like -damage or destruction of “safe harbour” habitat- which, except for minimal restrictions, would be allowed to be exempt from the ESA prohibition.

Caroline Schultz, Ontario Nature’s executive director, said in a press release: “I shudder to think about species like the American eel, once abundant and now one of the most critically endangered animals in the province. . . . They regularly get chewed up in the turbines of hydroelectric facilities – an industry exempted under the regulation.”

A November 2013 report from the Environmental Commissioner of Ontario stated the Ontario government has “failed miserably” to protect endangered species.

The report went on to say that it was the exemptions that “encompass many of the major activities that are known to negatively impact species at risk and their habitat,” and that “the regulation thwarts the very purposes of the Act.”

Failing to protect endangered species could have severe consequences for people, because a decline in wildlife endangers our environment and the balance of our ecosystem which means that our air, water, and food supplies are threatened.

So, what is the point of an act that isn’t really doing much to protect the species it’s called on to protect?

That is the question the environmental groups are putting to the court today, arguing the exemptions are failing the species at risk and making the ESA ineffective.