Endangered Species Litigation in Court of Appeal
April 22 2016
Earlier this week, two environmental groups, Wildlands League and Ontario Nature (the “Appellants”), were in the Court of Appeal for Ontario seeking to have struck down a 2013 regulation that significantly altered the regime for protecting species at risk in Ontario.
When initially introduced in 2007, the Endangered Species Act (the “Act”) was hailed as offering a “gold standard” of protection for the many species in Ontario facing the threat of extinction or extirpation. The Act accomplished this largely through a general prohibition against killing, harming, harassing, or capturing listed species (subsection 9(1)) and against destroying or damaging the habitat of listed species (subsection 10(1)).
These prohibitions could be avoided by obtaining a permit (sections 17 and 18), but only after satisfying a rigourous set of criteria. The system proved complex and attracted the disapproval of industry.
Following a failed attempt to amend the Act in 2012, the Ministry of Natural Resources made a regulation that effectively made it possible for most development and resource extraction projects to proceed without obtaining a permit. The regulation introduced an complex “permit by rule” system that in essence supplants the legislated scheme, basically requiring instead that proponents undertake unspecified measures to mitigate and minimize harm to species without prior Ministry approval.
The Appellants sought to have the regulation declared invalid but were unsuccessful in Divisional Court in 2014. They are now appealing this decision.
They argue that the regulation contravenes the purpose of the Act. Per section 1 of the Act, those purposes are [emphasis added]:
1. To identify species at risk based on the best available scientific information, including information obtained from community knowledge and aboriginal traditional knowledge.
2. To protect species that are at risk and their habitats, and to promote the recovery of species that are at risk.
3. To promote stewardship activities to assist in the protection and recovery of species that are at risk.
They argue further that the Minister signed off on the regulation without determining whether or not it was likely to jeopardize the survival of each affected species (approximately 155) as required under section 57 of the Act.
A regulation that is inconsistent with the purpose of the act under which it is made or that is made without all required conditions precedent first having been satisfied is invalid.
The Appellants have advanced compelling arguments. However, courts have been consistently hesitant in the past to declare regulations invalid (including, of course, the lower court deciding this case).
We have been monitoring this case over the years and will certainly be awaiting with interest the outcome of the appeal.