Environmentalists take endangered species act challenge to Supreme Court

By Sabrina Nanji,
QP Briefing,
December 12 2016

In 2013, the Ministry of Natural Resources and Forestry granted industries an exemption under the Endangered Species Act that environmentalists say weakens legal protections for threatened species and their habitats

Environmental groups are taking their challenge of Ontario’s endangered species regulations to the country’s top court in the hopes of overturning a decision they say weakens legal protection and leaves threatened animals with a “bleak future.”

Ontario Nature and Wildlands League on Thursday filed a notice of application at the Supreme Court of Canada to overturn an earlier decision from the province’s highest court. In October, the Ontario Court of Appeal had upheld a lower court ruling that found the government was within its rights when it decided to grant industries exemptions under the Endangered Species Act back in the summer of 2013. Now, environmentalists are hoping the Supreme Court will decide to hear the case.

The decision allowed for 19 exemptions under the law and requires forestry, mining and oil and gas companies undertaking activity that may harm or kill a threatened species or damage their habitat to first clear it with the Ministry of Natural Resources and Forestry. At the time, the government said the change would “increase administrative efficiency and reduce burdens on individuals and businesses.”

Environmentalists said the change is inconsistent with the purpose of the act, too broad and more about “saving money” for industrial companies.

“(The government) exempted most industries from the requirements to not damage or destroy habitat or harm or harass species. Under the regulation, you just kind of have to say you tried,” Anna Baggio, director of conservation planning for Wildlands, said Monday. “When we’re dealing with species that are on their last legs and then we just continue to push these activities into their habitats that are going to hurt them, it doesn’t make sense . . . We really need this act to be the last line of defence for species, not have our government drive a bulldozer through it.”

Baggio argues the government overstepped its legal authority by failing to first determine whether the proposed regulation was likely to jeopardize or have an adverse effect on the survival of each threatened species, 167 of which are at home in Ontario.

She cited the woodland caribou that live in Ontario’s boreal forest, and is in danger of becoming extinct because of excessive logging and road construction up north.

Supreme Court appeals are rare – only 3 per cent of cases from the Ontario Court of Appeal make it to the final venue of Canada’s justice system. But if the case winds up at the courthouse on Wellington St. in Ottawa, it will be the first time the Supreme Court specifically addresses endangered species legislation. Baggio is hopeful the Supreme Court will take up the case in part because it is of broad public importance.

The change also roused star environmentalist David Suzuki, who at the time warned the exemption would weaken laws designed to protect wildlife.

A spokeswoman for the ministry said they had not received the latest notice of appeal and therefore it would be inappropriate to comment on the matter directly.

“However, in October the Ontario Court of Appeal released its decision upholding a lower court decision that found (the Ministry of Natural Resources and Forestry) is within its rights to grant exemptions to requirements of the ESA under regulatory changes made in 2013. The decision was unanimous. Specifically, the court found the Minister did consider each species, and that the regulation was consistent with the purposes of the ESA. We are pleased the court decisions support our approach of simplifying rules for landowners, municipalities and businesses while continuing to protect endangered and threatened species,” spokeswoman Jolanta Kowalksi added in an email.

Earlier this year, Ontario’s Environmental Commissioner Dianne Saxe knocked the government for failing to adequately protect its wildlife in her annual report, pointing to a moose population in stark decline, and four of eight species of bats that are at risk of extinction.

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snanji@qpbriefing.com
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Twitter: @sabrinananji