Lawyers acting on behalf of the Ontario government told the courts last month that Ontario’s endangered species legislation is now only concerned with the most dire of species listed under the law.
The Woodland Caribou; the American Eel; the Blanding’s Turtle — these and more than 150 other species currently listed as endangered in Ontario will only receive the full weight of government support when they teeter on the brink of local extinction.
So much for our “gold standard” Endangered Species Act.
In September 2013, lawyers from Ecojustice announced Ontario Nature and CPAWS Wildlands League were suing Kathleen Wynne’s government over allegedly violating the Endangered Species Act. They claimed the Liberals had gutted the legislation’s environmental protections in favour of industry. Moreover, they allege the government failed to properly consider on a species-by-species basis how changes brought into effect in July 2013 would affect the province’s 155 endangered plants and animals.
In mid-January, this environmental coalition got their day in court.
But let’s take a step back to a time when the Endangered Species Act was a cause for celebration, not the centre of a bitter legal dispute.
Ontario is home to about 40 per cent of Canada's endangered species.
“The new legislation stipulates that all species that have been scientifically assessed as being at risk would be protected automatically. This automatic protection would also be extended to their habitats,” said Liberal Minister of Natural Resources David Ramsey on March 28, 2007.
Six weeks before the Endangered Species Act of 2007 came into law, Ramsey outlined in three words how the new Act would become the gold-standard for such laws throughout North America: “Presumption of protection.”
This concept was huge news for endangered species and their human advocates in the province. Under the previous ESA, introduced 36 years earlier in 1971, the government retained final say in what species were listed to the Act, regardless of whether scientists recommended a threatened species for increased protection.
The new bill, by contrast, would utilize the “presumption of protection” to safeguard species and their habitat should scientists advocate for their listing. The government also committed itself to developing strategies to help at-risk species recover to healthy population levels and created an $18-million stewardship fund to protect endangered species living on private land.
A coalition of the country’s top environmental groups issued a press release after the Act came into effect heralding it as “the best endangered species act in the country,” according to Sierra Legal counsel Robert Wright. He wasn’t alone. "From an ecological perspective, the new law covers the critical bases," said Rachel Plotkin, Policy Analyst for the David Suzuki Foundation. "Ontario is home to about 40 per cent of Canada's endangered species, and the Act sets a high bar for their protection."
Ontario Nature, one of the province’s leading environmental voices, struck a more cautious note, one that would prove prophetic. "The new legislation provides for fair, balanced decision-making," said Wendy Francis, Ontario Nature’s Director of Conservation and Science at the time. "Nevertheless, we will have to be vigilant to ensure that the permitting provisions are not treated as loopholes for activities that might jeopardize a species' survival or recovery."
How quickly Francis’ fears came true.
In place of obtaining a permit, a company must now follow weaker restoration guidelines after the damage is done.
Rather than debate the changes in the legislature, the Liberals passed new regulations in July 2013 which, in effect, rewrote the Act to move from a presumption of protection to a presumption of permission for industries like hydropower, forestry, mining, aggregate, operational wind farms and energy companies.
In place of obtaining a permit, a company must now follow weaker restoration guidelines after the damage is done. The balance of power now rests with industry who inform the government of their plans, rather than awaiting government approval or rejection of a project. The government, in effect, has relinquished their right to say no to development on behalf of endangered species. Exemptions are no longer the exception — they’re the rule.
Gord Miller, Ontario’s Environmental Commissioner, issued a special report in November 2013 claiming the Liberals “failed miserably” in their effort to protect endangered species. “[The ministry’s] regulatory amendments fail on all accounts,” Miller said in the report, “and undermine what the Ontario legislature set out in law.”
Hearing the legal case against endangered species spelled out in court, Anna Baggio from CPAWS Wildlands League penned an op-ed for Huffington Post outlining her frustrations.
“A more accurate title for the Act now might also be The We Kill Them Less Act,” she wrote of the government’s new attitude towards endangered species. “The lofty purposes of the Act around protecting and restoring species have been stealthily replaced in practice with 'kill them less.'"
Ontario Nature’s communication director John Hassell wrote about their court day in a damning blog post, saying “it is not easy to sit quietly in court while the opposing side takes a sledgehammer to your core values.”
Hassell said “it’s deeply frustrating to hear government lawyers concede in court that the law requires a species-by-species impact analysis, yet contend that they don’t have to prove it was done or explain how. Was the ‘Minister’s determination’ thorough? None of your business. I’m reminded of the grade-school retort ‘because I said so.’ No justification needed.”
The three-Justice panel who heard the case will now deliberate and are expected to rule within the next two to three months. All Ontarians concerned about the health and well-being of Ontario’s most vulnerable plants and animals should hope the court compels our government at Queen’s Park to do right by nature and uphold the standards of a law they themselves put in place less than a decade ago.
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