Woodland caribou

A woodland caribou. Photo from the U.S. Fish and Wildlife Service. Woodland caribou found in Jasper, Banff, Mount Revelstoke, and Glacier National Parks belong to the Southern Mountain population and are listed under Canada's Species At Risk Act.

Ontario’s Environmental Commissioner Gord Miller is warning Queen’s Park could face sharp reprimands by the courts for its failure to uphold wildlife protections under the Endangered Species Act.

Perhaps unsurprisingly, a federal court confirmed last week the Government of Canada does indeed have a responsibility to follow its own species at risk legislation.

The decision, handed down by Madam Justice Anne Mactavish on Feb. 14, stated the Department of Fisheries and Oceans (DFO) and the federal Ministry of the Environment “acted unlawfully in failing to post proposed recovery strategies” for the Pacific Humpback Whale, the Nechako White Sturgeon, the Marbled Murrelet and the Southern Mountain Caribou “within the statutory timelines prescribed in the Species At Risk Act.”

“It is simply not acceptable for the responsible Ministers to continue to miss the mandatory deadlines that have been established by Parliament,” Mactavish found.

Simply listing species as endangered is not the ultimate purpose of the Endangered Species Act (ESA). While being aware of their decline is a critical first step in improving their fortunes, it’s equally critical government create timely recovery strategies to facilitate moving threatened and endangered species off the ESA list. This is where DFO, Ministry of Environment (MOE) and Ministry of Natural Resources (MNR) provincially have fallen well behind in their work.

From the ruling:

To state the obvious, the Species at Risk Act was enacted because some wildlife species in Canada are at risk. As the applicants note, many are in a race against the clock as increased pressure is put on their critical habitat, and their ultimate survival may be at stake … There is indeed urgency in these matters.

The lawsuit was brought jointly by the Western Canada Wilderness Committee, the David Suzuki Foundation, Greenpeace Canada, the Sierra Club of British Columbia Foundation and Wildsight.

For his part, Miller is concerned the same fate awaits the provincial government for its own failures to uphold the tenets of the Endangered Species Act.

“As I have reported to the Legislature, the Ontario government has committed the very same offence by ignoring the statutory deadlines for producing recovery strategies for species at risk as required by the province’s Endangered Species Act, 2007,” Miller wrote Wednesday.

In his November report, Miller said the government has “failed miserably” in its efforts to protect endangered species in the province, accusing MNR of “stalling recovery strategies, crafting meaningless government response statements, delaying habitat protection, mismanaging the permitting process and deliberately ignoring public participation.”

The Ontario Ministry of Natural Resources, like its federal counterpart, is also required to produce recovery strategies for species listed as endangered on the ESA within specific timelines. And, much like at the federal level, MNR is “similarly plagued by delays and a chronic failure to meet statutory deadlines,” Miller states.

In September, a coalition of environmental groups announced a lawsuit against MNR over their July decision to gut the ESA through exemptions for industry from many of the strictest protections for species-at-risk and their habitat.

Ontario Nature and the Wildlands League hired lawyers from Ecojustice to represent them against the government and their implementation of Ontario Regulation 176/13.

The suit is calling for a judicial review of the regulation and alleges the July 2013 regulatory changes made it easier for industry to acquire exemptions from aspects of the act which forbade the killing, harming or harassing of species-at-risk and their habitat.

The new regulation “runs contrary to the objects and purposes of the ESA, which are ‘to protect species that are at risk and their habitats, and to promote the recovery of species that are at risk,’” according to the submission.

Anastasia Lintner, staff lawyer with Ecojustice, told reporters in September that MNR Minister David Orazietti “failed to meet his own legal duties before recommending this regulation be made by cabinet.”

Further, “we allege the minister failed to first assess whether the proposed regulation would jeopardize the survival of 155 species listed as threatened or endangered,” she said. “He also failed to first assess if the regulation would have any other significant adverse effects on these listed species.”

“It’s environmental deregulation, pure and simple,” said Ontario Nature’s executive director Caroline Schultz at the time. She believes industry has been left to police itself because government oversight of potentially harmful practices has been dramatically weakened as MNR’s budget has shrunk substantially over much of the past two decades.

But Orazietti told reporters in September he is confident his legislation can withstand the judicial challenge. “We have gone to great lengths to ensure the fundamental principles of this legislation remains intact,” he said. “I’m disappointed by [the environmental group’s] approach, but I believe we have very solid evidence that ensures species-at-risk will continue to be protected.”

In response to the developments this week and Miller’s statement, Orazietti told A\J:

We take this issue extremely seriously. I certainly respect the Environmental Commissioner's opinion on this matter. We are going to do everything we can to move forward to ensure there is compliance on these issues and that Ontario is living up to its obligations within the legislation.

Miller concludes by hoping MNR responds to the warning from the federal court and that “accountability for taking action to protect species at risk does not have to be found in the Courts of Ontario.”

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