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The Ministry of Natural Resources (MNR) has shown a “shocking disregard” for its legal obligation to consult with the public on numerous changes to how species at risk and their habitat are managed in the province, Ontario’s environmental commissioner Gord Miller warned recently.

In Laying Siege to the Last Line of Defence: A Review of Ontario’s Weakened Protections for Species at Risk, the commissioner’s special report on endangered species protections in Ontario, Miller argued that since the Endangered Species Act, 2007 (ESA) came into effect the government has “failed miserably” to provide adequate provisions to protect against the unlawful killing, harming or harassing of endangered species or their habitat. “MNR has failed to do what is necessary to make the law work,” Miller told reporters at Queen’s Park. “The ministry has been stalling recovery strategies, crafting meaningless government response statements, delaying habitat protection, mismanaging the permitting process and deliberately ignoring public participation.”

Regulatory change enacted by MNR in July 2013 motivated the creation of this report; changes include broad exemptions for companies wishing to get ministry approval to conduct business, which could have deleterious impacts on endangered species. While the ministry balks at the notion that the exemptions for industry are “broad,” Miller and numerous environmental groups say otherwise. In fact, Ontario Nature and the Wildlands League have partnered with lawyers from Ecojustice to sue the government for deliberately undermining the spirit of the ESA through the new regulations.

One overlooked aspect of Miller’s report took the government to task for MNR’s lack of transparency on how critical information about ESA exemption applications will be communicated to the public. “Not only will the public not be involved in those decisions, the public won’t even know what is being done because of the way they switched the regulations, so no longer do they get a permit which is public and posted because the ministry now permit by rule,” Miller told reporters at Queen’s Park at the launch of his report on November 6.

The new permit-by-rule system means that as long as a company tells the ministry they are following the broad rules set down with regards to minimizing disturbances and creating a mitigation plan in the event that MNR wishes to see it, companies are able to get away with anything on the landscape without ministry staff or the public being any the wiser, Miller argued. “The public is left completely out of the picture,” he said. “They don’t know what the company’s mitigation plan is or what the monitoring results from the ministry indicate about what’s going on.”

The current lack of transparency and accountability at MNR “flies in the face” of Premier Kathleen Wynne’s call for open government, an attempt to make government data and actions more accessible to the public where possible. “I can’t understand it. How you can put a regulation in place that takes public participation out of those kinds of decisions?” Miller asked. “I have no idea, but it certainly isn’t open government.”

The commissioner concedes that some exemptions will need to be given to companies that will do serious harm to endangered species or their habitat. It’s regrettable, but including the possibility of acquiring an exemption made the legislation flexible, palatable to industry and, for a time, the gold standard of such legislation in North America, Miller said. “For legitimate, high socio-economic reasons for the people of Ontario” some important habitat of endangered species will have to be destroyed, Miller explains. “Those decisions happen, and fair enough. But let’s involve the public in those decisions. It’s a fundamental thing.”

Speaking with reporters after the commissioner’s press conference, the current Minister of Natural Resources David Orazietti admitted his ministry has work to do when it comes to making permits and other information that impact endangered species publicly available. “I acknowledge that with respect to the online work there is work to do moving forward on the online transparency around the permitting process and individual projects, and we are committed to undertake that,” he said. Orazietti continued, saying “we want to make sure in our ministry as much as is possible is online and available for the public because after all, this is public service that the ministry provides with taxpayer resources.”

Andrew Reeves is the Editor-in-Chief of Alternatives Journal. Overrun, his book about Asian carp in North America, will be published in Spring 2019 by ECW Press. His work has also appeared in the Globe & MailSpacing and Corporate Knights. Follow him on Twitter.

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