Ecojustice, Ontario Nature and the Wildlands League have
launched a lawsuit against the Ontario government protesting a
lengthy set of exemptions given to businesses under Regulation
242/08 of the Endangered Species Act. The industries that received
exemptions include agriculture, forestry, energy transmission,
housing, oil and gas pipelines, mineral exploration, mine
development, transit and wastewater management companies.
For example, bobolinks and meadowlarks are musical birds in
terrible trouble, precisely because of the frequent destruction of
their habitat by agriculture. Haying times that are best for
farmers are often the times most destructive for bobolinks and
meadowlarks. Since July 1, 2013, farmers have been freely permitted
to kill, harm or harass these birds, and to destroy their habitat,
in the course of any agricultural operation. Good news for farmers,
I presume; very bad news for meadowlarks and bobolinks.
To win this legal challenge, Ecojustice will have to persuade
the courts that governments cannot make policy decisions, for
political and economic reasons, that increase the danger to
endangered species that they said they would protect. Is this the
type of decision that courts will prevent politicians from making?
And if so, should they?
The Ontario government presumably decided to weaken the
Endangered Species Act in order to increase its chances of
surviving the next election. It is already facing substantial anger
in many rural areas over the Green Energy Act. If Tim
Hudak's Conservatives were to win the next election, they are
certainly no friends of the Endangered Species Act; what
would happen to the Act and its regulations then?
This lawsuit is an honourable attempts by good people to do the
right thing against long odds, and to stand against the long slide
of environmental destruction. I admire them, and I support them.
But would judges make better decisions on these types of public
interest and policy questions than governments?
Here is Ecojustice's press release:
sue Ontario government
over decision to gut species at risk legislation
New regulation permits industry
to ignore Act's main purposes
September 10, 2013
TORONTO—Environmental groups are suing the Ontario
government for its decision to exempt major threats to species at
risk from the province's Endangered Species Act
Ecojustice lawyers, acting on behalf of Ontario Nature and
Wildlands League, have filed a lawsuit in Divisional Court alleging
that the Ontario government acted unlawfully by making a regulation
that undermines the ESA.
Ontario Regulation 176/13, which came into force under the ESA
on July 1, 2013, is a tremendous blow to species protection. The
new regulatory changes harm species by allowing major industries
— including forestry, energy transmission, housing, oil and
gas pipelines, mineral exploration and mine development, transit,
wastewater management companies — to avoid strict standards
intended to protect at-risk species and their habitats.
"With this regulation, the Ontario government has failed to
deliver on its promise to defend endangered species and undermined
the role of the legislature by amending the Act through
regulation," said Anastasia Lintner, staff lawyer for
Ecojustice. "The best way to safeguard at-risk species is to
enforce the ESA as intended."
The lawsuit is based on two main grounds:
The regulatory exemptions undermine the ESA's very
purposes, which are "to protect species that are at risk and
their habitats, and to promote the recovery of species at
The Minister of Natural Resources, David Orazietti, failed to
consider the impacts of the regulations on each of the 155 species
listed under the Act as either endangered or threatened before
recommending that the regulations be made by Cabinet.
"The government has abandoned Ontario's most imperilled
wildlife, reneging on its promise to give these species the
protection they desperately need," said Caroline Schultz,
executive director at Ontario Nature. "Our once gold-standard
law has been tarnished beyond recognition."
Sections 9 and 10 of the ESA prohibit harm to species at risk
and their habitat without Ministry approval or specific exemption.
This new regulation circumvents the approval process and allows
large industrial sectors to act without Ministry oversight and to
focus on mitigating harm instead of protecting at-risk species.
"This is an act of desperation, changing the law so that it
protects industry instead of at-risk animals and plants," said
Anna Baggio, Director Conservation Planning for Wildlands League.
"I thought we had moved past the old Joni Mitchell song. We
can't support a government that would pave paradise to put up a
parking lot," Baggio added.
Some of Ontario's 155 at-risk species threatened by the
regulation include the American Eel, Blanding's Turtle,
Lakeside Daisy, Eastern Hog-nosed Snake, Acadian Flycatcher and the
iconic Woodland Caribou.
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