Canada: Endangered Species Act Permits Beyond Review?

Last Updated: March 18 2014
Article by Paula Boutis

In July 2013, opponents to the Ostrander Point wind farm successfully obtained the first decision striking down a Renewable Energy approval (REA). The project proponent appealed and, in February, the Divisional Court released its reasons allowing the appeal, and reinstating the REA.

This case highlights significant problems in the ERT's review of REAs where a species at risk is involved, and where the Ministry of Natural Resources has issued a permit under the Endangered Species Act (ESA) allowing harm to that species.

Ostrander Point decisions

As we wrote earlier, the ERT concluded that the Ostrander Point Project would cause serious and irrevocable harm to Blanding's Turtle, a species listed as threatened in Ontario since 2004.

However, for this project, the Minister of Natural Resources issued an "overall benefit" permit permitting harm to the Blanding's Turtle because although the wind farm would not assist in the protection and recovery, the Minister was "of the opinion an overall benefit to the species will be achieved within a reasonable time through requirements imposed by the conditions of the permit". The ERT, however, reached the opposite conclusion in their review, finding that the wind farm would cause serious and irreversible harm to the turtles.

The Divisional Court concluded that the ERT made a number of legal errors in reaching this conclusion. These were that the ERT

1. Failed to separately identify in its reasons why, even if the harm was serious, that it was irreversible;

2. Concluded that there would be serious and irreversible harm without any evidence as to the population actually affected;

3. Concluded there would be serious and irreversible harm without any evidence that there would be an increase in deaths to the Blanding's Turtle by road traffic, or what current death was to them by existing road traffic;

4. Failed to give sufficient weight to the MNR's ESA permit, including the monitoring and enforcement role of the MNR;

5. Failed to give the parties an opportunity to speak to appropriate remedy in light of the ERT's conclusions, violating the principles of natural justice; and

6. By finding it could not alter the conditions imposed by the MOE in the REA.

Court's reasons reveal larger problems in the ESA permitting process

Evidentiary double standard?

As the court noted, the ERT did not have evidence on the population that would be affected and so could not definitively know if the harm would be irreversible. This begs the question: why was this information unknown? Would that not have been part of the investigations necessary to determine that an ESA permit could be issued on the basis that there would be an overall benefit? Why was the proponent absolved of having to determine this at least at the site?

Apparently the MNR did not need that information, even though the issuance of the permit would certainly allow harm; somehow it was known that there would be an overall benefit through mitigation measures. If the MNR does not require these investigations through the permitting process, how is a citizen's group supposed to do this at the ERT?

Are ESA permits beyond challenge?

The ERT does not have the power to review the Minister of Natural Resource's decision to issue an ESA permits. As the Divisional Court properly noted, at paragraph 67, "The Tribunal ought to have assumed the MNR would properly and adequately monitor compliance with the ESA permit and would take steps to ensure that any failings in compliance were addressed".

On behalf of Sierra Club Canada I challenged a similar kind of ESA permit through a judicial review process. It is nearly impossible to successfully challenge an ESA permit. There is no right of appeal to challenge it, and the issuance is based on the Minister's opinion: an opinion with which a court will not lightly interfere, and in which it did not in a case where an 11 km highway would harm several threatened and endangered species.

In the Sierra Club Canada case, it was well known that the mitigation efforts required by the permit either would not work or were unknown to work for two snake species and one plant species. The Divisional Court concluded, however, that the mitigation measures were acceptable and that the precautionary principle did not govern the Minister's actions; it was merely a guiding principle.

The mitigation measures and "expert reports" relied on by the Minister in the Sierra Club Canada case were in some instances very sparse in terms of peer review and not based on any research. Where the research was clear that the techniques had never worked for one of the plant species, the permit allowed "trials", and that the best "trial method" would be chosen, despite the fact that there was no guarantee any of the methods would work.

Ironically, the Divisional Court in the Ostrander decision properly disallowed the a cross-appeal by one of the opponents on the issue of significant harm to human health. It did so on the basis that the "expert evidence" failed to meet the threshold of reliability, in part because the theory or technique had not been tested or subjected to peer review and publication.

In contrast, the ESA permit process does not require that the species at risk will, with some measure of certainty, be protected.

Conclusion

This decision suggest that if an ESA permit exists, it must be accepted on its face by the ERT despite the real possibility that it may be ineffective.

In the meantime, how will Blanding's Turtle fair in the aftermath of the Ostrander Point development? It's really anybody's guess.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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