In 2013, a regulation under the Endangered Species
Act ("ESA") introduced a complex series of
exemptions and "permits by rule" for major
industries (including residential development, forestry, and
mining). The changes are part of a government-wide shift from
individualized permitting to including a
"rules-in-regulation" option. The idea is to
reserve individualized permitting for complex cases; routine
applications with routine, low risk and predictable impacts will
not need prior permission if they register and commit
to follow the same standard rules that would have been
put in their permit anyway.
When it works, such a shift can reduce unpredictability and
delay, save and focus government resources, and create a more level
playing field by imposing the same conditions on everyone. But
those advantages depend on not throwing the baby out with the
bathwater. Are the "permit by rule" activities really low
risk and predictable? Are they carefully defined? Are the standard
rules as demanding as a permit would have been, and only available
when a permit would have been issued? Are the rules equally
enforced? Or does the shift simply allow industry to bulldoze
their way through endangered species and their habitat?
In this case, Ecojustice, the Naturalists and
Wildlands League argue that the endangered species
regulation severely weakened the protection
that endangered species actually receive in Ontario. They
say that the regulation
was therefore ultra vires (i.e., invalid) because it was
inconsistent with the purposes of the ESA and because in
making it, the Minister of Natural Resources failed to comply with
a statutory condition precedent.
Divisional Court decision upheld the
regulation. However, the environmental groups will now
have the opportunity to try again, having successfully
obtained leave to appeal to the Court of Appeal for Ontario.
They say will be the first time that the Ontario Court of Appeal
hears a case on endangered species, or on the ESA, brought by
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