Earlier this week, two environmental groups,
Wildlands League and Ontario Nature (the "Appellants"),
were in the Court of Appeal for Ontario seeking to have struck down
a 2013 regulation that significantly altered the regime for
protecting species at risk in Ontario.
When initially introduced in 2007, the Endangered Species Act
(the "Act") was hailed as offering a "gold
standard" of protection for the many species in Ontario facing
the threat of extinction or extirpation. The Act accomplished this
largely through a general prohibition against killing, harming,
harassing, or capturing listed species (subsection 9(1)) and
against destroying or damaging the habitat of listed species
These prohibitions could be avoided by obtaining a permit
(sections 17 and 18), but only after satisfying a rigourous set of
criteria. The system proved complex and attracted the disapproval
Following a failed attempt to amend the Act in 2012, the
Ministry of Natural Resources made a regulation that effectively
made it possible for most development and resource extraction
projects to proceed without obtaining a permit. The regulation
introduced an complex "permit by rule" system that in
essence supplants the legislated scheme, basically requiring
instead that proponents undertake unspecified measures to mitigate
and minimize harm to species without prior Ministry approval.
The Appellants sought to have the regulation declared invalid
but were unsuccessful in Divisional Court in 2014. They are now
appealing this decision.
They argue that the regulation contravenes the purpose of the
Act. Per section 1 of the Act, those purposes are [emphasis
To identify species at risk based on
the best available scientific information, including information
obtained from community knowledge and aboriginal traditional
To protect species that are
at risk and their habitats, and to promote the recovery of species
that are at risk.
To promote stewardship activities to
assist in the protection and recovery of species that are at
They argue further that the Minister signed off on the
regulation without determining whether or not it was likely to
jeopardize the survival of each affected species (approximately
155) as required under section 57 of the Act.
A regulation that is inconsistent with the purpose of the act
under which it is made or that is made without all required
conditions precedent first having been satisfied is invalid.
The Appellants have advanced compelling arguments. However,
courts have been consistently hesitant in the past to declare
regulations invalid (including, of course, the lower court deciding
Ontario's Ministry of the Environment and Climate Change continues to roll out its Climate Change Action Plan with its proposed GHG guide for projects that are subject to the province's Environmental Assessment Act.
The Imperial Oil refinery pled guilty to one offence for discharging a contaminant, coker stabilizer, thermocracked gas, into the natural environment causing an adverse effect and was fined $650,000...
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