Last month a ruling in the Court of Appeal upheld that a regulation –O.Reg.176/13, made under the Endangered Species Act was valid. The regulation targets subsection 9 and 10 of the Endangered Species Act which in summary prohibited the killing of species at risk in Ontario and prohibited damage to the habitat of species at risk.
The regulation, approved by then Minister of Natural Resources and Forestry, David Orazietti, in May 2013 came into force in July 2013 and exempts almost all major industry such as: forestry; mining; hydro development; ditches and drainage works; wind facilities; aggregate mining; gravel pits; urban development; and many other industrial activities from the Endangered Species Act’s prohibition against killing, harming, harassing or capturing listed Species at Risk and against destroying or damaging the habitat of listed Species at Risk.
First challenged in Divisional Court by two environmental groups- Ontario Nature and Wildland League, it was argued that the regulation was not valid because it failed “to comply with a mandatory condition precedent and for being inconsistent with the purpose of the Endangered Species Act.”
These arguments carried forward to the Court of Appeal.
Lara Tessaro, Environmental Lawyer, represented the appellants, remarked of the regulation, “It takes the heart out of what the Endangered Species Act is.”
Tessaro provided a concise explanation of the two arguments presented before the Court of Appeal.
The first argument raised concern that before the Minister could recommend that Cabinet approve a regulation exempting a species from its’ statutory right not to be killed or have its’ habitat destroyed, he did not perform an obligation that required an evaluation of possible jeopardy to the survival of every species on the species at risk list should the regulation come into force. The Courts agreed that this is the duty of the Minister but the Courts did not agree that this responsibility was overlooked by the Minister.
Tessaro and the appellants believe otherwise.
“We don’t think that was done because evidence that Minister Orazeitti performed those duties doesn’t appear anywhere. We can’t see it anywhere in the Minister’s decision,” remarked Tessaro. “So the Minister signed a document where he said that he was satisfied that these species survival won’t be jeopardized. But when you look at each of those exemptions- like the forestry exemption, the mining exemption, the wind exemption, you look at them all and it doesn’t ever say what the impact will be on the species affected by those exemptions. The Court inferred the Minister must have done that somewhere. Our argument was that in a normal way of approaching these things you look at the Minister’s decisions and if they are silent on something that they have to do you just don’t assume ‘well, even though he didn’t include it in his official decision he must have included it somewhere else’. In my view, that’s basically what the Court did.”
The second argument was formed on the strength of Canadian law that states regulations made must be consistent with the purpose of their enabling statutes- in this case the Endangered Species Act.
The purposes of the Endangered Species Act are:
- To identify species at risk based on the best available scientific information, including information obtained from community knowledge and aboriginal traditional knowledge.
- 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 risk. 2007, c. 6, s. 1.
“A regulation has to be consistent with the laws purpose,” elaborated Tessaro. “And the purpose of the Endangered Species Act is to protect and recover species at risk, so regulations made under the Endangered Species Act had to be aimed at that same purpose. You can’t regulate for any purpose other than to protect and recover species. And the Court did not accept that argument. The Court said while it agreed that the purpose of the Act is to protect species that the regulation, even though it was not clearly aimed at that purpose, was still consistent with the broad purpose of the Endangered Species Act.”
Essentially the regulation does not protect endangered species providing only that mitigation is required to lessen the amount of killing and habitat destruction. Moreover, the regulation fundamentally leaves mitigation and monitoring to industry with little or no oversight from the Province.
“I would describe the regulation as being largely premised on industry self-regulation and self-monitoring,” remarked Tessaro. “It has left to industry to decide how it will attempt to mitigate harm to endangered species. It has left to industry to monitor its’ own compliance with its’ own plans. It’s basically a very deregulated approach that a cynic would say ‘leaves the fox in charge of the chicken coop’.”
Of the Court of Appeals dismissal Tessaro commented, “It suggests that Courts don’t need to hold Ministers to account in the normal ways. In terms of a precedence, it says for these kind of jeopardy assessments the Courts will not meaningfully review Ministers decisions. It’s a judicial recipe for largely meaningless review of government decision making.”
Caroline Schultz is the executive director with Ontario Nature. It is Schultz’s feeling that the impetus of the regulation sprung from a desire to eliminate administrative duties associated with the implementation of the Endangered Species Act.
“They felt that the administrative burden would be so high and they needed to get out of what that commitment was,” remarked Schultz. “They didn’t go through a process where a more streamlined, effective way of implementation that would have a positive impact on species at risk and do nothing in terms of undermining the purposes of the Act. They jumped to ‘ok, let’s cut out a bunch of industries so we don’t have to deal with that’.”
Ontario Nature has undertaken the task of increasing protected areas for species at risk. “Our protection work isn’t tied to the fact that the Endangered Species Act has suffered this regulation. We were already working on getting areas protected,” explained Schultz. “But what I would say is that we really have redoubled our effort because we have lost so much with the exemptions under the Endangered Species Act that it makes the options for protecting species even more limited.”
Safe areas for species at risk would be protected under the provincial Parks and Conservation Reserves Act. While several candidate areas for protection have been identified those areas have yet to be regulated under the Act. Once these areas are regulated and protected Ontario Nature will be seeking to achieve Forest Stewardship Counsel certification –“an international certification and labelling system dedicated to promoting responsible forest management of the world’s forests.”
Establishing protected areas is critical for endangered species and Schultz referenced the six remaining herds of caribou in Ontario. In a 2015 interview with the Northern Hoot, Schultz stated that two woodland caribou herds overlap with forest operations and government research shows that these two herds are not likely to survive. As for the remaining four herds, their survival rate is 50/50.
“The impact on caribou is almost exclusively to do with forestry activities in terms of loss of habitat and also exposing caribou to more predators,” explained Schultz. “Our approach as an interim is that we are seeking to get more areas established that will protect the caribou habitat. It’s not an Endangered Species approach but because of the exemption provided to industry through the regulation, there is nothing we can do through the Act. It is a bit of a refuge sort of notion where industrial activity is excluded but it’s not the same as having a blanket protection across the landscape that the Endangered Species Act would provide. And you really need both –to establish protected areas and to have the broader protection provided by the Endangered Species Act. Protected areas in isolation without the broader policies that protects them when they are not in their protected areas is fundamentally important to their survival.”
Because after all, animals don’t read maps.
So, with the 2013 regulation in force, what’s left of the Endangered Species Act?
According to Tessaro “the answer to that is not much”.
“The exemptions apply to every single endangered and threatened species on the list. And they deprive every single endangered and threatened species of the Act’s protection from most, if not all, industrial activity in the province. So what is left, in my view, is a very impoverished, weak and inadequate regime for preserving Ontario’s biodiversity,” commented Tessaro.
Though neither Tessaro nor Schultz would confirm if they will be seeking an appeal to the Supreme Court, Schultz did remark, “This fight is not over.”
(feature image courtesy Ontario Nature: Woodland caribou are medium-sized members of the deer family. There are two distinct populations of woodland caribou in Ontario. The forest-dwelling woodland caribou lives in the boreal forest all year. The forest-tundra woodland caribou lives on the tundra during the spring and summer and moves into the boreal forest for the rest of the year. Only the forest-dwelling woodland caribou is listed as a species at risk in Ontario.)