Endangered species have nothing to celebrate in Ontario

By Sarah McDonald The Laywers Daily

The need for strong legislation to protect and recover species at risk is evident in the context of the ongoing global biodiversity crisis. The world is currently losing species at an astounding rate.

Human-induced factors such as habitat loss, pollution and climate change are driving unprecedented numbers of species to extinction and causing catastrophic population declines among many others. In Ontario alone, there are more than 200 species at risk listed under the Endangered Species Act, 2007 (ESA).

As noted in a recent report released by the David Suzuki Foundation, Ontario Nature and Ecojustice, the Act celebrated its 10th anniversary in 2017. When the legislation was first passed in 2007, it seemed capable of providing the necessary protections for Ontario’s at-risk species. In fact, the ESA was widely lauded as the gold standard for species protection in Canada.

Some of the ESA’s most promising aspects include the following:

-a science-based approach to listing species at risk that gives final authority over the listing decision to an independent body of experts (the Committee on the Status of Species at Risk in Ontario).
-firm deadlines for the preparation of recovery strategies for listed species.
-automatic protection for the habitat of species listed as endangered or threatened.
-flexibility for landowners and development proponents in the form of permits that may be granted, under strict conditions, for activities that might harm at-risk species or their habitat.

However, a statute is only as strong as its implementation. And unfortunately, Ontario’s Ministry of Natural Resources and Forestry has utterly failed to implement the ESA in a way that will ensure the protection and recovery of the province’s most vulnerable species.

In fact, it has undermined the ESA’s effectiveness in a number of ways. The 2017 ESA report illustrates how the Ministry has systematically prioritized industry’s interests over the protection of species at risk when implementing this vital piece of legislation.

Two of the most flagrant examples of this troubling approach are regulatory exemptions and recovery strategy delays.

Regulatory exemptions

In 2013, the Ministry enacted a broad suite of regulatory exemptions from the ESA’s core prohibitions against harming species at risk and their habitat. The exemptions apply to a number of industries specifically listed in the regulation (General, O Reg 242/08), including forestry operations, hydroelectric generating stations, aggregate pits and quarries, drainage, early exploration mining and wind facilities. These are many of the most common industrial activities that harm at-risk species.

The exemptions function by allowing the listed industries to operate without applying for permits. Instead, development proponents are only required to register for an exemption. This creates a concerning lack of transparency because unlike permits, these registrations are not publicly available. Moreover, by removing the requirement to apply for a permit, the Ministry has surrendered its own authority under the ESA to refuse a project.

By far the most common type of permit issued under the legislation is an “overall benefit” permit. As the name indicates, this permit may only be issued when the minister is satisfied that the activity will result in an “overall benefit” to the affected species at risk. This may be achieved by, for example, requiring development proponents to create additional habitat for affected species.

By contrast, exempt industries are required only to minimize harmful effects on species at risk. This markedly lower standard significantly undermines the Ministry’s ability to promote the recovery of these species.

Recovery strategy delays

Recovery strategies are a vital part of the ESA’s scheme — they present science-based recommendations on protecting and recovering species and their habitats. Consequently, the ESA includes strict deadlines for their preparation. Recovery strategies must be completed within one year of listing for endangered species and within two years of listing for threatened species. Although the Act allows the minister to invoke time extensions in certain circumstances, her authority is limited by a number of mandatory conditions precedent.

Despite these concrete deadlines, as of August 2017, recovery strategies were overdue for 37 threatened and endangered species. In each of these cases, the minister has failed to fulfil the conditions precedent necessary to validly invoke a time extension.

Many of these delays are significant in length — in some cases, the Ministry has missed its deadline by more than seven years. As a result, Ecojustice lawyers filed an application for judicial review in September 2017, in an attempt to compel the minister to complete all 37 delayed recovery strategies.

Ecojustice firmly believes that a fully implemented ESA could provide effective protection for Ontario’s imperilled species. However, the Ministry has consistently demonstrated its willingness to promote industry’s interests over species protection. In the meantime, many of our species at risk continue to slide toward extinction. The Ministry must reverse this trend by prioritizing the protection and recovery of Ontario’s most vulnerable species.

Sarah McDonald is a staff lawyer with Ecojustice inToronto.