It is not easy to sit quietly in court while the opposing side takes a sledgehammer to your core values. For instance, as long as an endangered species doesn’t disappear from Ontario altogether, then Cabinet is free to approve any regulation it chooses under the Endangered Species Act (ESA). Recovery and benefit to the species be damned. As long as the minister formed an opinion, that’s all we are entitled to know – not how the opinion was arrived at. Transparency and process be damned.
These were not the arguments of forestry or mining companies. This was from the government lawyers. That’s right, lawyers representing Cabinet and the Minister of Natural Resources and Forestry, at the ESA hearing on January 15. They were doing their utmost to justify reducing the ESA to ashes.
At issue is Ontario Regulation 176/13, which came into effect on July 1, 2013. This regulation guts the ESA from the inside by allowing a broad suite of industries to sidestep legal restrictions on activities that harm plants and animals at risk of extinction. Logging, mining, hydro, oil and gas pipelines, energy transmission projects and more now operate under much looser rules and far less government oversight when they kill at-risk species or destroy their habitats. For a full account of this sad story, read the Environmental Commissioner’s special report.
The core purpose of the ESA is to protect and recover at-risk species. Our Ecojustice lawyers demonstrated that the new regulation fundamentally undermines that core purpose. In effect, it turns the ESA on its head, altering a fundamental presumption of protection for species to a presumption of permission for industry. The tail is wagging the dog.
This is not nibbling at the edges. It’s a comprehensive change to the law – which is something that only the Legislature, not Cabinet, is allowed to do.
It’s deeply frustrating to hear government lawyers concede in court that the law requires a species-by-species impact analysis, yet contend that they don’t have to prove it was done or explain how. Was the “Minister’s determination” thorough? None of your business. I’m reminded of the grade-school retort “because I said so.” No justification needed.
This case directly affects the 155 species that the government determined are in danger of becoming extinct or disappearing from Ontario. Species like the woodland caribou, Blanding’s turtle and lakeside daisy hang in the balance. We eagerly await the judges’ decision.
John Hassell is the communications manager with Ontario Nature and editor of ON Nature magazine.
Top photo: Woodland caribou, photo credit: Bruce McKay