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ESA regulation legal challenge


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.

Osgoode Hall: site of the ESA trial, photo Noah Cole

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.

Concerned that the Act’s purpose will not be fulfilled as a result of regulation that we believe is unlawful, Ontario Nature and CPAWS-Wildlands League decided take the government to court.

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_profile_2015_2_v3_ndcJohn Hassell is the communications manager with Ontario Nature and editor of ON Nature magazine.


Top photo: Woodland caribou, photo credit: Bruce McKay


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  1. Robert Fraser

    As long as we elect government officials that have are in league or have Industry associations these officials will always go for were the cash is at the moment. They don’t have any interest in having a planet worth living on for any living thing except what benefits them and their business cronies in the short term.

    It’s Time to get Radical people if there is to be a future.

  2. Lynn Powley

    Thank you for fighting the good fight! I resent the fact that taxpayer money is spent on defending the changes to these laws that I believe the majority of residents would like to see enforced for the original intent ( saving endangered species).

  3. Otto Peter

    Well done John. I was totally surprised when I learned that Regulation 176 removed protection for over 2/3 of the Species at risk in the ESA. Guess we know that our provincial government along with all of the companies who lobbied for this change have absolutely no concern for the environment. Shame on them. Why bother to have the ESA at all?

  4. John Hassell

    Thanks for your comments everyone. It’s great to have your support with this court case.

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