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Ecojustice, Ontario Nature and the Wildlands League have launched a lawsuit against the Ontario government protesting a lengthy set of exemptions given to businesses under Regulation 242/08 of the Endangered Species Act. The industries that received exemptions include agriculture, forestry, energy transmission, housing, oil and gas pipelines, mineral exploration, mine development, transit and wastewater management companies. 

For example, bobolinks and meadowlarks are musical birds in terrible trouble, precisely because of the frequent destruction of their habitat by agriculture. Haying times that are best for farmers are often the times most destructive for bobolinks and meadowlarks. Since July 1, 2013, farmers have been freely permitted to kill, harm or harass these birds, and to destroy their habitat, in the course of any agricultural operation. Good news for farmers, I presume; very bad news for meadowlarks and bobolinks. To win this legal challenge, Ecojustice will have to persuade the courts that governments cannot make policy decisions, for political and economic reasons, that increase the danger to endangered species that they said they would protect. Is this the type of decision that courts will prevent politicians from making? And if so, should they?

The Ontario government presumably decided to weaken the Endangered Species Act in order to increase its chances of surviving the next election. It is already facing substantial anger in many rural areas over the Green Energy Act. If Tim Hudak’s Conservatives were to win the next election, they are certainly no friends of the Endangered Species Act; what would happen to the Act and its regulations then?

This lawsuit is an honourable attempts by good people to do the right thing against long odds, and to stand against the long slide of environmental destruction. I admire them, and I support them. But would judges make better decisions on these types of public interest and policy questions than governments?

Here is Ecojustice’s press release:

“Environmental groups sue Ontario government
over decision to gut species at risk legislation

New regulation permits industry to ignore Act’s main purposes

September 10, 2013

TORONTO—Environmental groups are suing the Ontario government for its decision to exempt major threats to species at risk from the province’s Endangered Species Act (ESA).

Ecojustice lawyers, acting on behalf of Ontario Nature and Wildlands League, have filed a lawsuit in Divisional Court alleging that the Ontario government acted unlawfully by making a regulation that undermines the ESA.

Ontario Regulation 176/13, which came into force under the ESA on July 1, 2013, is a tremendous blow to species protection. The new regulatory changes harm species by allowing major industries — including forestry, energy transmission, housing, oil and gas pipelines, mineral exploration and mine development, transit, wastewater management companies — to avoid strict standards intended to protect at-risk species and their habitats.

“With this regulation, the Ontario government has failed to deliver on its promise to defend endangered species and undermined the role of the legislature by amending the Act through regulation,” said Anastasia Lintner, staff lawyer for Ecojustice. “The best way to safeguard at-risk species is to enforce the ESA as intended.”

The lawsuit is based on two main grounds:

  1. The regulatory exemptions undermine the ESA’s very purposes, which are “to protect species that are at risk and their habitats, and to promote the recovery of species at risk.”
  2. The Minister of Natural Resources, David Orazietti, failed to consider the impacts of the regulations on each of the 155 species listed under the Act as either endangered or threatened before recommending that the regulations be made by Cabinet.

“The government has abandoned Ontario’s most imperilled wildlife, reneging on its promise to give these species the protection they desperately need,” said Caroline Schultz, executive director at Ontario Nature. “Our once gold-standard law has been tarnished beyond recognition.”

Sections 9 and 10 of the ESAprohibit harm to species at risk and their habitat without Ministry approval or specific exemption. This new regulation circumvents the approval process and allows large industrial sectors to act without Ministry oversight and to focus on mitigating harm instead of protecting at-risk species.

“This is an act of desperation, changing the law so that it protects industry instead of at-risk animals and plants,” said Anna Baggio, Director Conservation Planning for Wildlands League. “I thought we had moved past the old Joni Mitchell song. We can’t support a government that would pave paradise to put up a parking lot,” Baggio added.

Some of Ontario’s 155 at-risk species threatened by the regulation include the American Eel, Blanding’s Turtle, Lakeside Daisy, Eastern Hog-nosed Snake, Acadian Flycatcher and the iconic Woodland Caribou.

Ecojustice is Canada’s legal champion for a healthy environment. We set precedents and strengthen the law, to protect the environment both today and for all time (see ecojustice.ca).

Wildlands League is a leading conservation organization in Ontario.  We protect wilderness through the establishment of protected areas and through the promotion of natural resource use that is sustainable for nature, communities, and the economy (see wildlandsleague.org).

Ontario Nature protects wild species and wild spaces through conservation, education and public engagement. Ontario Nature is a charitable organization representing more than 30,000 members and supporters and 140 member groups across Ontario (see ontarionature.org). 

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