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The Superior Court won’t stop Ontario from driving the Windsor-Essex highway through Canada’s largest remaining tall grass prairie ecosystem, despite the endangered and threatened species that live there. Why? The onus of proof. No one knows whether the government’s mitigation efforts will work; after all, all previous attempts have failed for at least three of the endangered species. But no one can prove that the new attempt won’t work, either.

That was good enough for the judge, but it makes a mockery of the Endangered Species Act. By the time the government’s plan can be proven not to work, the highway will be built, and the irreplaceable habitat (and perhaps the entire species) will be gone. This was precisely the same justification used to allow Imperial Oil to rip up the habitat of the endangered yellow rail to build the Kearl oil sands mine- we’ll figure out a solution for them later, said Imperial. Click Swinton decision to read the decision.

The Sierra Club Canada comments:

An Ontario court today rejected an Ontario Government motion to dismiss Sierra Club Canada’s application for a Judicial Review of the Ministry of Natural Resources (MNR) decision to grant a permit under the Endangered Species Act (ESA) allowing construction of the Windsor Essex Parkway (WEP). WEP is being planned as the Ontario connection to the proposed $5 billion Detroit River International Crossing (DRIC) project that envisions a new Windsor-Detroit bridge to service vehicle traffic that has been in decline since 1999, two years before 9/11. The DRIC proposal has not been approved by the State of Michigan.

WEP is slated to go through the Ojibway complex, Canada’s largest remaining tall grass prairie ecosystem, threatening eight species at risk. The MNR permit essentially waives the provisions of the ESA citing “social or economic benefit” as the justification.

In her decision today, Madam Justice Katherine Swinton also rejected Sierra Club’s application for an injunction to halt pre-construction work related to WEP citing two reasons: failure to demonstrate “irreparable harm” on the basis that there was no evidence that the mitigation methods for the species at risk were inadequate.  “We are very surprised by the court’s finding on this point,” stated Dan McDermott, Sierra Club Ontario Director.  “The Minister’s own expert reports, which were before the court, specifically indicate that the measures were untested and unproven with respect to at least three species.  One expert noted that the mitigation method for the endangered species Eastern Foxsnake amounted to ‘a lofty goal without precedent’ ”.

The court also held that the “balance of convenience” favoured the government.

Sierra Club contends that the decision fails to take into account the precautionary principle and species preservation should have taken precedence in this process. “MNR’s decision to aggressively pursue construction of the Windsor Essex Parkway, when the Michigan State Legislature has not approved the DRIC, and may never approve the DRIC, is not only a reckless use of tax payer money, but effectively amounts to the Ontario Government deciding to waive its own Endangered Species Act”, stated Dan McDermott. “We are disappointed that the court did not grant our injunction to stop work on the Parkway and preserve endangered species habitat.”

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