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The Endangered Species Act, 2007 is supposed to protect endangered species from extinction. Its first real test is scheduled to be heard in Divisional Court on September 16, over the Windsor-Essex Parkway and the Detroit River International Crossing.

The Ontario Government is determined to build a new bridge to the US, to reduce its dependance on the privately owned Ambassador Bridge. The proposed Detroit Bridge requires a new highway, the Windsor-Essex Parkway, through a biologically rich wetland. The highway successfully passed its Ontario and federal environmental assessments, “subject to all necessary permits”, despite the fact that seven endangered species lie in its path.

No one is allowed to destroy the habitat of an endangered species without a permit. Under the Endangered Species Act, the Minister of Natural Resources may issue the permit only  if he/ she is of the opinion that:

1. the proposed activities will result in a significant social or economic benefit to Ontario;

2. the proposed activities will not jeopardize the survival or recovery of the affected species in Ontario;

3. reasonable alternatives have been considered, including alternatives that would not adversely affect the species, and the best alternative has been adopted; and

4. reasonable steps to minimize adverse effects on individual members of the species are required by conditions of the permit.

In this case, the Minister issued permits that allow the destruction of this habitat, on the ground that the endangered species will be successfully moved to new habitat, and that its survival and recovery will therefore be unaffected. MTO has a contract with a highway construction consortium, requiring them to move the affected plants and animals. In the usual structure of a “public private partnership”, the consortium, in turn, may lay off the obligation onto a highway maintenance company. Thus, the paperwork will all look fine, and everyone will have someone to blame.

Unfortunately, it won’t work. Even the government’s own expert agrees:  all previous attempts to move at least two of these species have failed. They are not likely to survive having their habitat bulldozed this time either. When legal fiction meets reality, reality will win, and the endangered species will die. But by then the highway will be built.

Is that all this Act will do? Create an expensive sort of legal shell game while irreplaceable habitat is bulldozed? Would it be different if the affected species here were more photogenic, instead of snakes and plants? The Sierra Club has asked the Divisional Court for an emergency injunction, and to put some real teeth into the fine words of the Endangered Species Act. Ontario says it must urgently press ahead with construction, even though the US is not yet committed to building its part of the road.

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