Environmental groups will get a second chance to try to strike down regulations that weakened Ontario’s protections for endangered species and their habitat. Ecojustice, the Ontario Federation of Naturalists and the Wildlands League have obtained leave to appeal to the Court of Appeal.
In 2013, a regulation under the Endangered Species Act (“ESA”) introduced a complex series of exemptions and “permits by rule” for major industries (including residential development, forestry, and mining). The changes are part of a government-wide shift from individualized permitting to including a “rules-in-regulation” option. The idea is to reserve individualized permitting for complex cases; routine applications with routine, low risk and predictable impacts will not need prior permission if they register and commit to follow the same standard rules that would have been put in their permit anyway.
When it works, such a shift can reduce unpredictability and delay, save and focus government resources, and create a more level playing field by imposing the same conditions on everyone. But those advantages depend on not throwing the baby out with the bathwater. Are the “permit by rule” activities really low risk and predictable? Are they carefully defined? Are the standard rules as demanding as a permit would have been, and only available when a permit would have been issued? Are the rules equally enforced? Or does the shift simply allow industry to bulldoze their way through endangered species and their habitat?
In this case, Ecojustice, the Naturalists and Wildlands League argue that the endangered species regulation severely weakened the protection that endangered species actually receive in Ontario. They say that the regulation was therefore ultra vires (i.e., invalid) because it was inconsistent with the purposes of the ESA and because in making it, the Minister of Natural Resources failed to comply with a statutory condition precedent.
An Ontario Divisional Court decision upheld the regulation. However, the environmental groups will now have the opportunity to try again, having successfully obtained leave to appeal to the Court of Appeal for Ontario. They say will be the first time that the Ontario Court of Appeal hears a case on endangered species, or on the ESA, brought by environmental groups.