September 10, 2013

Endangered species lawsuit

By Andrew Reeves

A coalition of environmental groups are suing the Ontario government over the decision to "gut" the Endangered Species Act by exempting industry from many of the strictest protections for species-at-risk and their habitat.

Yet Natural Resources Minister David Orazietti disputed the claim, saying he expects the law will survive the legal challenge.

"We have gone to great lengths to ensure the fundamental principles of this legislation remains intact," he told QP Briefing Tuesday.

"I'm disappointed by their approach, but I believe we have very solid evidence that continues to ensure species-at-risk will continue to be protected and the more recent changes reflect a more effective approach to implementation and a much broader consensus of Ontarians."

Ontario Nature and the Wildlands League have hired Ecojustice to represent them in their case against the government over the implementation of Ontario Regulation 176/13. They argue the July 2013 change to the ESA made it easier for industry to acquire exemptions from aspects of the act which forbade the killing, harming or harassing of species-at-risk and their habitat.

Court documents obtained by QP Briefing argue the new regulation "runs contrary to the objects and purposes of the ESA, which are 'to protect species that are at risk and their habitats, and to promote the recovery of species that are at risk.'"

The suit - filed Monday with the divisional court of the Superior Court of Justice - is calling for a judicial review of the regulation. It also signals out what they allege is unlawful behaviour on the part of rookie Natural Resources Minister Orazietti.

In the media studio Tuesday afternoon, Ecojustice lawyer Anastasia Lintner told reporters the suit alleges Orazietti "failed to meet his own legal duties before recommending this regulation be made by cabinet".

"Specifically, we allege the minister failed to first assess whether the proposed regulation would jeopardize the survival of 155 species listed as threatened or endangered," she said. "He also failed to first assess if the regulation would have any other significant adverse effects on these listed species."

Ontario Nature's executive director Caroline Schultz told reporters the sweeping regulatory change is "environmental deregulation, pure and simple" as industry has been left to police itself because government oversight of potentially harmful industry practices has been dramatically weakened.

"Forestry wins the jackpot with a blanket five year exemption for an industry that affects over 40 million hectares of land in Ontario," she said.

"But forestry is not the only industry that gets off the hook with the new exemptions: others include mining, pits and quarries, hydro, wind power, subdivision development, road building, waste management and more."

Both Ontario Nature and Wildlands League recently put in months of work with MNR and other stakeholders on a panel convened to find a balance between the often competing interests of industry and conservation groups, and Schultz believes finding a balance is possible.

"The issues have been around how the act has been implemented by MNR, and when you're looking for real solutions to benefit endangered species and to minimize impacts on various industries, you have to have that kind of dialogue to come up with creative solutions," Schultz said.

"Yet we really haven't had a full crack at actually achieving that because the government was essentially full steam ahead towards implementing these exemptions.

Orazietti said he "categorically rejects" the allegations from Ontario Nature and Wildlands League that the regulatory change undermines protections for species-at-risk and is "disappointed with their negative course of action."

"We certainly did not rush to those conclusions," the minister noted. "We used scientific information we've got within the ministry and we took a lengthy period of time to review, analyse and evaluate to make sure our legislation balanced important priorities of all Ontarians."

But Wildlands League conservation director Anna Baggio told reporters Tuesday the government cannot be trusted with its own endangered species legislation, hence the lawsuit.

"Gutting a law and throwing endangered species under the bus, that's where we find ourselves today [and] that's why we are suing the government: when it turns its back on endangered species, we have no choice but to seek legal remedies in the court," she said.

Baggio praised the province for introducing the Endangered Species Act six years ago which became, for a time, the gold standard of protecting species-at-risk and their habitat. Recognizing there were "legitimate interpretation challenges with the act," many environmental organizations participated in the MNR panel in good faith to find a way to smooth the transition for industry.

"Unfortunately, what happened is they didn't take our advice. We offered solutions and they were rejected. They had a course that was totally on track for exemptions, it was all about exemptions."

"We ran into something called 'modernization of approvals,'" Baggio said. "For the last year and a  half this government has been on this track to modernize approvals and what that really means is how do they get approvals for industry faster and how do they save money."

Green Party of Ontario leader Mike Schreiner agrees.

"This is all about creating exemptions to put the private interests of industry ahead of the public interest of preserving our natural heritage," he said.

"The GPO sent thousands of petitions to the government as well as generating over 1000 letters to the premier opposing the way in which they gutted the ESA and they haven't listened."

"At some point, I understand why organizations have to take the action they've decided to take."

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