Ontario Nature’s fight to uphold the Endangered Species Act

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At MVFN’s November meeting, Dr. Anne Bell of Ontario Nature spoke about the uphill battle to protect Ontario’s Endangered Species Act. Photo by Pauline Donaldson.

By Gretta Bradley, MVFN Program Chair

Dr. Anne Bell, Director of Conservation and Education for Ontario Nature, and guest speaker at the Mississippi Valley Field Naturalist lecture series; “Naturally Special Places” spoke in November on the topic “On Guard for Nature: Ontario Nature’s Fight to Uphold the Endangered Species Act”. Ontario Nature’s stated mission is to “protect wild species and wild spaces”. Constant vigilance of the Province’s efforts to implement the Endangered Species Act (ESA) has occupied a significant part of the organization’s resources. Dr. Bell warned that, unfortunately, according to the 2015 report on Ontario’s Biodiversity Strategy, progress to date is not encouraging. There has been no improvement for more than two-thirds of Ontario’s species at risk. Forests and wetlands along with 22% of Ontario’s species at risk are in decline and some of our rare ecosystems are without protection.

Dr. Bell pointed to poor implementation of the ESA as a contributing factor. The government ministry responsible for the ESA, the Ministry of Natural Resources and Forestry (MNRF), has been cited in a recent report released by Ontario’s Environmental Commissioner (ECO), as just “going through the motions”. The ECO called for meaningful enforcement of the ESA for the protection of our most vulnerable species.

Before launching into the main topic of her talk, Dr. Bell wanted us to know that going to court is a last resort for Ontario Nature. Typically, they fulfill their mission through conservation, education and public engagement. They own and manage 24 nature reserves. They promote citizen science by engaging hundreds of volunteers to gather information on Ontario species. They work with farmers, aggregate producers, and forestry companies etc. to promote sustainable business practices. Ontario Nature also engages youth through their Youth Summit for Biodiversity.

Dr. Bell pointed out that it is their role as environmental watchdog, promoting the creation of strong laws, policies and regulations that sometimes takes Ontario Nature into the courtroom. In 2007, the Ontario government passed what would be the gold standard of legislation for the protection of endangered species, the Endangered Species Act. Unfortunately, in 2012, the government brought forward an omnibus budget bill that contained amendments that would significantly weaken the ESA. However, mobilizing their Nature Network members and many other environmental groups resulted in the government deciding to remove the amendments from the 2012 budget bill.

The victory was short lived as the Ministry of Natural Resources and Forestry circumvented the process that required the approval of the Ontario Legislature by putting forward a regulation under the ESA requiring Cabinet approval only. The regulation hobbles the effectiveness and contradicts the very intent of a law passed by our elected representatives. Harmful industrial activities have exemptions from its provisions in the forestry, early mining exploration, aggregates, hydro, wind facilities, drainage works, infrastructure, and residential and commercial development sectors. Additionally, it sets a lower standard of protection and drastically reduces government oversight of activities harmful to vulnerable species.

Unwilling to stand on the sidelines, Ontario Nature with CPAWS-Wildlands League found themselves in court. The outcome they sought was to have the regulation deemed illegal and of no force and effect. Ontario Nature’s lawyers would argue that a regulation couldn’t be inconsistent with the object and purpose of its enabling statute. The intent of the ESA is to protect and recover species at risk. The intent of the exemption regulation according to the MNRF appears to be increasing administrative efficiency and reducing burdens on businesses engaged in activities that might harm species at risk and their habitats. Additionally, Ontario Nature argued that the Minister failed to fulfil a legal requirement to determine whether the regulation would have a significant adverse effect on each the 155 species that would be impacted by the regulation before recommending it to Cabinet.

In the end, the court agreed with the government’s arguments that the Minister did not need to consider impacts of the proposed regulation on individual species, and that the purpose of the Act included the promotion of economic development.

Bloodied but not down, Ontario Nature recently won the right to appeal the decision, something that has never been granted to any environmental group with respect to the ESA. The Ontario Court of Appeal is expected to hear the case spring or summer of 2016.

WHAT CAN YOU DO TO HELP?

 Support conservation work for species-at-risk: become informed about local endangered species, write to Provincial and Federal MP’s about legislation for species-at-risk, and consider becoming a member of Ontario Nature to support their work and receive Action Alerts on key issues when there is an opportunity for the public to comment. Often comments can be made directly to the Environmental Commissioner of Ontario on notices posted on Ontario’s Environmental Registry at http://www.ebr.gov.on.ca/ERS-WEB-External/