The Ontario Government released its budget on March 27, 2012. In it, it stated the following:
Ministry of Natural Resources Transformation
To enable the Ministry of Natural Resources to transform the stewardship and conservation of Ontario’s natural resources in the most fiscally responsible way, the ministry is proposing to:
- transform key parts of its legislation, regulations, policies and guidelines with a view to streamlining and automating permitting processes and requirements;
- conduct resource management with a stronger regional focus and fewer field offices; and
- redesign its science and delivery activities to shift away from a species-by-species approach to a risk-based ecosystem/regional approach.
The Province is proposing amendments to the Endangered Species Act that maintain its commitment to protecting species at risk while streamlining approvals and permitting.
Earlier this year, we wrote about Sierra Club Canada’s application in the courts challenging the first permit issued to harm species at risk and/or their habitat under the Endangered Species Act (Act) After a loss at the Divisional Court, Sierra Club Canada sought leave to appeal to the Court of Appeal, which was denied.
As counsel for Sierra Club Canada, I had an in‑depth look at how the first permit was issued to harm species or their habitat for the Windsor Essex Parkway (WEP). I can certainly attest to the fact that a lot of work was done by the Ministry of Natural Resources in “going through the process” required by the Act; but it was Sierra Club Canada’s conclusion, that when viewed objectively, one would be hard pressed to say that there would be no jeopardy to the recovery or survival of certain of the species at risk affected by the WEP, as the Endangered Species Act requires. In particular, this was Sierra Club Canada’s view for three species affected by the project, Eastern Foxsnake (Carolinian Population), Butler’s Gartersnake, and Colicroot, a plant species.
Between granting the permit and the project proceeding, Butler’s Gartersnake was elevated from threatened to endangered. This necessitated a new permit to allow the destruction of the habitat of that species, as well as to harm individuals of the species. The Ministry of Transportation therefore made a second application for another permit under the Act.
The Act requires the Minister of Natural Resources to obtain opinions from experts independent of the project to provide an opinion related to the jeopardy of the survival or recovery of the species that would be impacted by the WEP.
In the first permitting round, the Minister received two conflicting opinions related to Butler’s Gartersnake: one (pdf) indicated there would be jeopardy, while the other (pdf) indicated there wouldn’t be jeopardy.
In the second permitting round, the Minister received another opinion that Butler’s Gartersnake would be jeopardized. Nonetheless, the Minister’s opinion was that it would not be jeopardized, and the second permit was issued.
Ultimately, the Divisional Court has pronounced in law that the Minister does not need to base his or her opinion on the expert advice received. The Court held that the Minister’s decision to issue the permit was one of public policy, rather than one based on science and species protection. The precautionary principle was only a consideration.
As it stands the fundamental purpose of the Act, which is to protect species at risk, cannot be achieved if permitting decisions are ultimately relegated to “policy” questions and the independent expert opinions are irrelevant. The government clearly made a policy decision that the WEP needed to go ahead, even if jeopardy to the recovery or survival of certain species was likely. While it seems that the Ministry of Transportation and the Ministry of Natural Resources will try to do everything possible to avoid this outcome, the science indicates that in fact, nothing could realistically be done for some of the species, best efforts (and significant amounts of money thrown at the problem) notwithstanding. The efforts are a waste of taxpayer dollars.
The government’s proposed amendments to move away from protection of individual species to an ecosystem approach is entirely consistent with how it approached the permit challenged by Sierra Club Canada for the WEP. The environmental community has opposed the ecosystem approach as unworkable for species at risk, as the data indicates that multi‑species approaches are significantly less effective than single species approaches.
From the perspective of Dan McDermott, Sierra Club Ontario Chapter Director, “the McGuinty Government’s political will to protect species at risk was suspect before this budget. Now it can be said to have evaporated.”
UPDATED March 30: Edited to remove an inaccuracy.