This is the only reasonable conclusion I can come up with after listening to Ontario’s lawyers in court late last week defend a regulation (O Reg 176/13) that exempts almost all industrial activities from the core protections of the Endangered Species Act(ESA).
After seven years this is what we know: not one of Ontario’s more than 150 threatened and endangered species enjoys the full protections of the ESA as it was originally intended. Not one. Not the caribou. Not the eel. Not the dusky salamander. Not the flycatcher. Not the badger. Not the chubsucker (sucker!). Not the f. toad. Not the stinkpot. Not the warbler. Not the toothcup…
Ontario has fallen far from the heady days of 2007 when the Endangered Species Act was first enacted. Back then, the Act was intended to be guided by a “presumption of protection.” It was celebrated as the gold standard. Today it is guided by a “presumption of permission,” meaning industrial activities go forward as a matter of course and, as long as certain conditions are met, proponents can violate the core protection provisions of the ESA (to not kill species or destroy their habitats).
Ontario might as well change the name of the Act to The Endangered Isn’t Enough Act because as we saw in court only when species are critically imperiled, reduced to a few occurrences and its habitat thoroughly decimated — uber-endangered — then that’s when they’ll maybe consider giving protections as per the Act’s original intentions but only in specific cases and not as a general rule.
A more accurate title for the Act now might also be The We Kill Them Less Act. Ontario argued that it doesn’t always have to protect and restore species as per the purpose of the Act. The regulation is fine because among other things it is does not jeopardize the survival of the species in Ontario. That might be an okay standard for weedy species that are not at risk like dandelions and deer but when we are already talking about imperiled wildlife it falls woefully short. The lofty purposes of the Act around protecting and restoring species have been stealthily replaced in practice with ‘kill them less’.
It seems the province has written off recovering at-risk wildlife in Ontario and abdicated its responsibilities. The heart of this whole mess is a regulation that has inverted the protections intended for species. It has created a sweeping parallel exemptions regime where a presumption of permission has taken hold. It has a different purpose than the Act’s purpose and has far reaching negative implications. In our view, it is unlawful.
With the help of Ecojustice, Canada’s legal champions, Wildlands League and Ontario Nature mounted a challenge last week. We are small conservation charities with biologists, forest experts, and lots of passionate, committed people representing thousands of volunteers and other folks who care deeply about wildlife and the planet. Last week we were the last line of defence for vulnerable wildlife. We knew it was going to be an uphill battle but we did it. We stood in front of the metaphorical bulldozer and spoke for the at-risk trees and all the critters that hang precariously in the balance. Our Ecojustice lawyers did a helluva job. Now we wait as the Justices deliberate.