Law Times

Page 10 FOCUS November 18, 2013 Law Times • Groups face 'uphill battle' in endangered species litigation BY CHARLOTTE SANTRY Law Times T he environmental groups suing the Ontario government over changes to the Endangered Species Act know they face a tough legal fight. "Challenging government decision-making is always an uphill battle," says Anastasia Lintner, a lawyer at Ecojustice, the organization applying for judicial review on behalf of the Wildlands League and the Federation of Ontario Naturalists. They hope to defend what they see as the original intentions of the legislation emphasizing that the protection of endangered species should take precedence over other interests. The government changed the act through amendments to Regulation 242/08 that came into effect in July. These changes exempt several industries from the sections of the act that prohibit the killing, harming, and harassing of endangered species and the damage or destruction of their habitat. The industries include agriculture, forestry, energy transmission, housing, oil and gas pipelines, mineral exploration, mine development, transit, and waste water management companies. There are 215 species listed under the act, and the appellants argue the regulatory changes would put several of them at increased risk, including woodland caribou, American eels, eastern hog-nosed snakes, Blanding's turtles, lakeside daisies, and Acadian flycatchers. For example, the new regulation exempts forestry companies from the act until 2020 and permanently excludes early mining exploration activities that the applicants claim will lead to a continued decline in the woodland caribou. The caribou, of which there are around 5,000 in Ontario, have already lost about half of their historic range and could disappear from the province by the end of the century, according to the applicants. Ecojustice provides free legal services to organizations involved in the environmental movement. Lintner says her clients' decision to sue wasn't an easy one. "These particular clients try really hard to work with government and find solutions. They didn't take the decision to litigate lightly," she says. "They definitely believe that it's possible to make regulations that are good for species and the economy," she adds. The legal action seeks a declaration that the minister of natural resources erred in law by failing to fully consider whether the change would jeopardize the survival of a species. Under s. 57 of the act, the minister has a duty to weigh the issue before recommending the regulation, the notice of application states. Lintner says: "We wrote to the minister asking for this record of decision back in February or March. By the time the regulation had come into force, we'd still received no response. "Since the regulation came in, we've received a letter saying the duties had been met." But the government provided no documents to prove it had satisfied the legislative duties, she adds. Paula Boutis, senior associate at environmental boutique Saxe Law Office, says the act requires the minister to publish the opinion of an independent expert as part of the public consultation but notes that doesn't appear to have happened. "If the minister didn't do what he was supposed to do, I think they [Ecojustice] have a very good case," she says. The judicial review application also calls for a declaration that Regulation 176/13, which amends Regulation 242/08, is "inconsistent with the objects and purposes of the [act]." It states: "It is not a purpose of the ESA to promote industrial, infrastructure or development sectors. . . . Rather, the ESA is intended to prioritize the protection and recovery of species at risk over other interests." That issue is a more difficult one to argue, says Boutis. "It's almost impossible to interfere with the government's regulatory ability to legislate," she says, adding it's clear in the act that socio-economic factors may also contribute to decisions. She draws a parallel with a 2011 case, Canada v. Canadian Transit Co., in which an environmental group applied for a judicial review to set aside an environmental assessment of a proposed bridge between Windsor, Ont., and Detroit. Construction could have adverse effects on two species of snake and an endangered plant, and the decision had breached the Canadian Environmental Assessment Act, the applicant suggested. The court dismissed the application. In the case of the Endangered Species Act, the government has justified the changes by saying they would allow for "more efficient" implementation of the legislation while continuing to protect species at risk and their habitats. The regulatory notice, posted on June 14, 2013, adds: "Individuals and businesses engaged in eligible activities will no longer need to apply for and obtain approval but will be required to follow the rules in regulation, and in most cases to register their activity with [the ministry]." Boutis believes much of the motivation for the change was a "backlash" from politicians over an "unpopular" act opposed by many developers, farmers, and industry groups. A ministry spokeswoman said she couldn't comment on the specific allegations in the claim as it's before the courts. But she added: "We are streamlining rules for landowners, municipalities, and businesses while continuing to protect endangered species. "Our approach to compliance will not change. Individuals and businesses will continue to be responsible for putting measures in place to ensure species at risk are protected. The ministry will continue to ensure compliance through monitoring and auditing, as well as through education and outreach activities." LT Since the early days of digital research, the way legal professionals search for and consume information has changed. Today, it's changing again. Because you asked us for change. The kind that not only recognizes you, the legal professional, but also you the person. The kind that inspired us to create a more you-centric legal research system that's smarter, faster, more precise – and now more intuitive. In other words, more of what you need. Introducing the new Westlaw Canada. It's a dramatic milestone in the history of legal research. One that delivers the superior support and tools you've been looking for. Some time ago, legal reSearch went digital. today, it goeS human. Now, finding the legal information you need is as easy as searching for it the way you say it. 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