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Environment (Ont) - Endangered Species Act (ESA). Ontario (Natural Resources and Forestry) v. Town of South Bruce Peninsula
In Ontario (Natural Resources and Forestry) v. Town of South Bruce Peninsula (Ont CA, 2022) the Court of Appeal (Pardu writing, two other judges concurring) considers the Endangered Species Act:(1) Interpretation of s. 10(1) of the Act
[24] I begin my analysis of the interpretation of s. 10(1) of the Act with the preamble to the legislation, which expressly sets out the goals the legislator hopes to achieve and the problems the legislation is designed to prevent:Biological diversity is among the great treasures of our planet. It has ecological, social, economic, cultural and intrinsic value. Biological diversity makes many essential contributions to human life, including foods, clothing and medicines, and is an important part of sustainable social and economic development.
Unfortunately, throughout the world, species of animals, plants and other organisms are being lost forever at an alarming rate. The loss of these species is most often due to human activities, especially activities that damage the habitats of these species. Global action is required.
The United Nations Convention on Biological Diversity takes note of the precautionary principle, which, as described in the Convention, states that, where there is a threat of significant reduction or loss of biological diversity, lack of full scientific certainty should not be used as a reason for postponing measures to avoid or minimize such a threat.
In Ontario, our native species are a vital component of our precious natural heritage. The people of Ontario wish to do their part in protecting species that are at risk, with appropriate regard to social, economic and cultural considerations. The present generation of Ontarians should protect species at risk for future generations. [25] From this preamble I draw the following:a. One of the goals of the legislation is to prevent the loss of species caused by human activities which damage the habitat of the species.
b. Measures to prevent significant reduction or loss of biological diversity should be undertaken even where full scientific certainty is not present.
c. The goal is to prevent damage to avoid or minimize threats to endangered species.
d. Species at risk should be protected, with appropriate regard to social, economic and cultural considerations. [26] “Habitat” is defined in s. 2(1) to mean “an area on which the species depends, directly or indirectly, to carry on its life processes, including life processes such as reproduction, rearing, hibernation, migration or feeding”.
[27] Section 10(1) prohibits the damage or destruction of the habitat of a species that is listed on the Species at Risk in Ontario List as an endangered or threatened species. It is common ground that the Piping Plover is such an endangered species.
[28] Section 17 of the Act provides that the Minister may issue a permit authorizing a person to engage in activity that would be otherwise prohibited by s. 10. At the time the charges in this matter were laid, the Minister could issue a permit under this section only if:(a) the Minister is of the opinion that the activity authorized by the permit is necessary for the protection of human health or safety;
(b) the Minister is of the opinion that the main purpose of the activity authorized by the permit is to assist, and that the activity will assist, in the protection or recovery of the species specified in the permit;
(c) the Minister is of the opinion that the main purpose of the activity authorized by the permit is not to assist in the protection or recovery of the species specified in the permit, but,(i) the Minister is of the opinion that an overall benefit to the species will be achieved within a reasonable time through requirements imposed by conditions of the permit,
(ii) the Minister is of the opinion that reasonable alternatives have been considered, including alternatives that would not adversely affect the species, and the best alternative has been adopted, and
(iii) the Minister is of the opinion that reasonable steps to minimize adverse effects on individual members of the species are required by conditions of the permit; or (d) the Minister is of the opinion that the main purpose of the activity authorized by the permit is not to assist in the protection or recovery of the species specified in the permit, but,(i) the Minister is of the opinion that the activity will result in a significant social or economic benefit to Ontario,
(ii) the Minister has consulted with a person who is considered by the Minister to be an expert on the possible effects of the activity on the species and to be independent of the person who would be authorized by the permit to engage in the activity,
(iii) the person consulted under subclause (ii) has submitted a written report to the Minister on the possible effects of the activity on the species, including the person’s opinion on whether the activity will jeopardize the survival or recovery of the species in Ontario,
(iv) the Minister is of the opinion that the activity will not jeopardize the survival or recovery of the species in Ontario,
(v) the Minister is of the opinion that reasonable alternatives have been considered, including alternatives that would not adversely affect the species, and the best alternative has been adopted,
(vi) the Minister is of the opinion that reasonable steps to minimize adverse effects on individual members of the species are required by conditions of the permit […]. [29] The statutory regime creates an absolute prohibition against damage to the habitat of an endangered species but allows the Minister to permit some intrusion where the public interest so requires. The prohibitions are broad, but the exceptions authorized by the Minister are the vehicle through which other social and economic needs are recognized: Wildlands League v. Ontario (Natural Resources and Forestry), 2016 ONCA 741, 134 O.R. (3d) 450, at para. 92.
[30] The Act should be given a generous interpretation in light of its remedial nature and its objective of environmental protection. As noted by the Supreme Court in Castonguay Blasting Ltd. v. Ontario (Environment), 2013 SCC 52, [2013] 3 S.C.R. 323, at para. 9:[E]nvironmental protection is a complex subject matter — the environment itself and the wide range of activities which might harm it are not easily conducive to precise codification. As a result, environmental legislation embraces an expansive approach to ensure that it can adequately respond to a wide variety of environmentally harmful scenarios, including ones which might not have been foreseen by the drafters of the legislation. Because the legislature is pursuing the objective of environmental protection, its intended reach is wide and deep.
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