TORONTO — National animal law organization Animal Justice, represented by Ecojustice lawyers, is taking legal action to force Ontario Minister of Forestry and Natural Resources Kathryn McGarry to issue recovery strategies for 37 species listed under the Endangered Species Act (ESA).
The mountain lion and Northern Bobwhite, both listed as “endangered” since the ESA became law in 2008, are among the 37 species left in the lurch due to the Minister’s inaction, the group says.
“The Minister’s unlawful delays have left dozens of vulnerable species without the protection they are supposed to have under the law,” said Nick Wright, Animal Justice’s founder and board chair. “More than 10 years have passed since the mountain lion and Northern Bobwhite were listed as endangered. And let’s be clear, endangered means that a species is facing imminent extinction or extirpation.”
A review by Ecojustice found that the Minister has repeatedly violated section 11 of the ESA, which requires the Minister to issue recovery strategies within one and two years of a species being listed endangered or threatened, respectively.
In many cases, such as that of the mountain lion, the Minister has simply, and unlawfully, allowed deadlines to pass by — effectively leaving the vulnerable species with minimal legal protections indefinitely.
In other instances, the Ontario government has delayed protection for endangered and threatened species by hinging its recovery strategies to the federal government’s protection efforts, even when the latter has done little or nothing to protect the species. For example, the Minister has dithered on her legal obligation to deliver a recovery strategy for the threatened black redhorse — a large river fish — since 2008, stating that she wishes to do so cooperatively with the federal government. But her reasoning is nonsensical given that the federal government decided a decade ago, in 2007, not to protect the species.
Likewise, for the Northern Bobwhite, the Minister has chosen not to issue Ontario’s recovery strategy, and has instead taken a back seat to the federal government which she claims is “leading the development of recovery strategies”. Trouble is, the federal government’s legal deadline to issue a recovery strategy for this endangered bird expired in 2006 — 11 years ago. Thus when the Minister says that the federal government is “leading”, what she appears to suggest is that where the federal government is willing to break the law, Ontario is willing to follow.
“The Ministry’s use of the ESA’s flexibility provisions is dubious,” said Amir Attaran, lawyer with Ecojustice’s law clinic at the University of Ottawa. “The province says it wants to cooperate with the federal government, but the nature of these delays has left us wondering if this is cooperation or a conspiracy to break the law.”
The Environmental Commissioner of Ontario has criticized the government for failing to implement the ESA effectively. In a 2013 report entitled Laying Siege to the Last Line of Defence, the Commissioner noted a “disturbing trend” of the Ministry of Natural Resources “using the ESA’s flexibility provisions to permit broad, open-ended extensions on the development of recovery strategies.” The Commissioner went on to write that the Ministry appeared “comfortable using flexibility provisions not in exceptional circumstances, but as a matter of practice.”
“Ontario touts the ESA as the most progressive endangered species law in North America,” said Attaran. “The Minister’s foot-dragging has rendered this legislation a paper tiger — or in this case, a paper mountain lion — so we’re taking her to court.”
Animal Justice leads the legal fight for animals in Canada. Our lawyers work to pass strong new animal protection legislation, push for the prosecution of animal abusers, and fight for animals in court.
Ecojustice, Canada’s largest environmental law charity, uses the power of the law to defend nature, combat climate change and fight for a healthy environment for all.
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