Untimely Delays and Ineffective Legislation: Are Court-based Strategies the Answer to Saving Canada’s At-Risk Species?

By: Helen Willoughby

In September 2017, the World Wildlife Fund (WWF) released their Living Planet Report, which revealed that 50% of the monitored species in Canada are in decline.    



 The decline can partly be attributed to ineffective environmental laws which are designed to protect species at risk.  The WWF report uncovered that since Canada’s Species at Risk at Act (SARA) was adopted in 2002, the decline of at-risk species, such as the woodland caribou, has actually increased.[1]  Even though the caribou was listed as a threatened species in 2004, it was not until 2012 that the federal government fulfilled their legal obligation and released a recovery strategy.  The federal government delegated the bulk of responsibility to the provinces by requesting that they each develop their own caribou management plan.  In late 2017, Environment Canada published a progress report which revealed that none of the provinces had met the deadline for creating their recovery strategies.  In addition, the conservation organization, Wildlands League, also released a progress report which found that the caribou’s habitat remains unprotected on both federal and provincial lands.

After a species is listed as threatened or endangered, there are significant delays before action is taken as the governments neglect to adhere to the legislated timelines to establish recovery strategies.  To hold the Ontario government accountable, Ecojustice and Animal Justice are taking the Ministry of Natural Resources and Forestry (MNRF) to court.  They argue that the release of the recovery strategies for 37 species across Ontario has been unlawfully delayed, leaving vulnerable species without protection.  Section 11 of the Ontario Endangered Species Act (ESA) states the Minister "shall ensure" that recovery strategies are issued to the public within one year from the time of listing for endangered species and two years for threatened species.  In the case of some endangered species such as the northern bobwhite and the mountain lion, over 10 years have past and the recovery strategies have still not been released.



The Mountain lion (left) and the northern bobwhite (right) are both listed as endangered in Ontario (Source: Ontario.ca).


An explanation for Ontario’s delay in creating recovery strategies for at-risk species could be the close ties that the MNRF has with the resource development sectors, including oil, gas and forestry.  The Ministry mandate states that it is responsible for both protecting biodiversity and “promoting economic opportunities in the resource sector.”  Unfortunately, it is not uncommon for the interests of industry to be prioritized over those of at-risk species.  While the ESA was once considered the “gold standard” for conservation legislation, recent amendments show this is no longer the case today.  In 2013, the ESA was amended to include a regulation which allowed industries to carry out harmful activities on Crown land for a five year period.  This drastically weakened the legislation and ultimately undermined the ESA’s protection standards in the process.

Two environmental groups, Ontario Nature and Wildlands League, decided to challenge MNRF’s regulation and brought the case before the courts.  They argued that the regulation was inconsistent with the purpose of the Act which was designed to protect and enhance the recovery of species at risk.  The case was neither successful at the Ontario Divisional Court nor the Ontario Court of Appeal.  Consequently, the groups filed an application for leave to appeal at the Supreme Court of Canada (SCC), but their request was denied.  While the regulation was set to expire in July 2018, the MNRF plans to extend the regulation into 2020.  Thus, forestry projects on Crown land will continue to be exempted from certain key provisions of the ESA.  Over the next two years, MNRF intends to develop “a long-term approach that protects species at risk and their habitat and minimizes impacts to forest industry.”  Once again, the interests of industry appear to be prioritized over species at risk.


A Beacon of Hope

In order to conserve wildlife for future generations, it is imperative that delays in recovery strategies are eliminated and the legislation designed to protect at-risk species is strengthened and enforced.  The lack of funding for conservation initiatives has also presented a barrier to creating timely and effective recovery strategies.  To address this issue, the recent federal Liberal budget includes a $1.3 billion investment dedicated to expanding critical habitat and protecting at-risk species.  The investment demonstrates not only that the federal government is beginning to give at-risk species the attention they deserve, but also that the responsibility of advocating for these species does not rest solely on environmental organizations.  This is a significant first step that has the potential to positively impact the lives of many at-risk species across Canada.

[1] See page 7 & 13.

Helen Willoughby has just completed her second year of law school in Osgoode's J.D./Master of Environmental Studies program.