Parkway important test case for Endangered Species Act
In May 2011, the Divisional Court heard arguments from counsel for Sierra Club Canada (Sierra Club) and the Ontario government regarding the Minister of Natural Resources' controversial decision to issue a permit under the Endangered Species Act, 2007, in February 2010. To our knowledge, this is the first judicial review application of an ESA permit since the legislation was overhauled after lengthy public consultations between 2005 and 2007.
The Ministry of Transportation required the permit for the Windsor-Essex Parkway, a dedicated 11-kilometre access highway for the Detroit River International Crossing project, a proposed international crossing for Windsor and Detroit.
Under subsection 17(2)(d) of the ESA, permits can be granted to overcome species harm and/or habitat destruction prohibitions where the main purpose of the activity is not to assist in the recovery or protection of protected species. However, a number of conditions must be met before a permit can be issued. These include the following:
(1) The Minister must be of the opinion that the project will have significant social or economic benefit to Ontario.
(2) The Minister must have consulted with an independent expert who must provide an opinion in writing on the possible effects of the project on the affected species, and whether there will be jeopardy to the survival or recovery of that species.
(3) The Minister must be of the opinion that there will not be jeopardy to the recovery or survival of the affected species.
The WEP will affect at least eight species at risk. When the permit was sought in 2009, one of those species, the Eastern Foxsnake (Carolinian population), was listed as endangered, and the remaining seven were listed as threatened. The threatened species included the Butler's Gartersnake and one plant, Colicroot. Butler's Gartersnake has since been elevated to endangered.
Sierra Club sought judicial review of the Minister's decision in August 2010. One of the key arguments made by Sierra Club was that the precautionary principle should be applied when the Minister makes decisions interpreting this section of the ESA, consistent with the goals and preamble of the ESA and with Canada's international treaty obligations.
Sierra Club argued that the Minister failed to both properly interpret and apply the precautionary principle to her decision regarding jeopardy, since the mitigation methods for the snake species were likely to fail, and the mitigation methods proposed for Colicroot had never worked.
Sierra Club took the position that important knowledge gaps needed to be filled and minimal benchmarks for success were required as terms of the permit to avoid jeopardy for these species, and that the Minister therefore both improperly interpreted and applied the precautionary principle when she approved the permit, making her decision either wrong in law, or unreasonable.
Sierra Club further argued that while normally considerable deference is granted to a discretionary Ministerial decision, this was tempered significantly by the precautionary principle and the fact that the primary evidence before was from independent experts. Sierra Club argued that the Minister had to critically review these reports and had little discretion to conclude differently if the reports constituted sound science and were in accordance with the precautionary principle. Conversely, if the reports did not constitute sound science or accord with the precautionary principle, they should be disregarded.
The position of the Ontario government was that the precautionary principle did not apply to the Minister's decision, but that even if it did, the Minister had met that requirement in various ways. For example, the precautionary principle was properly applied by consulting with experts, by requiring trials for Colicroot and then requiring the use of the method showing the highest survival rates, and by incorporating adaptive management techniques into the mitigation plans.
The lawyers for Ontario argued that the extensive conditions of the permit, including ongoing testing of mitigation measures and monitoring requirements, would minimize the adverse impacts of the WEP, making the Minister's decision reasonable. They further argued that the Minister had wide discretion in coming to her own conclusion on jeopardy to the recovery or survival of a species.
This case is an important public interest test case because the protection of Ontario's biodiversity is a matter affecting all Ontarians and Canadians. This decision will clarify the role of the precautionary principle and the scope of ministerial discretion in making decisions under subsection 17(2)(d), and the other exception provisions contained in the ESA.
Paula Boutis acted for Sierra Club Canada in the judicial review. David McRobert is an environmental lawyer based in Toronto and Peterborough.