Endangered Species Regulation Upheld At Court Of Appeal

In a decision released last month, Wildlands League v Ontario (Natural Resources and Forestry), 2016 ONCA 741, the Court of Appeal has held that a regulation made under the Endangered Species Act ("ESA") is valid. The regulation exempts certain industrial activities from the ESA's prohibitions against killing, harming, harassing, or capturing listed species at risk ("SAR") (subsection 9(1)) and against destroying or damaging the habitat of listed SAR (subsection 10(1)). Prior to the introduction of the regulation, the section 9 and 10 prohibitions could generally only be avoided by obtaining a permit.

The regulation makes it possible to overcome the section 9 and 10 prohibitions without an approval. Instead, in many cases, proponents of certain kinds of projects are required only to provide notice of the activity, some details as to its likely impacts, and mitigation measures it proposes to undertake.