By Charles Hatt, staff lawyer.
Chatter abruptly ends, lawyers hurriedly stand and smooth their gowns, judges walk slowly to the dias. The gallery adjusts to the new atmosphere, taking the measure of straight-backed counsel who silently recite their first words.
“Please be seated, this court is now in session.”
Whooosh. That first minute of a judicial review case has a distinctive feel for a lawyer, often a heady mix of excitement, relief, and nerves. There will be no witnesses or jury, but the questions judges will ask you still leave some unpredictability hanging in the air. So much preparation has gone into thinking about the next few hours and you dearly want to do justice to your case.
For an Ecojustice lawyer, this moment is tense, but always special. You are proud to represent not only your lovely, hard-working clients in the gallery, but also the many folks who support Ecojustice’s work through donations and, of course, the species and ecosystems that can’t stand up for themselves.
This scene played out in Toronto last week, where Ecojustice lawyers, on behalf of Wildlands League and Ontario Nature, took the Ontario government to court for a regulation that guts our Endangered Species Act.
The ESA is Ontario’s main tool for stopping and reversing the decline of species in our province – from the American Eel, to the Lakeside Daisy, to the iconic Woodland Caribou. It prohibits anyone from killing or harming an endangered or threatened species, or from destroying their habitat. There are permits and other mechanisms that allow for some impacts to species, but these must further the Act’s purpose of protecting and recovering at-risk species.
In 2013, the Ontario government made a regulation that exempts a wide swath of industrial activity from these prohibitions, including forestry, early mining exploration, aggregate mining, hydro power, wind power, and various forms of infrastructure development. Now, not a single endangered or threatened species has the benefit of the full protections of the Act. In most cases, species can be killed or their habitat destroyed, as long as this is harmful activity “minimized.”
It takes time and money to protect species by scrutinizing new development for its effects on species. But it’s worth it, because without informed and thoughtful decision-making, species will never get a fair shot at survival.
We argued that the purpose of the regulation is not to protect and recover species, but rather to save money and time for government and proponents. This is not consistent with the purpose of the Endangered Species Act, and cannot be lawful. Moreover, the regulation was made without a full assessment of whether and how the exemptions will affect species at-risk, as required by the Act. If we’re successful, the regulation will be declared invalid by the court and the Endangered Species Act will continue to operate as before.
Which brings me back to the courtroom scene. When the final points are made, the judges leave and the doors are closed. Chatter starts up again and a feeling of completion washes over the lawyers. After months or even years of preparation, things are now out of your hands. The decision remains to be made but – for at least one day – the most vulnerable species in Ontario have had their time in court.