Administrator | Apr 13, 2012 | Comments 8

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The following schedule (19) being introduced by the Ontario Liberal Party as Bill 55: Strong Action for Ontario Act (Budget Measures), removes any legal impediments and prohibitions that Industrial Wind Turbine developers would have encountered (and should have in cases like Wolfe Island) to destroy the habitat of and, harass and kill, species considered at risk or endangered under the Endangered Species Act in Ontario.

They can now, without legal recourse, squish as many Blanding’s Turtles as they please under the tires of their vehicles and need not be concerned if the bird and bat kill rates exceed those “specified” by already accepted agreements. I do hope the Environmental Non Governmental Organizations like the Suzuki Foundation, the Sierra Club and Environmental Defence among others, will take responsibility for their Industrial Wind Turbine development advocacy in this respect. This act removes prohibitions under the following two provisions of the Endangered Species Act:

9. (1) No person shall,

(a) kill, harm, harass, capture or take a living member of a species that is listed on the Species at Risk in Ontario List as an extirpated, endangered or threatened species;

10. (1) No person shall damage or destroy the habitat of,

(a) a species that is listed on the Species at Risk in Ontario List as an endangered or threatened species; or

(b) a species that is listed on the Species at Risk in Ontario List as an extirpated species, if the species is prescribed by the regulations for the purpose of this clause. 2007, c. 6, s. 10 (1).

The EBR knows that both Gilead Power and WPD would necessarily be in violation of these prohibitions should development and operation of their Industrial Wind Turbine developments proceed. They now need only wait out expected passage of the following Bill 55, Schedule 19 amendments to proceed with legal impunity in this regard:

Schedule 19
Endangered species act, 2007

1. The Endangered Species Act, 2007 is amended by adding the following section:

Exemptions from prohibitions

10.1 (1) Despite subsections 9 (1) and 10 (1) and subject to subsections (6) and (7), a person who is engaged in an activity described in subsection (2), (4) or (5) may, in the course of the activity,

(a) commit an act that would otherwise be prohibited under clause 9 (1) (a) or under subsection 10 (1); and

(b) possess or transport anything that the person would otherwise be prohibited from possessing or transporting under clause 9 (1) (b).

Infrastructure maintenance, repair, etc.

(2) The exemptions described in subsection (1) apply to a person who is engaged in maintaining, repairing or replacing infrastructure described in subsection (3) if the maintenance, repair or replacement does not,

(a) change the location of the infrastructure;

(b) extend the area the infrastructure occupies in any way; or

(c) alter the way in which the infrastructure is used or operated.

Same

(3) The infrastructure referred to in subsection (2) includes any infrastructure that is part of or related to,

(a) a communications system;

(b) an electric power system, oil or gas pipeline, alternative energy system or renewable energy system;

(c) a transportation corridor or transportation facility;

(d) a waste management system; or

(e) water works, wastewater works, drainage works, stormwater works and associated facilities.

Non-commercial activities

(4) The exemptions described in subsection (1) apply to a person who is engaged in a non-commercial activity on lands, other than public lands, that are within 50 metres of the person’s primary residence or in any other area prescribed by the regulations.

Other exemptions

(5) The exemptions described in subsection (1) apply to a person who is engaged in an activity that,

(a) will assist in the protection or recovery of a species; or

(b) is necessary to avoid a threat to human health or safety that is unacceptable in the circumstances and, though not imminent, is pressing, including an activity that is required,

(i) to preserve, repair or remove an existing structure,

(ii) to protect the quality of earth, air or water, or

(iii) to prevent or reduce the spread of disease.

Exceptions

(6) An exemption under this section does not apply to a person who, in the course of engaging in an activity described in subsection (2), (4) or (5), fails to comply with any condition prescribed by the regulations.

Same

(7) An exemption under this section does not apply in the circumstances prescribed by the regulations.

2. (1) Clause 11 (4) (a) of the Act is amended by striking out “the first anniversary” at the beginning and substituting “the second anniversary”.

(2) Clause 11 (4) (b) of the Act is amended by striking out “the second anniversary” at the beginning and substituting “the third anniversary”.

(3) Clause 11 (4) (c) of the Act is amended by striking out “the fifth anniversary of the date section 7 comes into force” and substituting “a date prescribed by the regulations”.

(4) Subsection 11 (8) of the Act is amended by striking out “Within nine months” at the beginning and substituting “Within 18 months”.

3. Subsection 12 (5) of the Act is amended by striking out “Within nine months” at the beginning and substituting “Within 18 months”.

4. (1) Subsection 17 (2) of the Act is repealed and the following substituted:

Limitation

(2) The Minister may issue a permit under this section only if,

(a) the Minister is of the opinion that,

(i) an overall benefit to the species will be achieved within a reasonable time through requirements imposed by conditions of the permit,

(ii) reasonable alternatives have been considered, including alternatives that would not adversely affect the species, and that the best alternative has been adopted, and

(iii) reasonable steps to minimize adverse effects on individual members of the species are required by conditions of the permit; or

(b) subject to subsection (2.1), the Minister is of the opinion that,

(i) the activity will result in a significant social or economic benefit to Ontario and will not jeopardize the survival or recovery of the species in Ontario,

(ii) reasonable alternatives have been considered, including alternatives that would not adversely affect the species, and the best alternative has been adopted, and

(iii) reasonable steps to minimize adverse effects on individual members of the species are required by conditions of the permit.

Same

(2.1) The Minister shall not issue a permit under clause (2) (b) unless,

(a) the Minister has consulted with a person who is considered by the Minister to be an expert on the possible effects of the activity on the species and to be independent of the person who would be authorized by the permit to engage in the activity;

(b) the person consulted under clause (a) has submitted a written report to the Minister on the possible effects of the activity on the species, including the person’s opinion on whether the activity will jeopardize the survival or recovery of the species in Ontario; and

(c) the Lieutenant Governor in Council has approved the issuance of the permit.

(2) Subclause 17 (7) (a) (i) of the Act is amended by striking out “clause (2) (a), (b) or (c)” and substituting “clause (2) (a)”.

(3) Sub-subclause 17 (7) (a) (ii) (A) of the Act is amended by striking out “clause (2) (d)” and substituting “clause (2) (b)”.

(4) Sub-subclause 17 (7) (a) (ii) (D) of the Act is amended by striking out “clause (2) (d)” and substituting “clause (2) (b)”.

5. Section 18 of the Act is repealed and the following substituted:

Instruments permitting certain activities

18. (1) Despite sections 9 and 10 and subject to subsections (3) and (4), a person who is engaged in an activity that is permitted by an instrument described in subsection (2) or that is required by an Act or regulation of Ontario or Canada to be carried out in accordance with an instrument described in subsection (2) may, in the course of the activity,

(a) commit an act that would otherwise be prohibited under clause 9 (1) (a) or under subsection 10 (1); and

(b) possess or transport anything that the person would otherwise be prohibited from possessing or transporting under clause 9 (1) (b).

Same

(2) Subsection (1) applies only to an instrument that,

(a) is an agreement, permit, licence, order, approved plan or other similar document entered into, issued, made or approved under a provision of an Act of Ontario or Canada or a provision of a regulation made under an Act of Ontario or Canada, other than this Act or a regulation made under this Act; and

(b) is prescribed by the regulations or is part of a class of instruments prescribed by the regulations.

Compliance

(3) An exemption from the prohibitions in subsections 9 (1) and 10 (1) that are described in subsection (1) does not apply to a person who, while engaged in the activity permitted by or under the instrument described in subsection (2), fails to comply with,

(a) any requirement imposed by the instrument; or

(b) any condition prescribed by the regulations.

Same

(4) An exemption from the prohibitions in subsections 9 (1) and 10 (1) that are described in subsection (1) does not apply in the circumstances prescribed by the regulations.

6. Section 55 of the Act is amended by adding the following subsection:

Regulations by Minister

(1.1) The Minister may make regulations,

(a) prescribing areas for the purposes of subsection 10.1 (4), prescribing conditions for the purposes of subsection 10.1 (6) and prescribing circumstances in which the exemptions under subsection 10.1 (1) do not apply;

(b) prescribing dates for the purposes of clause 11 (4) (c);

(c) prescribing instruments and classes of instruments for the purposes of subsection 18 (2), prescribing conditions with which a person must comply for the purposes of clause 18 (3) (b) and prescribing circumstances in which the exemptions described in subsection 18 (1) do not apply.

7. Subsection 56 (2) of the Act is repealed and the following substituted:

Time period

(2) The date referred to in subsection (1) is,

(a) the second anniversary of the date a response statement is published for the species under subsection 11 (8) if the species is listed on the Species at Risk in Ontario List as an endangered species; or

(b) the third anniversary of the date a response statement is published for the species under subsection 11 (8) if the species is listed on the Species at Risk in Ontario List as a threatened species.

Commencement

8. This Schedule comes into force on the day the Strong Action for Ontario Act (Budget Measures), 2012 receives Royal Assent.

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Source:

Countylive.ca 2012-04-13