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Bill 55 amendments to Schedule 19 a license to kill

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.

-David Norman

Filed Under: Letters and Opinion

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  1. David Norman says:

    Bill 55 has passed!
    I’m not at all surprised by this vote… as long as we humans continue to see the “environment” as proprietors the outcomes of mitigation strategies and Government legislation will always reflect this chauvinistic egocentric attitude. At least this assault on Ontario’s meager and pathetic conservation impetus to date is blatant and obvious. It has changed nothing except the expediency of the prevailing Government to regulate the destruction that would have occurred regardless. Although I do not feel as though we would have ever be able to rectify the damage that has been done to our environment, it is disheartening none-the-less. It is little more than a symptomatic illustration of the terrifying human induced environmental destruction trends that will no doubt come to pass. The following quote from John Livingston expresses my feelings in this respect:

    “Entirely out of control, the human technomachine guzzles and lurches and vomits and rips its random crazy course over the face of this once-blue planet, as though some filthy barbaric fist were drunkenly swiping with a gigantic paint roller across an ancient tapestry. Unevenness in the rich textured nap of Earth’s surface causes the paint to cling slightly unevenly, with scattered spots and holes showing in the roller’s wake. These are the success stories. Isolated and discrete as they are, it is quite possible that they can never recombine into a coherent whole.
    We are left with a miscellaneous rag-tag assortment of odd and disconnected relics – some larger, some smaller. In general, these gaps or anomalies tend to be in ”frontier” regions (artic, rainforest), or in the great biological near-desert that is the open ocean. But the mindless machine has long since outgrown all restraint; the paint roller’s antibiotic lacquer is thick, and fluid. If you watch, you can see its viscous pools widen, as though of their own volition, towards the farthest reaches of life’s lovely tapestry”

    And, from the tops of their monstrous eco crucifix’s, Industrial Wind Turbines, Governments and their constituent ilk, like that in Ontario can have a birds-eye view of the eco-destruction they have made more expedient.

    David Norman, Rogue Primate of Bloomfield

  2. Paula Peel says:

    Where is County Sustainability? My guess is that they have disappeared from view because they think Ostrander Point is already a done deal and probably more to the point, even if it isn’t what could they say now that would make any difference anyway so why bother. They are probably having a great time sitting back and watching us work every angle from their ivory – or should I say green – towers.

  3. David Norman says:

    Barry, thank you for highlighting these aspects of Bill 55, Since this blog was already rather lengthy I had left them out. My real concern is not Industrial Wind Turbine developers or Government per se. It is groups outside of these constraints, the primary one being The Nature Conservancy of Canada (a U.S.A. subsidiary) which stands to benefit from the absence of these restrictions unless specified in bequeaths. They own much land which is in their determination altered by human activity to the extent that it is considered by them to be “inhospitable” to wildlife. For the past few years they have been promoting a campaign to make this “category” of land available to Industrial Wind Turbine development. I became suspicious of their impetus when I had occasion to read the particulars of one of their standard bequest agreements. No-where, unless indicated as a codicil are there specified any requirements/restrictions outside those which are “the law of the land”.

  4. David Norman says:

    Yes Chris, where now are the indictments of Don Ross, John Legate, Don Chisholm, Rob Williams, Jason Alford and others of the County Sustainability Group who seem to have, for the most part,strategically withdrawn from CountyLive and other County media Industrial Wind Turbine commentary. Where they once were a predominant stakeholder presence they have seemingly disappeared from view. Perhaps they have deemed themselves above this un-green-washed fray… or do they now wish to be anonymous/insidious… waiting perhaps to celebrate egocentric victory? Picture them as they demonstratively scatter from the lens of public view.

  5. Chris Keen says:

    Typical underhanded action of this government. “Hide” a contentious bill, which would never pass if it were debated on its own, within a budget which will most certainly pass because no party wants an election. This is “green”?!! (Any howls from CSG?)

    I have written Peter Kent, Canada’s Minister of the Environment, to ask whether this turn of events violates Canada’s “Species at Risk Act”. It will be interesting to hear what he has to say.

  6. Barry Bridgeford says:

    I also consider the proposed BILL 55 as a serious threat to the integrity of Provincial Parks, Crown Forests and all Public Lands. I believe the Liberal governments obsession with Industrial Wind Turbines is leading them to use
    Bill 55 to try and sneak-in industrial access to our Provincial Parks, Crown Forests and Public Lands.

    I’ve itemized below the components of Bill 55 which would provide the government with the power to have Industrial Wind Turbines installed in our Provincial Parks, Crown Forests and Public Lands.

    Schedule 15, page 55 .. changes to Crown Forest Sustainability Act, 1994
    It sounds to me like the government wants to be able to delegate private parties with the right to operate and manage in Crown Forests with an unspecified range of powers, the consequence of which the government wants
    to absolve itself of responsibility for. This sounds to me like the government wants to give private parties free reign to operate in Crown Forests. To me, this equates to being able to give over Crown Forests to alternate energy project operators (such as industrial wind turbine
    corporations).

    Schedule 58, page 294 .. changes to Provincial Parks and Conservation Reserve Act, 2006
    Despite the original act’s limitations regarding “issuing of the land use permit or licence of occupation .. consistent with this Act and the regulations” (as per subsection 14 (2.1), this change will give the Minister
    control over both the circumstances and terms of such permits! I’m seeing this as absolute discretion to grant land use permits within Provincial Parks to anyone, including alternate energy project operators (such as
    industrial wind turbine corporations).

    Schedule 59, page 295 .. changes to Public Lands Act
    Given that Public Land is synonymous with Crown Land, and given that Provincial Parks are a planning distinction of Crown Land Use Designation, I believe the Public Lands Act holds a serious foundation of authority under the Provincial Parks and Conservation Reserve Act. Again there’s the same issue of delegation of power to other than government workers, with the same rejection of liability on the part of the government.

  7. Paula Peel says:

    Dear JS,

    I was talking about this amendment with a retired lawyer who had looked it over and he was not even able to cut through the legal mumbo jumbo so you / we are in good company.

    Even if someone did try to paraphrase the amendment you would be no farther ahead: it would still be incomprehensible. The only way to get some sort of understanding of the amendment is by bringing in the Ontario Species Act and explaining where and how the amendment would override the Ontario Species Act. This could be done but it would take a lot of work.

    I spent almost a day last week studying the amendment and looking at what others were saying about it on the internet. They are all agreeing that the amendment is an exemption to renewable energy systems (which I presume are “companies”)to all of the prohibitions in the Endangered Species Act to kill, harm and harass endangered species and damage and destroy their habitat. If the budget passes and this amendment is in it industrial wind turbine companies will be able to construct – and maintain – industrial wind turbines without having to apply for a permit anymore.

    Up to now up to now wind turbine developers like Gilead Power and Samsung etc. have to apply to the Ministry of Natural Resources for permits “to kill, harm and harass” endangered species. The permits they apply for cover the development AND the operation (maintenance) of the wind turbine facility. If the permits did not already cover the maintenance I could see that they would be needing an amendment to cover their asses for when they were doing maintenance but the existing permit already covers all that.

    It is as bad as it sounds: the purpose of this amendment is to exempt industrial wind turbine companies from all of the prohibitions of the Endangered Species Act. Bottom line: NO PERMITS NEEDED for the renewable energy sector.

    There’s a synopsis of the amendment on the South Shore Conservancy website “Proposed Budget Allows Foreign Companies to Kill Ontario’s Endangered Species”.
    http://southshoreconservancy.wordpress.com/ There’s also a link to a cut-and-paste letter to all MPPs which I hope everyone who reads this will send.

    I hope this helps!

    Paula C. Peel

  8. Jimmy Stewart says:

    At the risk of exposing myself as being rather “simple”, I offer an apology for not being able to cut through the legal mumbo jumbo in this Act to determine the actual meaning.

    If I read Schedule 19 correctly, it only excuses persons who are engaged in maintaining, repairing or replacing infrastructure… not a company which is engaged in the construction of the infrastructure.

    Can someone save me from my embarrassment and paraphrase the various sections in plain English? I’ll be forever grateful!

    JS
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