Charles J. Birchall (FOGLER, RUBINOFF LLP) letter to South Shore Conservancy September 13, 2011
” Dear Members of the Conservancy:
Re: Environmental Protection of Ostrander Point
You have requested our opinion on whether there is a legal basis for the Province of Ontario’s refusal to apply provincial environmental laws to protect the endangered and threatened species of the Ostrander Point Crown Land Block (“Ostrander Point”) during the course of work conducted at Ostrander Point by a private contractor to Defence Construction Canada (“DCC”).
We have reviewed this matter in detail and concluded that there is no legal basis for the Province’s refusal to apply provincial environmental laws. Further, we have concluded that any destruction of endangered or threatened species habitat at Ostrander point without a permit is illegal under the provincial Endangered Species Act (“ESA”). Due to the Province’s failure to apply its own laws, it has a clear obligation to the public to use all legal tools at its disposal to ensure that any habitat destruction caused by the DCC contractor to Ostrander Point is remedied.
As it is too late to stop any damage that has occurred at Ostrander Point, one way to address the situation is for the Province to assemble an independent multi-disciplinary task force to conduct a scientific assessment of the extent of the damage done to Ostrander Point and the steps necessary to remedy the damage. The task force should also undertake an assessment of how to ensure the ecological diversity and vitality of Ostrander Point can best be preserved for future generations. A moratorium on any new land uses, site alteration or other activities at Ostrander Point should be declared until such time as the findings of the task force are released and implemented.
Ostrander Point is public land owned by the Provincial Crown and managed by the Ministry of Natural Resources (“MNR”). We understand that it is one of Ontario’s most ecologically rich and biologically diverse areas. It has been designated an Important Bird Area and is home to a significant number of endangered and threatened species.
Ostrander Point was used as a munitions training site for the Royal Canadian Air Force in the1950’s. Ostrander Point was subsequently cleared of unexploded ordnance (“UXO’s”) in the 1960’s, according to the DCC document titled “Due Diligence Environmental Assessment Screening Report for the Proposed EO Assessment and Clearance in Ostrander Point (“EO Assessment Document”).
Despite having already been cleared of UXO’s, we have been informed by the Conservancy that over the past week a contractor for DCC cleared parts of Ostrander point for the purposes of reassessment and re-clearing of UXO’s. We have been informed by the Conservancy that this has resulted in damage to the habitat of the endangered and threatened species of Ostrander Point. We have been provided with a series of pictures to support this information. The re-assessment and re-clearing took place under a 2005 Federal government program that provides funds to private contractors to reduce safety risks posed by UXO’s at properties formerly owner or leased by the Department of National Defence (“DND”).
The EO Assessment Document states that the reason for the re-assessment and re-clearing is “recent changes to the intended land use have prompted the need for further investigation and EO risk assessment of the area prior to undertaking any subsurface excavations.” The change in intended land use referred to appears to be a proposal by Gilead Power Corporation (“Gilead”) to build a 24 MW wind turbine development at Ostrander Point. The EO Assessment Document states that a part of the mandate of the DCC contractor will be to provide “construction support” for Gilead.
However, Gilead has not received the required provincial approvals necessary to proceed with a renewable energy project under the Environmental Protection Act and therefore any reassessment and re-clearing operations for the purpose of ensuring safe construction of the wind turbine development was premature. We also understand that as of the date of this letter, no confirmed UXO’s were found as a result of the DCC contractor’s activities.
According to the EO Assessment Document, MNR and the Ministry of the Environment (“MOE”) were consulted prior to DCC contracting for any work to be done at Ostrander Point and DCC was informed that provincial laws did not apply and that no permits were required for DCC to enter onto provincially owned land inhabited by endangered and threatened species to conduct the planned work.
We have been advised by the Conservancy that the Province’s position has since been confirmed by the MOE, as well as by the MPP for the area, the Honourable Leona Dombrowsky, the former Minister of the Environment and current Minister of Education. Ms. Dombrowsky stated in the email you have provided to us dated September 8, 2011:
The Department of National Defence (DND) does not require approval (or permits) from the Ministry of Natural Resources (MNR) for the Proposed Exploded Ordnance (EO) Assessment and Clearance at Ostrander Point. The explanation for this is based on the Intergovernmental Immunity Doctrine, which states that provinces lack the authority to bind the federal Crown, or federal Crown agencies. As a result, provincial laws generally do not apply to the federal Crown or to federal Crown agencies.
You have asked us for our analysis respecting the statements by the MOE and Ms. Dombrowsky.
2.0 Legal Analysis:
We have concluded that: (1) there is no legal basis for the Province’s position that its environmental laws do not apply on provincially owned Crown land and therefore the endangered and threatened species of Ostrander Point are not legally protected; and (2) as provincial environmental laws apply that any destruction of the habitat of endangered or threatened species by DCC’s contractor at Ostrander Point is prohibited by the ESA.
With respect to our first conclusion, legally there does not appear to be a doctrine of “Intergovernmental Immunity”. Historically, there has been a doctrine of “interjurisdictional immunity” which holds that where an otherwise valid provincial law affects “vital and essential” elements of a federal undertaking, the provincial law does not apply. However, the Ontario Court of Appeal has found inOntariov. Canadian Pacific,  O.J. No. 1082 that provincial environmental laws of general application apply to federal undertakings. The Court of Appeal decision was subsequently affirmed by the Supreme Court of Canada.
Further, the doctrine of interjurisdictional immunity has never been applied to prevent the application of provincial environmental laws on provincially owned lands. Recently, the Supreme Court of Canada ruled against expanding the application of interjursidictional immunity to matters where it has not been previously applied. In British Columbia (Attorney General) v. Lafarge Canada Inc.,  2 S.C.R. 86 and in Canadian Western Bank v. Alberta,  2 S.C.R. 3 the Supreme Court found that the doctrine of interjurisdictional immunity risks undermining Canadian federalism and as a result, in general, the doctrine should not be applied to new matters where it has not been applied before.
We have therefore concluded that Provincial environmental laws, including the ESA, apply to the activities of DCC’s private contractors on provincially owned land at Ostrander Point.
With respect to our second conclusion, the ESA protects both endangered and threatened species and their habitat from the kind of destruction that we have been informed occurred at Ostrander Point. Sections 9 and 10 of the Act read in part:
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;
Under section 17(2)(c) of the ESA, the Minister may issue permits to conduct an activity that would otherwise be prohibited under sections 9 and 10 of the ESA. We note that the proponent of the wind turbine development was required to apply for permits under section 17(2)(c) before conducting any work on the wind turbine project at Ostrander Point and to date no permit has been issued. However, due to the Province’s erroneous conclusion that provincial laws do not apply to a DCC’s private contractor at Ostrander Point, the province did not require that the DCC contractor similarly apply for a permit.
The ESA binds the Crown pursuant to section 54. The Province’s failure to follow the required legal process under the ESA left the endangered and threatened species of Ostrander Point and their habitat without legal protection.
The ESA provides extensive enforcement provisions including Ministerial stop orders (under section 27) to ensure that endangered and threatened species and their habitat are properly protected. The province has not applied the tools that the ESA provides for the protection of endangered and threatened species and their habitat at Ostrander Point. Nonetheless, under the ESA, the Province has the power required to fully rectify the damage to Ostrander Point. It has a clear obligation now to use all legal tools at its disposal to ensure that any loss of habitat caused by the DCC contractor to Ostrander Point is remedied.
Based on our review of this matter we have concluded that (1) there is no legal basis for the Province’s refusal to apply provincial environmental laws; and (2) that as provincial environmental laws apply any destruction of endangered or threatened species habitat at Ostrander point without a permit is illegal under the provincial ESA.
As it is too late to stop any damage that has occurred at Ostrander Point, one way to address the situation is for the Province to assemble an independent multi-disciplinary task force to conduct a scientific assessment of the extent of the damage done to Ostrander Point and the steps necessary to remedy the damage. The task force should also undertake an assessment of how to ensure the ecological diversity and vitality of Ostrander Point can best be preserved for future generations. A moratorium on any new land uses, site alteration or other activities at Ostrander Point should be declared until such time as the findings of the task force are released and implemented.”
Yours very truly,
FOGLER, RUBINOFF LLP
Charles J. Birchall