Who’s in charge

Posted by on April 6, 2012 at 11:38 pm.

Members of the South Shore Conservancy are claiming the Ministry of Natural Resources (MNR) broke its own laws when it allowed a contractor hired by Defence Construction Canada (DCC), on behalf of the Department of National Defence (DND), to commence work at Ostrander Point Provincial Wildlife Area.

They also worry that actions to clear the proposed site of an industrial wind project have already damaged the habitat for two endangered species, the Blanding’s turtle and the whippoorwill. According to Frederic Beaudry, who has a PhD in wildlife ecology, the activities at the site may have seriously harmed the year-round habitat of the Blanding’s turtle.

In a memo the Natural Resources ministry wrote that DND “does not require approval from the Ministry of Natural Resources” to enter the site and clear it of unexploded munitions. This despite the fact that Ostrander Point is protected by the provincial Endangered Species Act, which the MNR enforces.

Prince Edward – Hastings MPP Leona Dombrowsky explained the MNR’s decision in an email, stating that because of an intergovernmental immunity doctrine, provincial laws do not apply to a federal agency like DND.

Not so, according to environmental lawyer Charles Birchall. Birchall has reviewed Dombrowski’s comment, as well as the report created by DCC for DND. In his professional opinion, there is no basis for allowing a federal government agency to cause damage to endangered species on provincially owned land.

Birchall provided samples of precedents in which the Supreme Court and the federal Court of Appeal had turned down the immunity argument, although in both cases it was a government versus a federal crown corporation, not a federal agency.

Dombrowsky attended the conference, as did Conservative MPP candidate Todd Smith and Green Party MPP candidate Treat Hull, both of whom were quick to condemn the Liberal government for the damage done.

Dombrowsky responded that she had said what she believed was right, and that while Birchall was qualified to give a legal opinion it was just that, and another lawyer may be glad to argue against it.

“The Endangered Species Act is a very important piece of legislation that our government brought forward because we do understand why it is important that we have legislation to protect species that are endangered,” said Dombrowsky. “We also understand that at the federal level, for example, there may be activities that may be carried out in the interest of public safety and national security.”

Since the survey at Ostrander is now complete, Birchall suggested in his letter that a team be formed to figure out how to mitigate any damage done. No one seemed to disagree.

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