The proposed interim changes…

The proposed interim changes to the Endangered Species Act, 2007 and a proposal for the Species Conservation Act, 2025 presumes to rewrite Ontario’s conservation laws to enable a rebalancing of the weight with which government must assess environmental considerations against social and economic considerations. Such an oppositional framing of environment versus economy betrays an egregious ignorance of ecology and the interconnections among species that are required not only to create conditions conducive to the protection and conservation of species, whether endangered, at risk, or not, but it is also appallingly ignorant of the dependence humans have on the environment to which we also belong. Furthermore, the proposal is concerningly devoid of content indicating the government’s intentions to respect and uphold Indigenous rights, including rights enshrined under the United Nations Declarations on the Rights of Indigenous Peoples and the associated right to Free, Prior and Informed Consent for decision-making on lands and waters that form Indigenous territories.

This proposal positions human activity as somehow separate and independent from ecosystems, viewing natural ecosystems only through a lens of commodification, ignoring ecosystem services that sustain human life. It treats at-risk species as units to be managed and contained, rather than recognized the diversity, complexity and interconnections required to sustain whole ecosystems. Absent consideration of a whole ecosystem, species (inclusive of humans!) do not thrive and rarely survive when removed and detached from their native ecosystems.

From a regulatory compliance and enforcement perspective, the proposal places the burden of responsibility for regulatory compliance at the hands of the proponent, amounting to little better than voluntary regulatory participation. Such a structure is designed to expedite development while considering impacts to species at risk only retroactively, once harms have been incurred. Death and extirpation of habitat are not reversable through enforcement, and legal remedy cannot undue these harms once incurred.

In a moment when biodiversity loss is a global crisis reaching critical levels that may threaten human health and well-being (https://www.who.int/news-room/fact-sheets/detail/biodiversity), this proposed legislation is wildly off-side with the measures required of conscientious governments. It is harmful to wilderness and will ultimately be harmful to humans and it should be deeply reconsidered.
The following are some specific comments on aspects of the proposal.

Species Classification and Listing:
The Committee on the Status of Species at Risk in Ontario (COSSARO), as an independent science-based committee responsible for assessing and classifying species in Ontario, should remain the authority on determining the risk status of a species. These are the experts who can best advise not just on the status of a particular species, but also on the elements necessary to maintain species integrity, long-term conservation and protection – which is more than just a den or dwelling area, root zone, or other narrowly defined geographic protection zone.

While government is the ultimate decision-making body for land development projects, responsible decision-making should aim to maximize economic and resource efficiency and promote durable, resilient, sustainable investments and development. Sustainable development requires examining all costs and benefits to actions; it is often far more valuable and fiscally efficient in the long-term to preserve ecosystem services that nature provides for free, rather than pushing forward the frontiers of land development absent consideration of the complexities of services and activities inherent in a parcel of land. For instance, wetlands near urban areas are critically important for mitigating flood risks and managing storm water flows. Such wetlands are also often biodiversity hotspots that house species at risk. Rather than viewing these areas, and the species at risk they contain, as impediments to urban development aspirations, they need to be understood and valued for the free infrastructure services they provide to neighbouring cities.

Scientists, like the COSSARO members, are our experts in matters related to ecosystem and species conservation. They are the people best positioned to make fully informed, considered, evidence-based recommendations to government, and government should heed and respect their testimony. While government decisions always must weigh all social, economic, environmental, and rights considerations, decisions must be evidence-based to be durable. Dismissing or trivializing evidence for the sake of political expediency is ultimately nothing but unnecessarily costly.

Refining Protections:
An animal requires more than just a den or dwelling place to survive and thrive, just as each of us needs more than a bed to feel adequately housed and secure.

Animals employ a very wide variety of life strategies, not all of which are dependent on dens, nesting sites, or dwelling structures or places. Plenty of animals occupy such places only very temporarily, sometimes during migrations, and some have permanent, fixed ranges.

A beaver, for example, creates a winter den (the lodge) where a family will dwell safely under cover while lakes and streams are frozen, but in summer, the family emerges and occupies entire lakes, often several square kilometers in size. Beavers will move their lodges annually, often rotating among a few such structures around a larger lake, over a period of several years, such that they are able to take advantage of food and habitat resources (shoreline trees and saplings) without unduly depleting any one part of their extensive range. Beavers are not currently species at risk, but were they up for consideration under this proposed act, ostensibly their protections would extend only so far as the lodge. If so, a beaver whose protections are only limited to its lodge would surely die.

Similarly, plants and fungi exist in extraordinarily complex ecosystems, not as monocultures or independent units. Plants, like animals, do not thrive or survive in the long-term in isolation from their ecosystems. A plant’s root system alone is a complex microbiome, but the plant’s full range extends to the sources of nutrients it receives, the light regime it experiences (too much or too little light can be harmful), its sources, frequency and volume of water acquisition, and so on. As such, a vulnerable plant’s habitat may include a surprisingly large territory, even a whole watershed. For example, studies in British Columbia’s coastal rainforests have shown a complex relationship among bears, eagles, salmon, and plants: bears and eagles hunt salmon out of streams and disperse their carcasses far afield, where they decompose and form an essential source of fertilizer for the forest (https://pacificwild.org/salmon-feed-forests/). Many trees benefit from salmon harvested from streams miles away, and the salmon and salmon streams should be viewed as critical components of the forest ecosystem.

The proposal states, “Under the proposed new SCA, activities that are harmful to species cannot proceed unless the person carrying out the activity has registered the activity, or in limited situations, obtained a permit.” Registering and permitting a harmful activity, while still allowing it to occur, is still an act of harm. If government were to allow for removal of encampments of unhoused humans using arson, registering and applying for a permit to burn these structures would make such actions no less inhumane. Similarly, registering and permitting habitat destruction does not weaken the impact to the affected species, ecosystems and individual plants, animals and other life forms that would be killed or displaced.

New Species Conservation Program:
New investment in species conservation and to promoting activities like habitat restoration, research, and community-based initiatives is welcomed, but limiting participation only to voluntary engagement is a mistake. Government should also take a hand in proactively identifying areas of priority concern, including hotspots for biodiversity or biodiversity loss, key migratory flyways and pathways, breeding grounds, and so on.

Updated Compliance and Enforcement, Registration-First Approach:
Perhaps the most concerning aspect of this proposal is to strip the permitting requirement and replace it with a registration process that requires no demonstration of skill, understanding, or competency with respect to species at risk or ecosystem management. The proposal states, “We are committed to holding the regulated community accountable. …A risk-based, proportionate, and progressive compliance model, aimed at collaboratively addressing potential violations, will support these changes. If harm to species occurs, the ministry has to tools to enforce the law and hold proponents to account.” Such reliance on reactive enforcement and compliance assumes an expectation of non-compliance its associated harms. The proposed new legislation anticipates violations which will be met with disciplinary actions, but for the species at risk that have been harmed or extirpated, there is no remedy in law.

Removing the up-front permitting in favour of an expedited registration system is a recipe for promoting developer ignorance and incompetence regarding species at risk and habitat / ecosystem protection. When we wish to allow new drivers the opportunity to drive, we train them and require they pass a rigorous series of tests to earn the driver’s permit they are awarded. Ecosystem protections should be treated with no less regard than we offer to our fellow humans who travel our streets and highways. Rather than eliminating permitting in favour of a regulatory window, a far better system would seek to ensure Ontario’s property developers are well-versed in matters related to species and ecosystem protections before making critical decisions with permanent impact.

Summary:
In brief, the proposed Species Conservation Act is not a credible piece of legislation. It lacks an evidentiary basis for decision-making, renders all species, whether endangered or not, vulnerable to risks of displacement and extirpation at the hands of developers who need demonstrate no competency, knowledge or skills related to making decisions about ecosystem management, and who will nevertheless have permission to take actions that create permanent, irreversible impacts to ecosystems. The Government of Ontario is encouraged to enter into discussion with appropriate legal and scientific experts, including members of COSSARO to design and develop improved new species at risk legislation that properly accommodates ecosystem needs alongside economic and social development imperatives. Environment and economy are not mutually exclusive; they are inherently, fundamentally interconnected and our economy and communities will not thrive if we harm the ecosystems that support lives – ours and those of other species.