Subject: ERO 025-0380:…

Subject: ERO 025-0380: Proposed interim changes to the Endangered Species Act, 2007 and a proposal for the Species Conservation Act, 2025

The Ontario Federation of Anglers and Hunters Foundation (OFAH Foundation) is dedicated to preserving Ontario's natural heritage through conservation research, habitat restoration, and educational initiatives that promote sustainable outdoor activities. As a leader in conservation, we work collaboratively with partners, experts, and communities throughout Ontario to protect and enhance fish and wildlife populations for today and future generations. We have reviewed ERO 025-0380 (schedule 2 and schedule 10 of Bill 5) and offer the following comments for consideration.

Ontario’s flora and fauna are unique, and our ability to balance society’s needs with the needs of the natural world sets us apart from many jurisdictions. Central to this distinction, the Endangered Species Act (ESA) has been the cornerstone of the province’s commitment to conservation since its inception in 2007 and a shining example to other jurisdictions. Although there are aspects of the proposal that we support, the basic effect is to weaken and ultimately replace the ESA, reshaping how we do conservation in the province. For this reason, the proposal is misaligned with the priorities of hunters, anglers, and trappers in Ontario.

Intent

It should be clearly understood that, with the simple goal of preventing the complete extirpation or extinction of our most vulnerable organisms, the ESA has represented the bare minimum in wildlife protections for Ontario since its establishment. In this way, the ESA is fundamental to the province’s ability to comply with the stated purpose of the Environmental Bill of Rights, 1993, which maintains:

2 (1) The purposes of this Act are,
(a) to protect, conserve and, where reasonable, restore the integrity of the environment by the means provided in this Act;
(b) to provide sustainability of the environment by the means provided in this Act; and
(c) to protect the right to a healthful environment by the means provided in this Act. 1993, c. 28, s. 2 (1).

According to the Auditor General’s 2021 report, the ESA has been steadily weakened over the last decade, resulting in a more than 6000% increase in the number of approved activities causing harm to species at risk. Considering this existing problem, it is inappropriate to adjust the purpose of this act to explicitly consider “social and economic considerations,” as it predisposes the Act to further concession-making where, clearly, the opposite should occur.

Definitions and terminology

Changes in the use of certain terms and definitions as part of this proposal are very consequential. The proposed changes to the definition of habitat, for instance, which would exclude most of the landscape upon which imperilled species clearly rely, are likely to undermine the province’s ability to fulfill the intent of the EBR as well. The proposed definition does not align with any available academic or expert-led definition that we are aware of and will inevitably result in further loss of vulnerable species.

The removal of “harass” from the ESA and proposed SCA is similarly concerning. As the province is no doubt aware, without regulating this term, activities which may result in indirect injury and death for imperilled species due to stress and displacement will be allowed without restriction.

Finally, since “recovery” is synonymous with “restoration,” removing consideration for species recovery in section 1, subsection 41 (1), subsection 47 (2), and subsection 54(2) of the ESA, may directly contradict section 2(1)(a) of the Environmental Bill of Rights with respect to restoring the integrity of the environment. Research indicates that, in addition to the loss of ecological function, protection and conservation of species and habitats without clear recovery goals and tools is economically counterproductive due to the perpetual consumption of resources (Bradbury et al, 2021; Gerberg et al. 201; Hauer et al. 2018). Hence, eliminating consideration for species recovery is not only contrary to the original purpose of the ESA, but also economically impractical.

Distribution of power

The amended Act and proposed SCA will concentrate power with the Minister and Lieutenant Governor in Council. Specifically, it allows the Lieutenant Governor in Council to add and remove species from the ESA and later the “protected” list, circumventing the decisions of COSSARO. These changes would also authorize the Minister to issue, amend, revoke and suspend permits under the ESA, do the same to registrations and permits under the SCA, and repeals ESA section 57 which requires that the Minister consider whether a proposed regulation “…is likely to jeopardize the survival of the species in Ontario or to have any other significant adverse effect on the species.” These proposals would even allow the Minister to limit the application of the term “habitat” for specific projects.

All of this works to shift decision-making authority from individuals and bodies in merit-based positions of authority to elected officials. A substantial body of peer reviewed evidence exist to suggest that inserting political interests into the conservation decision-making process results in significant reductions in effectiveness of conservation efforts and poorer environmental outcomes (Beazley & Olive, 2021; Botchwey & Cunningham, 2021; Carroll et al. 2017; Rose et al. 2018). We are therefore strongly opposed to this approach.

Permitting and registration
According to the Auditor General’s 2021 report, the Ministry has not provided clear direction to staff on when ESA permits should be refused, resulting in the near-universal approval of applications — though still on a case-by-case basis with species-specific conditions. Rather than addressing this issue, the proposed SCA would replace the current permitting system with a registry-based model and “rules in regulation”, removing the opportunity for individual expert review and conditions. Critically, rules in regulation are typically reserved for low-risk activities where monitoring is unlikely, and any negative consequences are low priority/impact. In the case of ESA activities, there is very high potential for serious negative consequences if "rules" are not developed, applied, or enforced properly. It is also not possible to develop generic protective rules for species that may be highly dependent on unique local conditions for their survival (e.g., terrain slope or aspect, surrounding forest cover, or water quality, quantity, chemistry, and temperature), as is often the case with species at risk.

Perhaps the most concerning element of this change would be the ability of proponents to begin activities which include the "killing, harming, capturing or taking” of a protected species or the destruction of their habitat immediately upon receiving confirmation of registration. This bypasses a critical element of transparency which has been fundamental to the EBR, as it requires posting environmentally significant proposals (including permits) to the Environmental Registry of Ontario (ERO). This “act first ask questions later” approach has, as the province points out, been applied to many projects currently also subject to the ESA through the Environmental Activity and Sector Registry (EASR) but has not applied to the ESA itself. The EASR is used for predictable, low-risk activities under environmental legislation like the Environmental Protection Act (EPA), and not for species at risk due to their extreme vulnerability. Allowing harmful activities (e.g., habitat destruction, species killing) to proceed after unreviewed online self-registration dramatically increases the risk of causing irreversible damage to existing populations of these species and is, therefore, inconsistent with the stated purposes of the EBR, undermining its core intent to protect and restore the environment through transparent decision-making.

Finally, the removal of provincial protections for federally protected aquatic species and migratory birds may have significant implications, since habitat protections under the federal Species at Risk Act (SARA) apply chiefly to Federal lands. This is a significant oversight, potentially resulting in devastating impacts on critically vulnerable species. Seeing as imperilled species do not understand the concept of property boundaries and jurisdiction, existing protections must apply to all relevant lands. Importantly, if the federal government were to conclude that the province is not placing sufficient protections on these species, it is within their power to apply SARA across a broader swath of lands. This would result in a significant loss of control on the part of the province.

Recovery Strategies and other documents

Clear goals and methodology are critical for effective conservation. Without the obligation to develop recovery strategies, management plans, government response statements, and reviews of progress, the province is not only decreasing the likelihood of effective rule development and, therefore, effective conservation, it is removing a critical element of transparency and accountability.

While not stated verbatim in the Act, government accountability for environmental decisions is a well-established objective of the EBR, as repeatedly affirmed by the former Environmental Commissioner of Ontario.

Phasing out of the Species at Risk Conservation Fund

Phase out of the Species at Risk Conservation Fund will translate to significantly less funding available for conservation and allow most proponents to go about their projects free from any mitigation requirements. Although fees-in-lieu offsetting is not considered one of the more effective approaches to conservation, it is far better than nothing, which is effectively what is being proposed.

Although the current Species at Risk Conservation Fund (SARCF) has not yet allocated a significant portion of its funds, its original framework held meaningful promise. The fund’s criteria were oriented toward strategic, science-based recovery planning. In contrast, the proposed reallocation of existing funds for use “in alignment with species protection and conservation” is vague, lacks transparency, and bypasses the recovery-focused intent of the original model. This shift will undoubtedly result in a less effective and less accountable use of funds than what would have occurred under the SARCF.

Compliance and Enforcement

OFAH Foundation applauds the province for their adjustment to inspection warrant requirements for provincial law enforcement. The lack of a standard process for allocation of inspection warrants has proved cumbersome for officers and this should improve their ability to enforce rules and regulations.

However, we are very concerned that the addition of “…or to provide for alternative habitat” to potential non-compliance orders will effectively encourage non-compliance. It is critical that bad actors are made to reverse their actions and restore the impacted area rather than simply creating habitat elsewhere. Not only is the creation of new complex habitat extremely difficult and notoriously ineffective but allowing a proponent to keep a non-compliant project in place will strongly reinforce the perspective that repercussions are simply “the cost of doing business” (Gordon et al. 2015; Jonas Josefsson et al. 2021). Policies must be carefully designed to avoid creating incentives that encourage habitat destruction under the guise of accountability.

An existing issue within the ESA is the lack of compliance monitoring. If the province is truly determined to improve compliance, we strongly recommend they create a standard inspection system for all permit or registration holders.

OFAH Foundation appreciates the government’s desire to prioritize the economic health of our province, but this cannot come at the expense of our ecology and, especially, of our most vulnerable species. As a conservation-based organization, OFAH Foundation is extremely concerned by the level of open disregard for imperilled organisms and habitat contained within this proposal. For the last decade in particular, Ontario’s biodiversity has struggled to cope with changes both legislative and societal, and the proposed ESA amendments and SCA would likely represent the final straw for many critical species. We strongly recommend that the province redraft this proposal and work alongside organizations like OFAH Foundation, Nature Conservancy of Canada, Delta Waterfowl, and Ducks Unlimited to address the province’s economic goals and efficiency targets while maintaining a better framework for the protection of Ontario’s biodiversity. We appreciate the opportunity to comment on these matters and look forward to working alongside the province now and into the future.

References
Beazley, K. F. and Olive, A. (2021). Transforming conservation in Canada: shifting policies and paradigms. Facets, 6: 1714-1727. https://doi.org/10.1139/facets-2021-0144
Botchwey, B. S. & Cunningham, C. (2021). The politicization of protected areas establishment in Canada. Facets, 6: 1146-1167. https://doi.org/10.1139/facets-2020-0069
Bradbury, R.B., Butchart, S.H.M., Fisher, B. et al. (2021). The economic consequences of conserving or restoring sites for nature. Nat Sustain, 4, 602–608. https://doi.org/10.1038/s41893-021-00692-9
Carroll, C., Hartl, B., Goldman, G.T., Rohlf, D.J., et al. (2017). Defending the scientific integrity of conservation-policy processes. Conserv Biol, 31(5): 967-975. https://doi.org/10.1111/cobi.12958.
Franklin, A. B., Noon, B. and George, T. L. (2002). What is habitat fragmentation?. Studies in Avian Biology, 25:20-29.
Gerber, L.R., Runge, M.C., Maloney, R.F., et al. (2018). Endangered species recovery: A resource allocation problem. Science, 362(6412): 284-286. doi: 10.1126/science.aat8434.
Gordon, A., Bull, J.S., Wilcox, C., Maron, M. (2015). Forum: Perverse incentives risk undermining biodiversity offset policies. Journal of Applied Ecology, 52(2): 532-537. https://doi.org/10.1111/1365-2664.12398
Hauer, G., Adamowicz, W.L., Boutin, S. (2018). Economic analysis of threatened species conservation: The case of woodland caribou and oilsands development in Alberta, Canada. Journal of Environmental Management, 218: 103-117. https://doi.org/10.1016/j.jenvman.2018.03.039.
Josefsson, J., Widenfalk, L.A., Blicharska, M., et al. (2021). Compensating for lost nature values through biodiversity offsetting – Where is the evidence?. Biological Conservation, 257. https://doi.org/10.1016/j.biocon.2021.109117
Office of the Auditor General. (2021). Value-for-Money Audit: Protecting and Recovering Species at Risk. https://www.auditor.on.ca/en/content/annualreports/arreports/en21/ENV_P…
Rose D.C., Sutherland, W. J., Amano, T., González-Varo, J.P., et al. (2018). The major barriers to evidence-informed conservation policy and possible solutions. Conserv Lett,11(5). https://doi.org/10.1111/conl.12564