1. Schedules 2 and 10 of…

1. Schedules 2 and 10 of Bill 5 should be withdrawn by the Ontario government because they eviscerate the protection of endangered species in Ontario and because they set up economic development as adversarial to Treaty relationships rather than finding common interests and including First Nations in Ontario’s prosperity. In particular, the following aspects of Schedule 2 should be replaced, as they apply to the amended ESA and subsequent SCA, as stated below:
2. Purpose of the amended Endangered Species Act and the Species Conservation Act - since the purpose of the amended ESA and the SCA will be used by a court interpreting the legislation, neither section 1(a) nor section 1(b) are useful to advance interpretation as they are inconsistent with one another. Section 1(a) simply allows for the identification of species at risk, while paying lip service to the contribution of community knowledge and Indigenous traditional knowledge, and not committing the Ontario government to actually taking steps to protect the habitat (as habitat is currently defined) of the species at risk or to ensure the recovery of the species. This commitment needs to be included. Section 1(b) should be revised to remove the consideration of socio-economic factors when administering the legislation as this is at odds with what the legislation needs to protect. In the past, the ESA was never intended to advance economic development and this should not change now because the ESA was meant to protect species at risk in Ontario. The change to the purpose indicates a government willingness to sacrifice Species at Risk and their habitats simply for short-term economic gain. The specter of the Trump threats should not be used as an excuse to trade off the protection of these species against the perceived need for more economic growth across Ontario. Once those species are lost, any medicinal or other values that science could gain from their study will also be lost to the people of Ontario, including local First Nations. Protecting species at risk should constrain economic development if it is needed to protect the species.
3. Unscientific definitions of “habitat” - Schedule 2 plans to replace the current ESA definition of habitat, which will restrict the application and interpretation of the ESA and the SCA. This is a clear step backward from the current definition of habitat. The current definition is needed for the effective operation of the legislation. The new definition fails to protect other parts of the critical habitat that are needed for the survival of a species’ full life cycle needs beyond their “residences”. The current definition of habitat should therefore remain in the amended ESA and SCA.
4. Useless Non-Derogation Clause – Section 10 proposes a non-derogation clause that is similar to the boilerplate one that is in section 46 of the current ESA, and similar to other provincial statues. It does little to actually safeguard Indigenous rights, lands and interests during the decision-making and implementation of the SCA. The province has previously issued permits under section 17 of the current ESA which cause direct, indirect and cumulative effects upon First Nations and the exercise of their constitutionally protected rights. However, the Crown’s duty to consult is not even mentioned in the SCA. Ontario currently relies on the very processes it is dismantling (under Bill 5) as a main avenue by which it satisfies its duties to consult and accommodate.
5. COSSARO - Ontario should not have full discretion to override the independent body—COSSARO--that currently decides what species should and will be protected. Both the amended ESA and the SCA are removing the requirement that any species identified by COSSARO as species at risk be added to the protection regulation, and are effectively limiting the role of COSSARO to gathering information, classifying species, and otherwise providing reports and advice to the Minister. However it will ultimately be up to the government, at its discretion in each case to decide which species, if any, get added to or removed from the Protected Species List (section 14 SCA). This should not occur. The government should not be able to trump clear scientific evidence and Indigenous Traditional Knowledge that a species is at risk without providing any reason or explanation, with no deadline or timeframe. Also, it is unacceptable that the new SCA will not list species of special concern.
6. Removal of current prohibitions against harassment (s. 9) and against habitat damage/destruction (s.10). The amended ESA and SCA both do not consider the “harassment” of a species protected under the ESA as a prohibited act. This prohibition should remain in the legislation. Without it, species will have virtually no protection from disturbances that stress them, reducing their ability to survive. For example, if caribou are disturbed, they may move away from an area, which impacts indigenous harvesting rights, and forces the caribou to expend unnecessary energy they need for life functions such as growth, health, and reproduction. The new section 15 and 18 SCA provisions contain much narrower prohibitions, both of which are unworkable in practice. Section 16 has no reference to killing or harming individual members of a species at risk or destroying or damaging their habitat, which constitutes the greatest threat to such species. Section 15 seems only aimed at protecting exptirpation of a species but since it is so vaguely worded it will likely be unenforceable. In contrast to section 9 of the ESA, the new prohibition is targeting unspecified activities that “likely” pose a population-level threat, which would be exceptionally difficult to prove. Also, section 15 does not provide any meaningful protection for threatened species of special concern.
7. Removal of sections 11 to 16.1 of the current ESA - Schedule 2 proposes to wholly delete, but not replace, sections 11 to 16.1 of the current ESA. Most of these sections were amended or enacted by the Ontario government in 2019 as part of its then controversial overhaul of the ESA. Now, no environmental rationale for repealing these sections has been given. These sections together form an essential part of the current ESA and it is appalling that Ontario is proposing to completely withdraw from implementing recovery strategies and management plans. Listing an at risk species under the amended ESA but committing to no government action to bring the species back from the brink makes the amended ESA virtually useless to protect at risk species. This creates a situation where First Nations and other members of the public may not know how Bill 5 changes actually impact each specific endangered or threatened species as they will no longer have access to progress reports which help outline the effectiveness of government policy.
8. Permits - Schedule 2 replaces section 17 with provisions that make the permitting process even weaker and less effective or protective than it is now. The replacement provisions should be deleted. Currently, although the government claims that 95% of activities already proceed after simply registration, there are still 5%, the most impactful activities, which cannot proceed without a permit. By removing opportunities for the government to review plans and impose protective conditions, the proposed amendments will also eliminate opportunities for First Nations to be consulted and accommodated. Even as the outcome of consultation and accommodation processes become more important, the triggers and opportunities for those processes are being stripped away from First Nations. Further, the SCA’s proposed self-regulation system sounds like the MECP’s Environmental Activity and Sector Registry System, which the Auditor General of Ontario raised concerns about the expansion of in the 2024 EBR report. Such concerns should be addressed and not expanded into other legislation such as the
SCA.
9. Potential federal implications – Bill 5 will mean that the federal safety net under the Species at Risk Act will need to be relied upon on the grounds that Schedules 2 and 10 do not provide adequate protection of federally listed species at risk or their habitat. Of note, 236 (or 87%) of the species found on the Ontario list of Species at Risk are also listed under SARA. Ontario should be working to avoid federal orders applying SARA within the province, especially in these days when federal and provincial cooperation is needed to make Canada strong. In addition, less than 5% of the range of most terrestrial at risk species occurs on federal lands. The vast majority of Ontario is comprised of provincially managed public lands, but now migratory birds and aquatic species that are listed as endangered or threatened under SARA will be excluded. The ESA needs to be improved and strengthened, not rolled back and repealed by Bill 5. Section 10 of the SCA states that the SCA will generally not apply to migratory birds and certain aquatic species, whereas no current provision to this effect exists in the ESA. Ontario has provided no evidence-based reasoning to remove these species from coverage under the SCA. There is no constitutional reason for denying protection under both the SCA and SARA as long as there is no conflict between the two statutes, in which case the federal SARA would prevail. Such species-related legislation currently exists with the federal Fisheries Act and the provincial Ontario Water Resources Act and is complementary.
10. “Mistake of Law” Defence – Section 23(4) is legislating “mistake of law” as a defence to charges under this section. This should not be in the SCA. In Canada, ignorance of the law is not a valid excuse for contravening the law, and may only be considered as a mitigation factor in sentencing.