We have reviewed the…

We have reviewed the proposed amendments to the Endangered Species Act, 2007 and have the following suggestion for the regulations to be promulgated under that revised legislation. These suggestions are based on our clients' experience with the current uncertainty surrounding what constitutes "habitat" where there is no apparent evidence of habitat in a particular geographic location, but officials at the Ministry of Environment, Conservation and Parks take the position that the area may potentially include habitat for a given species.

We note that there can be uncertainty as to whether certain geographical areas may constitute habitat for a particular species. We also note that the proposed amendments shift species-related authorizations to a registration-first approach. To add clarity for registrants around whether a particular geographic area may in fact be a distribution range in which “habitat” for a given species would occur, we suggest that the Lieutenant Governor in Council make use of the new s. 7(2) of the Act:

Deviation from COSSARO classification

(2) For greater certainty, a regulation made under subsection (1) is not required to list all of the species classified by COSSARO but, if a species is listed, the classification of the species shall be the same as COSSARO’s classification and shall include any geographic limitation indicated by COSSARO in respect of the species under subsection 5 (2).

Under this power, the Lieutenant Governor in Council can prescribe, using COSSARO science-based information, the known range or distribution of species. Areas that are not part of this distribution or range can be considered to be outside of the possible defined “habitat” for a species, and therefore not require registration before proceeding with an activity. We suggest that using the COSSARO distribution information, the regulations provide that there is:

(1) a presumption that habitat may exist within that distribution range, and that
(2) habitat is presumed not to exist outside of the COSSARO distribution range unless there is credible, science-based evidence (such as surveys using an appropriate methodology), that habitat is established.

Following these requirements, habitat registrations need only be made for areas that are confirmed to be part of the species’ distribution or known range, or where survey information has confirmed the presence of habitat. We emphasize that the prescribed geographic limitation should be limited to established known distribution ranges for populations of species. Such ranges can, if necessary, be extended if extended survey information establishes the extension of the species’ distribution.

If habitat distribution areas are not prescribed, the Ministry of Environment, Conservation and Parks may receive more registrations than necessary for activities that are well outside of known areas of species’ habitat. This would create an undue burden at the administration and enforcement end of the Ministry’s work and may potentially result in enforcement for registrations in which there is no habitat, wasting Ministry resources.

The proposed approach of using the COSSARO distribution area is science-based and allows for the efficiencies sought to be achieved in line with the legislative amendments.