The Ontario government is…

The Ontario government is proposing to replace the Endangered Species Act, 2007 (ESA) with the Species Conservation Act, 2025 (SCA) based on the concern that the existing legislation is too complicated and causes unnecessary delays and costs for housing, transit, and critical infrastructure. The goal of the new SCA is to “focus on the core protections essential to the conservation of species”. As fisheries professionals, we are concerned with this new legislation, as it is being proposed during a time of profound declines in biodiversity. Amongst our concerns are the redefinitions of habitat, the removal of specific protections related to the harassment of species, the elimination of the goal of species recovery, and the removal of Ontario’s independent scientific committee’s authority to determine the listing of at-risk species. Altogether, these changes do not represent the optimal path forward for maintaining our province’s biodiversity.

Provincial species at risk legislation is meant to supplement federal legislation (1). Aquatic species (fish, shellfish, crustaceans, and marine animals) are protected under the federal Fisheries Act, which includes their habitat and prohibits its harmful alteration, disruption or destruction (2). The new SCA eliminates provincial protection for SARA (federally) listed aquatic species.

As an example, the Critical Habitat Order for Redside Dace issued on January 27, 2025 stated that its listing under the ESA afforded additional provincial protection of the species and its habitat (3). Because Redside Dace are an aquatic species listed under SARA as endangered, they are excluded under the new SCA and would no longer have this provincial protection. The ESA had established specific rules and best practices for protecting Redside Dace, such as techniques for installing sediment control fencing (4). These additional guidelines will be lost under the SCA.

There are several relevant publications (both from the scientific community [1,5] and the Auditor General [6]) outlining how the current protections for at-risk species could be improved. The government should be focusing on strengthening, not weakening, current legislation.

Specifically, the AFS-OC opposes the following changes to the ESA:

Habitat is being redefined

Defining habitat is one of the most complicated but important parts of species protection. The ESA had a good definition of habitat: “an area on which the species depends, directly or indirectly, to carry on its life processes, including life processes such as reproduction, rearing, hibernation, migration or feeding” (7). The new SCA would define habitat (for an animal) as “a dwelling place or the area immediately around it, such as a den, nest or other similar place, that is occupied or habitually occupied by one or more members of a species for the purposes of breeding, rearing, staging, wintering or hibernating”. The important changes in the new definition are the removal of places that are “indirectly” necessary, the narrowing of spatial areas to “immediately around” a dwelling place, and the removal of protection for “life processes” such as feeding. These items should not be removed from the definition of habitat. Such changes are reminiscent of those made to the Fisheries Act by the federal government in 2012–2013 that saw habitat protections, a critical cornerstone of that Act, stripped away in the absence of evidence of prior meaningful consultation with subject-matter experts and rightsholders (8, 9). We have similar concerns (i.e., the removal of indirect but essential components of habitat) for the vascular plant definition of habitat in the new SCA as well. The government appears to be relying on the assumption that populations can be conserved by attempting to prevent only the most direct forms of potential harms to habitats and individuals. This is not good enough.

The recovery of species is no longer a goal

The ESA had the explicit goal of helping species recover, in addition to the protection and stewardship of those species. The SCA has removed those goals and replaced them with “protection and conservation” while “taking into account social and economic considerations including the need for sustainable economic growth in Ontario.” Even the word “stewardship” has been replaced with “conservation”, yet the term “conservation” has not been defined. We strongly disagree with the removal of species recovery as a goal for threatened and endangered species in Ontario. The status quo should not be the goal, and the term “restore” should be kept as the explicit goal of all at-risk species legislation.

The new SCA also removes the requirement for the Ontario government to develop a recovery strategy, management plan, response statement, and review of progress for at-risk species. This reduces the availability of recovery plans for species in Ontario to those listed federally under SARA. However, species are not equivalent to one another; there is no one-regulation-fits-all approach. That’s why each species at risk has its own recovery plan – they have their own threats and biological requirements that affect recovery. Ontario has published recovery strategies for 180 species at risk as of December 2024. Are these strategies still going to be used, or are those efforts and research now obsolete?

The Ontario government controls which species are listed

The Committee on the Status of Species at Risk in Ontario (COSSARO), as an independent committee of experts, classifies species using scientific information. Under the ESA, this committee submits their report to the Minister of the Environment, Conservation and Parks (MECP) who is required to amend the Species at Risk in Ontario List to include those species within twelve months.

Under the SCA, the listing authority moves to the Lieutenant Governor of Canada instead of MECP. This is not a problem in and of itself. The problem is that the governor is no longer required to list any species classified by COSSARO and is given the power to revoke current listings. Not only that, but the Minister of the Environment, Conservation and Parks is now given the authority to recommend who sits on COSSARO to the Lieutenant Governor.

Ontario’s ESA legislation was once considered the best in Canada, mainly due to the automatic listing and protection of habitat (10). By giving the listing power over to the government, the impartial scientific process of listing species is undermined, and species’ listings will be subjected to the government’s political and economic interests, instead of science. This essentially turns COSSARO assessments into a formality with little to no actual impact.

We believe that the best part of Ontario’s existing legislation should not be changed; whoever is tasked with officially designating species on Ontario’s Species at Risk List must follow COSSARO’s recommendations.

Harassment would be permissible

The ESA prohibits harassment and harm of protected species. Harassment disrupts the normal behaviour of an animal, while harm results in physical injury. The new SCA removes harassment as a prohibited activity, though the term “harm” would remain. Harassment could result in individuals stopping feeding or nest-building. These species are already facing imminent extinction or extirpation, or will be if current threats continue. These are the species that most need to be left alone. Harassment is an important component of disturbance that should remain as an illegal activity.

Permits are no longer required

The Ontario government states that a “registration approach is already in place and used by the ministry for 95 per cent of projects subject to the current ESA”. The number of projects is not the important metric; rather, it is the magnitude of projects that matters. The current activities that require registration instead of permits are mainly those that help protect or recover species – not for those that may cause a lot of harm. Permits are currently required for land development, infrastructure, aggregate pits and quarries, or projects that result in a significant social or economic benefit to Ontario – typically large-scale projects (11). Permits are required for these so that projects with the largest potential negative impact on species are reviewed and the proponent receives guidance around best practices to minimize impacts to the species they’re going to harm. They also ensure that the proponent has thought about reasonable alternatives to the activity and, if harm must happen, has taken steps to reduce this harm.

The government’s proposed one-regulation-fits-all approach will not work, especially considering they haven’t even decided what the new regulation will be. As the existing policy says, “Given the unique biology and behaviours of each species at risk in Ontario and the variety of human activities occurring within the province, determining whether an activity is likely to kill, harm or harass a member of a protected species will generally need to be done on a species-by-species, case-by-case basis.” (12) We believe the current permitting system should not be changed.

Retroactive enforcement

The government states that the SCA will “strengthen our ability to enforce species protection laws to ensure that all proponents comply with the rules and expectations of this new approach”, without providing any details about how this will occur. We note that the MECP/MNRF did not inspect a single project of the 6,539 approved under the ESA between 2007 to 2020 for compliance (13), raising questions about how the SCA will do this better. The government also has not provided any evidence that their proposed retroactive approach — removing the ability to conserve and recover species up front, and instead focusing on penalizing people who harm species after it has happened — is a better strategy for the conservation of at-risk species.

Unclear definitions

We believe that the SCA should define any terms it uses up front, instead of giving cabinet the power to define these terms as they see fit. These include “adverse effect”, “alternative habitat”, “in the wild”, and “significant adverse effect”, new terms that are proposed but undefined.

The big picture

The proposed changes in this bill indicate that the government fails to understand that the functioning of each stream, watershed, forest, meadow, and wetland is dependent on the species present in it, and that each river functions differently as soon as a species is lost. This bill is committing Ontario to an impoverished legacy for future generations. Ontario already has 22% more species at risk in 2020 compared to 2009 (13), and the new legislation will not prevent this number from climbing further. Biodiversity in southern Ontario is worth an estimated $84.4 billion per year (in 2008 dollars) through ecosystem services such as provision and purification of fresh water, nutrient cycling, air quality, carbon storage, flood control, pollination, culture, tourism, and aesthetics (14). As we lose biodiversity in each habitat, we lose these services. AFS-OC cares about Ontario’s biodiversity, and we call upon the Ontario government to do better to protect it for current and future generations.

References
(1) Gordon, S.C., Duchesne, A.G., Dusevic, M.R., Galán-Acedo, C., Haddaway, L., Meister, S., Olive, A., Warren, M., Vincent, J.G., Cooke, S.J. and Bennett, J.R. 2024. Assessing species at risk legislation across Canadian provinces and territories. FACETS 9(1):1-18.
(2) https://laws-lois.justice.gc.ca/PDF/F-14.pdf
(3) https://ecprccsarstacct.z9.web.core.windows.net/files/SARAFiles/0002062…
(4) https://www.ontario.ca/laws/regulation/080242#BK27
(5) Bethlenfalvy, A., and Olive, A. 2021. Recent amendments to the Endangered Species Act and an uncertain future for species at risk: a case study of Ontario’s Niagara Region. FACETS 6(1):1168-1183.
(6) https://www.auditor.on.ca/en/content/news/21_summaries/2021_summary_ENV_ ProtectingSpecies.pdf
(7) https://www.ontario.ca/laws/statute/07e06
(8) Hutchings, J.A., and Post, J.R. 2013. Gutting Canada's Fisheries Act: no fishery, no fish habitat protection. Fisheries 38(11):497-501. https://doi.org/10.1080/03632415.2013.848345
(9) https://beatymuseum.ubc.ca/2014/03/10/recent-changes-to-the-fisheries-a…
(10) Bergman, J.N., Binley, A.D., Murphy, R.E., Proctor, C.A., Nguyen, T.T., Urness, E.S., Vala, M.A., Vincent, J.G., Fahrig, L. and Bennett, J.R. 2020. How to rescue Ontario’s Endangered Species Act: a biologist’s perspective. FACETS 5(1):423-431.
(11) https://www.ontario.ca/page/how-get-endangered-species-act-permit-or-au…
(12) https://www.ontario.ca/page/policy-guidance-harm-and-harass-under-endan…
(13) https://www.auditor.on.ca/en/content/annualreports/arreports/en23/1-23F…
(14) https://test.ero.ontario.ca/public/public_uploads/2019-10/296833.pdf