Submission to the…

Submission to the Environmental Registry of Ontario (ERO) re ERO No. 025-0380

Proposed interim changes to the Endangered Species Act, 2007 and a proposal for the Species Conservation Act, 2025

I would like to submit a comment on ERO no. 025-0380, “Proposed interim changes to the Endangered Species Act, 2007 and a proposal for the Species Conservation Act, 2025”.

Overall, this Act has an extremely anti-conservation focus, and seems designed to promote the expansion of housing, transit and “critical infrastructure” with no regard whatsoever for the protection of species at risk. Even the four-line summary of the Act (on the ERO) sets a very unfortunate tone, mentioning that “The current approach … causes unnecessary delays and costs.” This statement perpetuates the myth that Ontario must choose between taking positive environmental actions, including saving species at risk, and moving ahead with decisive measures to improve the economy. There is no dichotomy here – the best interests of citizens of the province are in preserving our natural heritage, including saving species at risk, while also setting in motion well-considered sustainable economic actions. As the name “Endangered Species Act (ESA)” implies, the goal of this Act is first and foremost to save and benefit these species, not to search for ways and means to circumvent their protection.

The approach of this Act is to depend on voluntary procedures and protection of species which is discretionary. It is unimaginable that such a procedure could work. By analogy, would the government assume that voluntary speed limits on roads, and discretionary enforcement by police, could be a change for the better? The removal of required recovery strategies for species considered to be at risk is likewise very troubling. It would become virtually impossible to prevent actions which would contribute to the decline and/or extinction or extirpation of species at risk. It would also become impossible to keep an accurate record of those actions which were detrimental to these species.

While the Act is highly contrary to the goals and objectives of the existing ESA, there is actually some consistency in the history of the government’s actions. The Act is consistent with a great many efforts by this government to amend species protection through: 1) legislation that granted exemptions to extractive companies, 2) foot-dragging on the addition of species to the SARO list (Species at Risk in Ontario), 3) greater options for the Minister to make decisions without the necessity of consulting with experts in the field, and 4) reduced sharing of information as well as limited transparency in relation to the public.

Throughout the Act, the word “recovery” is used in place of the word “conservation”. Likewise, the ESA specification that recovery strategies must be created and updated is to be eliminated under the Act. The word recovery is essential here, not optional. ‘Recovery’ mandates that factors which are likely to lead to the decline of a species must be assessed, allows for the generation of objectives for the future, and promotes the creation of a detailed plan to help the species in question.

The core of the existing ESA is species recovery. By replacing the word recovery with conservation, the government is watering down the entire rationale of the ESA – essentially making the whole process a sham.

The Act introduces an exceedingly restrictive meaning for the word habitat. If you asked any elementary student in Ontario, what is meant by the habitat of an animal, they would respond that it means everything that it needs to survive. Habitat would include anything that species needs to survive at every single stage of its life cycle. Unfortunately, this definition is distorted by the government to mean “species’ dwelling places and areas ‘immediately around the dwelling place’ that are essential for some stages of the species’ life cycle.” By such a ludicrously narrow definition, a fox might have the site of its den protected, while the entire surrounding area was paved over. Perhaps even more incomprehensible is the situation for plants. For vascular plants, the ‘critical root zone’ would be considered that plant’s habitat. Clearly, a plant species at risk must be protected effectively at all stages of its life cycle, not merely the critical root zone of the plant.

Politicization of the process for appointing members to the Committee on the Status of Species at Risk in Ontario (COSSARO) is yet another undesirable aspect of this Act. Similarly, instituting a procedure that would allow certain actions to be carried out under a permit (e.g., killing an at-risk species) is not warranted. Elimination of the possibility of creating an advisory committee is also a negative change. One is reminded of the change in the rules at certain conservation authorities, where all members of advisory committees were required to be politicians (whereas previously committee members could be local citizens, some of whom were much more knowledgeable than the members themselves). So long as there were nonpartisan members on committees, and so long as such advisory boards were permitted, there was a check and balance system to secure the public interest, and to safeguard proper decision-making.

It will no longer be mandated that a species list be generated, with designations of each species as extirpated, endangered, threatened or special concern. Rather, producing such a list will become discretionary. Such a change will substantially reduce safeguards for species at risk. This change demonstrates further that these legislative amendments will not enhance the protection of species – but rather have entirely the opposite effect.

Under the ESA, it was illegal to ‘harass’ an at-risk species. Under the new legislation, this statement is removed – meaning that the provincial act will be inconsistent with federal law, which “prohibits any person from killing, harming or harassing any listed species.” The existing rule in the ESA is highly preferable to the amended version.

The ability of enforcement officers to issue ‘stop orders’ to those contravening the ESA will be eliminated, reducing the opportunity for the at-risk species to be protected. In place of ‘stop orders’, it will become possible for the Minister to make a ‘mitigation order’. Such an order would not prevent negative consequences for the at-risk species, but merely offset such consequences. Such a change is most certainly not an improvement. In considering the very limited enforcement options being used to protect ESA species under the existing legislation, it is impossible to see the amendments as yielding an effective enforcement strategy. We need more enforcement, not less.

Since the ACT eliminates the prerequisite for reports, information and recovery strategies, for keeping track of the protection of at-risk species and recovery efforts, there is a considerable reduction in the level of government accountability.

If someone were tasked with transmogrifying the ESA, in order to create a process that would simulate species protection while in fact instituting procedures that would eviscerate such safeguards, they could scarcely design a more thorough fake.

In conclusion, we recommend that this Act be withdrawn in its entirety.

If the government should wish in future to put forward a proposal which would actually strengthen protections for at-risk species, we would be most happy to review it and offer constructive comments.

Thank you for considering our submission.