The Canadian Wildlife…

The Canadian Wildlife Federation is please to take this opportunity to provide comments on the Ontario government’s review of the Endangered Species Act.

Ontario’s Endangered Species Act is a last line of defence against extinction in an era that scientists have termed the sixth mass extinction on the planet. Canada’s wildlife depends on innovative regulations, policies, and programs that make conservation of species at risk the primary goal. Unfortunately, the ESA to date has not adequately protected species at Risk in Ontario nor led to recovery for a majority of listed species. We welcome the opportunity to improve the Act and its implementation to improve outcomes for species at risk. We also appreciate the need to do so in a way that is efficient for government, business and the public; however, we are concerned that most of the discussion points presented in this review appear to focus on making the act more efficient for economic development rather than improving outcomes for wildlife and habitat. Several of the ideas presented would lead to negative outcomes for species at risk.

Stronger and more effective action is the key to protection and recovery of Ontario’s endangered species, not building further holes in the Endangered Species Act. We agree that business requires efficiency, clarity, and certainty, but these must not come at the expense of species that are already on the brink of extinction. The Act already contains exemptions and permits for industry and the need for permits has been removed entirely for some activities that negatively impact species at risk.

Improved protection and recovery of species at risk must be at the forefront in the implementation of the ESA. The Act in its current form has the ability to balance species protection and economic opportunities through the tools that were built into the initial drafting. CWF does not support changes that could potentially weaken this legislation and has the following recommendations for the Ontario government to consider:

1. Landscape Approaches
It must be clear that a landscape approach with respect to protecting species at risk means making decisions that maintain or restore the intactness of the entire landscape on which the multiple species depend. Accomplishing this provides benefits for multiple species, creating major efficiencies in the delivery of the ESA.

CWF is in support of a landscape approach, where appropriate, that will maximize efficiencies and target recovery activities in a fulsome manner. The ESA in its current form allows for this.

There are situations where a species-specific approach is warranted for those with specific threats or unique life history needs. In either case, care must be taken to ensure the individual needs of each species are taken into account. American Ginseng, for example would continue to decline under a landscape approach to habitat protection because harvesting is a primary threat. Freshwater turtle recovery would benefit from landscape-scale habitat conservation, but threat-based conservation is also essential to alleviate the impact of road mortality.

Multi-species, landscape or threat-based approaches can be incorporated into the ESA implementation process by strategically batching COSSARO assessments by geographic area, or by species threats. Recovery Strategies and Government Response Statements can then be interrelated to address multi-species needs and link recovery actions together, while still considering additional conservation steps required for individual species.
A landscape approach would be particularly warranted in areas of high concentration of species at risk (such as southern Ontario) or for species with large home ranges.

2. Listing Process and Protections for Species At Risk
The ability of COSSARO to determine the status of species, independent of government, is essential to the proper functioning of the ESA. Whether a species is at risk of extinction is a function of the species population, distribution, life history and threats; irrespective of socioeconomic factors.
The discussion paper cites longer timelines between assessment and listing as one example to improve the notification process. We disagree that delays will improve outcomes for either species at risk or the economy. It is more cost-effective to provide a swift response when species decline, because recovery costs increase as species and their habitat deteriorate.

We do appreciate the need for transparency and sufficient notice. After COSSARO provides assessment results, these could be promptly publicized to give appropriate notice. This allows planning for conservation actions and understanding the implications from an economic perspective. This can be achieved through better communication on which species are coming up for assessment, when to expect results and the implications of protection.

Habitat loss or degradation is a primary cause for species decline. It is therefore essential that this is addressed through action to reduce the impact of human activities. Automatic protection, combined with clear communication on where impacts can and cannot occur, would protect species while providing certainty of what to expect for economic development. The initial drafting of the ESA understood this critical connection and was designed to balance species protection and the economy. Ministerial discretion is appropriate in order to achieve this balance and comes into effect with respect to the publication of the GRS and issuing of permits. Rather than questioning the validity of automatic habitat protection a focus needs to be placed on expedient recovery strategies defining the habitat, comprehensive GRS and efficiencies for authorizations (see the following sections for recommendations).

In situations where habitat is not limiting, habitat protection could be differently prioritized to allow some disturbance. When the reasons for designation provided by COSSARO do not involve habitat, then automatic habitat protection can be less of a priority and defined during the recovery strategy and GRS process. However where habitat is a factor, which is the case for most species, automatic protection of the habitat upon which the species depends must not be delayed.

Considering the area on the ground where business and the public operate and the amount of automatically protected habitat, there is a small fraction of that impacts business and the public. Yet a few examples of uncertainty are causing anxiety over all species at risk habitat protection. Certainty and understanding can be increased by improved and early communication. CWF recommends the development of a public mapping tool that would delineate current, upcoming and anticipated protected habitat.

A landscape approach can help to provide certainty with respect to automatic species and habitat protection. Species at risk are highly concentrated in southern Ontario and associated with the most populated areas. If the species in this landscape are already receiving protection, new additions to the ESA likely fall within these already protected landscapes, minimally increasing protected areas. The protection of habitat within this landscape will conserve species not yet assessed, leading to a decreased likelihood of becoming at risk and removing the need for additional habitat to be protected.

CWF supports the idea of improved public notice and communication with respect to COSSARO’s assessments. The information around the assessment and classification can and should be transparent and provided as soon as they are available.

3. Species Recovery Policies and Habitat Regulations
The difficulty in meeting legislative timelines speaks to a need for adequate resources and priorities placed on recovery of species at risk. The Government Response Statement is a key component in this process, as it sets the stage for actions that will be undertaken. Delays and inaction are detrimental to species while at the same time providing little economic certainty because business is uninformed of the parameters under which they must operate. What is needed for species and economic development is for government to provide resources to develop and implement a framework for protecting habitat and taking action. We recommend that the government of Ontario hire sufficient staff to finalize each GRS within the 9-month time period.

Granted there are limited, specific cases where GRS timelines may need to be extended such as the requirement for extended consultations with Indigenous people. Situation-specific exemptions need to be identified and along with conditions under which they could apply.

By the time a species is assessed and listed as at-risk, there is a need to act quickly. Activities should be well underway in time for a five year review of progress on protection and recovery. The recovery process must be a long-term plan. A review every five years provides an update of actions, their effectiveness and allows for adaptive management.

In some situations, regulated habitat may not be essential, but this must be addressed on a case by case basis. Where habitat is not limiting, general habitat descriptions could suffice. But where habitat is a limiting factor to survival and recovery, a habitat regulation is critical. A consideration for recovery is the desire to return the species to an historic distribution, in which case habitat beyond the current distribution may be required. A habitat regulation can account for this to define areas beyond where the species currently occurs, where a general habitat description does not.

4. Authorization Process
We are in favour of consistent application and streamlining of decisions, which must also include decisions to deny a permit for an activity that would harm a species or its habitat. In order to recover species at risk, there must be some situations where decisions favour the species over development.
CWF acknowledges that the authorization process can be time consuming for development activities. The vast majority of such permits are overall benefit permits (aka C-Permits). We are highly supportive of improvements to provide efficiencies for business, as long as these include improved protection and recovery for species at risk. To accomplish this we suggest a review of historic permits combined with expert consultation to devise proven conservation measures that will provide an overall benefit to the species. If previous permits can show with, scientific confidence, that benefit has been achieved for a given situation, then it can be replicated as conditions for similar situations. This must also include the implementation of additionally such that there actually is an overall benefit, and not merely avoidance of further loss. Ultimately, if a proponent cannot provide solutions that result in an overall benefit to a species, or if the means of providing an overall benefit are too long, onerous, or unpredictable, then requests for authorizations should be declined.

The discussion paper refers to the potential for tools such as contributing to a conservation fund or conservation banking to achieve overall benefit. These tools have potential conservation benefits, but may be of limited applicability for the conservation of species at risk. Habitat banking may be suitable in providing credits for single species or groups of species, as long as the benefits of the habitat are realized and demonstrated prior to the sale of credits. Such credits must also be applied in a like-for-like manner (e.g., for projects that harm the same species that the bank benefits). Contributions to conservation funds are generally inappropriate as compensation for the destruction of habitat. In other situations, such as the fight against white-nose syndrome in bats, financial contributions towards actions that address the primary threat may be suitable. This must be determined case by case.

CWF can attest that applying for and receiving scientific permits (aka b permits) is straightforward and not burdensome, as we have done this several times. B permits are signed off at the district level, removing time and resource constraints of ministerial sign off.
The Ontario government must bear in mind that allowing harm to endangered species or their habitat poses considerable risk. Comprehensive requirements to avoid, reduce and mitigate this risk must be upheld. Implications of failure could be irreversible harm to the species, habitat and their potential extirpation from Ontario altogether.

CWF is receptive to innovative approaches to integrate the ESA with other legislative frameworks such as the Crown Forests Sustainability Act. It must bear in mind that managing for forestry is much different than managing for species at risk. A permit to cause harm to a species at risk must meet a much higher test than one for forest harvest, since there is a very large inherent risk with endangered species. Synchronizing actions and timelines with between legislative frameworks is supported as long as the requirements for each individual piece of legislation is respected.

Beyond the scope of the Discussion Paper:
There are several areas for improved protection of species at risk beyond the challenges presented in the discussion paper. CWF recommends:
1. Removal of exemptions that were instated in 2013 for forestry, hydro power, infrastructure and mining activities. There is little evidence that self-regulation with minimal oversight has led to the recovery of affected species at risk. The evidence that we have reviewed indicates that this has contributed directly to further declines in affected species.
2. Promptly finalizing the Government Response Statements and Recovery Strategies that are currently overdue
3. Improving alignment with the Federal Species at Risk Act in line with the Accord for the Protection of Species at Risk, including
a. Implementing the ESA in a manner that would meet the test of SARA
b. Support for federal Action Plans
c. Development of Boreal Caribou Range plans
d. Promote and provide for stewardship activities
e. Ensure lack of full scientific certainty is not used as a reason to delay measures to avoid or minimize threats to species at risk.
4. Improved, consistent monitoring and enforcement of permit conditions and infractions of the ESA
5. Provide considerably increased support for stewardship activities and recovery actions, including to private landowners to protect and recover species at risk

Our economy will benefit by clear regulations, swift responses and improved communications, not by delays and exemptions in the backstop against extinction. The ESA in its current form allows for these challenges to be addressed. CWF would welcome the opportunity to further discuss a balanced approach to protection for species at risk. As a national conservation organization with a vested interest in species at risk, there are areas within the discussion paper we could endorse provided advancement is made for increased protection and recovery of species at risk in Ontario; and there are other aspects of the ESA review we strongly advise the MOECP to cast aside.
Sincerely,

James Pagé
Species at Risk and Biodiversity Specialist