Your posting states, "We are…

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Your posting states, "We are not required to consult on this permit proposal as it relates to an animal and therefore does not meet the required criteria set out in subsection 1.3(6) of Ontario Regulation 681/94 of the Environmental Bill of Rights, 1993."

The reason "we don't have to consult because it's an animal" just seemed so ridiculous... so I embarked into a rabbit hole of research into legislation and regulation. Let's see how I did with it. This response is long, but mainly because I copied and pasted the relevant legs and regs to lay out my argument. To see the main conclusion, please skip to the last paragraph of my response, below.

Your whole point is that you don't have to consult on the permit if it's not Class I instrument. Is this correct? In the EBR, proposals for instuments are either Class I, II, or III. Below is a copy of how the classes are determined (EBR Section 20 (2)). In summary, though, a propoal is a Class I instrument unless it needs even more public consultation, i.e., Class I is the default.

"6. Classify each type of proposal for an instrument identified in step 4 as a Class I, II or III type of proposal, in accordance with steps 7 to 10.

7. Classify a type of proposal as a Class II type of proposal if the minister considers that the public notice and public participation requirements of sections 23 to 25 ought to apply to it because of the level of risk and extent of potential harm to the environment involved.

8. Classify a type of proposal as a Class II type of proposal if an Act provides for the exercise of discretion on whether a hearing should be held before an implementation decision is made on a proposal of the type, but does not require the hearing to be held if the discretion is not exercised.

9. Classify a type of proposal as a Class III type of proposal if an Act requires hearings to be held to determine whether or not proposals of the type should be implemented, even if the Act provides for the exercise of discretion not to hold a hearing.

10. Classify a type of proposal for an instrument as a Class I type of proposal if it has not been classified as a Class II or III type of proposal in steps 7 to 9.

11. Prepare a proposal for a regulation that would classify proposals of each type identified in step 4 as Class I, II or III proposals in accordance with steps 7 to 10. 1993, c. 28, s. 20 (2)."

Here is The EBR Section 1.3 (6), that would determine whether or not an environmentally significant proposal is even a Class I (the default).

"(6) A proposal to issue a permit under clause 17 (2) (c) or (d) of the Endangered Species Act, 2007 is a Class I proposal for an instrument if all of the following criteria are satisfied:

1. The permit would authorize a person to engage in an activity specified in the permit that would otherwise be prohibited by clause 9 (1) (a) or (b) or section 10 of the Endangered Species Act, 2007.

2. The species that would be specified in the permit is not an animal.

3. The person to whom the permit would be issued is not the Crown in right of Ontario, a municipality or a public body within the meaning of the Environmental Assessment Act.

4. The authority to engage in the activity referred to in paragraph 1,

i. would not apply on Crown land, and

ii. would not apply in a provincial park. O. Reg. 49/19, s. 3."

Just for thoroughness, I have copied here the ESA Section 17 (2) (c) or (d), which is referred to above. It basically allows a permit to be issued when the developer pays money and/or tries to make up for the damage they do that contravenes sections 9 and 10 of the ESA:

"(c) the Minister is of the opinion that the main purpose of the activity authorized by the permit is not to assist in the protection or recovery of the species specified in the permit, but,

(i) either of the following conditions will be or have been met:

(A) the Minister is of the opinion that an overall benefit to the species will be achieved within a reasonable time through requirements imposed by conditions of the permit, or

(B) subject to subsection (2.1), the person who would be authorized by the permit to engage in the activity has agreed to pay to the Agency any species conservation charge that is required by the permit,

(ii) the Minister is of the opinion that reasonable alternatives have been considered, including alternatives that would not adversely affect the species, and the best alternative has been adopted, and

(iii) the Minister is of the opinion that reasonable steps to minimize adverse effects on the species are required by conditions of the permit; or

(d) the Minister is of the opinion that the main purpose of the activity authorized by the permit is not to assist in the protection or recovery of the species specified in the permit, but,

(i) the Minister is of the opinion that the activity will result in a significant social or economic benefit to Ontario,

(ii) subject to subsection (2.1), the person who would be authorized to engage in the activity has agreed to pay to the Agency any species conservation charge that is required under the permit,

(iii) the Minister is of the opinion that the activity will not jeopardize the survival or recovery of the species in Ontario,

(iv) the Minister is of the opinion that reasonable alternatives have been considered, including alternatives that would not adversely affect the species, and the best alternative has been adopted, and

(v) the Minister is of the opinion that reasonable steps to minimize adverse effects on the species are required by conditions of the permit. 2007, c. 6, s. 17 (2); 2019, c. 9, Sched. 5, s. 15 (1)."

OK, going back to the EBR Section 1.3 (6), it states that all of the criteria must be satisfied. After reviewing all the relevant information here are the results of the checklist, to the best of my knowledge:

1) Yes, the permit authorize something normally prohibited by the ESA
2) No, the species the permit would specify IS, in fact, an animal.
3) Yes the permit would not be issued to the Crown, municipality or other public body subject to the EAA
3) Yes, the activity would not be on Crown land or in a provincial protected area.

It would strike me that criterion number 2 is NOT satisfied. Since all the criteria are not satisfied, is this not a Class 1 instrument?

I'm not a stupid person, though I'm also not a lawyer. However, the statement, "we don't need to consult because this is an threatened animal" is .... not smart. Not only are animals part of the environment, but hurting the animals and threatening the viability of at-risk populations through the removal of habitat, I would argue, constitutes environmentally significant actions, which is why the EBR is relevant in the first place, here.

Maybe this was copied and pasted from a butternut proposal? Harm to endangered species is not a paper exercise, it's real life. Not that plants aren't also alive, or part of the environment, but let's put that beef aside for now.

If not a copy/paste mistake, somewhere along here the logic doesn't follow and, even if I AM wrong, I still think it should be easier to understand the rules than it currently is. Since it's not easy, I would ask that you update the posting to actually explain to me (and everyone else) how this turtle being an animal rules it out from being worthy of mandatory consultation, by explicitly spelling out how the EBR and ESA rule it out. As you can see from my review of the relevant criteria, I have NOT been able to do that today.

Thanks