INTRODUCTION Canada’s…

INTRODUCTION
Canada’s cultural identity is tied closely to our magnificent natural heritage. Like a unique work of art, our biodiversity is irreplaceable, and needs to be afforded the protection it deserves. Government plays an important role in protecting and maintaining the health of our natural environment. Ontario was the first province in Canada to pass legislation to protect endangered species in 1971, and has been making improvements since. In 2007, recognizing the harmful impacts of habitat loss, the new Endangered Species Act (ESA) placed importance on a science-based approach to protecting species under law with the automatic protection of their habitat; something many provinces have yet to implement. To maintain balance while still preserving species at risk (SAR) and their habitats, the legislation allowed flexibility for socio-economic development. Furthermore, this legislation has created laws that necessitate action rather than discretionary decision-making, making it a benchmark among provinces for SAR protection. Here we address the four areas of focus outlined in the ESA discussion paper and provide specific recommendations on improving the Act and its implementation (MOECP, 2019), summarized in Table 1 provided as supplementary material.

RECOMMENDATION I
Positive aspects of Ontario’s Endangered Species Act
(Areas of Focus 2 & 3)

We would like to address the strong points in the Act that should remain unchanged, and how Ontario’s Act supports the values for which it is mandated. The 10th Year Review of Ontario’s ESA Discussion Paper states that “the Act has been criticized for being ineffective in its aim to protect and recover SAR.” However, many of the challenges addressed in the discussion paper were not in regards to species protection but rather from an economic development perspective (MOECP, 2019, p.2). In response to Area of focus 2: Listing process and protections, we believe that the automatic habitat protections currently in place for listed species is a great strength in Ontario’s legislation and one of the many reasons that it ranks higher than other provinces. If the Ontario government is earnestly interested in “improving protections for SAR” (which is the first priority in reviewing the ESA) then automatic species and habitat protections should remain unchanged in the Act.

Similarly, suggestions for lengthening the time periods for listing SAR should be dropped. SAR protection is an extremely time-sensitive issue, because the longer we wait to act, the more challenging recovery actions become. Additionally, it is important to recognize that return on investment decreases over time in the context of conservation plans, implying swift action is most cost-effective (Robillard & Kerr 2016). There are many other ways of streamlining processes which can potentially make the Act less “administratively burdensome, time consuming and costly”, which will be mentioned in the following recommendations. We also believe that the ‘Protection and Recovery of Species’ section of the Act, as it is, provides strong protection and should not be changed, namely section 11(3) (the Precautionary Principle). Listed SAR species are in need of quick strategic protection and therefore we cannot reasonably delay action with the purpose of collecting more data (e.g. if we are uncertain of exact critical habitat requirements; Kareiva & Marvier, 2015). To summarize, postponing measures further, and extending deadlines for recovery strategies and ministerial responses summarizing government actions, will not “improve protections for SAR”.

RECOMMENDATION II
Keeping everyone in the loop: Open-access data and mapping
(Areas of Focus 1 & 2)

To provide more transparency for the public, we recommend two tools to provide information about development risks due to the presence of SAR prior to permit applications. The first tool is a “risk” map that provides information about potentially challenging areas to develop based on SAR presence. Risk maps would show the difficulty of obtaining a permit for development based on known SAR distributions, critical habitat, and probability of occupation. The map could be created for each species at the listing phase when habitat requirements and species distributions are defined. The Act could require all permit applicants to consult a risk map prior to submitting the permit application. The Act should encourage anyone purchasing or developing land to consider the presence of SAR in the same way they would consider any economic or environmental risk, like developing on a floodplain. A risk map also improves a developer’s sense of the endangered species present in the area. The risk map would provide a broad landscape approach to the permit application process that would help generalize case-by-case decisions.

The second tool would be an open-access database of all previous environmental assessment reports that could be used to provide information about SAR distributions. The database would help reduce the costs for many permit applicants by reducing duplicate reports, providing more accurate SAR information, and further reducing red tape for developers. Environmental assessment reports could be standardized and required by the Act to be publicly available, which would reduce the number of poor-quality, industry-biased environmental assessments.

Both tools would help generalize the permit application process, while also providing clarity to the public about SAR listings. While the initial gathering of information and development of the map and database may be intensive, in the long run it could greatly improve the efficiency of both species protections and permit applications.

RECOMMENDATION III
Replacing habitat with habitat, not dollars
(Area of Focus 4)

We strongly oppose the idea of simply paying into a conservation fund instead of ensuring the quality and quantity of critical habitat for SAR. We are concerned, and rather disappointed, with the first discussion question (Area of Focus 4) suggesting that to help businesses achieve benefits for SAR they may pay into a conservation fund in lieu of activity-based requirements. Critical habitats, as defined by the ESA, are specific geographic areas essential to the conservation of an endangered or threatened species. These critical habitats include, but are not limited to, reproductive and/or spawning areas, nursery habitats, and feeding grounds. For many reasons, it is extremely difficult to reconstitute or reproduce such habitats where they did not occur, and to then transfer SAR to such reconstituted habitats. The track record of attempts to do so is one of almost universal failure. No amount of funding can change this. Among the variety of anthropogenic threats to SAR, our greatest challenge is stopping habitat loss and degradation. It is of utmost importance that the Government of Ontario does not develop new authorization tools to help businesses at the expense of SAR habitat protection.

In scenarios where permits are issued for development, we advise at minimum a 1:1 replacement ratio of SAR-specific habitat so there is no net habitat loss. This method is essentially a “win-win” scenario: the Act requires developers to take actions to create new SAR-specific habitat to replace what was lost, while still allowing development on the land. Creating new habitat to replace what has been lost is feasible for some species, especially for species with small home ranges, such as the bank swallow (Riparia riparia). If creating new SAR-specific habitat is not possible, an alternate (though less favourable) option is to protect its existing habitat elsewhere. Any new SAR habitat created or protected must be monitored to ensure SAR persist successfully. In summary, we recommend replacing habitat with habitat so there is no net loss, as conservation funds are incapable of helping SAR if there is no habitat left.

RECOMMENDATION IV
Broad-scale approach, but species-specific protection
(Areas of Focus 1 & 2)

A multi-species approach can be incorporated in recovery action plans for species that cohabit the same area, ecosystem, or landscape, but each unique species must be listed and protected individually. Granting species automatic protection without delay is absolutely required, and we believe it is the backbone of the Act. If the Ontario government is serious about conserving species, there is no better alternative than to afford appropriate protection for each species and its habitat. As far as delaying listings or actions until we have enough information to act efficiently and effectively, we emphasize that SAR often cannot afford to wait. It is far riskier and typically more expensive to wait than to act despite uncertainty.

Section 13 of the ESA states that a recovery strategy or management plan be prepared using an “ecosystem approach”; however the practical application of this approach is neither defined nor described. Section 14 of the current Act also outlines that recovery strategies and management plans be prepared for more than one species, when appropriate. We feel that both Section 13 and 14, though they require more clarity, should be considered as a solution to concerns outlined in Area of Focus 1 regarding the suggestion of a ‘landscape approach’ rather than a species-by-species approach. If the Act is determined to manage SAR via an ecosystem approach, we suggest the legislation provide a clear definition of their interpretation, and incorporate adaptive management techniques that can be changed as new information comes to light.

CONCLUSION

In summary, we believe that the ESA should keep automatic species and habitat protection and retain or shorten current time periods for implementation. We recommend the mandated creation of “risk” maps, made accessible to the public in an open-access database to inform future developers of potential barriers to development. We suggest that businesses should be required to replace habitat with habitat rather than paying into a generic conservation fund. Finally, we strongly recommend that species still be listed individually but that multi-species and/or ecosystem approaches be taken to manage multiple species where their habitats overlap.

References

Robillard, C.M. & J.T. Kerr 2016. Assessing the shelf life of cost-efficient conservation plans for species at risk across gradients of agricultural land use. Conservation Biology. 31(4): 837-847.

Kareiva, P. & Marvier, M. (2015) Conservation Science: Balancing the Needs of People and Nature, 2nd edn. Roberts and Company Publishers, Inc, Greenwood Village.

Ministry of the Environment, Conservation and Parks 2019. 10th year review of Ontario’s Endangered Species Act: discussion paper. Retrieved from: https://ero.ontario.ca/notice/013-4143