Thank you for the…

Thank you for the opportunity to respond to the anticipated review of the ESA, 2007. If this government is interested in transparency, it would be helpful if you had a name and an identity, as I find writing to an abstract entity discouraging.
Since the Act came into effect, it has been modified through further regulation, including the 2013 changes that weakened the protection afforded by the ESA from “overall benefit” to Species at Risk. Registration of activities with potential adverse effects to SAR was developed in order to increase efficiencies and streamline the process. It is my understanding that this approach has been effective, but the critical flaw is the lack of follow-through by the Ontario government to provide analysis with respect to the efficacy of the Act and its regulations to indeed “Enable positive outcomes for species at risk” (MECP 2019)
The Discussion Paper states that “Since coming into effect, the Act has been criticized for being ineffective in its aim to protect and recover species at risk, for being unclear, administratively burdensome, time consuming and costly for applicants, and for creating barriers to economic development.” Comments are requested under four categories:
1. Landscape Approaches
2. Listing Process and Protections for Species at Risk
3. Species Recovery Policies and Habitat Regulations
4. Authorization Processes
…with the objective “to improve protections for species at risk, consider modern and innovative approaches to achieve positive outcomes for species at risk, as well as to look for ways to streamline approvals and provide clarity to support economic development.”
With respect, I suspect that this government is more focused on “streamline approvals and … support economic development” than it is on protection of SAR and their habitats.
I think that it is imperative that natural capital must be a part of the economic analysis; not an alternative to it. Long term economic performance depends on preservation of natural heritage features and functions, included Species at Risk, that collectively provide priceless benefits to humans. The Gross National Product is not an indicator of economy: it is only an indicator of trade and it does not factor in natural capital: it overestimates profits because it doesn’t take into account the consequences to natural heritage (air, water, soil, habitat and human well being). Policy and public concern is geared to what you can measure (Paul Martin 2011). If this discussion paper seeks to “support economic development”, then it is imperative that we find ways to measure natural capital as part of the balance sheet. Acts such as the Endangered Species Act is a stop gap measure until we elevate our natural capital to a position of equal importance with all other activities that we manage, value and in which we invest.
Implementation, not Legislation
The challenges and discussion questions in the Review are weighted toward problems with implementation of the ESA; not the Act itself. Sufficient protections are provided in the Act to improve protections for species at risk and to consider modern and innovative approaches to achieve positive outcomes for species at risk. In my experience, what is needed is improved planning, implementation and investment in outreach and staffing including training. Delays are often associated with staff who are dealing with SAR ill prepared to provide informed comment and therefore defer rather than move forward on an application.
The focus of the review should be on the welfare of the species; not changes to the responsibility of those who are engaging in activities with potential to create negative outcomes. The Act has already been “streamlined”, but the reciprocal commitment of the provincial government to monitor and ensure compliance has not materialized. I see this Review as another opportunity to weaken protection for species, whether individually or collectively using a landscape approach already provided for in the Act, without balanced actions to ensure that the intended benefits accrue to the species.
It is true that we have a complex framework of environmental legislation but there is nothing with the possible exception of protection for provincially significant wetlands that provides the necessity to achieve positive outcomes for Species at Risk. The fault lies with the inability of the province to identify meaningful recovery plans and options, to facilitate authorizations that link science to planning within the Ontario Government, and to provide the necessary monitoring both for implementation and compliance, with analysis and communication of results to the professionals who are involved with working within the Act.
Specifically:
1. Landscape approach
The discussion paper does not provide any detail with respect to what this means. In my experience, it means that large scale species specific approaches are ignored in favour of poorly defined small scale landscape approaches within which the detail is lost. Landscape approaches are complex and affect many more stakeholders than the surgical SAR approach. The ESA already allows for landscape approaches, so what is it that is different about the approach that your government is contemplating, that would trigger a need for a change in the Act?
Landscape approaches are not a new concept from an ecological perspective as the recovery plan for Woodland Caribou demonstrates. They must be founded in protection of all the pieces as Aldo Leopold has said, “To keep every cog and wheel is the first precaution of intelligent tinkering.” (1972). Landscapes cannot replace a species specific approach; the species calibrate the landscape scale initiatives. What is needed is better funding for the science, better training for biologists (both external and MNRF/MECP and better integration and communication among ministries and departments within.
2. Listing Processes and Protections
The current notification for the listing process is automatic and anyone can participate. The process always anticipates species to be considered in the future and they are included in good environmental impact studies to avoid unnecessary delay if the species should be uplisted to a protection status (SAR) during the approval process.
Automatic listing is efficient (less costly) and focuses efforts on recovery where it belongs.
Political listing introduces costly delay; introduces politicizing. Listing should be science based and transparent, not a political process (does this conjure up the SNC Lavalin case?). Ministerial discretion introduces a great deal of uncertainty; it is not transparent, more expensive and difficult to communicate.
COSSARO employs an open process and anyone can attend. Investment in increased publicity and transparency would be welcome and does not require a change in the Act. The process is already well balanced between public oversight and “in camera” decisions to prevent undue pressure on the committee…it works well. Consideration of “emerging science or conflicting information” is what COSSARO does and invites presentations to ensure the process is as comprehensive as possible.
In the interests of promoting communication within the government, MNRF biologists should be permitted to sit on COSSARO; include indigenous knowledge and require those who are writing protocols at the district level to communicate and discuss outcomes from the science-based staff.
3. Recovery process and habitat
Aside from the inability of MNRF/MECP to meet legislated timelines the Act would appear to be working. Removing the timeliness of the recovery process will undermine its effectiveness, and ignores the fact that any species on the Species at Risk List is already under serious threat, and timelines should be accelerated; not delayed.
If the Government Response Statement would benefit from additional time, then the need for it should be documents, and a revised statement should be provided. Each process should be an open file continually updated with emerging science and monitoring data to allow for adaptive approaches.
The concept that habitat regulations should be replaced by general habitat descriptions has not been tested. No analysis regarding effectiveness of either approach has been provided.
4. Authorization Processes
Delays in authorizations in my experience have been related to staff ill-equipped to advise on permitting. More staff and better trained staff are required. The concept of divorcing the permitting staff from those familiar with the science is crippling to the processing of applications.
Applications currently are being processed for multiple species, so without more information, I have not idea why this is a challenge.
Authorization is receiving undue attention. The main emphasis should be on habitat protection and recovery. The government seems intent on implementing the ESA without economic consequences however there will be cases where this is not possible. Our processes need to mature to the point where we recognize that there are cases where natural capital is more important than the alternative.
Reg 242/08 (2013) reduced the threshold for performance from “overall benefit” to the species. The registration approach increased processing of applications, but there is a great need for robust inspection, compliance and enforcement systems to ensure follow through.
For some species a habitat banking approach is an intelligent and viable solution to unavoidable impacts. However, there is a need for stringent guidelines and more investment in staff and training to enable these discussions, focused on landscape solutions with species as indicators.
In terms of process, the existing land use planning legislation clearly was not meeting the needs of SAR. Although dealing with multiple regulations and policies from a variety of levels of government requires expertise, if addressed early in the project planning process, and integrated studies are undertaken, it does not increase study requirements significantly. The challenge arises when consideration of SAR is left to the end of the project and the cost of flexibility needed to comply with the Act rises sharply.
Summary:
In order to respond to the discussion in a more meaningful way I would like to know the following:
• What prior analysis has been undertaken that has identified that the Act needs amending? What is the source of the “challenges” identified?
• How well is the Act working for SAR? What analysis is available that discusses the outcomes of permitting on SAR populations?
• Is there a link from monitoring data to the members of COSSARO for their consideration in the listing process: both on and off the list?
• If requirements are to be simplified, what checks and balances will be added to ensure that the flexibility implied by simplification will be implemented?
• The broad exemptions like those for the forest industry are ill advised especially as more species are listed with greater potential for the creation of negative impacts. What evidence to we have that such exemptions are not creating unacceptable impacts to listed species? What monitoring is available that tracks the potential conflict and evaluates the significance of effects?
And finally, I think that the Endangered Species Act, 2007 is an important piece of environmental legislation in Ontario, and the proposal to change it with so little evidence for the need is alarming.
It is hard to figure out how to put a value on rivers or forests, but the wrong thing to do is give it no value at all (Faisal Moola, Vancouver Sun).
I see more potential to de-value SAR in this Review than I see reason for optimism. Please prove me wrong.