Ministry of the Environment,…

Ministry of the Environment, Conservation and Parks
Species Conservation Policy Branch
300 Water Street, Floor 5N
Peterborough, ON K9J 3C7

Dear Sir/Madam,

RE: ERO # 013-4143, MECP’s 10th Year Review of Ontario’s Endangered Species Act: Discussion Paper

When enacted, the Endangered Species Act , 2007 (ESA) was considered to be a ‘Gold Standard’ for protecting Ontario’s 243 species at risk. However, protections were soon significantly weakened by the Liberal Ontario Government in 2013 when it approved a large number of exemptions to Ontario Regulation 242/08 to allow major industrial activities, such as forestry, mining, energy, and residential development, to bypass strict protection standards. The result was “Overall Benefit” going to industries instead of the species at risk for which the ESA was enacted. This was a very short-sighted, self-serving, and backward move by the former Liberal Ontario Government. In the past 40 years, it is estimated that more than 50% if Earth’s wildlife has been lost. Human industrial activity has much to answer for. Its detrimental effects on the environment (atmospheric, terrestrial and aquatic) are impoverishing most species, including humans, and their future generations, which depend on a healthy natural and biodiverse environment. The ESA was enacted to protect and recover the most vulnerable species in Ontario and should be enhanced, not weakened. At this time, 140 of the 243 species at risk are still without recovery strategies.

The Conservative Ontario Government’s proposals outlined in the Ministry of Environment, Conservation and Parks’ Discussion Paper may be interpreted as another move to promote an “open for business” approach to environmental law and policy, while being an assault on protections for species at risk. It will also undermine Ontario’s floral and faunal biodiversity. The legislation being addressed here is the Endangered Species Act, not an Endangered Business Act. The disturbing fourth bullet on Page 2 of the Discussion Paper states, “ Increase efficiencies in service delivery for authorization clients”, which can be interpreted by many Ontarians to mean “Speed up the permitting/authorizing of industrial and other types of development at all costs”. The primary focus must be on protecting and recovering species at risk, not facilitating development at the expense of species at risk.

The Provincial Government/MECP should be promoting strong adherence to the ESA’s original purpose to protect species at risk; should be removing the exemptions to Ontario Regulation 242/08 introduced in 2013; and should be implementing the policies of the ESA in a timely fashion. It should not be further weakening the law. Many of the “activities” referred to in the Discussion Paper pose threats to species at risk by allowing their habitats to be damaged or destroyed by harmful development activities.

The following are responses to the questions posed in the Focus sections:

Focus 1: Landscape approaches
The ESA (c. 6, s.13; and c.6, s.14) already provides for landscape-level planning, in it multi-species recovery strategies, for example. Therefore, no change to the ESA is required. The fine-scale of species-specific status assessments, listings, and protections is essential in the law.
Allowing broad-scale authorizations of harmful activities is inappropriate for endangered and threatened species, and wouldn’t serve to address site-specific or species-specific concerns. It would contribute to unwarranted additional risk for imperilled species. Therefore, do not introduce broad-scale authorizations.

Focus 2: Listing process and protections
COSSARO’s science-based listing and automatic protections of species at risk are cornerstones of the ESA and must be retained. The ESA allows a clear approach to listing based on best available scientific information from highly credible and independent experts. The ESA allows a COSSARO listing to be reviewed if there is no”credible scientific information” to support the listing of that species. Therefore, respect and retain the science-based, independent process for listing.
Automatic species and habitat protections must stay in place, and must not be subjected to ministerial discretion/interference to remove or delay protections. Politics should not be allowed to interfere with these protections.
There are years of notice involved in the listing process for species. Federal COSEWIC listings must be taken into account by COSSARO before it issues its listings. Improved communications might speed up the listing process; surely, modern technology can be used to speed up the process.

Focus 3: Recovery Policies and Habitat Regulations
Reasons for timeline challenges have to be analyzed and addressed, as they are the main reasons for delayed implementation of recovery policies and habitat regulations. These implementation issues can be addressed without the need for legislative changes. No legislative change should be required to ensure Government Response Statements (GRS) are produced within nine months of the release of Recovery Strategies under the ESA. Timelines need to be met. Sufficient staff and funding should be made available for this.
The required five-year reporting on progress is reasonable and is needed for transparency and accountability. It is necessary for assessing effectiveness, and contributes to learning and adaptive management. Therefore, retain this reporting requirement.
Additional reporting requirements to propel ongoing action and monitoring beyond the first five years would make sense, and should be legislated. Therefore, consider a longer monitoring period.
No change to the law is required to delay the development of, or to not proceed with, a habitat regulation, as the ESA permits the Minister to take these actions.
No changes should be made to the legal provisions for habitat regulations; they give extra certainty for ESA implementation and enforcement. They afford a significant opportunity for protection and recovery efforts to be extended beyond areas where species at risk are currently found.

Focus 4: Authorization Processes
No further authorization mechanisms are required in the ESA and there are already sufficient mechanisms. The purpose of the ESA is to protect and recover species at risk, not facilitate development by industrial and development proponents by permitting them to carry out activities harmful to species at risk. Therefore, do not provide additional authorization mechanisms in the ESA.
The current requirements to provide on-the-ground, overall benefit to species that are harmed should be retained. Do not allow proponents of harmful activities to simply pay into a conservation fund, which reduces their responsibility for harmful activities.
The requirements for permits for projects that “result in a significant social or economic benefit to Ontario” and will not”jeopardize the survival or recovery of species in Ontario” should be retained and the permits should be issued only in exceptional circumstances. Therefore, retain the current authorization requirements for sec. 17(2)d permits.
Make the requirements for exemptions through regulation more stringent by amending the law to ensure that exemptions are based on providing an overall benefit to species at risk and cannot harm their survival or recovery. Therefore, do not simplify requirements for exemptions through regulation.
Strengthen the protections for species at risk by repealing the sweeping exemptions approved by the Liberal Government Cabinet in 2013, which have allowed harmful industrial activities to proceed, many of which violate ESA protections.
Give enforcement officers the authority to inspect exempted activities routinely to ensure compliance with legal requirements.
Transparency and accountability need to be improved. Therefore, amend the exemption regulation (242/08) to require all proponents of harmful activities to submit their mitigation plans and annual reports to the government, and make sure that these are available to the public.
The ESA does not need to be changed to to harmonize it with other legislative or regulatory frameworks as the ESA already provides a means to do this.

This ESA Review Discussion Paper raises one especially serious concern. It appears to favour the interests of industries and development proponents instead of concentrating on strengthening the ESA and implementing its goals to protect and recover species at risk in a timely manner. The comment made by the Environmental Commissioner of Ontario on page 248 of her 2017 report on environmental protection, “The MNRF has utterly failed to implement the law effectively”, is telling. The MECP needs to find meaningful and workable “efficiencies” to strengthen the ESA and its implementation. It is encouraging to see, on p. 50 of Ontario’s Environment Plan, that the Ontario Government is committed to “Reaffirm our commitment to protect species at risk and their habitats, as we mark the 10th anniversary of Ontario’s Endangered Species Act. We are committed to ensuring that the legislation provides stringent protections for species at risk, while continuing to work with stakeholders to improve the effectiveness of the program.” One sincerely hopes this government will prioritize the protection and recovery of species at risk, not the facilitation of development projects which threaten species at risk. The existing protections legislated by the Endangered Species Act, 2007 must be stringently enforced.

Thank you for the opportunity to provide comments.