Re: EBR 013-4143: 10th Year…

Re: EBR 013-4143: 10th Year Review of Ontario’s Endangered Species Act

1. Landscape Approaches

The legislation should not be changed to promote landscape approaches in place of species-specific approaches. Species-specific status assessments, listings and protections are essential. The ESA already provides recognition for landscape-level approaches when appropriate. No change to the law is required for this purpose.

With respect to the suggestion of issuing authorizations for harmful activities at a broad scale, this approach is not appropriate for endangered and threatened species. Working at a broad scale would not properly address site-specific or species-specific concerns. Such an approach therefore, would present unwarranted additional risk for species already in peril.

2. Listing Process and Protections for Species at Risk

Science-based listing and the automatic protection of designated species are essential aspects of the ESA. These requirements must remain fully in effect. There should be no change to the listing process and the role of COSSARO. The law sets out a transparent approach to listing based on a consideration of “the best available scientific information, including information obtained from community knowledge and aboriginal traditional knowledge.” (sec. 5(3)).

In its listing process, COSSARO is required to consider species listed by the federal Committee on the Status of Endangered Wildlife in Canada. There thorough notice requirements built into this process, from the release of COSEWIC status reports to the listing by COSSARO. The process leading to designation is already lengthy enough. No further delay is required. Introduction of Ministerial discretion would not improve the process.

3. Species Recovery Policies and Habitat Regulations

It is not necessary to change to the legal requirement to produce Government Response Statements (GRS) within nine months of the release of Recovery Strategies (sec. 11(8)). Rather than changing the legal requirement, the province should provide the resources that would enable staff to meet the necessary dates.

The required five-year reporting on progress is reasonable and ensures transparency and accountability. It provides an impetus for action, ensuring that effectiveness is assessed, and contributes to institutional learning and adaptive management. Furthermore, the government should legislate additional reporting requirements (e.g., every five years) to drive ongoing action and monitoring for periods beyond the initial five years.

The ESA already allows the Minister to delay the development of a habitat regulation (sec. 56 (1)b) or to not proceed with a habitat regulation (sec. 56 (1)c). Therefore, it is not necessary to change this part of the act.

There should be no changes to the legal provisions for habitat regulations, which describe specific boundaries or features of areas deemed to be habitat and provide enhanced certainty for ESA implementation and enforcement. They can include areas where a species “used to live or is believed to be capable of living” (sec. 55(3)b), presenting a significant opportunity for protection and recovery efforts to extend beyond places where species at risk currently persist.

4. Authorization Processes

The ESA already provides ample flexibility. It is important to note that the legislation under review is the Endangered Species Act, not the Endangered Business Act. One of the purposes of this legislation is “To protect species that are at risk and their habitats, and to promote the recovery of species that are at risk.” Protecting species at risk must remain the top priority during the current review process.

The current legislation provides sufficient authorization tools. The authorization process must be taken seriously, as the overall intent is to protect species at risk. The province should allocate sufficient resources so that staff may conduct their reviews in a timely manner.

It is not appropriate to simplify the requirements for a permit under s. 17(2)d. These permits are intended only for projects having significant social or economic benefit, and that will not jeopardize the survival of the species in Ontario. Current requirements ensure that such permits are issued only on an exceptional basis.

It is not appropriate to introduce new exemptions. The current review should strengthen protection for species at risk by repealing the sweeping exemptions for industry and development that were approved by Cabinet in 2013. These exemptions are allowing harmful activities to proceed, contrary to the purpose of the act.

Where exemptions are granted, transparency and accountability must be enhanced by amending the exemption regulation (242/08) to require all proponents of harmful activities to automatically submit their mitigation plans and annual reports to the government and to ensure that these are publicly available.

As previously recommended by the Environmental Commissioner of Ontario, the ESA should be amended to give enforcement officers the power to conduct compliance inspections.

The ESA (sec. 18) already provides a means to harmonize its requirements with other legislative or regulatory frameworks. No legislative change is needed. This is an implementation issue.