Thank you for the…

Thank you for the opportunity to provide comments on the 10th Year Review of Ontario’s Endangered Species Act: Discussion Paper. We are submitting this feedback in our capacities as Wildlife Conservation Society (WCS) Canada scientists with significant direct experience in the assessment, research, stewardship, and recovery of species at risk (SAR) in Ontario and Canada.

WCS Canada is a national non-government organization with conservation science programs in Ontario since 2002, with a particular focus on the far north. We have active research programs on wolverine, caribou and lake sturgeon, in close collaboration or in partnership with the Ontario Ministry of Natural Resources and Forestry (MNRF). One of the signers of this letter (JR) served for nine years as terrestrial mammal co-chair of the Committee on the Status of Endangered Wildlife in Canada (COSEWIC) and for four years as a member of COSSARO. She has also been a member of several federal and provincial technical/science advisory committees related to caribou critical habitat and recovery and was on the Ontario wolverine recovery team as well as co-author of the 2013 provincial recovery strategy. In addition, she served on the Endangered Species Act (ESA) Review Advisory Panel for MNRF through to the passage of the Ontario ESA in 2007. The other signer (CO) is a current member of the freshwater fish specialist sub-committee for COSEWIC, and leading an active research program on lake sturgeon in northern Ontario.

After reviewing the discussion paper, our general recommendation is to focus the review on improving implementation of the ESA, rather than on changes to the legislation. To that end, we have a number of detailed responses to the challenges and discussion questions in the paper, and include specific recommendations for each of the four focus areas in this letter [see attached file for the complete letter].

Overall remarks:
While the discussion paper begins with statements that emphasize upholding the ESA’s intent to protect and recover SAR in Ontario (e.g., providing “stringent protections”), the deeper one reads into the paper the clearer it becomes that the underlying impetus for this review is finding efficiencies for proponents seeking permits is. Although the high-level criticisms the Ontario government has heard are described in the introduction from the perspectives of both effectiveness for species and economic development, challenges and possible approaches described in the body of the paper focus on economic efficiency alone.

The ESA was put in place in 2007 to provide extra protections to species for which other policies and legislation were inadequate (as indicated by the growing list of species on the SAR list). It set out a process for elevating the needs of SAR in decision-making, particularly around habitat protection. It raised the standard of protection from doing less harm to benefitting species. This meant two things:
1) permitting activity does not equal recovery unless it benefits a species; and
2) other protections tailored to the recovery needs of individual species, particularly habitat protection, must be implemented.

There is no indication in either the “challenges” or “discussion questions” of the paper of any consideration by Ontario of why problems are arising. What is at the root of the complaints the government is receiving about the ESA’s implementation? Are the “challenges” described in the paper about the language of the legislation, the policies or regulations, or the implementation (i.e., sufficiency of capacity, whether the organizational structure is resulting in sound delivery, etc.)?
In fact, this current process should be much more than a review of the ESA – it should be a review of the ESA regime in Ontario. Yet, the discussion questions posed by the paper focus primarily on the legislation itself, rather than where and how implementation could be strengthened.

The discussion paper also seems to take it as a given that any economic development project will be able to benefit SAR through mitigation or restoration. However, there are a growing number of circumstances where authorizations are not going to be appropriate for meeting the recovery objectives of SAR, bringing about very difficult decisions. SAR and other environmental values cannot always be dealt with through mitigation (i.e., doing less harm) after the project is already approved. In some cases, proactive planning and denial of certain activities may be required to ensure that populations of SAR in Ontario are maintained or recovered. This is a reality that must be acknowledged, if the current government is genuine in its intentions to protect and recover SAR.
Finally, there is no mention of the fact that streamlining already happened, quite dramatically in 2013, when a 91-page amendment to Regulation 242/08 was introduced that brought about profound shifts to the practice and system of caring for our SAR. There is no evidence that the Ministry has looked into the consequences of these changes, either for the species themselves, or for any improvements in processing (i.e., did the streamlining succeed?). It is only thanks to investigations undertaken by the Environmental Commissioner of Ontario that we have any inkling of some consequences to this regulation, which included dramatic increases in authorizations of harmful activities, no routine compliance monitoring, and little tracking of the species themselves and how they were faring.

Our overarching recommendation is to make no changes to the legislation itself. Instead, the government should focus on better using the full suite of existing tools in the ESA, and improving implementation to provide more meaningful protections for SAR in Ontario. We detail our advice for improving implementation in our 13 specific recommendations below.

We contend that more strategic implementation of the ESA can be accomplished without significant additional expenditures, and that failure to invest appropriately now in species at risk conservation will lead to escalating costs in the future as biodiversity deteriorates.

Justina Ray, Ph.D. President & Senior Scientist
Constance O'Connor, Ph.D., Associate Conservation Scientist