RE: ERO #013-4143 Review of…

RE: ERO #013-4143 Review of the Endangered Species Act, 2007
Focus 1: Landscape approaches
- The law should not be changed to allow landscape approaches “instead of” species-specific approaches. The fine scale of species-specific status assessments, listings and protections is needed.
- Regarding landscape planning, the ESA already provides for this. No change to the law is needed.
- With regard to authorizing harmful activities at a broad scale, such an approach is inappropriate for endangered and threatened species. It doesn’t lend itself to addressing site-specific or species-specific concerns and consequently presents unwarranted additional risk for species already in peril.
Focus 2: Listing process and protections
- Science-based listing and automatic protections provide certainty.
- There should be no change to the ESA regarding the listing process and the role of Committee On the Status of Species At Risk in Ontario (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)).
- Improving notification is an implementation issue which should be addressed through better communications. In its listing process, COSSARO is required to consider species listed by the federal Committee on the Status of Endangered Wildlife in Canada (COSEWIC) (sec. 4(2)a); there are years of notice embedded in this process, from the release of COSEWIC status reports to the listing by COSSARO.
- There should be no alternative to automatic species and habitat protections (e.g., through ministerial discretion to remove or delay protections).
Focus 3: Recovery Policies and Habitat Regulations
- There should be no change to the legal requirement to produce Government Response Statements (GRS) within nine months of the release of Recovery Strategies (sec. 11(8)). Failure to meet the legislated deadline is an implementation issue.
- 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.
- The government should legislate additional reporting requirements (e.g., every five years) to drive ongoing action and monitoring beyond the first 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). No change to the law is needed.
- 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.
Focus 4: Authorization Processes
- This is the Endangered Species Act so the priority must be on protecting and recovering species at risk.
- There are already sufficient authorization tools. No new tools are needed. Challenges should be addressed through improved implementation.
- Proponents of harmful activities should NOT be allowed to simply pay into a conservation fund - an easy way out that reduces accountability and facilitates harm to species at risk and their habitats. Retain the current requirements to provide an on-the-ground, overall benefit to species harmed.
- Do not simplify requirements for sec. 17(2)d permits. These are intended to be available only for projects that “result in a significant social or economic benefit to Ontario” and that will not “jeopardize the survival or recovery of the species in Ontario.” These are appropriate requirements and ensure that such permits are issued only an exceptional basis.
- Do not simplify requirements for exemptions through regulation. On the contrary, make the requirements more stringent by amending the law (sec. 57) to ensure that exemptions are premised on providing an overall benefit to species at risk and cannot jeopardize their survival or recovery.
- Strengthen protections for species at risk by repealing the sweeping exemptions for industry and development (forestry, hydro, mining, aggregate extraction, and more) approved by Cabinet in 2013. The 2013 exemptions have become the primary means for allowing harmful activities to proceed. As of October 11, 2017, there had been 2,065 registrations for exemptions and about 85 percent of these were for activities that violate ESA protections for species at risk and their habitats.
- Enforcement officers have no authority to routinely inspect exempted activities to ensure compliance with legal requirements, and consequently no inspection takes place. Implement the recommendation of the Environmental Commissioner of Ontario to amend the ESA to give enforcement officers the power to conduct compliance inspections.
- Enhance transparency and accountability 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.
- 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.

Thank-you.