The 10th Year Review of…

The 10th Year Review of Ontario’s Endangered Species Act: Discussion Paper presents a poor and incomplete summary of challenges faced by the subjects of the act, i.e. a) the species and habitat requiring protection and b) the users of resources/those carrying out activities in those habitats and c) the enforcers of the act. Also,
1. there are no specific examples for the challenges presented, especially specific examples for what is meant by a landscape approach to ensuring or improving outcomes for species at risk. Therefore it is unlikely the government will obtain a adequate feedback from the public. Ontarians will have been poorly consulted at this early stage should changes be undertaken based on the review, and the process will have been not very transparent at all at this early stage.
2. The 10th Year Review of Ontario’s Endangered Species Act: Discussion Paper fails entirely in its omission of discussion points for the challenges faced by species in cases where activities are carried out by industries exempt from the requirements of the act.
2- The 10th Year Review of Ontario’s Endangered Species Act: Discussion Paper fails entirely in it’s omission of discussion points for the inherent disaster in the act being administered by the Ministry of Natural Resources and Forestry. This situation is akin to an agency involved in ensuring quality of day care centre being the same one to regulate how child molesters can have access to those children. Therefore, consideration needs to be given to splitting up the two conflicting interests of listing, defining and monitoring protections for species and regulating industrial/commercial activity impacting protected species and permission to destroy habitat. As I have indicated in writing to the ministry in the past, I believe that the Endangered Species Act should be looked after by the Environment and Climate Change Ministry which regulates other things relating to the natural environment, and not by the Ministry of Natural Resources and Forestry. The natural resources are part of the environment of all Ontarians. It is time to recognize that the current joint responsibility by MNRF is not working and clearly the failures and poor discussion points in this discussion paper reveals this, albeit in a round about way. In my interaction with a local MNRF office the staff’s conflict between an obligation to protect species and to support commercial development when pressured by business is so evident and sadly has forced staff to use less than honourable means to force the decision and appear to be negligent in proper enforcement of the act.
I outline below my comments addressing specific discussion points raised by Ontario in the document. I first wish to comment in general, that it is time for such discussions to acknowledge that there may not be enough healthy wild intact ecosystems left in Ontario to protect wild species in a perfect manner, while also allowing “business as usual” to continue for individuals or industries whose activities are causing harm to endangered species and their habitats. However, we do need to try, and we need to take drastic measures to be successful. The wording and the types of questions raised in this discussion paper exemplify a ministry in denial of realities, and not only this, the wording at times appears to be an attempt to obfuscate what is really being considered and also makes it difficult for the lay person to understand what is being asked for in terms of discussion and therefore makes it unlikely a good enough effort can be said to have been made to seek consultation from a wide range of Ontarians. This is unfortunate because, I fear, the same kind of problem alluded to in your section 2 in relation not species being listed, will arise in relation to the act itself i.e. the unclear wording in this discussion paper will result in any proposed changes to the act arising without most people having a heads up. Most people will not have had enough public notice before changes are made to the act and the process will not have been transparent at all - or at least not to most people.
1) Landscape Approaches
a) Discussion paper asks: “In what circumstances would a more strategic approach support a proposed activity while also ensuring or improving outcomes for species at risk? (e.g., by using a landscape approach instead of a case-by-case approach, which tends to be species and/or site-specific.)”
ANSWER: is this question related to mitigation of risk or ? Can the species be relocated nearby? A landscape approach can support a proposed activity in addition to a species and/or site-specific approach, but a landscape approach cannot replace these. Does the landscape approach assume that you will then protect other area for the species and what if there isn’t any nearby and/or the species cannot migrate or be relocated? Does habitat protection instead of species mean that, for example the habitat of all turtles will be protected? Does the habitat approach suggest, for example, that perhaps a municipality would be given a certain number of “credits” and then no more of that habitat would be permitted to be damaged or compromised from the perspective of endangered species viability in that habitat?
Or alternatively perhaps the activity, instead could be viewed on a landscape approach, for example if there are already other similar activities such as a nearby dam then it could be not allowed if the sum in that landscape do not support integrity of the habitat.
In cases where there is habitat to replace the habitat lost, perhaps.
ANSWER: already the ESA allows for landscape approaches and so these need to be better understood and utilized by Ontario and those who administer the ESA.
b) Discussion paper asks: “Are there existing tools or processes that support managing for species risk at a landscape scale that could be recognized under the Endangered Species Act? “
ANSWER: Yes and no. For woodland caribou, for example, recognition of the need for whole landscape consideration has been included already in the ESA as mentioned above. However, for many other species this may not be the case. Where new habitat cannot be re-created because of the uniqueness of that habitat, or for species where overall one needs to have connectivity between habitats (where this connectivity is being lost and is affected every time a municipal planning decision is made poorly or otherwise - it would be overlooked, too complex, too late), and so these requirements by species would not be adequately covered by an overly simplistic landscape approach alone, i.e. not for all species or for all habitat types.
2) The Listing process and protection for species at risk
a) Discussion paper asks “What changes would improve the notification process of a new species being listed on the Species at Risk in Ontario List? (e.g., longer timelines before a species is listed.)”
ANSWER: there should be publication of the full information about the species at risk listing and recovery strategy in a peer-reviewed publication before official listing of the species, as well as public release of the same in a lay person publication. This would allow for a) everyone, including those in the scientific community to be aware that the new species listing is coming. Importantly it would also allow for the known experts cited in the documents to view the information and to comment and/or be prepared to comment on what is there and be aware of what was finally included. NOTE: that there are cases where quoted experts in recovery documents were not aware at all of what was said in the final report and this has led to, I have observed, erroneous information included in the listing documents. Thirdly, it would also allow for the process to be transparent, or at least a little more if the members of the COSSARO panel involved for that publication are included there i.e. increasing awareness that there is such a body and who are the people on it and b)
b) Your discussion paper asks: “Should . . . we sometimes just say they are not going to be protected? . . . there be a different approach or alternative to automatic species and habitat protections? (e.g., longer transition periods or ministerial discretion on whether to apply, remove or temporarily delay protections for a threatened or endangered species, or its habitat.)”
ANSWER: No, it should remain as is, with no additional ministerial overruling /politicization element to an already flawed act. If the science shows that a species should not be listed as endangered, then it would not be under discussion so such an over ruling or alternative should not be needed. To be clear, there should be no additional “alternative” beyond those already built into the flawed act, i.e. the existing imperfections of the industrial exemptions added in 2013 and the conflict of interest inherent in the enforcement of the act.
c) Discussion paper asks: “In what circumstances would a different approach to automatic species and habitat protections be appropriate? (e.g., there is significant intersection between a species or its habitat and human activities, complexity in addressing species threats, or where a species’ habitat is not limiting.)” . . .
This begs the question, appropriate to who or what? Should the question really be: when can we just say to hell with the rule and the species?
ANSWER: When the minister or other industry with pull stands to gain a lot.
ANSWER: Where the situation is hopeless and no one cares about the animal (or whatever species) anyway.
ANSWER: When it is not in the ideal habitat and the protections are going to lead to a bad outcome for a different species or a different important sensitive habitat.
d) Discussion paper asks: “How can the process regarding assessment and classification of a species by the Committee on the Status of Species at Risk in Ontario be improved? (e.g., request an additional review and assessment in cases where there is emerging science or conflicting information.)” . . . improved for who? Or what?
ANSWER: The answer depends on who one is trying to improve the process for. One way to improve it and to ensure it covers new and/or conflicting information is to ensure that the assessment and classification process by COSSARO is reviewed by people who know the content and after it is created. Again, publish the documents in a peer-reviewed scientific publication and other public news sites to ensure transparency, to give all a warning that it is coming, to allow for people to refute it there is conflicting information and to be sure that those who are used as references have a chance to see whether the information is complete and conveys what they know to be the most up to date. Also to give industries a heads up to register complaints and to see how they can do more damage or mitigate damage (as the case may be) early on in the process of planning “activities”.
3) Species recovery policies and habitat regulation
a) Discussion paper asks: “In what circumstances would a species and/or Ontarians benefit from additional time for the development of the Government Response Statement? (e.g., enable extending the timeline for the Government Response Statement when needed, such as when recovery approaches for a species are complex or when additional engagement is required with businesses, Indigenous peoples, landowners and conservation groups.)”
ANSWER: as the example included in the question states, if it is complex and there is new information arising and data is often outdated. In these cases more time may be needed. However, if one had released the original pre-release document in a public transparent manner, more information would be revealed, early on and errors corrected, potentially reducing such cases.
b) discussion paper asks: “In what circumstances would a longer timeline improve the merit and relevance of conducting a review of progress towards protection and recovery? (e.g., for species where additional data is likely to be made available over a longer timeframe, or where stewardship actions are likely to be completed over a longer timeframe.)”
ANSWER: time is often needed for study of any biological system but at no point would this indicate that there would be merit in considering stopping it - if that is what you are implying. Take the time needed and meanwhile be careful and diligent and stringently protect where protection and recovery are needed.
c) Your discussion paper asks: “In what circumstances is the development of a habitat regulation warranted, or not warranted? (e.g., to improve certainty for businesses and others about the scope of habitat that is protected.)”
ANSWER: To improve certainty to a business is not a circumstance where it would not be warranted. When would it not be warranted? Perhaps when the habitat is gone or all hope is lost. When no one cares about the species? Example recently was a developer who said of an endangered species whose habitat they sought authorization to harm: “it is just a little bug in the middle of nowhere” So, ya, in cases where industries are twisting government officials arms then perhaps it is NOT warranted to develop a habitat regulation!!!! Are we talking about the ESA here or not?
4) Authorization for species harm process
a) discussion paper asks: “What new authorization tools could help businesses achieve benefits for species at risk? (e.g., in lieu of activity-based requirements enable paying into a conservation fund dedicated to species at risk conservation, or allow conservation banking to enable addressing requirements for species at risk prior to activities.)”
ANSWER: say what? There are many tools that could be used such as negative authorization or much larger “fines” to dissuade the “activity” thus protecting the species; talks to children’s groups about protecting endangered species when they grow up or why they are no longer there; jail time; trade harm “credits” with another in your municipality who wants to commit activities that will harm a species i.e. the business that wants to harm the species is permitted to do so if he convinces another business to not carry out an activity that is going to harm the species - or perhaps another species.
ANSWER: another authorization tool that would benefit species is for the business to pay the true cost of species harm, the true monetary cost of say a wetland or a viable river ecosystem or viable forest ecosystem. What is the price of the priceless, i.e. a healthy planet? The businesses that are deemed to do irreparable harm to ecosystems need to be prepared to balance their gain with the eternal loss of integrity of the natural world in Ontario. What is the dollar value of these complete ecosystems or of a child’s healthy development that is known to require healthy nature as part of their life?
ANSWER: authorization could be given to find new habitat for the species to be relocated. If there is not enough habitat left elsewhere nearby, or in the municipality or the province of Ontario, then suggest the payment for rehabilitation/relocation of the species or alternatively of the proposed activity requiring authorization, to another planet.
b) Your discussion paper asks: “Are there other approaches to authorizations that could enable applicants to take a more strategic or collaborative approach to address . . . the harm . . . impacts to species at risk? (e.g., create a new authorization, such as a conservation agreement.)”
ANSWER: possibly, as mentioned, but why consider ways to take an approach to avoiding more proactive to help? If the act is appropriate and they already have an exemption anyway if they are one of several industries, then why should there be more exemptions.
c) Your discussion paper asks: “What changes to authorization requirements would better enable economic development while providing positive outcomes and protections for species at risk? (e.g., simplify the requirements for a permit under s. 17(2)d, and exemptions set out by regulation.)”
ANSWER: the example you give i.e. simplify requirements does not at all address positive outcomes for species. How to simplify and at the same time provide positive outcomes. To simplify here, would be to simply say NO that activity is not permitted.
ANSWER: just go ahead and allow the activity and endanger the species with no consequences; that solves the challenge does it not? Why not make more industries or activities exempt from the law. Of course at this point I am mocking the discussion paper questions, but this is so cynical for all Ontarians that it is not funny.
d) Your discussion paper asks: “How can the needs of species at risk be met in a way that is more efficient for activities subject to other legislative or regulatory frameworks? (e.g., better enable meeting Endangered Species Act requirements in other approval processes.)”
ANSWER: this question can really only be answered by asking it the only way I can interpret it, i.e. as follows: How can the needs of the species at risk be met in a way that is more efficient for the people who want to ensure their needs are not met?
The only answer is to ensure that the activity does not take place at all. The answer is a flat out NO would clearly be best for the species at risk. However, there must be the acknowledgment that there is not enough Ontario left now for recovering endangered species and making it efficient for businesses that are doing activities that interfere with them to thrive. Surely there are activities and circumstances where the species is so important or the ecosystem is so important that there will be cases where the activities can not be regulated in an efficient manner.
e) Your discussion paper asks: “In what circumstances would enhanced inspection and compliance powers be warranted? (e.g., regulations.)”
ANSWER: where complaints have been received that the granting of the authorization is not in the public interest.
ANSWER: Where the activity is at a site or in a habitat where a species has been extirpated.