Because of the potential…

Because of the potential loss of formatting in this comment box, I am abbreviating some of my comments, which are fully explained in the attached pdf document (I'm not sure if it was successfully attached...the attachment box doesn't seem to do anything).

Dear Public Input Coordinator,

I am writing to submit commentary on the proposed changes to the Ontario Endangered Species Act.

COSSARO Member Qualifications:

First, it would be appropriate to change the term of “aboriginal traditional knowledge” to “Indigenous traditional knowledge” in the ESA to reflect current preferred terminology (note the capital “I” in Indigenous).

Second, lumping the undefined term “community knowledge” in the same clause as “aboriginal traditional knowledge” undermines any acknowledgement of the unique value of Indigenous traditional knowledge as a way of understanding the natural environment. The addition of the term “community knowledge” in the same clause (b) threatens to harm already strained relations between the provincial government and Indigenous Peoples and is not in line with the spirit of truth and reconciliation commitments.

If the term “community knowledge” is added to the ESA it must be defined to ensure that the potential COSSARO member with such knowledge can contribute appropriate expertise to the committee.

Rather than add “community knowledge” as an eligible form of expertise for COSSARO membership, a much more effective way to incorporate community knowledge into the assessment process would be to create a new staff position for a Community Knowledge Liaison within the secretariat supporting COSSARO: someone to coordinate the solicitation of community knowledge and disseminate it to COSSARO committee members in a way that allows for efficient follow-up should there be questions on the nature or details of the provided information. As is, this kind of outreach is beyond the capacity and scope of work of the current COSSARO members and support personnel.

Consideration of Broader Regional Context in COSSARO Assessments:

In the assessment criteria used by COSSARO, (derived from the COSEWIC criteria, which in turn are derived from the globally recognized IUCN standards for species at risk assessment at the regional level) provisions are already in place to upgrade or downgrade species listings based on the regional context. These adjustments take into account specific ecologically relevant situations that could elevate or lower a species’ risk of extinction (or extirpation in the province) such as the likelihood of propagule migration from adjacent jurisdictions, evidence that such propagules would be adapted to conditions within Ontario, availability of suitable habitat for propagules to become established in Ontario and the dependence on outside populations as sources for a species’ population that is considered a “sink” in Ontario.

The complex decision framework illustrated in Figure 1 of the COSEWIC assessment criteria, which is currently used to guide COSSARO species assessments is a much more ecologically defensible way of articulating the circumstances that warrant up-listing or down-listing a species assessment. Furthermore, at the international level, there is a committee (IUCN SSC Regional Applications Working Group) that continually reviews and updates the assessment guidelines for regional species at risk assessments. If a change in the framework of Figure 1 is warranted, it would be updated by the IUCN (and subsequently adopted by COSEWIC) and could easily be adopted by COSSARO without any need for a future amendment to the ESA.

Rather than writing such a complex decision-making pathway into the law, it may be more worthwhile arranging a training session for COSSARO members (and open to members of the public who wish to observe) on the application of IUCN regional assessment criteria that allow for downgrading assessment categories when rescue effects are possible and plausible (and conversely upgrading categories when regional populations are known to be “sinks”).

As is, the proposed blanket requirement to down-list a species solely because consideration of its status in other jurisdictions may produce an alternative outcome of the assessment process is ambiguous, impractical, and ecologically indefensible. First, it is unclear what is meant by “consider”, “condition”, and “biologically relevant geographical range” outside of Ontario. It may be possible to interpret this to mean that COSSARO would have to conduct two assessments: one using population size, trends, range, and population projections within Ontario; and another using population size, trends, range, and population projections for Ontario and the wider “biologically relevant geographical range”.

This interpretation of the proposed wording would require COSSARO to consider information that it doesn’t readily have available. On a purely practical level, it is already time consuming for a committee of quasi volunteers to extract the Ontario-specific information from the COSEWIC reports for assessment of a species at the provincial level (particularly when a species exists in Ontario as well as another province or territory). If the condition of the species in American jurisdictions must also be considered in a COSSARO assessment, obtaining data from all relevant parties will be logistically very challenging and costly for the limited number of staff who provide secretariat support for the Committee. Furthermore, the quality and format of the data may not allow for direct comparisons of the species condition in Ontario versus in its “broader biologically relevant range”, however that may be defined.

This proposed change is likely a reaction to public comments that question why efforts must be made to protect species that exist in Ontario at the edge of their range. British Columbia used to automatically downgrade the status of species at the periphery of their range in that province. However, this policy was repealed based on a number of scientifically supported notions that identify the ecological and social value of edge-of-range subpopulations (see Fraser, 2000 for full details).

Annual Report

It seems reasonable to request one annual report from COSSARO in January as long as the latter [Clause 3(b)] is respected and the Minister and COSSARO can agree to what constitutes “imminent”. According to the definition within the ESA, “A species shall be classified as an endangered species if it lives in the wild in Ontario but is facing imminent extinction or extirpation.” Therefore, one could reason that COSSARO could submit an additional report to the Minister outside of the stipulated January timeframe any time that it classifies a species as Endangered.

Reconsideration

Section 8(2) of the act already has provisions for the Minister to require COSSARO to reconsider a species classification.

Presumably the change is proposed because the stipulation of withholding a species from the SARO List while being reassessed is the salient point. To remain consistent with the precautionary principle, the species for which a reassessment is requested should be added to the SARO List within the same timeframes as all other listings until its reassessment has been finalized. Given that the ESA proposes a 12-month grace period for SARO Listing from the time the Minister receives the COSSARO report, conceivably sufficient time is available for COSSARO to reassess a species and submit a report to the Minister on the outcome of their reassessment (provided that the Minister has and makes available the “credible scientific information” upon which he or she bases his or her opinion).

Presumably from the wording of “first” and “second” report, that a reassessment can only be required once. It is not clear what would happen should the Minister still disagree with COSSARO’s reassessment.

It should be noted that the “credible scientific information” upon which the Minister bases a request for reassessment should be so significant that it would indeed influence the outcome of a reassessment and is beyond the scope of information that would be considered for the regular cycle of species reassessments. For instance, one additional year of breeding bird monitoring data should not be considered sufficient as the basis for a reassessment, since the timeframe for decline in the assessment criteria are 10 years or 2-3 generations (depending on which criteria are being applied). This is the reason why species are re-evaluated on a 10-year cycle.

Amendments to regulation (timelines)

I would recommend the Minister consider a compromise on this and other extensions to timelines contained throughout the proposed amendments of the ESA. It is understood that it has been impossible for MNR staff to keep pace with the current framework for listing species on the SARO List and the subsequent timelines for preparing recovery strategies, government response statements and progress reports. While one solution would be to adequately resource the Species at Risk Branch to do so, I suspect this solution would not be supported by the current government. An alternative would be to devise a system to triage efforts so that they address the species facing the most imminent risk of extinction/extirpation and affording longer timelines for staff to address those species with lower risk.

The new timelines stipulated in the proposed amendments could delay SARO Listing by up to 2 years (or longer if reassessments are requested) and subsequent protections under Section 9(1) and 10(1) for up to 3 additional years. Recovery strategies (to be created within 1 year species listed on SARO as Endangered, and within 2 years for those listed on SARO as Threatened), Management Plans (to be created within 5 years for those classified as Special Concern or when a federal recovery plan is available), Government Response Statements (to be issued within 9 months of completion of a recovery strategy or management plan) and Progress Reports (within 5 years of the Government Response Statement) retain the same timeframes as previously identified in the ESA though mechanisms to extend these timeframes remain available and the criteria that must be met in order to do so have been reduced in the proposed amendments.

By definition, endangered species face imminent extinction or extirpation. For these species, time is of the essence to address the factors leading to their decline.

Presume a species was evaluated in May 2020. A report to the Minister would not be accepted until January 2021. If the Minister is of the opinion that this assessment is not appropriate, it will likely take at least an additional 4 months (May 2021) before it can be reassessed by COSSARO. The Minister then has 12 months (May 2022) to amend the SARO List. Under Section 8.1 (5)(b) a variety of rationales can allow suspensions of the prohibitions in subsections 9(1) and 10(1) to be in place for up to 3 years (May 2025). At best, a species listed as endangered that was subject to a re-evaluation and three years of suspensions of prohibitions will have seen nearly 30% population decline in the 5 years between assessment and protection. This is in addition to the losses that would have triggered the species to be classified as Endangered in the first place. Note that this is at the lower threshold of the A2-A4 criteria for Endangered, meaning that any Endangered species with a faster rate of decline risks losing a much higher proportion of the population over the same timeframe.

I recommend that the current government demonstrate that it truly does wish to provide “best-in-class endangered and threatened species protections” by shortening timelines for listing those species most in need (i.e., Endangered species: those facing “imminent” threat of extinction/extirpation) and maintaining or extending current timelines only for Threatened species. Because threatened species have a lower rate or probability of decline, it may be acceptable for the Minister to extend timelines for the addition of these species to the SARO List only if doing so enables fast-tracking the timelines for Endangered species.

Environmental Bill of Rights

As stated by the Environmental Commissioner of Ontario (2013) , “The Environmental Bill of Rights, 1993 [EBR] has a key transparency function; the EBR entrenches the rights of the public to receive notice of and provide input into environmentally significant acts, regulations and policies” (p. 34, emphasis added). Throughout the proposed changes to the ESA where posting on a government of Ontario website is substituted for publishing a notice on the EBR, the opportunity for public input is lost. The removal of opportunities for public input eliminates a key avenue for the government to be accountable to the public and to enable the public to participate in the protection and recovery of species at risk. To enable public input and accountability, I recommend that all references to posting information on the EBR be kept in the ESA and added where relevant to proposed amendments.

Species at Risk Conservation Fund

While investments in species protection and recovery as well as the accountability structures detailed in the proposed amendments related to this Fund are to be applauded, there should be a commitment that this form of “biodiversity offset” is to be considered as a very last resort and, at very least, result in no net loss.

The ESA should explicitly commit that between the permits, agreements, and funding, there will be a net gain to species at risk in Ontario. Mechanisms should be put in place for both the permitting and funding components of the ESA to track and quantify the net gains or losses associated with the permitting allowed by this “payment in lieu” system. If net losses are found to be the result of this scheme, it should be redesigned or abandoned in lieu of in situ species conservation (i.e., prohibiting development proposals that fail to protect the species and habitat in their current location). Net gains or losses should not be measured as simplistic areal extent of habitat lost versus created, as the quality of habitat and whether it is actually successfully occupied by viable subpopulations is more indicative of success. Although complex to measure, indicators that are relevant to the species at risk classification system should be used, such as numbers of mature individuals, survival rates, reproductive rates, area of occupancy, and long-term viability of the mitigation project. Payments charged for the permission to undertake activities contravening Sections 9(1) and 10(1) of the ESA should reflect the cost of administering, planning, implementing, monitoring and reporting on activities that have a net benefit to the species and habitats being lost through the permitting process. If these true costs are considered, the proponents may well find that it is more cost effective to design development projects that protect the species and habitats in their current state.

Thank you for the opportunity to provide input on the proposed amendments to the ESA. I trust that you will give sincere consideration to these suggestions and uphold the opportunity for Ontario to offer best-in class protection to species at risk in the province.