RE: ERO # 013-5033, ONTARIO…

RE: ERO # 013-5033, ONTARIO GOVERNMENT’S BILL 108: SCHEDULE 5 (Changes to the Endangered Species Act)

A. GENERAL COMMENTS

Changes proposed by the Progressive Conservative Government to the Endangered Species Act, 2007 (ESA) are likely to have long-term adverse impacts (including the possible extirpation of species at risk (SAR) from Ontario). Such changes are an insult to what was considered to be a “Gold Standard” for protection of at-risk species and their habitats when the ESA was enacted in 2008. The Act has already undergone severe weakening, with the introduction in 2013 of a large number of exemptions to regulations under the Act in order to facilitate permissions for industrial activities such as forestry, mining, and aggregate extraction.

Proposed changes to the ESA are far too important to be hidden in an omnibus bill such as Bill 108 (More Homes, More Choice Act, 2019). Surely, after so much backlash against recent proposed environmental changes by the Progressive Conservative Government (e.g. Bill 66), the government must be aware of the widespread opposition by Ontarians, who take a long-term view, about the impacts of these changes on the natural environment and its associated health and economic benefits. Short-term gain by business with short-term interests is going to mean long-term pain for future generations of not only humans but also other species. As has been mentioned by others, this is a “Doomsday Scenario” for species at risk, and the proposed changes could make the amended Endangered Species Act become an “Extinction of Species Act”.

It behooves all MPPs and Ministry officials to read the UN’s May 2019  Report on the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES), the summary of which was approved at the 7th session of the IPBES Plenary, meeting last week (29 April – 4 May) in Paris. For details visit https://www.un.org/sustainabledevelopment/blog/2019/05/nature-decline-u….

B. SPECIFIC COMMENTS ABOUT THE PROPOSALS IN BILL 108

Assessing and listing species at risk

Science-based listing of species at risk by the Committee on the Status of Species at Risk in Ontario (COSSARO) and automatic protection of listed species and their habitats are cornerstones of the ESA. They provide certainty, whereas ministerial discretion politicizes the process, inviting delay and controversy.
There should be no change to the ESA regarding 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.” (section 5(3)). Allowing the Minister of the Environment, Conservation and Parks to require COSSARO to reconsider its science-based listing decisions is an insult to highly qualified people with scientific expertise. Broadening the COSSARO membership to include people without scientific expertise is not required, and could be detrimental to species assessments.
Edge-of-range species should not be denied protection based on their status outside Ontario. SAR at the northern limit of their range in southern Ontario, could result in these species receiving less or no protection, depending on their status outside Ontario. Climate change is allowing species to move further north, so it will be important for these species to have their required habitats protected from development. Populations at the limit of a species’ range may play an important role in the evolution and overall fitness of a species. The provincial government could wipe its hands of responsibility for species such as Jefferson Salamander, Bobolink, Spiny Softshell Turtle, American Badger and Cucumber Tree.

2. Species and Habitat Protections

There should be no de-coupling of the process of listing SAR from the automatic protections provided under the ESA for threatened and endangered species and their habitats. Nor should the Minister be allowed to suspend species and habitat protection for up to three years based on social or economic considerations. That is, there should be no alternative to automatically protecting threatened or endangered species and their habitats upon listing.
The Minister should not be allowed to remove or delay protections because this would be inappropriate and could invite political meddling.
The Minister should not be allowed to limit protections so that they apply only in specific geographies or in specific circumstances.

3. Species at Risk Recovery Policies

Legislated timelines are intended to ensure that actions needed to recover species occur without undue delay. There should be no change to the legal requirement to produce Government Response Statements (GRS) within nine months of the release of Recovery Strategies for threatened or endangered species, or Management Plans for special concern species. There is already a chronic problem with failure to meet legislated deadlines, and this should be addressed through improved implementation, not weakening of the law. The Minister should continue to be required to conduct a review of the progress toward the protection and recovery of species not later that five years after publication of a GRS.

4. Permits, agreements and exemptions to allow harmful activities

This is the Endangered Species Act, not the Endangered Business Act, and the priority must be on the protection and recovery of SAR.
The ESA currently sets a high standard for permits, based on providing and overall on-the-ground benefit to species negatively impacted by development. The standard for exemption is much lower and requires only mitigation of harm. Proposed changes to the ESA would make it easier for industry and development proponents to proceed with harmful activities. This is contrary to the ESA, the purpose of which is to protect and recover species at risk. Where harmful activities are allowed, authorizations should be premised on providing of an overall benefit to the species.
No new tools are needed for authorizing harmful activities. Challenges should be addressed through better implementation of the existing tools.
Developers and other proponents of activities harmful to SAR will be allowed to pay into a “Species at Risk Conservation Fund” in lieu of fulfilling requirements for on-the ground reparation for damage done. This could be interpreted as “pay to pave over habitat of SAR”, rather than resulting in “conservation” of SAR as the outcome. It reduces accountability and facilitates harm to SAR and their habitats . On-the-ground reparation for damage done should be compulsory in order to provide an overall benefit to species harmed.
The existing requirement to obtain Cabinet approval or to consult with an independent expert regarding section 17(2)d permits should be retained, to ensure that such permits are issued only in exceptional circumstances.
Retain the requirement for the Minister to seek an independent opinion on regulations that might jeopardize the survival of a species in Ontario. Without this requirement, it would be easier for harmful activities to proceed in the absence of proper scrutiny.
The ESA (section 18) provides a means to harmonize its requirements with other legislative or regulatory frameworks, based on the standard of providing an overall benefit to species negatively impacted. Species will continue to decline unless this standard is maintained.

5. Enforcement

The government’s proposal to apply inspection powers to harmful activities allowed through regulatory exemptions is an improvement. Such inspection power is lacking under the current ESA legislation. A much more effective way to improve outcomes for SAR would be the removal of the regulatory exemptions put in place in 2013 that have enabled over 2,000 of these harmful activities to proceed in the first place, without inspection or enforcement (see comment in the opening paragraph of these comments).

It appears that the main goal of the changes is to make approvals speedier for the sake of businesses that plan to expand in or move into Ontario.  Getting a fast ”no" answer on a particular location is often as good as a slow "yes" answer.  Businesses are often fast, flexible, and sincerely looking for Ministry and scientific expertise on questions of natural and environmental issues.  The Ministry and review processes should be managed optimally and resourced generously in order to provide fast and solid answers for business.  This kind of speedy government turnaround would bring laurels to Ministry leaders and the government responsible for this enlightened approach.  Such a system should be fully optimized before any changes are made that risk harming our irreplaceable natural heritage.

Thank you for the opportunity to comment.

Nature London
London, Ontario