To Whom it May Concern: The…

To Whom it May Concern:

The Mississaugas of the Credit First Nation (“MCFN”) submits the following comments in respect of the amendments to the Endangered Species Act, R.S.O. 2007 that are being proposed in Bill 108, More Homes, More Choice Act, 2019.

MCFN has grave concerns regarding these amendments, and what they could mean in respect of the protection of critical and culturally important species. In our view, the proposed amendments eat away at the protections for threatened and at-risk species in Ontario that exist under the current version of the Endangered Species Act. The potential implications of these amendments is the extinction or the increased likelihood of extinction of species that are of importance to MCFN.

MCFN Rights and Territory

MCFN’s traditional territory spans from Long Point on Lake Erie to the Niagara River, then down the River to Lake Ontario, northward along the shore of the Lake to the River Rouge east of Toronto, then up that river to the dividing ridges to the head waters of the River Thames, then southward to Long Point, the place of the beginning (the “Territory”).
MCFN asserts Aboriginal rights not only to continued use of the lands, waters, and watershed ecosystems within its Territory for a variety of livelihood, harvesting, ceremonial and spiritual purposes, but also to maintain the health and conservation of vital medicinal plants and animals within its Territory. This latter right is also recognized as being protected under Article 24 of UNDRIP. We have a duty and stewardship responsibility to protect the integrity of this Territory.

The Proposed Amendments

The amendments to the Endangered Species Act proposed in Bill 108 that MCFN has particular concerns with include the following:

1. Suspending protections for listed species. The new section 8.1 would allow the Minister to suspend some or all protections for species newly listed as either threatened or endangered for up to three years, if certain conditions are met.

2. Allowing industry activities to continue despite impacts on listed species. The proposed amendments also provide developers, industry, and others who impact the habitat of a species listed as either threatened or endangered with a range of options to continue their activities. For example:

a. for a period of 1 year after a species is listed as endangered/threatened for the first time, some of the prohibitions on listed species (e.g. prohibitions on killing, transporting, selling a species) will not apply to people who were issued permits to engage in activities before the species was listed (the new section 8.2); and

b. the Minster can make regulations limiting the application of the prohibitions on certain activities affecting a species listed species (e.g. by indicating that some of the prohibitions do not apply to certain activities, or by limiting the geographic areas in which they do apply; etc. (the new section 9 (1.2) to (1.4));

3. Landscape agreements. The new section 16.1 enables the Minister to enter into ‘landscape agreements’ with others, where such agreements can authorize a person to engage in activities in a certain geographic area that would otherwise be prohibited under the Act because they affect a listed species. While the agreements would require the person or proponent conducting the activity to undertake some “beneficial actions that will assist in the protection or recovery of one or more species”, the species that benefit from do not necessarily have to be the ones impacted by the activity. There is also no mention or requirement that First Nations must be consulted or even notified, if and where these agreements are negotiated.

Impact of the Proposed Amendments

Altogether, the proposed amendments eat away at the protections for threatened and at-risk species in Ontario that exist under the current version of the Act. These changes noted above can contribute to the extinction or the increased likelihood of extinction of species that are of importance to MCFN, thereby compromising MCFN’s right and stewardship responsibility to protect the health of those species and their habitat.
In addition, these landscape agreements will effectively allow certain activities to continue, despite the potential impacts of those activities on threatened or endangered species and their habitat. What is more, the amendments suggest that the landscape agreements can be negotiated without the knowledge or involvement of, and consultation with, First Nations.

MCFN Recommendations

MCFN’s view is that these amendments should not be made.
However, should the Government go ahead with the amendments, then MCFN is of the view that language should be incorporated into the amendments that requires consultations with First Nations where landscape agreements are negotiated, and where there is the potential for that agreement or the activities that will be permitted under that agreement to affect the rights and interests of a First Nation. This is particularly important where the landscape agreement is to cover a geographic area that falls within the traditional territory of a First Nation.

In addition, if and when the Minster proceeds to make regulations limiting the application of prohibitions on certain activities affecting a species listed species, MCFN should be meaningfully consulted on the development of those regulations. The Crown’s regulatory schemes must provide a meaningful opportunity for consultation and accommodation of MCFN, where MCFN’s asserted or proven Aboriginal and Treaty rights are implicated. As the Crown develops these regulations, it must provide for meaningful consultation and accommodation.

MNCFN is particularly concerned with the amendments above. However, MCFN would like to take this opportunity to provide some additional comments and queries in respect of the Endangered Species Act, and in response to what Ontario has claimed the new approach to species protection that is adopted in the Act to achieve. These are outlined in the table that can be viewed in the attached document.