Attawapiskat First Nation …

Attawapiskat First Nation (AFN) has significant concerns with the proposed amendments to the Endangered Species Act (ESA) and the new scheme under the Species Conservation Act (SCA). Meaningfully providing for the protection, stewardship, and recovery of species at risk is an important way that the Government of Ontario helps to protect and promote the exercise of our constitutionally protected rights in our territory. The Species at Risk in Ontario List seeks to protect species that are important to the practice of our aboriginal and treaty rights. We are deeply concerned that Ontario is seeking to politicize the protection of these species and the habitats they, and ultimately we, rely on to survive.
AFN has relied upon several key species for their survival for thousands of years. Two crucial species for the exercise of our rights are the boreal caribou and lake sturgeon populations in our traditional territory. These are not just species that sustain us by providing us food – they are central to our culture and heritage. We rely on them to carry on our way of life.
The caribou (boreal population) (Rangifer tarandus) is currently listed as a threatened species in the Species at Risk in Ontario List. The lake sturgeon (southern Hudson Bay – James Bay populations) (Acipenser fulvescens) is currently listed as a special concern species in the Species at Risk in Ontario List and has been listed as such since 2008 when the ESA first came into effect.
The new scheme for listing species at risk under the ESA and the CSA is one that causes great concern due to the lack of clarity about how the decision to list species for protection and conservation will now be made. As proposed, Bill 5 sets out a scheme where this would be a purely political and discretionary decision of the Lieutenant Governor in Council.
S.35 rights holders need assurance that:
1. The duty to consult will be carried out for each decision to deviate or de-list species identified as at risk by COSSARO; and
2. That the Government of Ontario will ensure that impacts to our rights will be a central consideration in making decisions to de-list or deviate from COSSARO classification of species. One way to do this would be to amend the bill to provide for a list of considerations that the Lieutenant Governor in Council must take into account, and which include impacts to aspects of s.35(1) rights, such as the harvesting rights and cultural rights of Aboriginal peoples, related to species at risk that the Lieutenant Governor in Council is considering de-listing or deviating from COSSARO’s guidance.
We do not support the repeal of subsections 9(5) and 5.1 of the ESA removing the ability for the Minister to provide exemptions to the prohibition against possession or transportation of a species for traditional, cultural, religious, or ceremonial purposes. This may lead to blunt applications of prohibitions against our rights-holding members in a manner that is discriminatory and does not respect our rights.
We are very concerned by the narrowing of the definition of ‘habitat’ that is protected once a species is listed. Our traditional territory and the species we rely on are already facing immense development pressures that will disturb and degrade the habitat of species at risk. We do not support the revision of the definition of habitat to make it narrower. The cumulative impacts of habitat degradation are already being felt in our territory – the further narrowing of protected habitat to create small islands of protection is not sufficient to protect the exercise of our rights.
We are concerned that the guardrails for when permits are granted, have been removed and as such, the discretion once again lies completely with the Minister. Public confidence requires that the Minister provides a framework for how they will make decisions and set conditions on permits where the activity they seek to permit will adversely impact species that are already at risk. These decisions must be evidence-based and protect the continuing exercise of our s.35(1) rights.
Furthermore – we seek clarity on how the Lieutenant Governor in Council seeks to define “adverse effect”, “alternative habitat” and “significant adverse effect” as these are not defined in the existing legislation. These terms are used in the framing various orders that the Minister may issue to require that certain mitigative or corrective actions to protect species at risk. It is important that these definitions set a meaningful, protective standard.
Species Conservation Act
The permitting scheme set out under the Species Conservation Act (SCA) does not provide sufficient information to understand how this will impact our s.35(1) rights. Several aspects cause deep concern that the impacts to our rights as it related to species at risk will be significant and lead to the degradation of the species health and their habitats in our territory.
Our primary concern is that activities that pose a risk to listed species or their habitats, will be able to proceed simply after registering such activities. There is no indication of what threshold will be used to delineate between potentially harmful activities that can proceed simply by way of registration, or other presumably more risky activities that will require a permit. The lack of information and detail in the SCA as currently proposed, causes us significant concern.
We are concerned that this proposal removes “recovery and stewardship” from the goals of the legislative scheme. Species at risk are in a state of decline and need measures that go further than simply maintaining their health and numbers in a state of decline. Meaningful protection and promotion of our rights requires that recovery and stewardship be the goal for species at risk.
The SCA does not adequately protect or conserve species at risk in our territory. The threshold for prohibitions is far too high in the SCA. Prohibitions on activities that are “likely to result in a species no longer living in the wild in Ontario” will only prohibit the most egregious of activities from going forward. The cumulative impacts of activities below this high threshold will almost certainly fail to protect species and habitats that are crucial to our rights and culture.
The broad authority to exempt activities, areas, and persons from the protections instilled in the SCA are concerning. They are so broad and discretionary as to provide little to no confidence that this scheme is meaningful at all for the protection of species at risk and the habitat that they rely upon to survive and ideally recover. We request that more clarity and assurance be provided that a central consideration in making these decisions will be the impacts to our s.35(1) rights and the ability for us to continue our way of life in our territory as well as our ability to govern our territory.
The honour of the Crown must be central to the use of the discretion that the provided for in the ESA and SCA. Decisions aimed at removing the regulatory burden on development, should only be made with the free, prior, and informed consent and in consultation with affected nations, like AFN. At this stage, there is insufficient information to understand the full scope of the impacts from Bill 5 and as such, we request that amendments be made to provide further clarity on how important discretionary decisions will be made, with a focus on evidence-based decisions and consideration of Aboriginal rights, Indigenous laws, and traditional knowledge. As it stands, these proposals pose a significant risk to our s.35(1) rights and are vague. As such, we strongly urge that amendments be made to the ESA and SCA in line with our suggestions above.