Dear Environmental Registry…

Dear Environmental Registry Coordinator,
I am writing as a legal researcher and policy professional with a background in environmental and administrative law. My interest in this matter arises from the profound legal, ecological, and democratic consequences of the proposed Species Conservation Act, 2025 (SCA), introduced through Bill 5 and subject to consultation under ERO 025-0380.

The proposed Species Conservation Act, 2025, repeals Ontario’s Endangered Species Act, 2007 and significantly weakens protections for at-risk species and habitats by replacing science-based listing and mandatory conservation measures with broad ministerial discretion. The Act narrows habitat definitions, eliminates automatic listing, removes binding conditions on permits, and centralizes unchecked decision-making authority, raising serious concerns under principles of administrative and constitutional law. Without substantial amendments, this legislation risks irreversible ecological harm, weakens public accountability, and fundamentally undermines Ontario’s obligations to biodiversity conservation. My comments focus on how the SCA undermines scientific independence, weakens habitat protections, delegates broad, unchecked authority to ministers, and removes enforceable obligations on developers. It also highlights how this framework appears designed to evade meaningful judicial scrutiny, particularly in light of concerns raised in Vavilov and Auer v. Auer (2022 SCC 30).

I oppose the proposed changes in their current form. The SCA fundamentally weakens Ontario’s regime for protecting species at risk. It transfers binding, science-driven protections into a framework of ministerial discretion, significantly reducing transparency, accountability, and enforceability. It prioritizes industrial expediency, particularly for mining and infrastructure expansion, at the expense of biodiversity protection.

Repeal of the ESA and Transfer of Power to Cabinet:
The current ESA mandates that species classified by COSSARO must be automatically listed on the Species at Risk in Ontario List (O. Reg. 230/08), triggering immediate legal protections.
The SCA repeals this automatic requirement. Cabinet may now selectively list species or refuse to list them at all, without providing a reason (Bill 5, Schedule 10, s. 14(2)).

This fundamentally undermines scientific independence and politicizes species listing processes that should remain evidence-based. It further violates the spirit of Ontario’s international commitments under the Convention on Biological Diversity (Articles 6 and 8).

Habitat Protection Diluted
The ESA’s broader, ecosystem-based definition of habitat is replaced with a narrow, occupancy-based definition under the SCA. Only "dens," "nests," or "specific dwelling places" are protected. This excludes vital recovery habitats, migration corridors, and unoccupied but suitable landscapes necessary for long-term species recovery (Kerr & Deguise, 2004; Kiesecker et al., 2007). This shift contravenes ecological science, threatens species resilience, and is particularly concerning given the increased development pressures expected in Special Economic Zones.

Discretionary Permitting Model
Under O. Reg. 242/08, permits for harming species-at-risk were allowed only where proponents demonstrated:
- No reasonable alternative,
- Harm would be minimized; and,
- A net ecological benefit would be achieved.
The SCA eliminates these requirements, allowing activities to proceed under ministerial discretion with no mandatory conservation outcomes. This fundamentally lowers the legal floor for species protection and normalizes ecological harm as an accepted cost of development.

Delegation and the “Auer Problem”:
Section 2.1 of the SCA grants broad discretionary authority to the Minister, allowing them to delegate decision-making under the Act without clear limits. Combined with the exemption powers under the Special Economic Zones Act, 2025, this effectively removes key decisions from public, legislative, or judicial oversight.

Under Vavilov, administrative decisions are reviewable for reasonableness where they impact legal rights. However, Auer v Auer (2022 SCC 30) reveals that where legislation delegates broad discretion without mandatory criteria, courts may defer heavily, even on critical statutory interpretation issues, to the regulator. The structure of the SCA, vague objectives, discretionary exemptions, and no obligation to provide reasons, risks creating a zone of executive immunity where environmental decisions are practically unreviewable. This raises constitutional concerns over judicial abdication of interpretive responsibility and represents a dangerous erosion of the rule of law.

Enforcement Weakening and Elimination of Public Remedies:
The repeal of stop-work orders and replacement with weaker contravention or mitigation orders limits the state’s ability to prevent irreparable harm before it occurs. The repeal of O. Reg. 829/21 eliminates conservation charges, removing funding streams for habitat restoration. Bill 5 includes immunity provisions that bar civil suits against the Crown or developers for actions taken under the SCA, closing the door to public-interest environmental litigation. These changes silence meaningful accountability mechanisms and shift all risk onto the environment and affected communities, particularly Indigenous nations.

Recommendations:
To improve the legislation without sacrificing environmental protections:
a) Retain Automatic Listing
Amend the SCA to restore mandatory listing of all species classified by COSSARO.
b) Restore Habitat Protections
Restore the broader definition of "habitat" to include areas necessary for recovery and landscape connectivity.
c) Reinstate Permit Conditions
Reintroduce legal requirements that discretionary permits must (i) minimize harm, (ii) demonstrate no reasonable alternatives, and (iii) deliver a net ecological benefit.
d) Constrain Delegated Discretion
Limit ministerial delegation powers, require reasons for discretionary exemptions, and expressly state that such decisions are subject to full reasonableness and legality review by the courts.
e) Maintain Enforcement Tools
Reinstate stop-work orders and conservation funding mechanisms to ensure meaningful compliance.
f) Guarantee Procedural Safeguards
Protect rights to public consultation, appeals, and judicial review of all key environmental decisions under the Act.

Closing:
Thank you for the opportunity to comment. I urge the Ministry to reconsider the repeal of the ESA and amend the SCA to uphold Ontario’s national and international biodiversity commitments. The Species Conservation Act, 2025, as currently drafted, does not represent responsible modernization; it constitutes a profound dismantling of science-based environmental governance and a dangerous precedent for delegated executive authority. I would be pleased to provide further details, legal references, or attend consultation sessions should further discussion be welcomed.

References:
Government of Ontario. Endangered Species Act, 2007.
Government of Ontario. Species Conservation Act, 2025 (Bill 5, Schedule 10).
Government of Ontario. O. Reg. 242/08: General [Revoked].
Government of Ontario. O. Reg. 829/21: Species Conservation Charges [Revoked].
Kerr, J.T., & Deguise, I. (2004). Habitat loss and the limits to endangered species recovery. Ecology Letters, 7(12), 1163–1169.
Kiesecker, J.M., et al. (2007). Conservation planning at the landscape scale: assessing the trade-offs between development and biodiversity protection. Ecological Applications, 17(3), 527–539.
Government of Ontario. Species at Risk Website. https://www.ontario.ca/page/species-risk