PART ONE OF TWO The Ontario…

PART ONE OF TWO

The Ontario Federation of Anglers and Hunters (OFAH) is Ontario’s largest non-profit, conservation-based organization, representing 100,000 members, supporters and subscribers, and 740 member clubs. We have reviewed the Discussion Paper 10th Year Review of Ontario’s Endangered Species Act and submit the following comments for consideration. We strongly support the need for effective legislation and adequate funding to protect and recover species at risk, and we believe that Ontario should continue to be a leader in these endeavors. Ontario’s species at risk program is a large and complex subject. We consider this the first step in an important conversation, and look forward to providing input throughout the review.

The OFAH has extensive experience with species at risk legislation at both the federal and provincial levels.
• We have been active on species at risk issues during the earliest proposals for stand-alone legislation, years before the ESA was passed.
• OFAH staff (professional biologists by training) participate on the provincial Species at Risk Program Advisory Committee (SARPAC) and on the federal Species at Risk Advisory Committee (SARAC).
• OFAH staff and Board members have observed Committee on the Status of Species at Risk (COSSARO) meetings in person.
• OFAH has detailed knowledge of the workings of the ESA from a stakeholder perspective through the Lake Ontario Atlantic Salmon Restoration Program (LOASRP), including negotiating the first stewardship agreement under the Act, scientific collectors’ and stocking permits, habitat restoration (while also managing Redside Dace considerations), providing community knowledge to a COSSARO deliberation, and working with the Species-at-Risk Stewardship Fund (SAR-SF).
• We have funded and partnered on successful restoration programs for extirpated species, including elk and wild turkeys.
• We are a large stakeholder group who have had species of interest impacted by the Act, including Lake Sturgeon, Atlantic Salmon, Eastern Wolf and non-native coyotes, Snapping Turtles, and Caribou. Inflexible restoration mechanisms in the Act have impacted the angling and hunting communities, who are among the most active stewards for fish and wildlife conservation on the landscape.
• OFAH coordinates several conservation programs that address some of the primary threats to native species – habitat loss (ALUS Peterborough, LOASRP) and invasive species (Invading Species Awareness Program). In 2018, ALUS Peterborough received SAR-SF funding for habitat restoration on marginal farmland.

A decade is a reasonable time frame for a legislative review, both for lessons learned in Ontario and to evaluate successes of other jurisdictions. In the 10 years since the implementation of the Act, we have identified several significant flaws that justify an extensive and critical review of Ontario’s species at risk program. These include but are not limited to a lack of conservation tools that have been demonstrated to work in other jurisdictions, concerns about COSSARO and the species listing process, insufficient capacity for proper implementation of the Act, and a failure to treat species based on risk (triage). The regularity with which exemptions are required also suggests the need for a comprehensive review of the program.

This review presents a rare opportunity to critically examine past successes and failures of the program. Our submission will address each of the Areas of Focus outlined in the Discussion Paper, preceded by a novel proposal for managing species differently.

Proposed Game Species Approach

The OFAH has extensive experience with legislation like the Fish and Wildlife Conservation Act (FWCA) and the Ontario Fisheries Regulations (OFR), which guide the management of game fish and wildlife species in Ontario. These pieces of legislation also offer a spectrum or gradient of tools for protection that can be harnessed to generate beneficial outcomes prior to outright protection, which is the only option available under the ESA. In some instances, these other tools will provide better outcomes than the ESA – our experience with Atlantic Salmon restoration is that, as much as we disagree with the 2011 reclassification scientifically, the restoration program is better outside the ESA.

The actual benefits of this flexibility are noticeable and significant:
• Incentivizing conservation: Harvest creates value, value promotes stewardship, and stewardship benefits species. If a species is utilized and valued by people, they will work harder to conserve that species. For example, black bears were treated as vermin in Ontario until the 1960s, at which point the government instituted a regulated hunt for them. Today, black bears are a highly valued game mammal and an important component of Ontario’s biodiversity. In Newfoundland, government-funded stocked Atlantic Salmon were experiencing rampant poaching until it became a community stocking effort. It created a sense of ownership and stewardship of the fish and poaching declined.
• Conservation funding: the sale of fishing, hunting and trapping licences generates tens of millions of dollars annually for the provincial fish and wildlife program. Certain species are so valued by anglers and hunters that conservation groups raise significant additional funds that can jumpstart or accelerate conservation efforts (e.g. NGO and community wild turkey and elk restoration fundraising efforts in Ontario). While not currently implemented in Ontario, there is the possibility of establishing ‘low success’ lotteries for species in certain areas (e.g. caribou in the Far North) that could generate significant funds, increase the species’ profile, and engender stewardship.
• Robust assessment and monitoring: compared to most species at risk, harvested species are rarely data deficient. Regulated harvest requires ongoing population monitoring, management review, and harvest planning that is much more frequent than the assessment timelines dictated in the ESA. As such, population changes would be detected earlier, facilitating adaptive management.
• Spatial flexibility: game species are monitored and managed at a variety of spatial scales (e.g. sub-WMU scale for elk, Wildlife Management Units, Cervid Ecological Zones, Fisheries Management Zones). Conservation efforts for game species can be scaled depending on need, much like the existing species designation system under the ESA.
• Complacency/satisfaction with status quo: due to a lack of capacity, the government is rarely capable of reversing species declines. The current mentality of being satisfied with stopping declines is unacceptable and the people of Ontario rightfully expect more.

These benefits are the direct result of the harvest of species, which can be leveraged in countless ways. The SAR program could learn a lot from past experiences with harvested species and management.

The reality is that the government has never had the capacity to implement the ESA as it was intended. We warned the government of this in our 2008 submission on the Act. If no additional investment is forthcoming, we need to try a different approach. This necessitates the development of a means to triage species based on risk. For some species, recovery is handicapped by the rigidity of the ESA. There are some species at risk (e.g. Lake Sturgeon, bobwhite quail) that could be restored sooner and more efficiently if we harnessed the tools available in other legislation.

Lake Sturgeon is an excellent example of a species with recovery actions in development, with an engaged stakeholder base, that largely came to a halt when the species moved from the OFR to the ESA, and first harvest and then all recreational fishing was prohibited on most populations. This loss of angling opportunities negatively impacted community stewardship and fundraising opportunities for restoration. Based on our experience, the government’s response is to maintain the species at a low-level abundance and hope for a natural recovery, rather than engage in a concerted effort to restore it. As anglers we are not only concerned over Lake Sturgeon, but also where this leads for the next game fish species that might be listed – what will be the cost in volunteers, enthusiasm, and funding when the species becomes “hands-off”, and how low will expectations for recovery consequently be?

With this in mind, we recommend the government take additional steps to leverage the power of existing legislation and regulations (FWCA, OFR) to conserve/restore game species prior to listing on the Species at Risk in Ontario List and subjecting them to ESA prohibitions. The government should include provisions under the ESA (or through regulation) that outlines the steps taken if a scheduled game species is listed under the Act (currently, or in the future). This process should include a delay before protections are implemented, during which the government could examine the feasibility and effectiveness of managing the species under existing legislative frameworks (FWCA/OFR) before enabling section 9 and 10 of the ESA. The FWCA and Fisheries Act (via the OFR) could provide ways to effectively manage game species at risk with more flexibility than the ESA (e.g. allowing catch and release fishing, limited harvest, etc. to preserve the social value of a species). The FWCA and OFR already have the ability to limit and cease harvest of a species if a conservation concern arises, and therefore those mechanisms should be applied before other protections are enacted. The ESA would continue to act as a last line of defence (i.e. ESA protections would kick-in if all other non-ESA tools prove ineffective). This could generate better outcomes and leave the ESA (and its limited budget) to manage and restore other at-risk species, most of which are largely ignored in the current hands-off approach. This division of labour would free up valuable resources and capacity for lower-profile species under the ESA, and enable the government to actually restore (i.e. not just ‘hold the line’) others outside of the ESA. There are a myriad of options for incorporating a ‘game species consideration’ into the ESA, and we focused mostly on the ‘why’ and only highlighted a few examples of the ‘how’. The specific legislative mechanism will be dependent on what other changes are made to the Act itself and its accompanying policies and processes. It is our contention that specific consideration for game species can and should be incorporate into the ESA, we just need to figure out how.

AREA OF FOCUS 1 – LANDSCAPE APPROACHES

In what circumstances would a more strategic approach support a proposed activity while also ensuring or improving outcomes for species at risk? (e.g., by using landscape approach instead of a case-by-case approach, which tends to be species and/or site-specific.)

The OFAH long ago identified Ontario’s species-specific approach to species at risk conservation as an inefficient and costly approach. Single-species management has resulted in a dismal return-on-investment for the provincial species at risk program. This insular approach could also potentially negatively affect other species if they are not treated as interconnected components of an ecosystem. Our concerns about single-species management were validated in 2018 when federal, provincial, and territorial governments initiated a paradigm shift with the Pan-Canadian Approach to Transforming Species at Risk Conservation in Canada. One of the key changes is a move towards a multi-species and landscape approach. The approach also details the identification of ‘Priority Places’, ‘Priority Species’, and ‘Priority Threats’ to focus conservation efforts and finite funding. A similar approach, if adopted, could pay dividends for Ontario’s species at risk.

A landscape approach is particularly well-suited for ecosystems such as the Carolinian Forest, a rare habitat type that supports a variety of species at risk. Carolinian species are naturally limited in Ontario due to the low extent of available habitat and could be considered a ‘Priority Place’. It would be more efficient to manage the entirety of Carolinian habitat as opposed to protecting SAR on a case-by-case basis within it. If SAR were managed at a landscape level, habitat could be listed as at-risk to protect areas that support specific species.

For species that are not limited by habitat, a similar approach could be undertaken by managing common threats (overabundant predators, invasive species, chemical use, diseases) instead of protecting the species. For instance, Australia is actively managing and removing feral cats due to the significant threat they pose to species at risk. Feral cats are also a significant threat to endangered northern bobwhite quail on Walpole Island First Nation in southwestern Ontario. This could be considered equivalent to the ‘Priority Threats’ in the Pan-Canadian Approach. Creating phase-out, management, or eradication plans for these threats would do more to improve SAR outcomes (and other species) than individual species protection plans would. In these situations, automatic habitat protections would be unnecessary, and instituting a ‘delay’ option would help form the recovery strategy more effectively and could result in no direct protections for the SAR under Section 9 of the ESA. For example, if a species was threatened by an invasive species, no degree of ESA protection would help that species. The only way to generate positive outcomes for the species would be to manage the invasive, which would be easier to quickly implement if there were no additional protections on the SAR (e.g. there would be no need for an authorization permit to harm the SAR while removing the invasive species).

How would a landscape approach alter the current listing process? Would COSSARO be responsible for identifying areas and threats where listed species could be managed together or would this be included in the recovery strategy? A delay in listing would enable more strategic species protections (e.g. if geographically specific habitat is not the limiting factor, then it doesn’t need to managed on a landscape level and a more specific recovery plan needs to be created; however, if the species requires the same habitat protections as an existing SAR it can be included in the protection/recovery plan for that species).

Are there existing tools or processes that support managing for species risk at a landscape scale that could be recognized under the Endangered Species Act?

Game species are already managed under the FWCA and the OFR at multiple scales, including the landscape scale. These legislative tools provide more flexibility (for game species) than if they were managed under the ESA. Recognizing and enabling the management of game species under the FWCA and the OFR could be a much more effective way to deal with at-risk game species, such as Lake Sturgeon, than to enact automatic protections under the ESA. It’s time we consider using all tools available to us.

Additionally, other sectors have legislation in place that could be enabled under the ESA to provide better and more effective outcomes for SAR. For example, forest management plans (FMPs) created under the Crown Forest Sustainability Act are science-based and reviewed/updated frequently to incorporate new knowledge. We support the recognition of approved FMPs within the ESA as tools to conserve species at risk, and acknowledge that requirements might need to be more stringent and prescriptive.

Offsetting would be easier to scope under a landscape level approach to SAR because the offset would have to focus on habitat in a specific geographic area to be considered. It would also lend itself to creating habitat which supports multiple species (including SAR).

Safe Harbour agreements also play an important role in landscape level protections for SAR. As we would be looking at species at a broad scale, habitat corridors through private properties would dramatically improve the overall health of the protected habitat. Because these protections have the potential to be temporary, they must not be considered an offset. Also, integrating programs such as ALUS into SAR habitat protections via a safe harbour agreement would further engage farmers in SAR conservation.

Other – Harmonization of legislation
There is no indication that increased investment in SAR management is forthcoming, so we need to find different approaches that more efficiently use the available financial resources. As previously outlined, by harmonizing management of SAR with existing legislation (where possible), the government would be able to deal with some species/threats and rely on the ESA to conserve those species that aren’t effectively protected under other legislation. Removing this legislative duplication would free up important capacity and finances for species that are largely ignored under the current system. For example, if an invasive species is identified as a threat, addressing it through the Invasive Species Act could benefit the at-risk species without unnecessary protections and burdensome administrative processes under the ESA (i.e. the ESA doesn’t have the tools to effectively address the threat).

For example, Lake Whitefish in Algonquin Park’s Opeongo Lake have been suggested to be a distinct variation of whitefish that only exist within that lake. They have been declining due to an influx of invasive species. The Lake Whitefish from this lake was brought to COSEWIC to be assessed and to prevent their decline. This concern can be managed under a variation order under the OFR by limiting harvest for Lake Whitefish in that lake, instead of going through the listing process. This would have been preferred considering the threat to these fish is not regulated harvest or habitat loss, but rather an invasive species (which will not be managed via the ESA). This provides flexibility to manage the species and the threat in a timely manner outside of the ESA (i.e. re-establishing a season would be much easier under the OFR than under the ESA).

AREA OF FOCUS 2 – LISTING PROCESS AND PROTECTIONS FOR SPECIES AT RISK

What changes would improve the notification process of a new species being listed on the Species at Risk in Ontario List? (e.g. longer timelines before a species is listed)

We believe that earlier public notice will allow for more thorough and expansive community knowledge input. We also recommend that relevant experts, agencies and impacted stakeholders be directly notified so they can provide input either through the community knowledge track, or preferably through a separate process that recognizes the value of these contributions. For example, the government could distribute a call for verifiable sightings of a species that is going to be assessed by COSSARO, and for any databases, reports, and histories that exist. This could generate considerable additional information for certain species. The Natural Heritage Information Center warehouses this information for many species, but does not always have all of the relevant information (e.g. academic, citizen science, etc.). Notification should also apply to species re-assessments rather than just initial assessments, especially species of special concern that could be re-classified as threatened or endangered. Full, detailed reports on the COSSARO listing process are also needed to inform species re-assessments. The incomplete summaries that are currently available do not provide full public transparency about what data was reviewed and how it informed COSSARO’s designation, specifically how the data was matched against the classification criteria. There also needs to be greater effort and transparency in communicating how ‘community knowledge’ and other contributions were considered into decision making.

Should there be a different approach or alternative to automatic species and habitat protections? (e.g. longer transition periods or ministerial discretion on whether to apply, remove, or temporarily delay protections for a threatened or endangered species, or its habitat)

The review of the Act should consider a different approach to automatic species and habitat protections in some cases. Ontario should review what other jurisdictions (including the federal government) have done to successfully integrate the need for effective protection within the context of societal needs. Some species have significant connections to humans, whether through their distribution (e.g. barn swallows), specific relationships to a particular industry and its impacts (e.g. Bobolink and agriculture), or socioeconomic value through sustainable use (e.g. Lake Sturgeon, caribou, polar bears). Therefore, these species deserve special consideration to develop effective, targeted protections, while also recognizing their interactions with humans. It will require a more flexible approach to achieve this, and we fully support a built-in delay (a ‘pause button’) before ESA protections take effect. This will allow sufficient time to consider what protections are required and appropriate, while considering the socioeconomic implications. Functionally, this would result in three streams of species consideration: species managed outside of the ESA (but under other legislation), complex species within the ESA (significant socio-economic implications), and other species within the ESA (unprotected by other legislation and limited socio-economic implications).

In what circumstances would a different approach to automatic species and habitat protections be appropriate? (e.g. there is significant intersection between a species or its habitat and human activities, complexity in addressing species threats, or where a species’ habitat is not limiting)
How can the process regarding assessment and classification of a species by COSSARO be improved? (e.g. request an additional review and assessment in cases where there is emerging science or conflicting information)

Based on our experience, we have identified several flaws related to COSSARO and the listing process. Through this proposed review, the government must decide if it wants to overhaul COSSARO from the ground up or make minor adjustments to increase transparency and improve the decision-making process while also examining alternative approaches to automatic protection and the final listing of species. Ultimately, one of the main concerns that we have with the ESA is the unchallengeable conclusions of COSSARO – this is a process where unelected officials make decisions of provincial significance. This is particularly troubling when COSSARO does not have the relevant expertise or sufficient data to make a decision for a given species.

If the government decides to overhaul COSSARO and the listing process, the OFAH would like an opportunity to provide detailed comments and recommendations at that time. Irrespective of that happening, we wish to see changes made and our concerns include:
• COSSARO having insufficient capacity and resources to prepare species reports with adequate rigour to justify classifications.
• COSSARO choosing to simply follow decisions made by COSEWIC, or basing their decisions entirely on the report provided by COSEWIC. If Ontario has better data that calls into question the COSEWIC result, as was the case with Lake Ontario Atlantic Salmon, then it should be used.
• There is no peer review of the species reports and decision-making process. Were decisions made using the best available science?
• A general lack of rigour and transparency in the deliberation and decision-making processes, and voting results.
• No social or economic values can be considered in the process or the decision to list.
• COSSARO refuses to consider the consequences of listing a species (such as reducing stakeholder interest in restoration by making a species a pariah), yet does consider the consequences of not listing a species when it invokes the precautionary principle.

To address these concerns, we provide the following recommendations.
• Review the definition of ‘species’ in the Act to ensure that we are protecting the right things. With the development of powerful genetic tools comes the ability to partition populations in an almost infinite number of ways. This necessitates greater clarity with respect to what criteria can and cannot be used to define a unit for protection, and how.
• Ensure relevant expertise on COSSARO at all times (e.g. for most of its life, COSSARO has had little/no fisheries expertise). This could extend to generalists such as experts in population modeling, forecasting, probability theory, etc.
• COSSARO should proactively identify and attempt to address knowledge gaps to the best of its ability prior to designation.
• Public reporting on species reviews/assessments should include more information, including how a species scores against the evaluation criteria (Indicators A to E).
• Special Concern criteria should be quantified in the same manner as the Endangered and Threatened designations.
• Species at the extreme edge of their range (e.g. historically precarious species like Spotted Gar), recent discoveries, and very old (and possibly erroneous) identifications need to be recognized as such in assessments in order to communicate the weight of evidence for a designation.
• The deliberation process needs to be improved. There is no official assessment of the amount or quality of data that exists to support a particular designation. For example, the process could be structured as a debate to ensure that these difficult but important questions are posed.
• The voting process should be open to the public, even if it remains a secret ballot.
• COSSARO should seek advice from the experts in MNRF and MECP following a transparent process. For example, provincial experts and members of the Atlantic Salmon recovery team were not consulted during assessment for that species.
• The process to provide community knowledge to COSSARO could be improved. In the Atlantic Salmon example above, scientific data/reporting had to be contributed through the community knowledge form, which is ill-suited for this purpose. Also, there is no active recruitment of community knowledge, and members of the public are unaware of this opportunity unless they follow COSSARO news regularly.
• The competent Minister should be more open to requesting a second review by COSSARO if it can be demonstrated that evidence or emerging science were not adequately considered (as in the examples above). It is our understanding that the current reassessment process has never been used, implying that reassessment has never been needed. The threshold is too high and should be reviewed to ensure there are legitimate checks and balances on the assessment and listing process.

END PART ONE OF TWO