Note: Same information…

Note: Same information already submitted in the area that does not require registration so our names are removed from this version to allow publication.

Rod Phillips
Minister of Environment, Conservation, and Parks

Again we write to you about the conservation and restoration of the Lake Superior caribou. Today our concern is that your proposed changes to the Endangered Species Act (the Act) will obstruct efforts to conserve and restore this caribou population.

Our concerns are also broader than just caribou and just Ontario. Your changes will also have potentially serious detrimental effects on all the other species in Ontario that are at risk of extinction. Your approach could also become a template for other governments to weaken their legislation, and thereby continue to allow the decline of caribou and many other species over a large part of Canada. This is not a legacy to leave.

Most of your proposed changes significantly weaken the Act and need to be removed. As it stands now the changes do not appropriately protect species at risk of extinction in Ontario – so the revised Endangered Species Act will not fulfil its purpose. However, we encourage you to start again with an approach that will effectively conserve and restore these species. The best way to reduce conflicts between development and species at risk of extinction is to get those species off that list and manage our lands and waters to keep them from getting on the list in the first place.

This letter is also our comment on the Environmental Registry of Ontario posting of your proposed changes. We will be sending it to other people as well.

Our concerns are:

1. Assessing and listing species at risk:

- Timing: A to D - These changes seem to be designed to just delay the listing of species and therefore delay the application of protections for these species. The obvious problem with this is that it would allow people to destroy the species or their habitats, for whatever their reason, before the legal protection for the species comes into effect. This is clearly a huge loophole in your proposed legislation and needs to be removed.

- Geographic considerations: E - This change ignores both principle geographic mechanisms of species loss:

- Loss from the periphery - One of the main principles of conservation ecology is that the process of species extinction is the loss of individual populations. These losses of populations often start in the periphery of the species range where the conditions for their survival are less suitable or their habitat is less abundant than in the core of their range. It would be the case for many species that populations in parts of their range are endangered while the species as a whole might be threatened or even doing well. For example, southern Ontario is very heavily developed in terms of agriculture and urbanization, and many species that occur there are now endangered. They may be less endangered in other parts of their range, but that doesn’t help them in Ontario. The loss of their peripheral range in Ontario is one step in the progression to extinction from their entire range. As a Province, we should be keeping all of our native flora and fauna as part of their total range and resilience. This can best be done by placing all species in their most appropriate protection category for the conditions here.

- Loss from the core - Population losses can also start at the core of the species range if changes to conditions there become detrimental to that species. Climate change would be one example of this. For example, there are many species endangered and threatened with extinction in southern Ontario that have the core of their range further south in the United States. However, if climate warming makes these core areas unsuitable, then the cooler periphery areas to the north in Ontario will become very important to these species. It is incumbent on us not to preclude the ability of these species to continue to exist by allowing them to disappear from Ontario now. There may be good populations of these species in areas outside of Ontario now, but that may not be the case in very few years.

This proposal of diverting the focus from Ontario must be dropped to prevent range retraction from the periphery and provide future core range for species at risk of extinction. Species conservation and restoration requires an inter-jurisdictional, holistic approach to be successful.

2. Species and habitat protections:

- Protection suspensions: A - The 3 year delay in protecting species or their habitat is inappropriate. Another basic principle of conservation is the need for immediate and decisive action. By the time a species has been designated as at risk of extinction it is already in tough shape. Any further delay is likely to worsen its condition. The conditions for suspensions are equally problematic:

- i : Socio-economic impact - The problems facing the species affected will not be suspended while socio-economic impact is mitigated.
- ii : Provincial survival - Again, the importance of retaining all local populations as the key to preventing range retraction and eventual extinction is dismissed.
- iii : 1. Distribution - Again, dismisses the importance of all local populations.
iii : 2. Habitat availability - This is of no importance if the individuals or habitat destroyed are in the only area occupied by the species.
iii : 3. More time required - Apply protection in the interim. When the primary threats to the species are not addressed, the losses from secondary threats are even more important.

These suspensions put effective conservation at risk and should be dropped.

- Species protection scoping: B - If a species is at risk of extinction, all the individuals should be protected regardless of where they occur. Here again there seems to be a desire to relax protection in places where the species is still holding its own. Using the precautionary principle of conservation, all populations of the species should be protected until recovery of the species is achieved. The species are listed because they are declining or they are already very low in number. There is no room for further declines. Therefore scoping for protection should not occur.

- Timeline removal: C - This could easily result in delays that prevent the necessary habitat protection of a species at risk. This is an inappropriate way to address the urgency of conserving species at risk of extinction and should be dropped.

3. Recovery policies:

- Time extensions: A and C - These are additional potential delays for conservation action to protect a species that might be in urgent need of protection. All species at risk of extinction deserve prompt action and regular review. These changes should be removed.

- Recovery strategies vs. Government Response Statements: B - Why not just adopt the recovery strategy as the government policy direction? This would be a huge savings in time and effort.

Environmental Bill of Rights (EBR) vs. website: D - What is wrong with posting in both places to provide wider notification? It is the same information and requires little additional effort. It must be noted that posting on the EBR allows people to look in one place for proposed changes to legislation rather than having to search the websites of all government Ministries and Agencies for changes that might affect them. This change needs to be removed and EBR posting retained.

4. Permits, Agreements, Exemptions:

- Species at Risk Conservation Trust: This approach runs against one of the basic principles of species conservation. Species at risk are often so designated because their habitat has been reduced to the point where it cannot support enough individuals to ensure the species can continue to exist. This means that the habitat where they exist now could be the last of their habitat and essential to their future existence. Because this habitat is still occupied, it is also by definition the best of what remains for those species – so it is invaluable to them. It is therefore the most important habitat to retain to protect these species. It is inappropriate to allow this best habitat to be destroyed in exchange for a fee. It is very risky to assume that equivalent quality habitat can be created elsewhere and that it will be occupied by that species – an additional risk that should not be put on a species already at risk of extinction. The appropriate approach would be to maintain the existing habitat and try to create new habitat elsewhere to begin restoring the species – not trade off the best habitat for a fee. This “extirpation expense” needs to be halted.

- New approach: You state: “This new approach will give greater certainty to business and better enable positive outcomes for species at risk compared to the current piece-meal industry-led approach.” Again the focus of this legislation must be the protection of species at risk of extinction. But if this is not happening now with the current piecemeal approach, then strong measures to protect and restore these species need to be implemented. It is inappropriate to just change the Act to facilitate business and weaken the protection for the species affected by this development.

- Expert consultation: A - Why would the Minister not want to consult with experts about something that he/she is not knowledgeable about? This needs to be removed.

- Species vs. individual focus: B - Here again, this approach violates basic principles of conservation. Again, the process of extinction is the loss of individual populations, and this extirpation of populations is through the loss of individuals. It has already been determined that all the species on the species at risk list are headed for extinction if we do not intervene to protect them. Your proposal implies that a population or number of individuals would be allowed to be extirpated as long as other populations continue to exist. By extension, that could carry on until only one remnant group is left – hardly the desired result of legislation that should be conserving and restoring these species. The appropriate conservation approach is to protect all remaining populations to prevent range retraction and eventual extinction. The restoration approach, which is what we should be taking for all species at risk of extinction, is to protect all remaining populations and expand their range to get them off the SAR list. This species approach needs to be removed and the individual approach retained.

- Transition provision: C - Again, this is just another delay and weakening as discussed in the very first point. This needs to be removed.

- Landscape agreement: E - Again, this appears to be similar to the other changes that advocate relying on the species existence in other areas. This does not fit with standard conservation principles for species at risk of extinction. The conditions for these agreements are also problematic:

- species at risk should not be adversely affected – reasonable steps to minimize adverse effects is not enough;
- all species at risk should benefit – not just some species;
- alternatives that would not adversely affect the species at risk must be implemented – it is not enough just to consider them;
- beneficial actions must outweigh adverse effects for each species – not just in aggregate.

- Replacing Section 18: F - This appears to be just a way to weaken and circumvent the regular process to protect species at risk of extinction in Ontario. This has a strong likelihood of being less effective and should be removed.

5. Enforcement:

- Enhance and streamline: A - The changes proposed in the second point in this section are not clear.

- Enforcement officers: B - Conservation Officers must continue to be able to enforce the act.

- Exemption from EBR posting: This appears to be just hiding the suspension of protections from the public. The last sentence could be translated as: “This is being proposed in to preserve the ability of the Minister to act swiftly and facilitate associated impacts on species at risk.” As with our very first point, this needs to be removed.

Overall:

One of the main purposes of having laws is protection. They are often geared to the protection of people and their property, but in the last decades we are moving to protect other things. These other things include the animals we live with or use; the land and water we rely on for food and a wide range of social, cultural, and economic benefits; and also those species in the world that are not doing well in our presence. Laws are also often designed to protect the vulnerable in our society and the vulnerable things in our world that are important to us. This is the purpose of the Endangered Species Act – it is to protect those plants and animals that are most vulnerable to our activities. The purpose of the Endangered Species Act must not be to give a leg up to individuals and corporations to destroy these species or their habitats. You need to start again and look at things from the point of view of those vulnerable species that are endangered and threatened with extinction, not from the point of view of the people who want to destroy the last places where those species exist.

You are to be commended for reviewing this legislation. However, the purpose of a review is to improve -not to make worse - the thing you are reviewing. As citizens of Ontario, we want all of our species at risk of extinction to be conserved, restored, and eventually come off that list. What you have proposed will not do that and will facilitate their continued demise. We can safely predict that the list of species at risk of extinction will continue to grow and that the conservation status of the species on that list will only be downgraded. This whole process needs to be halted now and resumed with the objective of successfully conserving and restoring all the species at risk of extinction in Ontario to the point where an Endangered Species Act is not required.

Even though you had consultation, your proposed changes clearly show that you did not get or heed advice from experts in the field of conservation. This is surprising, because you have people in your Ministry who administer your species at risk program now and should be experts in that field – were they not consulted? Legislation needs to be effective for the purpose it is drafted. You need to get broad expert advice on how best to conserve Ontario’s species at risk of extinction for the Endangered Species Act to fulfil its purpose. Would you not seek out experts in health for health legislation, or other experts for legislation affecting their fields?

Your government has quickly developed a reputation for being anti-environment and pro-development. We do not think this dichotomy is necessary, and we do not think that is the legacy you want to leave your family or your fellow citizens. Development can still occur where species at risk are not present, or in ways that do not extirpate them. But it is also important to recognize that many species at risk cannot survive in the face of development, and the remaining habitats of these species need to be protected. There are ways to mitigate these conflicts when they do occur, and your revised Endangered Species Act should consider measures to do that. For example, it would be very beneficial to have an aggressive program of land acquisition for critical species at risk habitat before development pressures reach these areas. Similarly, there should be an acquisition fund to acquire land that people later find they cannot develop. These acquisitions of high-value ecological lands would be a tremendous legacy for your government to leave to Ontarians now and to future generations.

In conclusion, many of the changes you propose to the Endangered Species Act do not fulfil the purpose of the Act, which is to protect species at risk of extinction in Ontario. These changes need to be abandoned. However, there is a need to improve the Endangered Species Act and we encourage you to do so. There are ways to better protect species at risk of extinction and their habitats and mitigate any impacts on people. We can live sustainably on this planet and we need to start doing that. Making an effective Endangered Species Act is one place to start.