The Government of Ontario's…

The Government of Ontario's proposed drastic overhaul of Ontario’s Endangered Species Act, 2007
(ESA) through changes put forward in Schedule 5 of Bill 108, an omnibus bill tabled on May 2,
2019 is ostensibly aimed at increasing housing supply. The changes contained in Schedule 5 will gut protections for the province’s most vulnerable plants and animals. The overall direction is to roll back
protections for species at risk making it easier for all industry and development proponents (not just
housing developers) to proceed with activities harming these species and their habitats. The
government’s claim that changes will improve outcomes for species at risk is disingenuous. Below is a summary of the proposed changes which are set out in the notice on the Environmental Registry
(ERO# 013-5033).
1. Assessing and listing species at risk. The government is proposing:
• To delay listing of species assessed by the Committee on the Status of Species at Risk in Ontario
(COSSARO). Currently species must be listed within three months of COSSARO’s submission of an
assessment report to the Minister. This will be extended to 12 months, during which time species
at risk and their habitats would be unprotected and vulnerable to harmful actions taken by those
wishing to avoid pending ESA restrictions.
• To give the Minister more room to second-guess assessments by COSSARO, resulting in delays in
recovery planning and protections. The ESA already allows the Minister to request a review of a
COSSARO decision if “credible scientific information” indicates the listing “is not appropriate”
(sec. 8(2)). The new language proposed in the Bill changes this to “may not be appropriate”.
• To delay both Recovery Strategy development and protections if the Minister requests a
reassessment. Currently, a species would be listed regardless of a request for reassessment.
Under the proposed system, however, if the Minister requests a reassessment, the species would
not be listed, introducing additional delays, politicizing the process and making it possible for
developers and others who have the ear of government to derail the listing process if they don’t
like a COSSARO decision.
• To require that COSSARO assessments be based not on the status of a species in Ontario, but
instead on its status across its “biologically relevant geographic range.” Most species now listed
as threatened or endangered in Ontario, which are considered to be more stable in the US, could
be delisted (e.g., during regular reassessment processes) and receive no protection as a result.
The provincial government could wipe its hands of responsibility for species such as Jefferson
salamander, bobolink, spiny softshell turtle, American badger and cucumber tree. This is especially concerning in the face of climate change because healthy “edge of range” species populations are needed at their northern limits to help species adapt to changing climatic conditions.
• To broaden COSSARO membership so that it includes other than scientific experts. Currently COSSARO members must have expertise in (a) a scientific discipline such as conservation biology, population dynamics, taxonomy, systematics or genetics; or (b) aboriginal traditional knowledge.
Comments:
o Science-based listing of species at risk by COSSARO and automatic protection of listed species and their habitats are cornerstones of the ESA. They provide certainty, whereas ministerial discretion politicizes the process, inviting delay and controversy.
o There should be no change to the ESA regarding the listing process and the role of COSSARO. The law sets out a transparent approach to listing based on a consideration of “the best available scientific information, including information obtained from community knowledge and aboriginal traditional knowledge.” (sec. 5(3)).
o Edge of range species should not be denied protection based on their status outside Ontario.
2. Species and Habitat Protections
The government is proposing:
• De-coupling the process of listing species at risk from the automatic protections provided under the ESA for threatened and endangered species and their habitats, and to provide greater Minister’s discretion on protections. The Minister would be allowed to suspend species and habitat protections for up to three years based on social or economic considerations.
• To delay the application of automatic protections for newly listed species for one year for existing permit/agreement holders.
• To allow the Minister to limit protections so that they apply only in specific geographies or in specific circumstances. This could exclude important habitats and species from protection.

Comments:
o There should be no alternative to automatically protecting threatened or endangered species and their habitats upon listing.
o Allowing the Minister to remove or delay protections is inappropriate and invites political meddling.

3. Species at Risk Recovery Policies
The government is proposing:
• To allow the Minister discretion to delay indefinitely the development of Government Response Statements (GRS). These species-specific government policies currently must be produced within nine months of the publication of a Recovery Strategy (for threatened or endangered species) or a Management Plan (for special concern species).
• To remove requirements to post notices on the Environmental Bill of Rights Registry when the Minister is proposing to delay Recovery Strategies and Management Plans. This change will potentially shut out opportunities for public consultation regarding delays. It is unclear whether notices on the new website will be as transparent and accessible as they currently are on the Environmental Bill of Rights Registry.
• To allow the Minister to delay carrying out a review of progress towards the protection and recovery of the species. Currently, the Minister is required to conduct a review of the progress towards the protection and recovery of the species no later than five years after publication of a government response statement. The proposed amendment allows the Minister to specify any time period to carry out the review in the government response statement.

Comment: Legislated timelines are intended to ensure that actions needed to recover species occur without undue delay. There should be no change to the legal requirement to produce GRS within nine months of the release of Recovery Strategies or Management Plans. Failure to meet the legislated deadlines is a chronic problem, which should be addressed through improved implementation, not weakening of the law.
4. Permits, agreements and exemptions to allow harmful activities
There are many mechanisms in the ESA, including permits, agreements and regulatory exemptions that allow harmful activities to proceed provided certain conditions are met. The ESA sets a high standard for permits, based on providing an overall on-the-ground benefit to species negatively impacted by development. The standard for exemptions, however, is much lower and requires only mitigation of harm. The options under consideration would simply make it easier for industry and development proponents to proceed with harmful activities. This direction is inconsistent with the purpose of the ESA which is to protect and recover species at risk. Where harmful activities are allowed, authorizations should be premised on providing an overall benefit to the species.
The government is proposing:
• Allowing proponents of harmful activities to pay into a fund in lieu of fulfilling on-the-ground requirements that would otherwise be imposed under the ESA. This includes the requirement for operators to provide an overall benefit to the species, which is currently a requirement of permits.
• To remove the requirement for the Minister to consult with an independent expert and to obtain Cabinet approval prior to issuing permits for harmful activities that would provide a significant social or economic benefit to Ontario (section 17(2)d permits). Currently the law requires the expert consulted to submit a report on the potential impacts of the proposed harmful activities on the species at risk, including an opinion on “whether the activity will jeopardize the survival or recovery of the species in Ontario.” It also requires Cabinet approval, premised on the authorized harmful activities being deemed to be of provincial significance.
• To remove the requirement for the Minister to consult with an independent expert regarding the potential impact of a regulation (e.g., an exemption regulation) on species at risk if it is likely to jeopardize the survival of the species in Ontario.
• To remove the requirement that measures to avoid adverse impacts to individual members of a species be taken by proponents of harmful activities (under a section 17 permit). Instead, permit conditions would require only that measures be taken to avoid adverse impacts to affected species. The fine filter of protection for individual plants or animals would no longer apply, leaving the door wide open to death by a thousand cuts.
• To create “landscape agreements” for proponents undertaking multiple harmful activities throughout a geographic area. This broad-brush approach doesn’t lend itself to addressing site-specific or species-specific concerns and consequently presents unwarranted additional risk for species already in peril. Further, though the proponent is required to undertake beneficial activities, these do not need to benefit all of the threatened or endangered species that are negatively impacted. In fact, they need only benefit one species to qualify.
• To remove the current requirement to provide an overall benefit to negatively impacted species when harmful activities approved under other pieces of legislation are authorized to proceed under section 18 of the ESA. The current overall benefit standard is intended to promote species recovery, whereas the proposed change aims only to ensure that steps are taken to minimize adverse affects.
Comments:
o This is the Endangered Species Act, not the Endangered Business Act. The priority must be on protecting and recovering species at risk.
o As there are already sufficient tools for authorizing harmful activities, no new tools are needed. Challenges should be addressed through improved implementation.
o Proponents of harmful activities should NOT be allowed to simply pay into a fund rather than providing on-the-ground reparation for damage done. This simply reduces accountability and facilitates harm to species at risk and their habitats. Retain the current requirements to provide an on-the-ground, overall benefit to species harmed.
o Do not remove the requirement to obtain Cabinet approval or to consult with independent experts regarding sec. 17(2)d permits. These are intended to be available only for projects that “result in a significant social or economic benefit to Ontario” and that will not “jeopardize the survival or recovery of the species in Ontario.” These are appropriate requirements and ensure that such permits are issued only an exceptional basis.
o Do not remove the requirement for the Minister to seek an independent opinion on regulations that might jeopardize the survival of a species in Ontario. That would only make it easier for harmful activities to proceed, without proper scrutiny.
o The ESA (sec. 18) provides a means to harmonize its requirements with other legislative or regulatory frameworks, based on the standard of providing an overall benefit to species negatively impacted. Unless this standard is maintained, species will continue to decline.
5. Enforcement
The government is proposing to apply inspection powers to harmful activities allowed through regulatory exemptions.
Comment: This is an improvement as this inspection power is currently lacking. However, if the government were serious about improving outcomes for species at risk, it would remove the regulatory exemptions put in place in 2013 that have enabled over 2,000 of these harmful activities to proceed in the first place, without inspection or enforcement.