We have updated the notice with a link to the proposed Bill.
November 3, 2020
This consultation was open from:
April 18, 2019
to May 18, 2019
The Endangered Species Act, 2007 was amended as part of the More Homes, More Choice Act, 2019 to better enable positive outcomes for species at risk while streamlining processes.
The Endangered Species Act, 2007 (ESA) first came into effect on June 30, 2008. The Act protects members of species listed as endangered, threatened, or extirpated on the Species at Risk in Ontario (SARO) List, and protects the habitat of species listed as endangered or threatened. A permit, agreement, or conditional exemption prescribed in Ontario Regulation 242/08 under the ESA is required for activities that would have an adverse impact on endangered or threatened species or their habitat.
Since coming into effect in 2008, the ESA has been criticized for being ineffective in its aim to protect and recover species at risk, for being administratively burdensome and costly for authorization applicants, and for slowing economic development. That is why, in January 2019, we launched consultations on how Ontario can achieve positive outcomes for species at risk, while providing greater certainty and streamlining approvals for businesses, municipalities and individuals.
Based on our review and the input received from the public, businesses, environmental and conservation organizations, municipalities, and Indigenous peoples, we proposed changes to the ESA. The changes now made enable us to achieve positive outcomes for species at risk while streamlining processes where ambiguity and uncertainty existed.
On June 6, 2019, the Legislature passed the More Homes, More Choice Act, 2019, which included amendments to the ESA. The amendments to the ESA came into force on July 1, 2019.
Our goal is to find the best way to protect and recover species, while taking into consideration the social and economic realities of Ontarians and businesses. The changes to the ESA better enable the application of the right tool and approach for protecting species and their habitat at the outset, including allowing for the protection of a species to be customized where it makes sense to do so.
The changes to the ESA include:
- enhancing government oversight and enforcement powers to ensure compliance with the Act
- improving transparent notification of new species’ listings
- allowing for appropriate consultation with academics, communities, organizations and Indigenous peoples across Ontario on species at risk recovery planning
- creating new tools to streamline processes and ensure costs incurred by proponents are directed towards actions that will improve outcomes for the species or its habitat.
To preserve the ability of the minister to act swiftly and minimize associated social or economic impacts, the ministry also consulted on an amendment to the General Regulation under the Environmental Bill of Rights, 1993 (EBR) that would exempt regulations containing Minister’s orders made for the purpose of temporarily suspending protections from proposal consultation requirements. The amendment to O. Reg 73/94 regulation under the EBR has not been implemented to date and as such the regulation has not been amended. This notice will be updated to reflect the decision about the proposal to amend O. Reg 73/94 once it has been made.
This notice is linked to other postings related to the 10th Year Review of Ontario’s Endangered Species Act:
- 013-4143 10th Year Review of Ontario’s Endangered Species Act: Discussion Paper
- 013-5033 10th Year Review of Ontario’s Endangered Species Act: Proposed Changes
Effects of consultation
Consultation on the proposed changes to the ESA took place from April 18, 2019 to May 18, 2019 (30 days).
In total, 45,214 comments were received.
We received comments from the public, Indigenous communities, business and industry associations, environmental and conservation organizations, academics and scientists, municipalities, and other interested stakeholders.
The majority of comments from the public, environmental and conservation organizations, academic/scientific community, Indigenous communities, and municipalities expressed concern for changes that were seen to be reducing protections for species at risk.
The majority of comments from business and industry associations, some conservation organizations, and some Indigenous communities expressed support for the changes that enhance certainty, streamline processes, and reduce burden while better enabling positive outcomes for species at risk.
The comments received can be grouped into the following themes:
- Extending timelines for species’ listings
- New requirements for the Committee on the Status of Species at Risk in Ontario’s classification of species
- Species and habitat protections
- Establishment of a Species at Risk Conservation Fund
- Forestry under the ESA
1. Extending timelines for species’ listings
Comments submitted by proponents (i.e., those who seek authorizations under the ESA) strongly supported extending the timeline for species’ listings from three (3) months to up to 12 months, indicating it would give them more adequate notice to prepare and modify their planned or current activities in response to new species and habitat protections.
Other commenters expressed concern that extending the timeline for species’ listings could represent a critical delay in legal protections for a species at risk and their habitat. Some were concerned the extended timeline could lead to targeted destruction of species or habitat in advance of the listing. Concerns were also expressed that the extended timeline would delay the species’ receiving stewardship and program requirements that facilitate recovery efforts, thereby negatively impacting the species.
Response: The extended timeline for species’ listings provides greater transparency and more adequate notice for proponents and government to prepare and respond effectively. The minister has the authority to apply species and/or habitat protection orders during the interim period from when a species is classified to when protections apply.
2. New requirements for the Committee on the Status of Species at Risk in Ontario’s classification of species
Some commenters were supportive of adding rigour to the listing process and expressed desire for an opportunity to resolve concerns around conflicting information or concerns that community knowledge was not adequately considered.
Other commenters expressed concern that new requirements for the Committee on the Status of Species at Risk in Ontario (COSSARO) regarding the classification of species could be at odds with the principles of conservation biology and result in fewer species being listed as endangered or threatened. Concerns were expressed that the requirement for ‘edge-of-range’ species classifications to be based on their status outside of Ontario deviates from standard criteria used at the international, national and regional levels.
Commenters expressed concern about a requirement for COSSARO to reconsider the classification of a species where the minister forms the opinion based on scientific information that a species’ classification may no longer be appropriate. Concerns were expressed that the minister does not have the necessary scientific expertise and that this could be mis-used as a tactic to delay the protection of a species.
Response: Based on the review, consideration of modern approaches from other jurisdictions and valuable feedback we received, we decided to make amendments to modernize and improve the effectiveness of the Act and improve outcomes for species at risk. Ontario wants to focus its conservation efforts on species that are at the greatest risk with consideration of their overall distribution. This provides Ontarians with the confidence that our conservation efforts are being focused on the species that need them most in the province.
3. Species and habitat protections
Comments submitted by some stakeholders expressed support for the changes that would provide the minister the authority to temporarily suspend protections for up to 3 years for species that meet certain criteria, as well as the ability to customize species protection via a new Minister’s regulation, because this will allow for more time for engagement before protections are applied.
Other commenters expressed concerns that these changes to protections could have negative impacts on species at risk. Concerns were expressed that suspending protections in combination with other changes (e.g., reassessment and extending the timeline for species’ listing) could substantially weaken protections for some species.
Response: The ability to temporarily suspend protections for some species, as well as the ability to customize species protections (e.g., by geographically scoping where they apply), provides much-needed flexibility, transparency and certainty for Ontarians and for species’ recovery. For select species at risk, these changes mean more time to engage, collaborate, and develop the right protection approaches that better consider Ontarians’ social and economic realities and species’ needs.
4. Establishment of a Species at Risk Conservation Fund
Comments submitted by proponents expressed strong support for the new Species at Risk Conservation Fund and associated agency because this will mean experts will plan and undertake protection and recovery activities for species at risk, rather than having this work led by businesses who are not experts on species at risk. Proponents also expressed support for how this option will increase certainty and streamline approvals.
Commenters expressed concern that the option for proponents to pay a charge rather than completing certain on-the-ground activities themselves would be akin to allowing businesses to pay their way out of requirements. Concerns were expressed that this could result in a net loss of habitat, that funds would be directed away from the areas of impact (e.g. outside a municipality), and that administrative costs of the agency would mean less money going to species at risk.
Response: The option for proponents to pay a charge to the Fund, which the Agency will use to implement species protection and recovery activities, rather than completing certain on-the-ground activities themselves does not remove the requirement for proponents to seek an authorization under the ESA, and to take action to avoid impacts to species at risk, and if avoidance is not possible, to minimize adverse effects on the species.
In addition to mitigating impacts on species, some permits require businesses to also provide benefits for species, such as creating new habitat. Many businesses, municipalities and individuals already have the experience and expertise to implement benefits for species at risk and they will be able to continue to do so. For those that don’t have this expertise, this new option offers an alternative way for them to support and benefit species at risk, by utilizing the expertise of the new provincial agency to determine the best way to protect and recover eligible species on a provincewide scale.
The option to pay a charge would provide cost certainty for proponents, shorten authorization timelines, and reduce the length of time required to fulfill authorization requirements. A new board-governed agency would determine how best to implement large-scale, long-term and coordinated protection and recovery activities for conservation fund species using funds provided by proponents. With either approach, beneficial actions will still be completed to ensure the continued protection and recovery of Ontario’s species at risk and their habitat.
5. Forestry under the ESA
Comments submitted by several forestry companies, some Indigenous communities and northern municipalities expressed concerns that the changes do not provide a permanent recognition of the Crown Forest Sustainability Act, 1994 (CSFA) as being equivalent to the ESA by way of a Section 55 exemption regulation. The majority of the forestry sector who operate on Crown land are not supportive of using a new s. 18 provision for forestry that includes a more flexible test and allows the minister to prescribe activities by regulation to allow them to be carried out without requiring additional authorizations under the ESA. Others in the forestry industry are supportive of exploring a harmonized CFSA-ESA framework.
Comments submitted by the public and environmental organizations expressed concern that the new provision for Section 18 does not include the requirement that the minister be of the opinion that an overall benefit to the species would be achieved within a reasonable time through requirements imposed by the instrument.
Response: Currently, under the ESA, a regulation exempts forestry activities on Crown land that are operating under an approved forest management plan, as long as certain rules are met. This regulation is in place until June 30, 2021 (ERO # 019-1020).
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In January 2019, the government launched its consultation on how best to update the 10-year old act to improve the effectiveness of the program for species at risk by ensuring Ontario’s best-in-class endangered and threatened species protections include advice and species’ classifications from an independent scientific committee and modern approaches to enforcement and compliance; species and habitat protections; and recovery planning.
We posted a Discussion Paper outlining the challenges of the Endangered Species Act, with focused questions, to the Environmental Registry. It was open for a 45-day public consultation period from January 18 until March 4, 2019.
Based on the review, consideration of modern approaches from other jurisdictions and valuable feedback we received, we are implementing recommendations to modernize and improve the effectiveness of the act and improve outcomes for species at risk.
Ontario is committed to ensuring that its Endangered Species Act includes a provincial species at risk list that is automatically updated based on classifications by an independent scientific committee, as well as best-in-class approaches from across the country to ongoing species and habitat protections and recovery. The proposed changes include:
- enhancing government oversight and enforcement powers to ensure compliance with the act;
- improving transparent notification of new species’ listings;
- appropriate consultation with academics, communities, organizations and Indigenous peoples across Ontario on species at risk recovery planning; and
- creating new tools to streamline processes, reduce duplication and ensure costs incurred by clients are directed towards actions that will improve outcomes for the species or its habitat.
The proposed changes are outlined below under the following five categories:
- Assessing species at risk and listing them on the Species at Risk in Ontario List
- Defining and implementing species and habitat protections
- Developing species at risk recovery policies
- Issuing Endangered Species Act permits and agreements, and developing regulatory exemptions
- Enforcing the Endangered Species Act
If proposed legislative changes are passed, we are also proposing a subsequent change to the Environmental Bill of Rights General Regulation to exempt a certain type of regulation as described below.
1. Assessing species at risk and listing them on the Species at Risk in Ontario List
Species are classified by the Committee on the Status of Species at Risk in Ontario (COSSARO) as endangered, threatened, special concern, extirpated or extinct and are required to be added to the Species at Risk in Ontario (SARO) List by regulation. Currently, COSSARO may submit a report to the Minister at any time and a species must be added to the SARO List three months from the time a report is submitted to the Minister. Once the species is added to the list, the Endangered Species Act immediately prohibits the killing, harming, harassing, etc. of species that are endangered or threatened and also prohibits the damage and destruction of their habitat.
The proposed changes would:
- Provide the public earlier notice of COSSARO's species’ assessment and classification results by making its report available to the public no later than three months after it is received by the Minister. Also, extend the time from when a COSSARO report is received by the Minister to when listing is to occur from three to twelve months (i.e., when a species must be added to the SARO List).
- Provide that the twelve-month period for amending the SARO List will apply to any COSSARO report received in 2019, to address the possibility of such a report being received before the changes, if passed, come into effect.
- Improve certainty of the timing of species list changes by requiring COSSARO to submit an annual report to the Minister between January 1 and January 31 of each year.
- Allow the Minister to require COSSARO to reconsider the classification of a species where the Minister forms the opinion based on scientific information that the classification may not no longer be appropriate. For species that are not yet on the list or are listed as special concern, the proposed changes provide that the species would not be added to the SARO List or listed to a more endangered status during COSSARO's re-assessment.
- Require COSSARO to consider a species’ condition around its broader biologically relevant geographic area, inside and outside Ontario, before classifying a species as endangered or threatened. If the overall condition of risk to the species in the broader biologically relevant geographic area is lower, COSSARO would be required to adjust the species’ classification to reflect its overall condition.
- Broaden COSSARO member qualifications to include members who have relevant expertise in ecology, wildlife management, as well as those with community knowledge.
2. Defining and implementing species and habitat protections
For species that are listed as endangered or threatened, protections come into force immediately upon listing. The prohibitions currently apply broadly, unless an activity is exempted from the prohibitions, or the area of habitat that is protected is defined more precisely (i.e., scoped) in regulation. In addition, when a species is listed as endangered or threatened, its general habitat is automatically protected, but the Act requires that a habitat regulation be developed and approved by LGIC to replace the habitat protection that is already in place.
The proposed changes would:
- De-couple the listing process from automatic protections and provide greater Minister’s discretion on protections, while keeping the assessment as a science-based process at arm’s length. While the role of classifying species would remain with COSSARO and listing of classified species would continue to be required, the proposed changes would provide the Minister with authority to temporarily suspend species and habitat protections for up to three years for some newly-listed species when the following specified criteria are met:
- applying the prohibitions to the species would likely have significant social or economic implications for all or parts of Ontario so additional time is required to determine the best approach to protect the species and its habitat;
- the temporary suspension will not jeopardize the survival of the species in Ontario; and
- one of the following further criteria is met:
- the species has a broad distribution in the wild in Ontario;
- habitat availability is not a limiting factor for the species;
- additional time is needed to address the primary threats to the species, or co-operation with other jurisdictions is necessary to reduce the primary threats to the species,
- other criteria that may be specified by regulation.
- Enable scoping of species protections, where appropriate, via new Minister’s regulations. This proposed new authority would enable species protections to apply to specific geographies or in specific circumstances (e.g., to species that are not affected by disease).
- Remove the mandatory legislative requirement and timeline to develop a habitat regulation proposal for each newly-listed threatened or endangered species and retain the option to develop a habitat regulation when needed.
- Enable the Minister, rather than LGIC, to make species-specific habitat regulations.
3. Developing species at risk recovery policies
The ESA currently requires the government to ensure a species-specific Recovery Strategy containing scientific advice is developed once a species is listed as endangered or threatened. After the Recovery Strategy is published, a species-specific policy (Government Response Statement) is required to be prepared within 9 months of publication of the recovery strategy. The ESA requires a report on progress towards protection and recovery to be published within 5 years of the Government Response Statement.
The proposed changes would:
- Give the Minister discretion to extend the nine-month Government Response Statement development timeline, for some species.
- Clarify that recovery strategies are advice to government, and that Government Response Statements are the government’s policy direction for species at risk.
- Allow the Minister to extend timelines for conducting the review of progress towards protection and recovery based on individual species’ needs.
- Remove duplicative requirements by removing specific reference to posting under the Environmental Bill of Rights, 1993 and instead requiring that certain products under the Act be made available publicly on a government website.
4. Issuing Endangered Species Act permits and agreements and developing regulatory exemptions
The Endangered Species Act contains a number of tools, including permits, agreements and regulatory exemptions, that may authorize activities that would impact species and/or their habitat so long as certain conditions are met.
The proposed changes to these aspects of the ESA include the following:
Creation of Regulatory Charge and Agency
Ontario is also proposing to create Canada’s first independent Crown agency proposed to be called the Species at Risk Conservation Trust, to allow municipalities or other infrastructure developers the option to pay a charge in lieu of completing certain on-the-ground activities required by the act. The funds would support strategic, coordinated and large-scale actions that assist in the protection and recovery of species at risk.
The proposed changes would authorize the creation of a regulatory charge that could be paid by persons who are permitted to carry out otherwise prohibited activities under certain permits, agreements, and regulations. The charge would be paid in lieu of fulfilling certain potential conditions that could otherwise have been imposed under the permit, agreement, or regulation. The proposed charges would only be available in respect of species prescribed by regulation. The price for the payment-in-lieu (i.e. regulatory charge) will be within the range of costs that a client would have otherwise incurred through meeting the species-based conditions of an authorization. Clients would still need to fulfill some on-the-ground requirements, including considering reasonable alternatives for their activity and taking steps to minimize the adverse effects of the activity on the species at risk.
The proposed changes would provide for the ability to make a regulation to prescribe a subset of the species prescribed under the listing regulations as eligible for the payment-in-lieu charge.
The proposed changes would also authorize the creation of a new board-governed provincial agency. The agency would receive the funds and ensure informed, unbiased and expert decisions are made to disburse the funds to third parties that will undertake the activities in accordance with the purposes proposed to be set out in the statute. The proposed amendment would restrict the funds to fund only those activities that are reasonably likely to support the protection and recovery of prescribed species. The Minister would have the ability to establish guidelines (e.g. objectives and priorities) for funding and set standards for activities that receive funding.
The proposed changes would also provide various oversight mechanisms such as regular Ministry reviews of the agency and reporting and auditing requirements for the agency.
The proposed changes would include regulation making authority in respect of the composition, operation, governance and management of the agency (for example, composition of the board of directors for the agency).
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.
Additional Changes relating to Issuing Permits, and to Agreements and Regulatory Exemptions
- Remove the requirement for the Minister to consult with an independent expert in the ‘D’ permit process and replace the requirement for LGIC approval with Minister approval.
- Broaden the approach to minimizing adverse effects for permits and agreements (e.g., ‘C’ permit, ‘D’ permit, landscape agreements, section 18 harmonization) by shifting the focus from ‘individual members’ of the species to the ‘species’ more generally.
- Provide a new transition provision for existing Endangered Species Act permit- and agreement-holders to continue to operate for twelve months following the application of new species or habitat protections while they seek amendments to their permit or agreement to address newly listed species. Currently, existing holders would, upon the species being listed and protected, need to stop their activity that impact the species or its habitat and wait for their permit or agreement to be amended.
- Enable the Minister to establish codes of practice, standards or guidelines with respect to species at risk or their habitat, and enable regulations made under the Act to incorporate documents to supplement requirements or conditions related to species at risk;
- Create a new landscape agreement that takes a strategic, coordinated and consolidated approach to authorizing clients undertaking multiple activities, and which could allow for limited conservation banking to achieve positive outcomes for species. The issuance of a landscape agreement would be dependent on conditions, including:
- the agreement requires reasonable steps to minimize adverse effects of the authorized activities on the impacted species under the agreement,
- the agreement requires actions to benefit one or more species,
- reasonable alternatives have been considered, including those that would not adversely affect the species specified in the agreement, and
- the beneficial actions required by the agreement outweigh the adverse effects to the impacted species under the agreement.
- Replace s.18 with a new provision that would include a more flexible test and would allow the Minister to prescribe activities by regulation, to allow them to be carried out without requiring any additional authorizations under the ESA. An activity could be prescribed for this purpose, where it,
- is approved or required under another piece of legislation,
- would not jeopardize the survival of a prescribed species or have any other significant adverse effects,
- would provide a benefit to the prescribed species, where reasonable to do so,
- requires reasonable steps to minimize adverse effects on prescribed species, and
- involves the consideration of reasonable alternatives, including those that would not adversely affect the prescribed species.
- Remove the requirement for the Minister to consult with an expert if the Minister forms the opinion that a proposed regulation is likely to jeopardize the survival of the species in Ontario or to have any other significant adverse effect on the species
5. Enforcing the Endangered Species Act
The Endangered Species Act contains modern enforcement provisions, but there are a few areas that could be enhanced and/or need updating to reflect the transition of the file from the Ministry of Natural Resources and Forestry to MECP
The proposed changes would:
- Enhance and streamline enforcement powers by:
- Applying inspection powers and offence provisions that already exist in the ESA to also include activities conducted under the regulations.
- Extending current protection order powers that can be used with the Minister’s discretion to protect habitat during the intervening period before a species is listed, or where a regulation has been made so that the prohibition is not applicable, to also include the discretion to similarly protect species.
- Update provisions related to enforcement officers by removing identification of specific classes of persons (e.g. conservation officers) as enforcement officers and retain the Minister’s authority to designate officers
If the proposal for the change to allow the Minister to order by regulation a pause of the protections for listed species passes: we are also proposing a change to the EBR General Regulation (O.Reg. 73/94) to exempt the regulations containing Minister’s orders made for the purpose of pausing protections from EBR posting and consultation requirements. This is being proposed in to preserve the ability of the Minister to act swiftly and minimize associated social or economic impacts.
Please see Bill 108, More Homes, More Choice Act, 2019 for proposed legislation.
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Please reach out to the Contact listed in this notice to see if alternate arrangements can be made.