Proposed interim changes to the Endangered Species Act, 2007 and a proposal for the Species Conservation Act, 2025

Under the current Endangered Species Act, 2007 (ESA) program, the process to obtain a permit is slow and complex, causing unnecessary delays and costs for housing, transit, and critical infrastructure. To help speed up project timelines and provide greater certainty for proponents, while protecting species, the Ministry of the Environment, Conservation and Parks is proposing a number of changes to its approach to project approvals.

The Protect Ontario by Unleashing our Economy Act, 2025 is proposing to make immediate amendments to the ESA and would later repeal the ESA and enact the new Species Conservation Act, 2025 (SCA), once proclaimed.

Collectively, the proposed changes would provide a reasonable, balanced approach to protecting species in Ontario and would:

• ultimately shift nearly all species-related authorizations to a registration-first approach – a process already successfully used for many species and other environmental authorizations
• establish a framework for setting clear expectations and rules for proponents to follow, ones that are focused on those activities that are most likely to have a direct negative impact on species
• establish a new Species Conservation Program to support voluntary initiatives like habitat restoration that protect and conserve species
• strengthen our ability to enforce species protection laws to ensure that all proponents comply with the rules and expectations of this new approach

Under the proposed new approach, instead of waiting for the ministry to approve permits, most proponents will be able to begin an activity immediately after registering. Registered activities will be required to meet all associated requirements set out in new regulations. The ministry looks forward to developing these regulations in consultation with the public and Indigenous communities over the coming months.

Overview of Proposed Changes:

Purpose:

The purpose of the species protection legislation will be to drive species protection and conservation while taking into account social and economic considerations, including the need for sustainable economic growth in Ontario.

Species Classification and Listing:

The role of the Committee on the Status of Species at Risk in Ontario (COSSARO), as an independent science-based committee responsible for assessing and classifying species in Ontario, will not change. However, the government would have discretion to add extirpated, endangered, and threatened species to the list of protected species. The government would also have discretion to remove protected species from the list.

The government will still be able to invest in conservation actions that would benefit species regardless of whether the species is on the list of protected species. If a species is included on the list, its classification on the list must match the classification assigned to it by COSSARO.

Redefining Protections:

We are making changes to focus on the core protections essential to the conservation of species. We are proposing to remove the concept of “harass” from species protections. Also, the definition of habitat is proposed to be reframed as follows:

• for animal species:
  • a dwelling place, such as a den, nest, or similar place, occupied or habitually occupied by one or more members of a species for the purposes of breeding, rearing, staging, wintering, or hibernating
  • the area immediately surrounding a dwelling place described above that is essential for the purposes mentioned
• for vascular plant species:
  • the critical root zone surrounding a member of the species
• for all other species (for example, lichens): an area on which any member of the species directly depends to carry out its life processes

We are making these changes because the current definition of “habitat” creates uncertainty, includes broad areas beyond core species protections, and results in confusion when making decisions about what actions to take when carrying out required protections. The new habitat definition includes clear terms and parameters, focuses on preserving core elements of species’ habitat such as breeding, rearing, staging, wintering, and hibernation areas to provide greater clarity to proponents when taking required protection steps.

Under the proposed new SCA, activities that are harmful to species cannot proceed unless the person carrying out the activity has registered the activity, or in limited situations, obtained a permit. Persons engaging in those activities must comply with the rules associated with the registration or permit. These activities include:

• activities that are likely to kill, harm, capture, or take a member of a species listed on the Protected Species in Ontario List
• possessing, transporting, collecting, buying, selling, leasing, or trading a member of a species listed on the Protected Species in Ontario List
• damage to or destruction of the habitat of a species listed on the Protected Species in Ontario List

Non-compliance with the framework can be addressed through the updated compliance and enforcement model actions.

Reduced Duplication with Federal Legislation:

The Federal Species at Risk Act (SARA) protections include those for extirpated, endangered and threatened aquatic species and migratory birds, along with their residences and critical habitats, on non-federal lands. Under the provisions of the current ESA, anyone carrying out an activity impacting these species on non-federal lands has been required to obtain authorizations under both federal and provincial species at risk legislation. To remove this duplication, species protections in the proposed Species Conservation Act, 2025, would not apply to these SARA protected aquatic species and migratory birds, allowing for projects to move forward in a more efficient and cost-effective way.

Recovery Plans and Documents:

We are committed to providing information and guidance on the conservation of species in Ontario; however, the rules set out in the current ESA are too rigid and often result in duplication with federal recovery documents, while also preventing the government from focusing resources in a way that would maximize benefits for species.

The proposed amendments to the ESA would remove the requirements to develop recovery strategies and management plans, government response statements, and reviews of progress from legislation. The ministry would then have the flexibility to focus the development of conservation guidance when and where it is needed and makes sense to do so.

New Species Conservation Program:

Ontario remains committed to species conservation and to promoting activities like habitat restoration, research, and community-based initiatives. This proposal would establish a new Species Conservation Program, which would improve upon and replace the Species at Risk Stewardship Program. Under the new program, the government intends to increase investment in supporting voluntary activities that will assist in the protection and conservation of species by more than four times, up to $20 million per year. The program would also consider a wider breadth of supportable conservation activities.

Any species that is classified by COSSARO will be eligible for ministry funding through the Species Conservation Program.

Wind Down of the Species Conservation Action Agency:

In September 2021, the Species Conservation Action Agency (SCAA), identified in the ESA as the Species at Risk Conservation Trust, was established to support positive outcomes for certain designated species. The SCAA manages funds paid into the Species at Risk Conservation Fund (Fund) by proponents and uses the funds to support the protection and recovery of those species. Species conservation charges were paid into the Fund when those conducting certain activities opted to pay a charge rather than completing on-the-ground beneficial actions for certain species. The charges received into the Fund also supported the operations of the SCAA. To date, the SCAA has been focusing on starting-up its operations and has not spent any funds on projects. As the new registration framework will not include the option to pay a species conservation charge, there will be no future need for the SCAA or the Fund.

The proposal to amend the ESA would enable the ministry to take the necessary steps to wind-down the SCAA and the Fund. This includes transferring the money in the Fund to the government and requiring it to be spent on activities that are in alignment with species protection and conservation goals.

Advisory Committees:

The proposed new legislative framework also removes the express ability to establish an advisory committee. As such, the Species at Risk Program Advisory Committee will also be wound down. However, the ability to seek advice, including establishing an advisory committee remains the government’s prerogative. It will do so in the future as needed.

Updated Compliance and Enforcement:

We are committed to holding the regulated community accountable. In addition to setting clear expectations and rules for persons engaged in activities that impact protected species, we are also proposing to strengthen our ability to enforce the amended ESA and the proposed SCA. The changes will equip provincial officers and the Minister with more flexible tools, including clearer inspection and investigation powers and new order powers to achieve species protection. A risk-based, proportionate, and progressive compliance model, aimed at collaboratively addressing potential violations, will support these changes. If harm to species occurs, the ministry has to tools to enforce the law and hold proponents to account.

Registration-first Approach:

Under the proposed SCA, almost all activities that currently require a permit before proceeding are anticipated to instead require registration. It’s important to note that a registration approach is already in place and used by the ministry for 95 per cent of projects subject to the current ESA, including early exploration mining and species surveys.

Under the new registration system, proponents will be able to get projects started as soon as they have completed their online registration, provided they are following the rules in regulation. This eliminates the step of waiting for the ministry to review and approve permits. We are also committing to investing in upgraded IT systems to support this newly expanded registration regime.

There will still be requirements set out in regulation that protect species, and we will also continue to provide information and protection guidance for species through policies and implementation supports.

New regulations are required to implement the SCA’s registration model and will be consulted on as necessary. Until those regulations are ready, the amended Endangered Species Act, 2007 will remain in place.

Summary of Proposed Phasing of Changes:

If approved, here’s what the proposed legislation changes would mean for you:

Interim period changes – Amended ESA

The proposed amendments to the ESA would be in effect as soon as the proposed amending bill comes into force (i.e., on Royal Assent of the Protect Ontario by Unleashing our Economy Act, 2025) until the Species Conservation Act, 2025 is ordered to be in force.

These are the changes to the ESA that would take effect immediately if the Bill is passed:

• the purpose of the ESA will be updated to drive species protection and conservation while taking into account social and economic considerations, including the need for sustainable economic growth in Ontario
• updated compliance and enforcement model including two new compliance orders
• the government will have discretion to add species to or remove from the Species at Risk in Ontario (SARO) List
  • science-based assessments by COSSARO will continue
  • ESA authorizations for aquatic and migratory birds that are protected under SARA continue to be required until the new SCA is enacted
• the new habitat definition will replace the current definition in the ESA and “harass” will be removed from the prohibitions regarding harms to species
  • for clarity, proponents of activities may need to reconsider the magnitude of impacts according to the updated definitions and consider whether a permit or registration is required
• the requirement for the government to develop recovery products for species will be removed from legislation enabling a more flexible approach
• the Species Conservation Program is created and expanded
• the Species at Risk Conservation Fund will no longer accept funds and there will no longer be an option for proponents to pay a charge., The government will begin the process to wind down the SCAA under wind down provisions.
• registration for activities authorized under current conditional exemptions will continue using the current registry system
  • for clarity, existing registrations and associated conditions continue to apply; however, the option to pay into the Fund in place of on in-the-ground beneficial actions will not be available. To shelter under a conditional exemption, the beneficial action conditions must be fulfilled
• permits issued and associated conditions, as well as agreements entered into, and their requirements before the legislation is amended will generally continue to apply
• the current definition of “habitat” will apply to existing permits, agreements, and their requirements. New permits and amendments to existing permits continue to be available. For those seeking a permit, there are no longer specific permit types and permits will follow a simplified, streamlined process

Species Conservation Act, 2025 (if passed and proclaimed into force)

Once the enabling regulations are ready and the Species Conservation Act is proclaimed into force, the following will apply:

• updated purpose will be included
• the government will have discretion on what species are protected
  • the Protected Species in Ontario List will list species protected under the SCA
  • species added to the Protected Species in Ontario List must have the same classification as determined by COSSARO
  • science-based assessments by COSSARO will continue
• the registration approach will apply to species on the Protected Species in Ontario List
  • persons engaging in registered activities will be required to follow the rules set out in regulation
  • the updated and expanded online Species Conservation Registry system will be available for fast and easy registration
  • some activities may be excepted and others may be required to obtain a permit if they are prescribed by regulation
• the revised definition of habitat will be included and harassment of species will not be an activity that requires registration or a permit
• registration (or permits) will no longer be required for impacts to migratory birds and aquatic species protected under the federal Species at Risk Act
• the new Species Conservation Program will be continued
• the Species Conservation Account will be continued
  • for clarity, the Species Conservation Action Agency and the Species at Risk Program Advisory Committee are not part of the new legislative framework
• a general prohibition for activities that would result in a species no longer living in the wild in Ontario will be included
• updated compliance and enforcement model will apply – including the availability of the mitigation and compliance orders

Over the next several months, Ontario will work in consultation with the public and Indigenous communities and organizations to develop supporting regulations to implement the registration-first approach, which we expect will come into force early next year. As new regulations are developed, they will be posted on the Environmental Registry of Ontario.