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The Earthroots Primer on the Endangered Species Act of Ontario

Algonquin Wolf

Algonquin wolves are a Threatened species with a population of  500 or less remaining. Photo credit: Wes Liikane

 

Protecting species-at-risk in Ontario has a long history going back to 1971 when this province (under a Progressive Conservative government) became one of the first jurisdictions in the world to pass an Endangered Species Act (ESA). The Act was reconceptualized and updated in a major rewrite in 2007 only to be weakened in amendments two years later which created exemptions for certain industries in specified situations. Now ten years after the major rewrite, the current government has posted a notice on the Environmental Bill of Rights (EBR) that it is under review and inviting comments and submissions from supporters and detractors of the legislation. 

 

To facilitate public participation in that review process Earthroots offers this primer to provide a basic understanding of how the current legislation is structured and where some of the points of controversy exist regarding the implementation of the Act. If you want to get into a more detailed analysis and explanation of the legislation, there is no better source available then the original 2009 review of the legislation by the Environmental Commissioner of Ontario* called “The Last Line of Defence” and the special report of 2013 produced subsequent to the amendments made to the original titled “Laying Siege to the Last Line of Defence”.

 

Starting with first principles the three stated purposes of the ESA are:

•  to identify species at risk based on the best available scientific information, community and aboriginal traditional knowledge;

•  to protect species that are at risk and their habitats and promote their recovery; and

•  to promote stewardship activities to assist in the protection and recovery of species that are at risk.

To achieve these purposes the Act creates a framework for a four step process which lays out actions necessary and the parties responsible to achieve them.

 

Step One: Identify what species are a risk and protect them.

 

The Act creates an independent body of individuals with scientific expertise and aboriginal traditional knowledge called the Committee on the Status of Species at Risk in Ontario (COSSARO). It is COSSARO (not the government) that identifies which species should be identified and protected by the legislation. When species are proposed to be at risk, COSSARO considers the best information available and, if listing is warranted, classifies a species into one of five categories:

Extinct: The species was once found in Ontario but now is no longer in existence anywhere in the world.

Extirpated: The species was once in Ontario and still exists elsewhere but no longer in found in the wild in Ontario.

Endangered: The species still lives in the wild in Ontario but is facing imminent extinction or extirpation.

Threatened: The species lives in the wilds of Ontario and is likely to become endangered if steps are not taken to address factors threatening to lead to its extirpation of extinction.

Special concern: The species lives in the wild in Ontario and is not yet threatened but it has to be watched because of a combination of biological characteristics and identified existing threats.

To protect the species, once classified, the ESA prohibits anyone from harming in any way a species that is listed as endangered, threatened or extirpated. It also prohibits persons from damaging or destroying the habitat of such species.

 

Step Two: Preparing a Recovery Strategy

 

Once a species is identified as threatened or endangered something has to be done about it. The Act requires a technical document called a recovery strategy to be prepared by biologists and species experts. The plan identifies the habitat needs of the species and known threats to its survival. It makes recommendations to the Minister for the protection and recovery of the species and the need for any regulation necessary for defining the habitat.

 

Step Three: Government Response

 

With a species at risk identified and a recovery plan with recommendations in hand, the government has a specified period of time to prepare and release a government response statement saying what it can or cannot, will or will not, do about the situation of that species.  It is in this process that the overall feasibility of measures is assessed and the socioeconomic constraints are weighed against ecological values. 

 

Step Four: Conservation Action

 

Given that the risk is to a species is identified, the recovery plan needed is developed and the intentions of the government to take any action is expressed, the rest of the legislation lays out how to make it all work.

 

The absolute prohibition against harming threatened and endangered species or their habitat is the focus of much of the controversy relating to implementing this Act. It is quite easy to see that there are circumstances where it is not in society’s interest or perhaps even the species involved to not have any flexibility regarding these prohibitions. That is why the Act provides for the issuance by the Ministry of Natural Resources and Forestry of five types of permits that specify when an activity damaging to a protected species or its habitat may be allowed:

•  ‘A’ permits: the activity is necessary for the protection of human health or safety, but where the risk is not imminent;

 ‘B’ permits: the purpose of the activity is to assist in the protection or recovery of a species;

•  ‘C’ (overall benefit) permits: the purpose of the activity is not to assist in the protection or recovery of a species, but, through requirements imposed in the permit, the proponent of the activity will achieve an overall benefit to the species within a reasonable time, and will take reasonable steps to minimize adverse effects on the species;

•  ‘D’ permits: the activity will result in a significant social or economic benefit to Ontario, but will not jeopardize the survival or recovery of the species in Ontario; and,

•  Aboriginal permits: may be issued to a band a tribal council, or an organization that represents a territorially based Aboriginal community.

 

In 2013, the MNRF created numerous exemptions to the ESA’s permit requirement. The exemptions allow various types of activities to proceed without having to obtain individual government approval. Instead, proponents must follow a series of rules that are set out in a regulation under the law. 

 

The permit-by-rule system covers many of the most common activities that adversely affect species at risk and their habitats, including:

•  forestry operations;

•  hydro-electric generating stations;

•  aggregate pits and quarries; 

•  ditch and drainage activities; 

•  early exploration mining; and 

•  wind facilities.

There are other exemptions for specific species and other activities under the permit-by-rule system which makes the whole process quite complicated. For a full explanation and critique of the flexibility tools under the ESA refer to Chapter 7 of the 2017 Environmental Protection Report of the Environmental Commissioner.

 

On January 18, 2019 MOECP posted a document called “10th Year Review of Ontario’s Endangered Species Act: Discussion Paper” for review on the Environmental Bill of Rights Registry (013-4143) with a consultation period closing March 4, 2019.