Ontario turns Endangered Species Act into an empty shell


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Justina Ray
President & Senior Scientist

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Biodiversity Conservation planning

Published

2019-05-10

Some of the most intact wild areas left on earth can be found within Ontario’s borders, remaining strongholds for species at risk of extinction elsewhere. There is a lot at stake here.

A UN scientific report detailing the growing global biodiversity crisis says that the Earth could lose one million species over the decades ahead. It confirms that we are in the midst of the sixth great wave of extinctions to have swept the Earth, but this time, the wave is the result of human activities and will require a major change in direction from human societies to save species.

The Ontario Government chose this inauspicious moment to introduce major revisions that fundamentally weaken the province’s Endangered Species Act (ESA). They have done this through a sweeping set of changes buried in an omnibus bill about housing (Bill 108). This is not good news for species in Ontario. At 1 million km2, Ontario is bigger than many countries, which makes the health of biodiversity in Ontario critically important for the health of the planet. And some of the most intact wild areas left on earth can be found within Ontario’s borders, remaining strongholds for species at risk of extinction elsewhere. There is a lot at stake here.

The ESA is meant to help the animals, plants, insects, fish and other wildlife that are on the decline despite all of the legal frameworks found in the province’s resource development policies, land-use planning rules and environmental assessment processes that are meant to “balance” economic interests and environmental protections. As such, the ESA is really the last resort for helping species that can’t be sustained under other planning regimes, often due to ongoing habitat loss. And, unfortunately, the list of such species continues to grow.

One key reason Ontario’s act was initially considered an example of “best practice” when passed in 2007 was its scientific impartiality – the decision whether to list a species was meant to be based strictly on a scientific assessment by COSSARO (Committee on the Status of Species at Risk in Ontario), not political or economic imperatives. Species listed under the ESA received automatic habitat protection, because action to help species was often long overdue by the time a listing decision was finally made.

Under the 20 pages of ESA amendments in the process of being quickly passed by the Ontario government, this kind of clarity and requirement for action will be gone. Two of the biggest changes will be an added requirement to assess whether a species is faring better in places outside of Ontario, and enhanced powers for the Minister to question scientific assessments.

The first change will particularly affect species in the Carolinian band along the north shore of Lake Erie and around the western tip of Lake Ontario – one of our most biodiversity-rich but heavily developed landscapes, where there are also significant concentrations of species at risk. And it could also apply to species that are in poor condition compared to in the rest of their range because they face greater threats in Ontario, like American eel, which is threatened in eastern Canada, but in serious decline in Ontario, primarily due to hydro-electric developments and habitat deterioration.

By spending time revisiting numerous assessments to examine species status outside Ontario, protection for these species within Ontario could be critically delayed to the point where recovery is no longer an option. Developers, meanwhile, are being given even more options for ensuring developments proceed.

In fact, finding ways to make all the protections provided by the Act optional – from listing to recovery planning – seems to be at the heart of the government’s changes. The collective set of amendments provide a series of “off ramps” if protecting a species is going to interfere in any way with land development, resource harvesting, or other economic interests.

Almost gone is the need to demonstrate “overall benefit” as a condition for permitting harmful activities – a hallmark of the original Act. The rationale for this has been that if an activity is going to harm a species or its habitat, then the only way it can justifiably proceed is if the proponent agrees to take some protective action that will provide a “net gain” to the species. Most changes in Bill 108 have gone in the other direction, creating a lower bar for industry and developers to clear in order to go ahead with harmful activities – or at least claim to have cleared, given the lack of any resources dedicated to monitoring of outcomes. This, in spite of the mountain of evidence demonstrating that species recovery cannot be achieved by making each individual project less harmful. Making things “less bad” leads to bad outcomes overall.

Added is the ability of the Minister to “temporarily suspend” (or “delay”) protections or prohibitions on activities that harm species for as long as three years after a species is listed for a whole suite of reasons, few of them to do with the urgency of a species’ situation. Gone are any requirements to consult with independent experts on permitting conditions, which is an effective and trust-promoting way of resolving contentious situations. Habitat regulations that provide species-specific habitat protection in certain areas remain in the legislation, but any requirement or timeline for producing these regulations has been removed, making these provisions a largely empty gesture.

Now, on top of the considerable delays that a species may face before receiving mandated protection, there is a new option for a proponent is to pay into a new “Species at Risk Conservation Fund.” However, any recovery actions enabled by this fund will have little to do with -- and may in fact be completely disconnected from -- the immediate impacts proponents are paying to inflict.

Despite government rhetoric about cutting red tape, the new bill has introduced quite a bit of complexity that may promote more of the dreaded tape, not less, with new instruments like “landscape agreements” and a brand new agency to distribute the proceeds from the new conservation fund. The Ministry will have procedures to design, a set of regulations to devise, and a very different implementation regime to construct.

In the media, the government has insisted that these changes “ensure” “best-in-class” protections to endangered and threatened species (note, not to species of special concern, which already receive almost no protection, despite the fact that about 50% of such species are known to eventually become threatened or endangered). They point to “enhance[d] government oversight and enforcement powers to ensure compliance with the act” and “improve[d] transparent notification of new species’ listings” as evidence for this. But there are no meaningful additions to the already extensive enforcement section of the existing act and one is left wondering, what will be left to enforce? And what good is enforcement without an accompanying investment in monitoring and protection?

In its initial discussion paper leading up to these changes, the Ministry of the Environment articulated a need to move away from a “case-by-case and species-specific policy approach” to more “strategic” “landscape approach that enables planning and authorizing activities at a broad scale”. Although this sparked optimistic visions of ecosystem-based protection and broad-scale management of multiple proponents and activities affecting multiple species, what was actually put forward was just a new “landscape agreement” provision that will authorize “a person” to engage in activities that would harm species/habitats in a specific geography.

It is telling that these amendments were stuck in the middle of a bill aimed at accelerating urban development. Despite the government’s rhetoric about remaining committed to protecting species at risk, the actual language of the amendments is almost universally designed to weaken our endangered species regime. That may be good for land developers in the short term, but as the UN report has made clear, it will lead to great harm in the long term.

Ontario’s review of Endangered Species Act must address long-term ecosystem damage

Ontario’s review of Endangered Species Act must address long-term ecosystem damage

Are protections for endangered species just another bureaucratic burden that is holding back economic development in Ontario?
Justina Ray