Ontario's recently enacted Bill 5, the "Protect Ontario by Unleashing Our Economy Act, 2025",1 signals a profound shift in the province's environmental and resource governance. This legislative overhaul, particularly through Schedule 10, which introduces the new Species Conservation Act, 2025 (SCA 2025)2 to replace the Endangered Species Act, 2007 (ESA 2007),3 is far from the balanced economic and environmental approach the government claims. Instead, a closer look reveals a prioritization of short-term economic interests at the expense of ecological and species protection and the section 35 rights of First Nations.
The Species Conservation Act, 2025: A Trojan Horse
The SCA 2025 introduces fundamental changes that significantly weaken protections for species at risk. While it continues to use the Committee on the Status of Species at Risk in Ontario (COSSARO) for scientific assessment and includes a non-derogation clause for Aboriginal and Treaty rights,4 its operative provisions represent a severe regression. The truer purpose of this legislation is found in regressive steps undertaken.
A Redefined Purpose
A major shift is evident in the stated purpose of the SCA 2025. It explicitly emphasizes that its objectives include "the protection and conservation of species", while considering social and economic considerations, including the need for sustainable economic growth in Ontario.5 Embedding economic considerations into the Act signals a departure from a science-based approach to one where economic and development pressures can legally justify weaker protections for species at risk. This is the trojan horse. It also has the potential to fundamentally alter how impacts on species are evaluated during environmental assessments or consultations and could lead to decision-making that favors economic factors over ecological and cultural values.
A Narrowed Definition of "Habitat"
One of the most damaging changes is the narrow definition of "habitat". The ESA had a broader definition that included areas indirectly and directly used by a species for its life processes. The SCA 2025, however, redefines "habitat" in a much more restrictive manner:
- For animal species, it is now limited to "a dwelling place, such as a den, nest or other similar place, that is occupied or habitually occupied by one or more members of a species for the purposes of breeding, rearing, staging, wintering or hibernating, and the area immediately around" it.6
- For vascular plant species, it is only "the critical root zone surrounding a member of the species".7
- For all other species, it is an "area on which any member of a species directly depends in order to carry on its life processes".8
Critically, the Act specifies that habitat "does not include an area where the species formerly occurred or has the potential to be reintroduced unless existing members of the species depend on that area to carry on their life processes".9
This narrow definition is problematic from a conservation standpoint. It largely protects a species' immediate "home" but fails to protect the broader landscapes, migratory corridors, and feeding grounds that are essential for long-term species survival and recovery. For First Nations, whose traditional territories often encompass these broader ecosystems, this redefinition could undermine the integrity of the land and the species it supports, impacting traditional and cultural practices tied to those species. The ability of the government to further limit the application of this already narrow habitat definition for specific species via regulation10 is another significant concern.
For many of our clients this is 2012 all over again. Since that time First Nations have been planning active conservation measures, contemplated cumulative effects litigation, and asserted their inherent jurisdiction and law to protect critical habitat for future generations.
Discretionary Listing and Ministerial Overrides
A cornerstone of the original ESA was the automatic, non-discretionary listing of species based on the scientific assessments of COSSARO. The new legislation fundamentally alters this relationship, granting significant new powers to the political arm of government.
The new SCA 2025 grants discretion to the provincial government to decide which at-risk species receive legal protection. Under the new Act, the Lieutenant Governor in Council (LGIC), on the advice of Cabinet, "may make a regulation listing species that are classified by COSSARO... as extirpated, endangered or threatened".11 The Act explicitly states the government is "not required to list all of the species classified by COSSARO".12
This represents a weakening of the scientific, evidence-based process. A species could be scientifically assessed as endangered yet receive no legal protection if the cabinet decides against listing it, potentially due to economic or political pressures. For First Nations, this politicization of the listing process is a major regression, as it allows non-scientific factors to override the need for protection.
Furthermore, the Minister is granted new powers to direct COSSARO's work. If the Minister believes "credible scientific information indicates that a classification... may not be appropriate," they can require COSSARO to reconsider its classification.13 This introduces a mechanism for political interference in the scientific assessment process itself.
Introduction of a New Prohibitions Framework: Permits and Registries
The SCA replaces the former system of prohibitions with a new two-tiered framework for activities that harm species or their habitat, now termed "section 16 activities".14 Activities are now classified as either "registerable" or requiring a "permit." A person can engage in a "registerable activity" simply by registering the activity online and receiving confirmation from the Minister.15 This creates a streamlined, and potentially less scrutinized, pathway for activities that could damage habitat or harm species. While the Minister can suspend or remove a registration if the person contravenes the Act or if the registration was based on inaccurate information,16 the initial barrier to proceeding is significantly lower than a comprehensive permit review.
More harmful activities are designated as "permit activities".17 While the Minister has the power to issue or refuse permits and set conditions,18 the previous ESA requirement for proponents to satisfy conditions such as demonstrating a significant benefit to the species has been removed.
Bill 5's Erosion of Treaty Rights
For First Nations, the legislative changes in Bill 5 are not abstract legal shifts; they carry profound and tangible threats to their ability to exercise their rights, maintain their cultural heritage, and fulfill their responsibilities as stewards of the land.
Performative Preamble and Non-Derogation Clauses
As an attempt to address criticisms regarding the duty to consult and their impact on Indigenous rights, the government included references to the duty to consult in Bill 5's preamble and a non-derogation clause in the Species Conservation Act, 2025. Section 3 of the SCA 2025 states: "For greater certainty, nothing in this Act shall be construed so as to abrogate or derogate from the protection provided for the existing Aboriginal or treaty rights of the Aboriginal peoples of Canada as recognized and affirmed in section 35 of the Constitution Act, 1982". However, First Nations leaders "have dismissed these inclusions as insufficient and performative".19
Legally, preamble statements are generally not considered to have the same binding force as the operative provisions of a statute. While they can function as an interpretative aid for ambiguous provisions, they cannot override clear legislative language in an Act. Similarly, while non-derogation clauses assert that the Act should not diminish existing Aboriginal or Treaty rights, their practical effectiveness is questionable when the substantive provisions of the Act itself appear to do precisely that by, for example, narrowing habitat definitions, allowing discretionary species listings and enabling exemptions through Special Economic Zones (SEZ's). These operative clauses clearly have the potential to adversely affect Aboriginal and Treaty rights related to land use, harvesting and cultural practices. The inclusion of these clauses among provisions that demonstrably weaken environmental protection, and Indigenous oversight can be seen as an attempt to create an appearance of respecting Indigenous rights while simultaneously enacting laws that erode them. It signals to First Nations that they cannot rely on such assurances and should instead focus on the tangible, operative impacts of the legislation, which remain deeply concerning.
Endangering Traditional Land Use, Harvesting Rights, and Cultural Practices
Aboriginal and Treaty rights often include the rights to hunt, fish, trap, and gather for food, social, ceremonial, and economic purposes. These rights are not merely historical artifacts; they are living rights that depend on the continued health and availability of species and their ecosystems.
The narrowed definition of "habitat" in the SCA 2025, the discretionary power to list species, and the potential for SEZs to bypass environmental laws all contribute to an increased risk of habitat degradation and species decline. When species populations diminish or their habitats are destroyed, the ability of First Nations to engage in traditional harvesting activities is directly impaired. Bill 5, by facilitating industrial encroachment on lands and waters vital for the exercise of these rights, is diminishing the ecological foundation upon which these rights depend, effectively undermining the substance of the rights it is constitutionally bound to uphold. This creates a direct link between the legislative changes in Bill 5 and the potential infringement of Aboriginal and Treaty rights.
Undermining First Nations Inherent Role as Stewards of the Land and Waters
Bill 5 disregards the responsibilities of First Nations who have long been viewed as the ongoing stewards and knowledge holders of their traditional territories. Despite a perfunctory mention of Indigenous traditional knowledge in its species assessment provisions, Bill 5 operates within a legislative context that centralizes decision making power with the provincial government and its ministers. This framework allows for the suspension of laws and consultation processes that would normally provide avenues for the inclusion of Indigenous governance and stewardship. This marginalization of Indigenous authority and expertise runs contrary to the growing international recognition of the effectiveness of the Indigenous led conservation and the principles enshrined in UNDRIP which Canada has adopted.
Conclusion
The repeal of the Endangered Species Act 2007 and its replacement with the significantly weaker Species Conservation Act, 2025 stands in opposition to science-based conservation and responsible governance. For Indigenous nations, it is a continuation of colonial practices that disregard Indigenous sovereignty, bypass the constitutional duty to consult, and undermine the inherent role of First Nations as stewards of their ancestral lands and waters.
The claims by First Nations that they were not meaningfully consulted, that their concerns were ignored, and that the bill was pushed through despite their calls for repeal and a collaborative restart, paint a picture of a government failing to uphold the Honour of the Crown.20
The government's assertion that such measures are necessary to "unleash the economy" is a false dichotomy. True and sustainable prosperity cannot be built upon the destruction of the natural world or the violation of Indigenous rights. This unified stance from First Nations signals a high likelihood of coordinated legal challenges, political advocacy, and potentially direct action (Chiefs of Ontario). Such widespread resistance creates significant uncertainty and risk, thereby undermining the very economic 'unleashing' the bill purports to achieve.
Footnotes
1 Protect Ontario by Unleashing Our Economy Act, 2025, S.O. 2025, c. 5 (Bill 5).
2 Protect Ontario by Unleashing Our Economy Act, 2025, S.O. 2025, c. 5, Sch 10 (SCA 2025).
3 Endangered Species Act, 2007, S.O. 2007, c. 6, as repealed by Protect Ontario by Unleashing Our Economy Act, 2025, S.O. 2025, c. 5, Sch 10, s. 68.
4 SCA 2025, supra note 2 at Sch 10 s. 3.
5 Ibid, SCA 2025 s. 1(a) and (b).
6 Ibid, SCA 2025 s. 2(1)(a).
7 Ibid, SCA 2025 s. 2(1)(b).
8 Ibid, SCA 2025 s. (1)(c).
9 Ibid, SCA 2025 s. 2(2).
10 Ibid, SCA 2025 s. 65(1)(b).
11 Ibid, SCA 2025 s. 14(1).
12 Ibid, SCA 2025 s. 14(2).
13 Ibid, SCA 2025 s. 13(3).
14 Ibid, SCA 2025 s. 2(1)(c).
<15 Ibid, SCA 2025 s. 16(1) and 18(2).
16 Ibid, SCA 2025 s. 19(1).
17 Ibid, SCA 2025 s. 16(2).
18 Ibid, SCA 2025 s. 22(1).
19 Ontario, Chiefs of Ontario – First Nations Leadership responds to the passing of Bill 5 with warning of legal and grassroots action – Chiefs of Ontario (Briefing Note), by Chiefs of Ontario – Policy and Communications (Toronto: COO 5, June 2025).
20 Ontario, Chiefs of Ontario – First Nations bring Bill 5 concerns to Queen's Park, call for legislation's reversal – Chiefs of Ontario , (Briefing Note), by Chiefs of Ontario – Policy and Communications (Toronto: COO 26, May 2025).
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