On April 18, Ontario's Ministry of the Environment, Conservation and Parks announced a proposal to amend the Endangered Species Act, 2007, SO 2007, c 6 (the Act). The announced changes come on the heels of a 45-day discussion period that followed the publication of the ministry's Discussion Paper on January 18, 2019.
Overview of the Endangered Species Act
The purposes of the Endangered Species Act are threefold: (1) identify at-risk species on the best available scientific information; (2) protect and promote the recovery of at-risk species and their habitats; and (3) promote stewardship activities to help protect and recover at-risk species.
Currently under the Act, the Committee on the Status of Species at Risk in Ontario (COSSARO) submits reports to the minister recommending that species be classified as "at-risk." The minister is required to amend the regulation that sets out the Species at Risk in Ontario (SARO) within three months of COSSARO submitting a report.
Once a species is listed on the SARO, certain prohibitions automatically apply such as prohibitions on killing the species or destroying its habitat. The government is also required to issue a government response statement, outlining its plan to help recover each species. The Act provides some relief to the prohibitions, allowing people to apply for permits or other exemptions.
Extending timeline for listing of new species on SARO
Under the Act, when COSSARO submits a report to the minister stating a species is "at-risk," the minister is required to amend the SARO list set out in the regulation within three months. The government is proposing an extension to 12 months to provide more certainty for businesses since the prohibitions on killing, harming or harassing apply immediately upon the species being listed.
Also proposed is giving the minister the authority to remove a species based on scientific information.
Ministerial authority to suspend protections for newly listed species
Once a species is listed on the SARO, certain prohibitions automatically apply. The proposed changes would de-couple the listing process from the automatic protections by providing the minister with authority to temporarily suspend the protections for up to three years based on the following criteria:
- applying the prohibitions to the species would likely have significant social or economic implications for all or parts of Ontario so more 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; additional time is needed to address the primary threats, or co-operation with other jurisdictions is necessary to reduce the primary threats; or other criteria specified by regulation.
Extending timeline for publication of government response statements
Once a species is listed, the minister is required to publish a government response statement within nine months outlining the government's plan to help recover the species. No later than five years after the government response statement is published, the minister must review the progress towards protecting and recovering the species. The proposed changes provide the minister with the discretion to extend both the nine-month and five-year timelines. Concerns have been raised that these timelines are too long to protect the identified species.
Creation of the Species at Risk Conservation Trust
The government has proposed creating the Species at Risk Conservation Trust to allow municipalities and developers to pay a charge in lieu of completing certain on-the-ground activities required by the Act. The money paid to the trust would support large-scale, strategic initiatives that help protect and recover species at risk. Creating a new independent crown agency has already elicited significant negative responses.
Based on its earlier Discussion Paper, the general impetus for the government's changes seems to be to reduce regulatory burdens involved with administering the Act as well as provide businesses with additional notice and certainty around adding new species to the SARO list. However, there may be additional unexpected consequences from the proposed changes. The government also announced a $4.5 million fund for the Species at Risk Stewardship Program for 2019-2020 to be renewed each year to support academics, communities, organizations and Indigenous peoples to implement on-the-ground activities that benefit species at risk and their habitats. The comment period regarding the proposed changes ends on May 18, 2019. No proposed legislative language has been released thus far.
The author wishes to thank articling student William Chalmers for his help in preparing this legal update.
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