Proposed Changes to Ontario’s Endangered Species Act, 2007

As of April 1, 2019 the administration of the Endangered Species Act, 2007 (ESA) transitioned responsibility from the Ministry of Natural Resources and Forestry (MNRF) to the Ministry of the Environment, Conservation and Parks (MECP). On April 18, 2019 the MECP proposed a number of changes to the ESA to “better achieve positive outcomes for species at risk while clarifying and streamlining requirements for businesses and communities”. 

The MECP hosted stakeholder engagement sessions to present an overview of the proposed changes on April 24th and May 3rd. The proposed changes fall broadly under five categories.

Assessing species at risk and listing them on the Species at Risk in Ontario list.

• Newly added species, or change to species’ status, would be implemented in 12 months as opposed to three months currently.
• The Committee on the Status of Species at Risk in Ontario (COSSARO) would be required to submit an annual report to the Minister between January 1 and 31 to assist with improving the certainty of timings of species list changes.  Currently, COSSARO can issue a report to the Minister at any time, resulting in uncertainty with respect to when new species may be listed on the Species at Risk in Ontario list in any given year.  This new approach will assist enhancing transparency and certainty, and will allow businesses to better adapt and prepare for a listing.
• The government is also proposing a mechanism similar to the federal Species at Risk Act whereby the Minister would have the ability to require COSSARO to re-assess a species if the Minister forms the opinion based on scientific information that the classification may not be appropriate.
• COSSARO would also be required to consider a species condition throughout its broader range (both inside and outside of Ontario), before classifying it as threatened or endangered. For example, a species whose northern range is located in southwestern Ontario that is rare in this geography, but is not at risk to the south in the United States, may not be considered at risk in Ontario. This proposed change will assist COSSARO with recognizing species that are located beyond Ontario (in neighboring provinces or states) that have large and healthy populations.

Defining and implementing species and habitat protections

• The proposed changes would allow the Minister the ability to temporarily suspend species and habitat protections for up to three years for some newly listed species, if specific criteria are met, in an effort to limit social and economic impacts to Ontarians. This may assist with improving MECP and stakeholder preparedness for species listings.
• The Minister would have the ability to apply species protections only within a specific geography or circumstance. For example, a species that is at risk as a result of a disease may not have a broad habitat protection across the province.
• The mandatory requirement to develop a habitat regulation for each newly-listed species would be removed; rather, developing a habitat regulation would be optional and would be implemented when needed.
• The mandatory requirement to develop a habitat regulation for each newly-listed species would be removed; rather, developing a habitat regulation would be optional and would be implemented when needed.

Developing species at risk recovery policies

• The proposed changes would clarify that recovery strategies are advice to the government, and that Government Response Statements are the government’s policy direction for species at risk.

Issuing Endangered Species Act permits and agreements, developing regulatory exemptions and creating the Species at Risk Conservation Trust

• Ontario is proposing to create the Species at Risk Conservation Trust, an independent Crown agency, which would allow municipalities and other infrastructure developers the option to pay a charge in lieu of completing certain activities that are currently required by the ESA. The funds would support strategic and large-scale actions that assist in the protection and recovery of species at risk. This approach would only apply to a select few species at risk, which have not been identified at this time. Consideration of reasonable alternatives and taking steps to minimize adverse effects would still need to occur. The price for payment-in-lieu would be within the range that would have otherwise been incurred to obtain and implement a permit or other authorization. A new board-governed agency would be created to receive and distribute the funds to support activities that assist in the recovery and protection of prescribed species. If implemented, the funds would support strategic, coordinated and large-scale actions that assist in the protection and recovery of species at risk.
• Broaden the approach to minimizing adverse effects by considering landscape effects rather than effects on an individual member of a species. An increased focus on the conservation of key ecosystems, as opposed to a sole focus on individual organisms, would enable more efficient conservation and recovery investments and more successful outcomes.
• A transition provision is proposed for existing ESA permit and agreement holders to continue to operate for 12 months (rather than stop the activity) while proponents seek amendments to their permits and agreements to address newly listed species.
• A new landscape agreement is proposed for proponents undertaking multiple activities which would allow for conservation banking, provided certain conditions are met. The conditions include taking reasonable steps to minimize adverse effects, considering reasonable alternatives, and providing a benefit to one or more species. Concentration of efforts through multiple overall benefit permits in a specific area identified as key for the species recovery and protection can build meaningful change in a way that cannot be done on an individual basis as it is now.
• Proposed amendments also include allowing the Minister to prescribe activities by regulation that can occur without the need for any additional authorizations under the ESA.

Enforcing the Endangered Species Act

• Enhance and streamline enforcement powers and allow the Minister the authority to designate enforcement officers.

It is anticipated that these changes may benefit our clients, making the ESA process more streamlined and standardized/consistent across the province. Dillon will continue to monitor the progress of the MNRF/MECP transition and the proposed changes to the ESA, and will update our clients as we are provided with more information.