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Ontario Proposes to Revamp Endangered Species Law

On April 18, 2019, the Ministry of Environment, Conservation and Parks (MECP) posted a summary of proposed amendments to Ontario’s Endangered Species Act, 2007 (Act). The proposed amendments follow the transfer of the administration of the Act from the Ministry of Natural Resources and Forestry (MNRF) to the MECP effected by Order-in-Council on October 22, 2018. It should be noted that draft legislation implementing the proposal has not yet been made available.

According to the posting, the amendments fall into five categories. A summary of the highlights of each category follows.

1. Assessing and listing species at risk

The classification of species as endangered, threatened, special concern, or extirpated is currently undertaken by the independent Committee on the Status of Species at Risk in Ontario (COSSARO). When a species is reported as classified, the minister is required to enact a regulation to list the species on the Species at Risk in Ontario List (SARO List) within three months. Once listed as endangered or threatened, a species receives automatic species and general habitat protection.

The proposed amendment would change the process by which species are added to the SARO List in several respects. In assessing the need for classification, COSSARO would be required to consider a species’ condition around its “broader biologically relevant geographic area” both inside and outside Ontario. COSSARO would provide its reports once annually, whereas currently COSSARO may submit a report classifying a species at any time. In addition, the timeline to list a new species may be extended by the minister for up to twelve months, allowing more time to transition the impact of listing.

2. Defining and implementing species and habitat protections

The discretion of the minister with respect to the listing of species is proposed to be enhanced by “de-coupling” the process of listing a species on the SARO List from the application of protections under the Act. As noted above, under the current Act the listing of a species on the SARO List automatically and without further notice engages the protection provisions under the Act, such as the prohibition on killing or harming a member of the species, and the prohibition on damaging or destroying the species’ habitat.

The proposed amendments would allow the minister to suspend the protection of newly-listed species for up to three years. According to the posting, this temporary suspension would be available in situations where the protection of the species would likely have significant social or economic implications, the temporary suspension would not jeopardize the survival of the species in Ontario, and where other criteria apply.

The minister would also be permitted to scope the protection applicable to a species under the Act to certain circumstances, such as a particular geographic area, whereas currently the scope of a classification is a function of COSSARO’s assessment of the species.

3. Developing recovery strategies

The Act currently requires the minister to produce a recovery strategy for every species newly listed as endangered or threatened and nine months later, implement a policy setting out the actions the minister will take to work towards the objectives of the recovery strategy. The proposed amendments would allow the minister to extend the timeline for implementing the species-specific policies, and for conducting review of the progress the minister has made towards the protection and recovery of each species.

4. Issuing permits and agreements under the Act

The proposal would create a new independent Crown agency, referred to as the Species at Risk Conservation Trust, to support strategic large-scale actions to assist with the protection and recovery of species at risk. Municipalities and other infrastructure developers may be allowed the option to remit a payment to the Species at Risk Conservation Trust in lieu of completing certain activities that would otherwise be required by the Act.

The proposed amendment also establishes a “regulatory charge” which private proponents would be allowed to pay in lieu of fulfilling certain conditions that would otherwise be required by a permit, an agreement, or a regulation. This mechanism has been characterized as “pay-to-kill” in some reporting media. However, it should be noted that the permitting regime under the current Act allows proponents to obtain permits or to enter into agreements to engage in activities that would otherwise be prohibited, such as the killing or harming a member of the species, and damaging or destroying the species’ habitat. In the case of an “Overall Benefit Permit,” also referred to as a “C Permit”, activities that would harm species or their habitats may be permitted, subject to conditions which are imposed to provide an overall benefit to the species. The “regulatory charge” regime would be available only with respect to prescribed species or a subset of a species.

The proposed amendments would also create a new provincial agency to distribute the funds to expert third parties that will undertake activities to support the protection and recovery of prescribed species.

Other changes outlined in the proposal include a new “landscape agreement” which would bring a consolidated approach to permitting for proponents who undertake multiple activities, a proposal to allow permit- and agreement-holders to continue to operate for twelve months while seeking amendments to address newly listed species, and a proposal to broaden the approach to minimizing adverse effects on species through permit and agreement conditions.

5. Enforcement provisions

The proposed amendments do not provide much detail of the planned updates, but indicate the intention to further the transition of the responsibility for enforcement of the Act from the MNRF to the MECP.

Next Steps: Public Consultation

The proposed amendments follow the public consultation on the 10th Year Review of Ontario’s Endangered Species Act: Discussion Paper, which was posted on January 18, 2019.

The public is able to comment on the proposed amendments to the Act until May 18, 2019 via the summary provided on the Environmental Registry website.