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Laying Siege to the Last Line of Defence: A Review of Ontario’s Weakened Protections for Species at Risk

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BACKGROUNDER

  • The Endangered Species Act, 2007 (ESA) prohibits the harming or harassing of an endangered and threatened species, or the destruction of their habitat.
    • 215 species or species populations are currently listed under the SA as endangered, threatened, of special concern or extirpated.
    • On July 1, 2013, a series of regulatory amendments came into force creating broad exemptions from the ESA’s requirements to obtain a permit or agreement prior to harming a species at risk or its habitat. Instead of requiring permits or agreements, the Ministry of Natural Resources (MNR) now allows companies to follow rules set out in regulation. This is generally called a permit-by-rule system.
    • The following industries no longer require permits or agreements before harming a species at risk or its habitat: Crown forestry operations, most hydro-electric generating stations, many aggregate pits and quarries, certain ditch and drainage activities, most early exploration mining activities, wind facilities and certain development and infrastructure projects.
  • 99 species are endangered, facing imminent extinction or extirpation. They include the American Badger, the Eastern Foxsnake (Carolinian population), the Small White Lady’s-slipper and the Wood Turtle.
  • 56 species are threatened, and likely to become endangered if no steps are taken. They include the Polar Bear, the Rainbow Mussel, the Massasauga Rattlesnake and the American water-willow.
  • 45 species are of special concern and may become threatened or endangered because of a combination of biological characteristics and identified threats. They include the Woodland Vole, the Snapping Turtle, the Peregrine Falcon and the Blue Ash.
  • 15 species are extirpated, which means they no longer live in the wild in Ontario. They include the Greater Prairie-Chicken, the Eastern Tiger Salamander, the Paddlefish and the Spring Blue-eyed Mary.
  • Under many of the new exemptions, proponents of many activities only need to take steps to “minimize the adverse effects” of their activities, rather than provide an “overall benefit” to the affected species.
  • Under the amended regulation, eligible proponents are automatically given an exemption provided they follow the prescribed rules. MNR has given up its power to say “no” to any project, regardless of the ecological importance of the area or the possibility there will be damaging cumulative impacts on the species at risk or its habitat.
  • Although proponents are generally required to document the measures they will take to minimize “adverse effects” on species, proponents almost never have to submit the documentation to MNR. MNR will therefore have no ability to know whether the permit-by-rule system is actually protecting species at risk.
  • Since the original ESA came into effect in 2008, MNR has failed to ensure the preparation of nearly half of the recovery strategies for the 155 endangered and threatened species in Ontario.
  • The government is required to prepare a response statement to each recovery strategy for threatened and endangered species. MNR has delayed the delivery of seven response statements, despite the fact that it has no legal ability to do so.
  • MNR received 10,034 comments in response to its proposal on the Environmental Registry to make these regulatory amendments. This is more than twice as many public comments as all other policy, act and regulation decisions combined as posted on the Environmental Registry in 2013.

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