Endangered Species regulations

Way back in April 2012, the Ontario government included in its Omnibus Budget Bill (Bill 55) a proposal to amend the Endangered Species Act.  That caused quite a furor and these particular amendments were withdrawn at the end of June.

But before the year was out, the Ministry of Natural Resources came out with its alternative strategy:  A thorough re-write of the regulations, part of a wide-ranging initiative to “Modernize Approvals.”  A proposal was posted to the Environmental Bill of Rights Registry in December and amended in January 2013 (EBR #011-7696).  It caused over 10,000 responses (90% of which reportedly were form letters, for or against).  The decision was loaded to the EBR in June 2013.

That decision is O.Reg 176/13 which amends O.Reg 242/08. I tried to read this regulation and failed miserably — it must be more convoluted than the Income Tax Act.  Luckily, last November the Environmental Commissioner of Ontario (ECO) came to the rescue with a Special Report, “Laying Siege to the Last Line of Defence – A Review of Ontario’s Weakened Protections for Species at Risk” (November 2013). This was a follow-up to an earlier report, “The Last Line of Defence: A Review of Ontario’s New Protections for Species at Risk” (2009).  (The Act had come into force in June 2008.)

Two short videos on the ECO’s web site give a quick intro into these matters (and you get to meet the passionate Gord Miller as he is); it’s also where you can download the report (60 pp., 1.5 MB):

https://eco.on.ca/reports/laying-siege-to-the-last-line-of-defence/

The report minces no words in condemning the new regulations which essentially abandon a key principle of the Act (that with a permit to harm a species comes an obligation that the proponent take steps to achieve an “overall benefit” for the species), adopt a rules-in-regulation system to replace permits and exempt a large number of industries and activities which are known to most negatively affect species at risk.  To quote the report (p6-7):

The prohibitions on harming and harassing species at risk and damaging or destroying their habitat form the backbone of the ESA; the sweeping nature of the new exemptions from those prohibitions has removed the key safeguards in the Act and significantly weakened the protection and recovery of species at risk. … The ECO believes that MNR’s new approach to protecting species at risk is inconsistent with the Ontario Legislature’s drafting of the ESA. … The ministry has failed on all fronts, but most significantly it has failed the one group that cannot advocate on its own behalf: the most vulnerable species in Ontario.

Section 4 of the report provides an overview of the regulatory amendments and more detail is in an Appendix.  I attach a table which summarizes the Exemption Conditions.  Given its complexity, no wonder I could make head nor tail of the Regulation!

At the February 2014 CAELS Conference [no longer online] at Ottawa U, Stephen Hazell also severely criticized the new regulations, with a sharp legal-argument edge.  (In fact, in September 2013 EcoJustice, on behalf of the Wildlands League (CPAWS) and Ontario Nature, filed notice of application to Divisional Court for a judicial review.)  His slides are attached.  Questioning of the legality of these regulations comes in the wake of a federal judge’s sharp criticism of non-action on Species at Risk last February.  (The ECO himself drew the parallel, seeing in the findings of the Federal Court “a dire warning for the Minister of Natural Resources.”)

(Stephen too puts the issue in the context of the ongoing weakening of protection at the federal level as well as Ontario’s earlier “virtual abandon” of the 1975 Environmental Assessment Act through amendments in 1996 and various regulatory and administrative reforms since 2006.  This latter story is told in an October 2010 article by CELA‘s Richard Lindgren and Burgandy Dunn.)

To his credit, Ontario’s Green Party leader, Mike Schreiner, alone among politicians, has decried these developments from the start.  A Google search confirms that the issue did not make it into the mainstream media.

The future does not look good for endangered species.  The Ministry’s own assessment of progress made is found in a 2015 report (218 pp., 10 MB).  The first part of the report provides a summary of how the provincial process is intended to work, and the overall progress allegedly made since 2010, with many infographics and quick facts of interest.  It then moves on to more detailed information on 13 species in particular (mostly not found in Ottawa).

The number of SARs found in Ottawa has steadily increased:

2017: 68 SARs, of which 38 Endangered or Threatened

2016: 66 SARs, of which 37 Endangered or Threatened

2015: 64 SARs, of which 35 Endangered or Threatened

2014: 62 SARs, of which 35 Endangered or Threatened

2010: 48 SARs, of which 25 Endangered or Threatened

The 2017 list for Ottawa is here, in English and French.

For a scathing report by the ECO in her 2017 report (chapter 7), “Getting Approvals Wrong: The MNRF’s Risk-Based Approach to Protecting Species at Risk,” go here.  (See also David Reevely in the Ottawa Citizen of 24 October 2017.)

Erwin (based on original posts to the GA List on 17 March 2014, 16 December 2015 and 19 May 2017)