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Reflecting on the 10Th Anniversary of Ontario's WITHOUT A TRACE? Reflecting on the 10th anniversary of Ontario’s Endangered Species Act, 2007 2 Cover: Badger Photo by Josh More WITHOUT A TRACE? Reflecting on the 10th anniversary of Ontario’s Endangered Species Act, 2007 Date: December 2017 A report prepared by the David Suzuki Foundation, Ontario Nature and Ecojustice ISBN: 978-1-988424-12-5 Written by: Rachel Plotkin, Liat Podolsky, Anne Bell, Julee Boan, and Sarah McDonald Designed by: Emily Clark Barn Owl, Photo by Jim Chambers 2007: A NEW PROMISE FOR ONTARIO’S IMPERILLED SPECIES In the early 2000s, there was wide recognition that Ontario’s original Endangered Species Act, passed in 1971, wasn’t working to protect the province’s species at risk. Scientists had identified 128 threatened and endangered species in Ontario, and yet only 42 were listed for protection under the law.1 Those without any legal protection included American badger, barn owl, Blanding’s turtle and dozens more (as well as 46 species listed as special concern). Ontario’s new Endangered Species Act 2007 (ESA) represented a significant improvement. It mandated a science-based approach to listing species protected under the law, required the timely preparation of recovery strategies and automatically protected the habitat of endangered and threatened species. It also offered flexibility to landowners and development proponents, allowing them, under certain conditions, to apply for permits for activities that might harm an at-risk species or its habitat. The new ESA was passed with all-party support, and was widely heralded by environmental organizations as the gold standard in species at risk legislation in Canada.2 Nevertheless, even in the earliest days of the new ESA, there were signs that the ministry responsible for its implementation — the Ministry of Natural Resources (since renamed the Ministry of Natural Resources and Forestry)— was headed down the road of troubling concessions. When the law came into force in 2008, the ministry exempted through regulation various development, infrastructure, pits and quarry and hydro projects. It also granted to the forestry industry a special one-year exemption from the rules against harm to species and their habitats.3 1 Ontario Nature. Legal Protection for Ontario’s Reptiles and Amphibians. Available at: www.ontarionature.org/protect/species/legal_protection_for_reptiles_and_amphibians.php. 2 Middlestat, M. March 21, 2007. Ontario to set ‘gold standard’ for species at risk. The Globe and Mail. Available at: https://www.theglobeandmail.com/news/national/ontario-to-set-gold-standard-for-species-at-risk/article20394950/. 3 Environmental Commissioner of Ontario. 2009. The Last Line of Defence: A Review of Ontario’s New Protections for Species at Risk, pp. 38-42. 4 2013: THE PROMISE ABANDONED Commenting on the regulatory exemptions The ESA contained numerous provisions to facilitate the in a special 2013 report titled The Last transition to the new responsibilities by extending timelines Line of Defence: A Review of Ontario’s for application of protections and prohibitions. For example, New Protections for Species at Risk, the for the 38 endangered species and 48 threatened species Environmental Commissioner of Ontario that were scientifically listed but not legally protected under (ECO) concluded: the old law, the habitat protection provisions would not apply until 2013. With these new exemptions, MNR is excessively exploiting the flexibility tools within the ESA, As the 2013 deadline for protecting the transition species and nullifying much of the promise held by the new Act. […] The ECO believes that MNR’s approached, the ministry fell behind in its preparations for the new approach to protecting species at risk so-called “transition species” and in meeting other legislative is inconsistent with the Ontario Legislature’s requirements under the ESA. In an apparent effort to side- drafting of the ESA.4 step its obligations, it sought avoidance through proposed legislative amendments in 2012, including exempting certain activities from the law’s prohibitions against harming species and their habitat, weakening requirements to compensate for harmful activities and removing the legislated deadlines As of October 11, 2017, there have been 2,065 registrations for completing recovery strategies. Strong public opposition for exemptions under the ESA.5 Approximately 15 per cent to the proposed amendments convinced the legislature’s of these are for research and conservation projects intended appointed standing committee, tasked with reviewing the ultimately to benefit species at risk.6 But for others — the amendments, not to let them go forward. vast majority of harmful activities are proceeding without government oversight or public scrutiny. Without adequate Undeterred, the ministry immediately sought an alternative oversight, at-risk plants, animals and their habitats could route to a similar end through regulatory amendments. disappear without a trace. These amendments, approved by cabinet in 2013, exempt a broad suite of industrial and development activities from the rules against harming endangered and threatened species and their habitats. They run contrary to the very purpose of the ESA, which is to recover species at risk. FROM PROTECTION TO MITIGATION, The regulatory exemptions fundamentally change the way the TRANSPARENCY TO IMPUNITY ministry addresses harm to species at risk. Circumventing the Ten years after the new ESA was passed in permitting process, which requires government assessment Ontario, the standard of recovering species and approval of harmful activities, the exemptions allow at risk in the province has been, for the most activities to proceed without government review or approval, part, discarded, and replaced with a lower as long as development proponents register online and meet standard of minimizing harmful impacts. the conditions set out in regulation. There is no requirement, Further, a curtain has been drawn, shielding unlike permits, to provide an overall benefit to the species harmful activities from public scrutiny. This harmed and thus promote its recovery. Even though those lack of transparency minimizes the public operating under exemptions must prepare mitigation plans, accountability of the ministry responsible for managing the habitat of species at risk to they are not required, in most cases, to submit these plans to promote their recovery. the MNRF, unless requested. The public, in turn, has no access to information about the activities taking place and no opportunity to understand the breadth or depth of their impacts. 4 Environmental Commissioner of Ontario. 2013. Laying Siege to the Last Line of Defence: A Review of Ontario’s Weakened Protections for Species at Risk, p. 8. 5 Ministry of Natural Resources and Forestry, personal communication, October 12, 2017. 6 Ibid. 5 PURPOSE OF THIS REPORT This report aims to shed light on the shortfalls in species protection under the ministry’s current approach to implementing the ESA and to expose the potentially fatal gap between the promise in 2007 and the current state of affairs a decade later. This report is situated within the context of the global biodiversity crisis. It discusses the standard and level of protection that the ESA provides and features of some of the many species affected. THE BIODIVERSITY CRISIS: OUR BACKYARD AND BEYOND When Ontario passed the original Endangered Species Act in 1971, it was the first province in Canada to do so, responding to a dawning global recognition of the biodiversity crisis and the need to address the harmful impacts of habitat degradation and loss, invasive species, pollution and illegal trade in wildlife populations around the world. Ontario was well ahead of the commitments made under the Convention on Biological Diversity in 1992 to establish legislation that provides effective protection for species at risk.7 Yet, despite its leadership, the numbers of species at risk have continued to rise in Ontario and very few have recovered sufficiently to be delisted. There are currently over 200 species at risk in the province, assessed as either endangered, threatened, special concern or extirpated (locally extinct): • 40 birds (including the barn swallow, eastern whip-poor-will and Canada warbler) • 14 mammals (including the eastern mole, wolverine and beluga whale) • 46 fish and mussels (including American eel, lilliput and spotted gar) • eight turtles (including wood turtle, spotted turtle and Blanding’s turtle) • eight amphibians (including Jefferson’s salamander, northern cricket frog and Fowler’s toad) • 15 reptiles (including common five-lined skink, Massasauga rattlesnake and eastern foxsnake) • 22 insects (including Hine’s emerald dragonfly, gypsy cuckoo bumblebee and monarch butterfly) • 80 plants (including American ginseng, American chestnut and four-leaved milkweed).8 The primary cause of species’ decline in the province is the same as around the world: habitat loss and degradation. This is compounded by invasive species, climate change, pollution, disease and over-exploitation.9 Species depend upon functioning, resilient ecosystems to survive and flourish. At the same time, the loss or decline of a species can affect the whole web of life of which it is a part. Recent science shows that species loss has an impact on the very landscapes in which the species lives.10 In turn, it can affect human communities within those landscapes. Functioning, resilient ecosystems provide numerous and irreplaceable benefits, such as air
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