Laying Siege:Overview

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In November, 2013, the ECO released a special report on Ontario's new Endangered Species Act, 2007. Click here for more information on this report, including a downloadable PDF, videos and communications materials.

The ESA has three stated purposes: (1) to identify species at risk; (2) to protect species at risk and their habitats, and to promote their recovery; and (3) to promote stewardship activities to assist in the protection and recovery of species at risk.

2.1 Designation of Species at Risk

The first step towards achieving the Act’s goals occurs when a species is assessed by an independent scientific body, the Committee on the Status of Species at Risk in Ontario (COSSARO), and is determined to fall into one of five at-risk categories. If a COSSARO report categorizes a species as special concern, threatened, endangered or extirpated, MNR then has three months to amend the Species at Risk in Ontario (SARO) regulation (O. Reg. 230/08) to reflect the species’ new ‘at-risk’ designation. Once a species is included on the SARO list, the Act provides specific protections to that species and its habitat, and requires the government to take certain steps to promote the species’ recovery (see Figure 1).

Fig 1 Framework for protection and recovery under the ESA.JPG

2.2 Recovery Strategies and Response Statements

Once a species is listed under the ESA, a recovery strategy (for endangered and threatened species) or management plan (for some special concern species) is required. MNR is responsible for ensuring that these strategies and plans are prepared, although they are considered advice to government. Specific time limits are set out in the Act for the preparation of these documents; however, delays are permitted in certain circumstances (see MNR Delays Half of All Recovery Strategies in this Special Report). After a provincial recovery strategy or management plan is completed, MNR is required to provide a government response statement, which summarizes the actions the Ontario government intends to take to protect and recover the species. The ministry must ensure that the actions identified in a response statement are implemented, provided that they are “feasible.” The feasibility of these actions is determined by the Minister of Natural Resources, who may take social and economic factors into consideration.

2.3 Prohibitions and Protections

Section 9 of the ESA sets out a series of prohibitions for species listed as extirpated, endangered or threatened, including:

  • killing, harming, harassing, capturing or taking a living member of a species; and
  • activities such as possessing, transporting, collecting, buying and selling species.

Section 10 of the Act also prohibits damaging or destroying the habitat of an endangered or threatened species (and extirpated species if prescribed by regulation). Habitat is defined as “an area on which the species depends, directly or indirectly, to carry on its life processes,” or may also refer to a specific area defined by regulation. However, these general habitat protections under section 10 did not come into force immediately for species that were not previously protected under the old Endangered Species Act. In fact, species listed for the first time under the new law that came into force in June 2008 were not to receive habitat protection for five years (i.e., until June 2013), unless a habitat regulation was made for that specific species.

This transition period logically necessitated that MNR develop sufficient policies to support the implementation and enforcement of the Act’s general habitat protections before they would take effect in June 2013. Although the ministry developed a very generalized habitat policy (for further details see "Damage or Destroy": New Guidance on Protecting the Habitat of Ontario’s Species at Risk from the ECO’s 2011/2012 Annual Report, Part 2), MNR failed to develop adequate species-specific direction in time for this deadline. As a result, an unworkable situation was created that allowed the ministry to rationalize the sweeping exemptions from habitat protections discussed in the remainder of this report.

2.4 Permitting and Agreements

Under section 17 of the Act, the Minister may issue four types of permits that authorize a person to engage in an activity that would otherwise be prohibited:

  • if the activity is necessary for the protection of human health or safety;
  • if the purpose of the activity is to assist in the protection or recovery of a species;
  • if the main purpose of the activity is not to assist in the protection or recovery of a species, but an overall benefit to the species will be achieved within a reasonable time through requirements imposed by conditions of the permit, and reasonable steps to minimize adverse effects on individual members of the species are required by conditions of the permit; or
  • if the activity will result in a significant social or economic benefit to Ontario, but will not jeopardize the survival or recovery of the species in Ontario.

Subsections 18(1) and 18(2) of the ESA provide an alternative mechanism for carrying out otherwise prohibited activities. These subsections allow instruments issued under other federal or provincial legislation to have the same effect as an ESA permit provided that a number of conditions are satisfied. For activities that are not specifically intended to assist in the protection or recovery of a species, the Minister or other authorizing official must be of the opinion that an overall benefit to the species would be achieved within a reasonable time through requirements imposed by the instrument. In certain circumstances, MNR may also authorize otherwise prohibited activities by means of an agreement with a proponent. As of June 2013, MNR had issued 560 permits and entered into 186 agreements since the introduction of the ESA.

2.5 Exemptions by Regulation

Subsection 55(1)(b) of the ESA allows the government to make regulations that create exemptions from the prohibitions imposed by sections 9 and 10 of the Act. However, there are conditions that must be met when the ministry is considering a proposal for a regulatory exemption that would apply to an endangered or threatened species.

First, the Minister must consider whether the regulation is likely to jeopardize the survival of the affected species in Ontario, or likely to have a significant adverse effect on the affected species. If the Minister is of the opinion that either of these results is likely, then the Minister is required to consult with an expert on the possible effects of the proposed regulation on the species. Under these circumstances, the regulation cannot be made unless a number of conditions are satisfied.

Next chapter: Implementation of the Act to Date