Species at Risk: Progress and the Path Ahead

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There are seven species that once lived in Ontario that have gone extinct globally in modern times. Another 13 species that once lived in Ontario are no longer found here. The survival of a further 187 species of plants and animals in the province is in jeopardy. These numbers increase year after year. This unprecedented loss of species is the most visible part of what scientists call the biodiversity crisis. The most significant threats are habitat loss, climate change, invasive species, over-harvesting and pollution. Species at risk are the tip of the spear of this global crisis. Three years ago, the Ontario government passed the Endangered Species Act, 2007 (ESA). The law’s intent is to create a robust recovery planning process that effectively protects at-risk species and their habitat, as part of a broader effort to conserve Ontario’s biodiversity. The credibility of any such system depends on taking coherent action to reduce and eliminate threats that have jeopardized the survival of species.

In the spring of 2009, the ECO released a Special Report to the Ontario legislature, titled “The Last Line of Defence: A Review of Ontario’s New Protections for Species at Risk.” It assessed the new approach to protecting and recovering species at risk, giving the Ontario government high praise for the ESA. It is a progressive law that has the potential to make a real difference. However, the ECO’s Special Report raised numerous concerns about the path forward, issuing a series of recommendations to the Ontario government to make this new system more effective, robust, defensible and credible. The Special Report concluded,

The province’s new framework for protecting at-risk species is a vast improvement, in many ways, over the previous law and related policies. However, the new framework contains provisions that, if inappropriately exercised, could lead to the continued imperilment of many of Ontario’s most vulnerable species.

Despite the science-based process for some aspects of the legislation, many of the law’s provisions are highly discretionary in nature. The success of protecting and recovering species at risk relies on administering the Act in good faith. New flexibility tools should be used to alleviate conflicts that arose under the old law, not to accommodate a business-as-usual approach in which the environment suffers. When conflicts do arise between competing priorities, the protection of species at risk should prevail.

The purpose of this year’s update is to examine the progress that the Ontario government, led by the Ministry of Natural Resources (MNR), has made in protecting and recovering Ontario’s species at risk.

International Year of Biodiversity


Status of At-Risk Species

The Committee on the Status of Species at Risk in Ontario (COSSARO) functions as a body independent from government, whose members must have relevant scientific expertise or Aboriginal traditional knowledge. It is responsible for determining the classification of species at risk: endangered, threatened, special concern, extirpated or extinct. Classification changes can reflect new information about the species’ population status, habitat and threats to its survival.

There were 183 species listed as at-risk when the ESA was passed in 2007. COSSARO has since submitted three reports to the Minister of Natural Resources. These reports made changes to the Species at Risk in Ontario (SARO) list, which were then reflected in O. Reg. 230/08 under the ESA.

Ontario now has 200 species classified as endangered, threatened, of special concern or extirpated. There have been 17 new species added to the SARO list since 2007, while 3 species have been de-listed and are no longer considered to be in jeopardy. The at-risk status has deteriorated for 11 species during this same period, while only 3 species have had their status improve. Several other species are now distinguished geographically into subgroups which adds to the list, as risk status has increased or lowered in only some areas of their total range. COSSARO also reviewed the status of 20 other species, making no changes.

The scientific assessment of species by COSSARO appears to be functioning as intended by the ESA. It is a remarkable improvement over past practice when the government itself had the responsibility for classifying species at risk, which often led to the perception that it was a politicized process. However, given that MNR can no longer control the “official” numbers of species at risk, the ministry now must have a more responsive internal capacity, both in terms of staffing and expertise, to fulfill its obligations related to protection and recovery. Additionally, the Ontario government must ensure that the members of COSSARO are sufficiently remunerated for their time and expertise, and that they have the necessary resources at their disposal to fulfill their important responsibilities under the ESA.

Recovery Strategies for Threatened and Endangered Species

Recovery strategies for all threatened and endangered species, as well as management plans for species of special concern, are required to be prepared within timelines set by the ESA. By June 2010, the Minister of Natural Resources ensured that independent recovery teams had prepared 14 recovery strategies. The completion of these recovery strategies is a marked improvement over past practices, when few strategies were ever finalized or made public. Notice also was given that recovery strategies for two aquatic species and one migratory bird were delayed “to allow for cooperation” from the federal government.

MNR has begun using a “request for consulting services” process for the preparation of some recovery strategies. This process appears to be highly problematic. For example, requests have been issued to write recovery strategies for recovery teams. Additionally, ministry criteria assigns significant weight to contract costs compared to species expertise. MNR also has an opportunity to influence the content at multiple stages of the drafting of a recovery strategy, which raises serious questions about the impartiality of the strategies. The “recovery strategy preparation team” is required to follow MNR’s Guidance for Preparing an Ontario Recovery Strategy, which has never been posted on the Environmental Registry for public consultation. This process essentially out-sources the preparation of recovery strategies, giving the illusion of independence while MNR maintains control of the contents of recovery strategies. Moreover, if the role of the recovery team is reduced to simply commenting on externally written recovery strategies that are ultimately finalized by MNR, it marginalizes their expertise and undermines the ESA’s intent.

Management Plans for Species of Special Concern

No management plans have yet been finalized for any species. However, in our 2009 Special Report, the ECO identified a serious flaw in the ESA relating to actions required of the Ontario government for species of special concern. As a result of wording in the ESA, less than half of the 49 species of special concern will benefit from a statement which articulates what actions the Ontario government will take to protect and recover them. As a result, the ECO recommended,

the Endangered Species Act, 2007 be amended to require the preparation of government responses for all listed species of special concern, in order to outline its specific conservation actions for those species.

The Ontario government has taken no action to amend the ESA and fix such weaknesses. In the fall of 2009, the Ontario government introduced, passed, and proclaimed the Good Government Act, 2009 (Bill 212). This omnibus legislation amended many different statutes, including laws under MNR’s purview. Unfortunately, it failed to make any such revisions to the ESA. This was a lost opportunity.

A second opportunity was lost when the government introduced Bill 68 (Open for Business Act, 2010) for First Reading in May 2010. This omnibus bill proposed to amend the Crown Forest Sustainability Act, 1994 (CFSA) to make existing forest management plans (FMPs) adopt ESA approvals, subject to the minister deciding that the process is comparable between the two statutes. This bill also proposed that FMPs that include these approvals, such as permits to destroy or damage habitat, cannot be found to fail to provide for the sustainability of a Crown forest. These amendments appear to limit the possibility of judicial reviews of FMPs as they pertain to species at risk.

Government Actions for Protection and Recovery

Within nine months after a recovery strategy is finalized for an endangered or threatened species, the Minister of Natural Resources is required by the ESA to publish a statement that summarizes the prioritized actions that the Government of Ontario intends to take to protect and recover a particular species at risk. In our 2009 Special Report, the ECO stated the following as a key to the successful implementation of the ESA:

MNR should ensure that its response statements to recovery strategies and management plans are robust, effective, and defensible and that its commitments are fully implemented in a timely fashion.

MNR has not developed any policies to guide this crucial step in the recovery planning process. This lack of general direction is problematic internally for MNR. The lack of policy also does nothing to break down the silos that exist within the Ontario government; specifically, policies are necessary to at least explain to other ministries what their potential roles and general responsibilities might be for protecting and recovering any given at-risk species.

As of June 2010, the Minister of Natural Resources had only been required once by the ESA to finalize a statement describing the actions that the Ontario government will take for an at-risk species. There are currently 85 endangered species and 52 threatened species that will require a government response to their respective recovery strategies at some point in the near future. The only one completed to date, Ontario’s Woodland Caribou Conservation Plan which was released in October 2009, raises multiple concerns about how this resource-intensive step of the recovery planning process will be handled in the future (see Mixed Results: Wildlife Management of Caribou, Moose, Elk and Deer). For example, it is troubling that the Minister of Natural Resources failed to complete it within the legally required time.

Protection and Recovery is Not Solely MNR’s Responsibility

The Ontario government as a whole has direct responsibilities to protect and recover species at risk, according to the ESA. However, as illustrated by Ontario’s Woodland Caribou Conservation Plan, the illusion is given that only MNR has direct responsibilities to protect and recover species at risk. For example, the conservation plan’s specific role for other relevant ministries – such as the Ministry of Northern Development, Mines and Forestry (MNDMF), the Ministry of the Environment (MOE), and the Ministry of Energy and Infrastructure (MEI) – is vague at best. The conservation plan gives the strong impression that MNR is hoping that other ministries will assume their appropriate share of responsibility in protecting Ontario’s species.

Not surprisingly, other ministries appear to be confused about their responsibilities. This confusion is evidenced in numerous comments that have been submitted on draft recovery strategies and habitat regulations. For example, on one draft recovery strategy, MNDMF staff commented, “In general, industrial areas should not be considered peregrine habitat at all and mining activity, including exploration and rehabilitation, must be allowed to continue without any restriction. The birds can use these areas ‘at their own risk’ as it were, thereby allowing unrestricted operations. Should the birds find that the location is unsuitable, they will find another, better site somewhere else.” In another, more positive example, the Ministry of Agriculture, Food and Rural Affairs (OMAFRA) sought more regular meetings with MNR as “it is unclear what actions would be expected of farmers and rural landowners trying to interpret the [habitat] regulations.”

Habitat Protection

In February 2010, nine of Ontario’s species at risk became the first to receive new regulated protection of their habitat (see A Place to Call Home: Nine Species Receive Regulated Habitat Protection). By defining the habitats of these nine species within O. Reg. 242/08, the habitat protections provided under the ESA were triggered to take effect immediately, providing stronger protections for at least some of those species. This move was in partial fulfillment of the government’s commitment to regulate the habitat of 10 identified species at risk by June 30, 2009. Shortly after finalizing this regulation, the ministry proposed two technical guidance documents for forestry activities to provide direction on what activities may occur in the protected habitat of peregrine falcons (Falco peregrinus) and wood turtles (Glyptemys insculpta).

In 2007, the Minister of Natural Resources committed to passing a species-specific habitat regulation for the forest-dwelling population of woodland caribou (Rangifer tarandus caribou') by June 2009 (see Mixed Results: Wildlife Management of Caribou, Moose, Elk and Deer). Three years later, the government has yet to regulate woodland caribou habitat. In our 2006/2007 Annual Report, the ECO stated that “the scope of genuine protection prescribed for their habitat will be a measure of the effectiveness of the new law, as well as a benchmark to assess the environmental sustainability of policy choices by the Ontario government for northern Ontario.”

In March 2010, MNR finalized its Forest Management Guide for Conserving Biodiversity at the Stand and Site Scales (see Forest Management: Conserving Biodiversity at the Stand and Site Scale). This forestry guide applies to Crown forests in the entire Area of the Undertaking (AOU), which is essentially the middle third of Ontario where commercial forestry occurs. It provides the description of habitat and operational prescriptions to address 58 species at risk that inhabit the AOU, with the exception of woodland caribou (which the ministry intends to address in its Boreal Landscape Guide to be released in 2012). The guide is noteworthy as it does provide some habitat protections for species of special concern that are not required by the ESA, such as for the den and rendezvous sites of eastern wolves (Canis lycaon).

Permits and Agreements to Allow Otherwise Prohibited Activities

The ESA contains numerous “flexibility tools” to allow otherwise prohibited activities, such as the killing of species at risk or the destruction of their habitat, to occur in particular circumstances. This flexibility can be applied through various types of permits, agreements, and exemptions. Safeguards within the ESA apply to some of these approvals: an overall benefit to the species must be achieved, alternatives must be considered, and/or steps must be taken to minimize adverse affects. As of June 2010, MNR had issued 170 permits to allow otherwise prohibited activities. The vast majority of these permits are for activities in southern Ontario, with most of them related to research and monitoring projects so far.

MNR also can enter into agreements under O. Reg. 242/08 that are similar to permits, but do not necessitate applying the “overall benefit” test. Generally, this regulation has a deadline of June 30, 2010, for proponents (except related to water power) to have obtained such agreements. As of June 2010, MNR had issued 93 agreements related to aggregate extraction, 74 agreements related to municipal drains, 12 agreements related to development and infrastructure, and one related to water power.

For agreements relating to aggregate operations and municipal drains, MNR did solicit public comment using the Environmental Registry, but it did not share copies of the actual proposed agreements based on the possibility that harm might occur to the species if their locations were known. As a result, it is very difficult for the public to comment as little or no site-specific information was given. Moreover, the mitigation approaches were based on groupings of species (e.g., trees) without specific details: “Retain mature individuals greater than a minimum size (depends on species).”

Patterns do emerge in examining the approvals that allow prohibited activities to occur. For example, MNR has entered into 16 agreements with proponents in Renfrew County for aggregate pits to allow harm to wood turtles (Glyptemys insculpta) and/or their habitat, on both private and Crown lands. The cumulative effect of these approvals likely has a significant impact on this species at risk.

Moreover, it raises serious concerns with MNR’s screening process under the Aggregate Resources Act (ARA), which allowed so many pits to operate in what is likely significant wildlife habitat. It is critically important that these permits and agreements be subject to the EBR for the public to have the right of notification, to submit comments and have them considered, and for the ministry to consider its Statement of Environmental Values (SEV). The ECO recommended that “all instruments that may be issued pursuant to the Endangered Species Act, 2007 and its regulations be prescribed under the Environmental Bill of Rights, 1993.” It took until January 2010 for MOE to propose to prescribe some of these approvals as Class I proposals under O. Reg. 681/94 under the EBR. Even then, at MNR’s direction, this proposal did not include those approvals that would be subject to the Environmental Assessment Act.

Policy Direction

It is critically important that policies exist to guide and maintain the credibility of the recovery planning process. For example, guidance is necessary to inform how recovery team members are chosen and how recovery teams should function, as well as to direct how recovery strategies are written and what content may be appropriate. The ECO flagged this key to successful implementation in our 2009 Special Report:

MNR should develop and consult on guidelines that ensure recovery strategies and management plans are robust, effective, and defensible in order to adequately protect and recover species at risk and their habitat.

No such policies have yet been made public by MNR. The ministry’s lack of policy has raised valid questions about the ministry’s involvement in what should be an arms-length and apolitical process. Additionally, a key outstanding issue remains over who judges – the recovery team or MNR – when a recovery strategy is finalized, triggering public notice and the next steps in the recovery planning process.

In July 2008, MNR used the Environmental Registry to consult the public on two policies to define and explain habitat protection under the ESA. However, the ministry has yet to publicly release its policies related to general habitat protection procedures, procedures for habitat regulations, guidance on habitat protection orders, and guidance on stop work orders. This general lack of policy will create confusion for the public and uncertainty for at-risk species each time action is required related to habitat.

Moreover, the ministry has developed a policy on how to interpret what constitutes damage and destruction of habitat. While MNR has yet to share this policy with the public, the ministry is already applying it. For example, in April 2010, MNR used this policy as part of its argument to deny an application for investigation under the EBR related to the alleged destruction of cougar habitat. All such policies must be posted on the Environmental Registry for public notification and comment as required by the EBR.

In our 2009 Special Report, the ECO urged MNR to develop and consult the public on policies that guide approvals under the ESA, including a clear discussion on what constitutes an “overall benefit” for at-risk species. The ministry has yet to consult the public on such environmentally significant policies, although it created four “interim” policies for different kinds of permits in 2008.

In a species-specific case, the ministry created de facto policy for endangered butternut trees by imposing guidelines written by a third-party; instead, MNR should have consulted the public using the Environmental Registry as required by the EBR to make it clear that these guidelines were going to be applied as ministry direction whenever a proponent sought such an approval under the ESA.

Program Funding

Proper implementation of the ESA requires sufficient and stable funding. After a substantial delay, MNR provided the ECO with information related to the funding of its species at risk program. According to the ministry, the program has an annualized $7M operating allocation, with an additional $6.5M allocation for the 2010/11 budget year. The ECO was not provided information on how this budget was spent within the actual program.

In 2007, the Species at Risk in Ontario Stewardship Program was allocated $18 million over roughly four years. Its purpose is to support activities that preserve and rehabilitate habitat, implement recovery strategies and management plans, and educate the public. Preference is given to applicants that already have a minimum of 1:1 matching funds, and this program has funded approximately 100 projects annually since its inception. It is unknown whether funding for this valuable program will be continued after 2011.

In our 2009 Special Report, the ECO recommended “MNR expand its Conservation Land Tax Incentive Program to provide financial incentives to private landowners to protect the habitat of a broader range of species at risk, including for recovery purposes.” In the context of species at risk, this program applied only to properties with endangered species, excluding the habitat of all other at-risk categories. In 2009, only 63 properties across all of Ontario participated in this program for incentives to maintain endangered species habitat. MNR has taken no action to expand this incentive program, which would require the co-operation of the Ministry of Finance.

Dam the American Eels

ECO Comment

Deliberate, systematic and co-ordinated action by the Ontario government is essential to conserving the province’s biodiversity. The importance of this task cannot be over-stated when it comes to the protection and recovery of species at risk – those plants and animals that may disappear entirely from our province if nothing is done. The Ontario government as a whole, led by the Ministry of Natural Resources, must confront this challenge head-on with sound, defensible actions that make a real on-the-ground difference. The lack of true action is the prime reason why we have begun the 21st century with a loss of biodiversity reaching dire proportions.

The Ontario government is facing a steep learning curve to protect and recover species at risk. The Endangered Species Act, 2007 is a remarkable improvement over the past legislative regime, but it is not sufficient by itself. The first several years since this law was passed have been somewhat of a baptism by fire. The Ontario government is still coming to terms with this new priority: to protect Ontario’s vulnerable species.

A chronic problem of the past was reconciling the government’s conflicted role: safeguarding the environment, while also being ultimately responsible for many of the activities that put it in a state of jeopardy. The ESA has many good tools to bridge this conflict; however, it remains to be seen whether the Ontario government is capable of getting to a “no” when faced with critical decisions about approving an activity that threatens the province’s biodiversity.

Tough choices need to be made to not allow an activity that would jeopardize a species or its habitat when warranted. The ESA must not be misused to facilitate a business-as-usual approach to the environment, simply another bureaucratic hurdle to be overcome by a proponent in a predetermined approvals process. The point of passing the ESA in 2007 was to move out of an era of neglect for our natural environment, and to take action to safeguard the most threatened aspects of Ontario’s biodiversity.

Another chronic problem of the past was the almost total absence of ministry policy directing the protection of species at risk. Now, MNR has developed many policies, yet is failing to share them with the public as required by the EBR. The ministry has a legal obligation to consult the public on environmentally significant policies. This lack of transparency undermines the ministry’s credibility and, more importantly, ultimately undermines the protection of species at risk.

A key advantage of the ESA, compared to the past, is its flexibility in potentially balancing ecological and socio-economic concerns. However, it is this very flexibility that also represents the greatest risk to success. Based on the last several years, it is apparent MNR has gone to great lengths to take a collaborative approach for species at risk. Yet, in some cases, compromises that all stakeholders can notionally live with results in an overall failure to address the root problem. This type of lowest common denominator approach can often achieve little of substance: the protection and recovery of a species that may be lost forever if nothing is done.

The true measure of success is not whether a recovery strategy has been developed or the government has said what actions it will take, but rather, whether a species is on the right path to being de-listed. The Ontario government bears that responsibility.

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This is an article from the 2009/10 Annual Report to the Legislature from the Environmental Commissioner of Ontario.

Citing This Article:
Environmental Commissioner of Ontario. 2010. "Species at Risk: Progress and the Path Ahead." Redefining Conservation, ECO Annual Report, 2009/10. Toronto, ON : Environmental Commissioner of Ontario. 42-49.

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