Effects of Endangered Species Act, 2007, on other legislation

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The Last Line of Defence: A Review of Ontario’s New Protections for Species at Risk

This Special Report, submitted to the Legislative Assembly of Ontario on February 24, 2009, reviews Ontario’s new Endangered Species Act, 2007 and recommends additional steps by the Government of Ontario to protect and recover species at risk and their habitats.

The coming into force of the Endangered Species Act, 2007 precipitated amendments to other statutes and regulations to harmonize those laws with the new legislation.

For example, amendments to Ontario Regulation 670/98 (Open Seasons – Wildlife) under the Fish and Wildlife Conservation Act, 1997 (FWCA) were required to close the open season for hunting and trapping of American badger (Taxidea taxus jacksoni), gray fox (Urocyon cinereoargenteus), northern bobwhite (Colinus virginianus) and wolverine (Gulo gulo) in recognition of their protected status as endangered (American badger and northern bobwhite) and threatened (grey fox and wolverine) under the new legislation. MNR characterized this change as “complementary to and supportive of the legislative protection that will be provided under the Endangered Species Act, 2007.”

Despite some efforts to bring other statutes and regulations into conformity with the Endangered Species Act, 2007 where explicitly necessary, the ECO believes that revisions to other statutes, regulations and policies should be made to clearly harmonize them with the new legislation. For example, the definition of “significant habitat” of endangered and threatened species in the 2005 Provincial Policy Statement (PPS) under the Planning Act is not entirely consistent with the definition of habitat in the Endangered Species Act, 2007. The consequences of such discrepancies could become at issue before the courts or the Ontario Municipal Board. MNR has internally recognized the need for clarification on this issue.

The 2005 Provincial Policy Statement also specifically states that “development and site alteration shall not be permitted” in the “significant habitat of endangered species and threatened species.” However, as this policy does not state that other types of activities such as infrastructure or aggregate operations are prohibited, one might interpret the wording of the PPS to mean that such activities are permissible in the habitat of threatened and endangered species, which is not the case. The ECO first warned of this inconsistency in our 2004/2005 Annual Report.

Habitat destruction can be caused by mineral exploration and development. Unfortunately, the Endangered Species Act, 2007 does not empower MNR to order the withdrawal of lands from eligibility from staking. That authority rests solely with the Minister of Northern Development and Mines (MNDM) under the Mining Act. The ECO sees a need for a more effective mechanism to ensure the withdrawal of all lands that are necessary to comply with the Endangered Species Act, 2007. In cases where habitat has been identified as necessary to protect the survival of a species, but the lands in question have already been staked, the Minister of Natural Resources can consider exercising his or her own authority to issue a habitat protection order in order to ensure the protection of the species (see Enforcement and Penalties under the Endangered Species Act, 2007).

Citing This Article:
Environmental Commissioner of Ontario. 2009. The Last Line of Defence: A Review of Ontario’s New Protections for Species at Risk, ECO Special Report, 2009. Toronto, ON : Environmental Commissioner of Ontario. pp. 44-45