Effects of Endangered Species Act, 2007, on public rights
|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 Endangered Species Act, 2007 confers some new rights to the public, such as a right of access to certain information. Further, by amendments made in June 2008 to O. Reg. 73/94, the Endangered Species Act, 2007 was prescribed under the Environmental Bill of Rights, 1993 for specified purposes. Accordingly, with the coming into force of the Endangered Species Act, 2007 the public has gained some new opportunities to take part in environmental decision-making.
Right to Information
The Endangered Species Act, 2007 requires that the Minister make the following information available to the public:
- information about the Act and the regulations;
- reports by COSSARO describing the criteria for assessing and classifying species;
- reports by COSSARO that list the species that should be assessed and classified, including species that should be reviewed and, if appropriate, reclassified;
- reports by COSSARO that classify a species as at-risk, assess a species as not at-risk or state that there is insufficient information available to classify a species;
- all recovery strategies and management plans, including the response that the Ontario government will take for each species;
- information about the implementation of recovery strategies and management plans;
- general information about permits and agreements under the Act; and,
- general information about the enforcement of this Act.
The ECO expects that MNR will use the Environmental Registry to its fullest extent to make such information accessible to the public. However, it should be noted that the law gives the Minister the discretion to not make information available to the public if doing so could reasonably be expected to lead to a contravention.
Right to Notice and Comment
Proposals for regulations under the Endangered Species Act, 2007(subject to the exception described below) must be posted on the Environmental Registry for public comment for a minimum of 30 days. Because MNR is a prescribed ministry under the Environmental Bill of Rights, 1993, the public must also be given notice of and an opportunity to comment on proposals for any MNR policies related to the new legislation. Further, as discussed in Section 5 of this Special Report, MNR has committed to posting all recovery strategies and management plans on the Environmental Registry for public notification and consultation on the required government response.
In addition to general requirements for public notification and consultation, the Act sets out special requirements for giving notice of regulations that prescribe species-specific habitat or that create exemptions from the Act’s prohibitions. These special requirements only apply if the Minister is of the opinion that the regulation is likely to jeopardize the survival of the species in Ontario, have any other significant adverse effect on the species, or result in a significant reduction in the number of members of the species that live in the wild in Ontario. In such a case, notice of a proposed regulation must be posted at least two months before the day the regulation is made. The notice must include certain information specified in the Act, including the Minister’s opinion and reasons for the opinion, and a copy of the expert’s report on the possible effects of the proposed regulation on the species. The ECO is encouraged by these specific notice requirements, which appear to acknowledge the special significance of such regulations to species at risk. However, the ECO is disappointed that these special requirements are only triggered by the Minister’s opinion and do not apply in every instance.
Right to Make EBR Applications and to Whistleblower Protection
The Endangered Species Act, 2007 was also prescribed under Parts IV and V of the Environmental Bill of Rights, 1993, which provide two powerful tools for public engagement. Under Part IV, any two members of the public may make an application for review of an existing policy, act, regulation or instrument; similarly, any two members of the public may make an application for review if they believe that believe that a new policy, act or regulation of Ontario should be made or passed in order to protect the environment. Under Part V, any two members of the public may make an application for investigation of an alleged contravention of an act, regulation or instrument.
The right to apply for a review or investigation of existing acts, regulations or instruments only applies if the acts or regulations are prescribed in O. Reg. 73/94 and the instruments are prescribed under O. Reg. 681/94. While the Endangered Species Act, 2007 and its regulations (other than the exception described below) have been prescribed, MNR has not prescribed the Act’s instruments – a significant failure discussed in further detail, below.
Additionally, because the Endangered Species Act, 2007 has been prescribed under O. Reg. 73/94, employees are afforded protection from employer reprisals for complying with or seeking enforcement of the Endangered Species Act, 2007, or for assisting with an investigation or giving evidence in a proceeding related to the Act.
Exceptions for the SARO List Regulation
O. Reg. 73/94 specifically excludes the Species at Risk in Ontario List ("SARO") regulation (O. Reg. 230/08) from certain requirements of the Environmental Bill of Rights, 1993. As a consequence, MNR is not required to post a proposal notice on the Registry or consult with the public before passing or amending the regulation. Further, the SARO list regulation is specifically excluded from the public’s right to make an application for review.
This exception appears to be reasonable, as it ensures that the SARO list regulation is based on COSSARO’s independent and scientific assessment, free from external influences and interests. However, the ECO believes that this restriction of the public’s rights should be tempered by providing the public, as early as possible in the process, with COSSARO’s full rationale for its decisions: (1) whether or not to list particular species on the SARO list; and (2) what classifications to give each species that appears on the SARO list. Providing this information would add transparency and accountability to the process, and could instil greater public confidence in the SARO list regulation and the strength of the Endangered Species Act, 2007 itself.
MNR has indicated that it will post COSSARO’s reports and annual reports on the Environmental Registry as information notices. While the Act does not specifically require COSSARO to provide a full rationale for its decisions in its reports, the ECO strongly urges COSSARO to do so in order for its decisions to be accountable and transparent to both the Ontario Legislature and the public.
In light of the exception under the Environmental Bill of Rights, 1993 for the SARO list regulation, MNR posted an information notice on the Environmental Registry in May 2008 to provide general notice to the public that it would be filing the SARO list regulation (now O. Reg. 230/08). Further, MNR has indicated that it will post an information notice on the Environmental Registry relating to any request by the Minister under section 8 of the Act for COSSARO to reconsider the classification of a species at risk.
No EBR Rights Extended to Instruments
As described above, the Endangered Species Act, 2007 and O. Reg. 242/08 provide for the issuance of instruments, such as permits and agreements, which allow activities to occur that would otherwise be prohibited by the legislation. MNR told the ECO in September 2007 and March 2008 that it intended to prescribe certain of those permits and agreements under the Environmental Bill of Rights, 1993.
In May 2008, the ECO urged MNR to move swiftly to prescribe such instruments under O. Reg. 681/94 made under the Environmental Bill of Rights, 1993. The ECO explained that this action was necessary in light of the imminent coming into force of the Act, and to ensure that MNR administers the new legislation in a transparent and accountable manner. In response, MNR advised that it anticipated posting a proposal on the Environmental Registry for an amendment to O. Reg. 681/94 sometime in the fall of 2008. The ECO subsequently requested that MNR post information notices on the Environmental Registry for all instruments issued from the time the Act would come into force on June 30, 2008 until such time as all instruments under the Act were prescribed. As of January 2009, MNR had not posted a proposal on the Environmental Registry to amend O. Reg. 681/94. However, MNR had posted information notices inviting public comment for two specific instrument proposals.
MNR’s failure to prescribe instruments made under the Endangered Species Act, 2007 and O. Reg. 242/08 means that the public does not have the right to receive notice of or comment on proposals for instruments issued under the Act. Further, the public is denied the ability to file applications for review or investigation related to instruments issued under the Endangered Species Act, 2007. Given the significant potential effect of such instruments on the environment – killing of threatened or endangered species, or the destruction of their habitat – the ECO is extremely troubled that Ontarians are being denied these important rights under the Environmental Bill of Rights, 1993.
The Environmental Commissioner of Ontario recommends 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.
No Right to Appeal Permits to Kill Species or Destroy Habitat
The new statute does not include provisions for appeals of a Minister’s decision to issue an agreement, permit, or other instrument, although an affected party (i.e., instrument holder or party to an agreement) can request a hearing if the Minister amends or revokes a permit or agreement.
In addition, there is no third party right to seek leave to appeal a Minister’s decision to issue permits and agreements under the Endangered Species Act, 2007. Even if such permits and agreements were fully prescribed under the Environmental Bill of Rights, 1993, the public would not have the right to seek leave to appeal them because of the lack of corresponding instrument-holder appeal rights under the Endangered Species Act, 2007 necessary to trigger third-party leave to appeal rights. As a result, members of the public will not be able to challenge MNR when it issues permits or agreements that allow for the killing of species at risk or destruction of habitat.
The ECO believes giving the public the right to seek leave to appeal ministry decisions to issue permits under the Act easily justifies creating a right of appeal for the potential permit holder. In light of the explicit reference to the precautionary principle in the statute’s preamble, the onus lies with MNR to justify why a permit should be granted.
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. 47-51