Enforcement and Penalties under the Endangered Species Act, 2007

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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 Endangered Species Act, 2007 contains improvements in terms of enforcement, offences, and penalties compared to its legislative predecessor. Conservation officers, and now park wardens, are empowered to enforce this law. The Act provides for numerous types of orders to address contraventions, including habitat protection orders.

Habitat Protection Orders

The Minister may issue an order to stop or prevent the destruction of or damage to the habitat of extirpated, endangered, or threatened species. This order may be issued for an area beyond what is prescribed by the specific habitat regulation for the species. Orders may also be issued if an activity is about to damage or destroy habitat, but the activity has not yet taken place. The ECO believes that any orders that are issued should be posted on the Environmental Registry as information notices for the purpose of public notification.

This particular provision is a dramatic improvement compared to the old Endangered Species Act. The previous law only made it an offence to actually destroy habitat, which made enforcement measures nearly impossible to prevent habitat destruction before it occurred. Under the new Act, a hearing can be requested to contest a habitat protection order. Although the law does not specify the hearing officer, it is logical that the hearing would be held before the Environmental Review Tribunal.

MNR has stated that it intends to develop a policy related to guidance on habitat protection orders. The ministry had internally identified December 2008 as a release date for this policy, but it had not been released as of January 2009.

Penalties and Court Orders

The Endangered Species Act, 2007 establishes a number of contraventions as offences, including contravention of the prohibitions under the Act and contravention of the provisions of permits, agreements and various orders.

Corporations may be fined up to $1,000,000 per offence, and persons may be fined up to $250,000 per offence and can be imprisoned for up to one year. Upon conviction for a second or subsequent offence, corporations may be fined up to $2,000,000 and persons may be fined up to $500,000 and can be imprisoned for up to one year. The maximum fines referred to above may be multiplied by the number of animals, plants or other organisms that are killed, harmed, harassed, or captured during the offence.

Notwithstanding the maximum fines, an additional fine may also be imposed if the commission of the offence resulted in a monetary benefit to the corporation or person convicted. By comparison, the old legislation allowed for fines up to $50,000 and a jail term of up to two years. Increasing maximum fines may operate as a deterrent to prospective offenders.

It is unfortunate that the Endangered Species Act, 2007 does not specify that any funds generated from permits or fines be directed to a separate account in the Consolidated Revenue Fund. For example, the Fish and Wildlife Conservation Act, 1997 already establishes a Special Purpose Account that can be used by MNR for the conservation of species and their habitats.

Upon conviction, the court also may issue an order for compliance. Such an order could require the contravenor to refrain from not engaging in any activity that could result in the continuation or repetition of the offence. The court also can order a payment to the Ontario government or any other party to remedy or avoid any harm to a species that resulted from the commission of the offence. This provision appears to respond to the advisory panel’s recommendation that court-authorized payments to non-profit organizations involved in stewardship activities be allowed.

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. 57-58