Exemptions under the Endangered Species Act, 2007
| 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. | ||
In addition to the case-specific exceptions (agreements, permits and other instruments) created directly under the Act (discussed in Section 7), the law gives a broad power to Cabinet to create, through regulation, wholesale exemptions from the prohibitions in the Act. For a summary of the key differences between these types of “flexibility tools,” see Table 2.
Table 2: Comparison of “flexibility tools” available under Ontario’s species at risk regime.
| Permits, Agreements and Other Instruments | Exemptions |
|---|---|
| Created under the Act | May be made by regulation |
| Apply to a specific activity/project | Can apply to an entire species or category of activity |
| Only take effect through agreements, permits and other instruments | Only take effect by regulation (but may depend on conditions or criteria set out in the regulation) |
| Must satisfy the overall benefit test set out in the Act (except section 17(2)(d)) | The Minister must be of the opinion that the regulation will not result in the species’ extirpation from Ontario |
| Create exceptions to the rule | Create an exemption from the rule |
Examples:
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Examples:
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Exemptions can apply to a category of activity (e.g., pits and quarries) or to an activity related to a particular species (e.g., killing butternut trees if certain conditions are met). The only limitation on the government’s broad power to create exemptions is the requirement that, if the Minister of Natural Resources is “of the opinion” that the regulation is likely to jeopardize the survival of the species in Ontario or to have any other significant adverse effect on the species, the Minister must first consult with an expert and obtain an expert report. The regulation can then only be made if certain conditions are met, including the requirement that the Minister be of the opinion that the regulation will not result in the species’ extirpation from Ontario.
Another somewhat reassuring condition is the requirement that the Minister consider alternatives to the proposal for a regulation, “including entering into one or more agreements under section 16 or issuing one or more permits under section 17.” This condition suggests that exemptions should only be created in cases where an exception to the prohibitions cannot be created through agreement or permit made in accordance with the Act.
Unfortunately, these conditions only arise if the Minister has formed an initial opinion (potentially without the benefit of expert advice) that triggers the expert consultation requirements. If the Minister is not of the opinion that the regulation is likely to have an adverse effect on species at risk, the regulation may be made without further scrutiny.
The ECO has significant concerns about the dangerous potential for abuse of the government’s power to create exemptions by regulation. The overall effectiveness of the new legislation could be seriously undermined if the government does not exercise significant restraint and caution in using its discretion to exempt harmful activities.
Ontario Regulation 242/08
The public appears to share this type of concern, as evidenced by many of the 1,792 comments submitted during MNR’s consultation on the first exemption regulation to be made under the Act. Ontario Regulation 242/08 was filed in June 2008 to coincide with the law taking effect, allowing for 23 different sets of exemptions from the prohibitions set out in the Endangered Species Act, 2007.
The exemptions created by O. Reg. 242/08 fall into three broad categories: exemptions for several major industrial and development sectors; exemptions for a limited number of activities that MNR believes are not harmful to species at risk; and exemptions for emergency response, public safety and law enforcement. In particular, the regulation:
- exempts specific activities on an ongoing basis (e.g., field cultivation of American ginseng; possession or transport of an animal by a veterinarian to provide treatment);
- provides a limited transition period for other activities before the prohibitions under the Act will apply (e.g., commercial forestry); and,
- allows for the creation of agreements to further exempt other activities on an indefinite basis (e.g., development and infrastructure).
Agreements under the Regulation
The “agreements” available for specified sectors under the existing exemption regulation are distinct from the stewardship agreements that may be made under the Act (see Section 7 of this Special Report). Effectively, agreements made under the regulation allow key components of the Act to be bypassed.
Agreements made under the Act must be “for the purpose of assisting in the protection or recovery of a species” listed on the SARO list. Further, before entering into such an agreement under the Act, the Minister must consider any government response published in relation to a recovery strategy for the species affected by the agreement.
By contrast, agreements made under the existing exemption regulation need not be for purposes of protection or recovery of species at risk. Such agreements need only require that reasonable steps are taken to minimize adverse effects on the species, that the species’ survival or recovery is not jeopardized, and that the agreements do not conflict with any measures that the Minister of Natural Resources intends to take to conserve the species.
Moreover, permits issued under the Endangered Species Act, 2007 and approvals for instruments issued under other laws require the Minister to be “of the opinion that an overall benefit to the species would be achieved within a reasonable time” through specified requirements or conditions. This “overall benefit” test is not included as a condition for agreements made under the exemption regulation.
Exemption for Commercial Forestry on Crown Lands
Pursuant to the exemption regulation, commercial timber harvesting on Crown lands is exempted for one year – until June 30, 2009 – from the prohibitions relating to the destruction of habitat and the killing of species at risk. MNR states that it is “committed to working with the forestry sector to harmonize its existing processes within the new Act. After the proposed timeframe forest operations will be required to comply with the new Act.” MNR states that there are currently 59 species at risk inhabiting the area of undertaking for commercial forestry.
The intent of the Crown Forest Sustainability Act, 1994 is that “biological diversity should be conserved.” However, the actual impacts on some species at risk from timber harvesting can be harmful. For example, MNR currently uses one of its forestry guidelines as the primary mechanism “to protect caribou habitat.” In our 2006/2007 Annual Report, the ECO conducted a review of independent forest audits, which revealed “a clear and progressive pattern of woodland caribou habitat loss due to current forestry policy.” As of November 2008, MNR had not released its new Forest Management Guide for Boreal Landscapes that will apply to the habitat of woodland caribou. Exemption for Development and Infrastructure
Under the exemption regulation, various types of development and infrastructure can be exempted from the Act’s prohibitions if an approval was made prior to the Endangered Species Act, 2007 coming into force, and an agreement is entered into with the Minister of Natural Resources by June 30, 2010. These exemptions can apply to many different types of approvals under the Planning Act, the Building Code Act, 1992, the Condominium Act, 1998, the Ontario Energy Board Act, 1998, the Drainage Act, and the Environmental Assessment Act. These exemptions also can apply to numerous class environmental assessments and regulations made under the Environmental Assessment Act, including large projects or activities subject to declaration orders or Environmental Assessment Act designations. O. Reg. 242/08 does not specify the need for renewal or expiry dates for these agreements.
Exemption for Pits and Quarries
O. Reg. 242/08 provides that pits and quarries can be exempted from the Act’s prohibitions if a licence or permit under the Aggregate Resources Act was held prior to the Endangered Species Act, 2007 coming into force, and an agreement is entered into with the Minister of Natural Resources by June 30, 2010. The exemption also provides for areas of Ontario that have been newly designated under the Aggregate Resources Act, listed in Schedule 4 of O. Reg. 244/97; these exemptions are available to pit or quarry operators who obtain an agreement to address a species at risk on their property, and who made an application for zoning to the Superior Court before June 30, 2008. O. Reg. 242/08 does not specify the need for renewal or expiry dates for these agreements.
Exemption for Hydro-electric Generating Stations
Ontario Regulation 242/08 contains a series of criteria to exempt hydro-electric facilities from the prohibitions in the Act. The prohibitions do not apply until the third anniversary after the species is listed or after the date a species existed at the facility, whichever is later. This exemption only applies if construction began or all required approvals were obtained before the later anniversary date.
Like other specified sectors, this regulation also allows hydro-electric facilities to obtain an exemption from the prohibitions if an agreement is entered into with the Minister. Among other prescribed requirements, these agreements must include a condition that the effects of the operation of the station on the species be monitored. Unlike the exemptions for other industrial sectors, there is no deadline to obtain an agreement. Furthermore, the regulation does not specify the need for renewal or expiry dates for these agreements.
Exemptions for Specific Species
There are multiple exemptions pertaining to specific species in Ontario Regulation 242/08. For example, certain conditions allow for the cultivation of American ginseng (Panax quinquefolius) and the propagation of butternut trees (Juglans cinerea), while retaining protections for these plants that grow naturally in the wild. It is also permissible to possess cast antlers from the forest-dwelling boreal population of woodland caribou that have dropped naturally from an animal. The regulation also provides an exemption for the incidental catch of a species at risk that occurs during the course of licensed fishing and trapping.
Exemptions for Recreational Hunting and Fishing
With the coming into force of the Endangered Species Act, 2007, MNR closed the open hunting season for northern bobwhite (Colinus virginianus) under the Fish and Wildlife Conservation Act, 1997, in recognition of its endangered status. However, the ministry simultaneously created an exemption in Ontario Regulation 242/08 so that hunting northern bobwhite continues to be permitted on game bird hunting preserves. Similarly, other exemptions in Ontario Regulation 242/08 allow regulated sport fishing of Aurora trout (Salvelinus fontinalis timagamiensis), an endangered species, and the Great Lakes population of Atlantic salmon (Salmo salar), an extirpated species, to continue.
Beyond the specifics of these exemptions, permitting the stocking and harvesting of species at risk raises a variety of policy questions, including potential impacts on recovery strategies (e.g., gene flow, disease, etc.) and complications for the enforcement of the Endangered Species Act, 2007. It also raises issues of public perception surrounding the province’s efforts to protect species at risk. Moreover, if indeed the population of a species at risk has risen to a level where harvesting is an appropriate consideration, the re-assessment of their at-risk status is likely warranted by COSSARO.
Other Exemptions
A series of other exemptions permit the killing of species at risk or the destruction of their habitat. For example, Ontario Regulation 242/08 contains a broad exemption that allows for actions to be taken if any person “reasonably” believes that there is an imminent risk to the health or safety of a human being or animal. This exemption is overly broad. For example, it could be interpreted that it would be permissible to kill a species at risk if it was in the process of naturally preying upon another animal, such as an endangered cougar preying upon a deer. MNR should ensure that the regulation can not be interpreted to apply in such a scenario.
Other exemptions apply to the protection of property, veterinarians, wildlife custodians, taxidermists, persons licensed for falconry, and zoos.
No Expiry Dates for Agreements, Permits, and Instruments
As noted above, there are several ways that certain activities may be excepted or exempted from the prohibitions set out in the Endangered Species Act, 2007. These “flexibility tools” can take the form of agreements or permits under the Act itself, agreements and outright exemptions under O. Reg. 242/08, and instruments under other laws that meet the requirements of the Act.
Neither the Act nor O. Reg. 242/08 requires that such permits, agreements, and instruments include an expiry date or be reviewed at specified intervals, although permits may be amended or revoked by the Minister. As such, it is possible that an exception or exemption – allowing the killing of species at risk and/or destruction of their habitat – could last in perpetuity without any statute-mandated review. That would not constitute good public policy.
The first permit to be issued under the Endangered Species Act, 2007 illustrates this very concern. A permit has been issued to a quarry on Pelee Island that has conditions that will affect two endangered species: the blue racer snake (Coluber constrictor foxii) and the Lake Erie watersnake (Nerodia sipedon insularum). This permit does not contain a renewal or expiry date.
| Recommendation 4:
The Environmental Commissioner of Ontario recommends that MNR ensure that expiry dates are used to ensure the periodic evaluation of permits, agreements and other instruments issued pursuant to the Endangered Species Act, 2007 or its regulations. |
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. 38-42
