Last Line of Defence Introduction

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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.

Biodiversity loss

Biodiversity – wildlife and natural areas – is being lost at the fastest pace in human history. It is estimated that humans have increased species extinction rates by as much as a thousand times the natural background rates that were typical over Earth’s history. A species is considered at-risk when it may disappear entirely if nothing is done to improve its status.

This loss of biodiversity is part of a global environmental crisis. The most significant causes for the loss of biodiversity are habitat alteration and loss, climate change, invasive alien species, overexploitation, and pollution (see Figure 1). In Ontario, scores of species are in jeopardy and face imminent extinction or extirpation. Without immediate and sustained action, future generations of Ontarians will be surrounded by a natural world that bears little resemblance to that of the present day.

Past ECO calls for reform to Endangered Species Act

The Environmental Commissioner of Ontario (ECO) has long called for stronger legal protection and better conservation measures for Ontario’s species at risk. The need for reforming the Endangered Species Act has been covered in six separate Annual Reports tabled before the Ontario Legislature (see Biodiversity). It has been the subject of three separate applications under the Environmental Bill of Rights, 1993, each of which was denied by the government of the day. Based on these concerns, the ECO recommended in our 2002/2003 Annual Report that

the Ministry of Natural Resources create a new legislative, regulatory and policy framework to better protect Ontario’s species at risk and to conform with federal legislation.

The Government of Ontario has recently made sweeping reforms to its legal framework for species at risk (see Ontario legislation, regulations, policies and instruments relevant to Species at Risk). In light of these recent changes, the ECO has produced this Special Report to analyze the adequacy of the province’s new legal framework and conservation measures to protect and restore its most vulnerable species.

Effectively protecting species at risk is inherently connected to the larger issue of conserving Ontario’s biodiversity. The ECO has repeatedly expressed strong concerns over the failure of the Ontario government both to grasp the severity of this environmental crisis and to understand that it has a direct responsibility to take concrete action. Our 2007/2008 Annual Report states:

The ECO is profoundly concerned about the lack of deliberate, systematic, and coordinated government action to conserve Ontario’s biological diversity. All too often, ministries such as MNR are seemingly forced into a conflicted role, having to advocate for the very resource extraction and utilization undertakings that can jeopardize biodiversity. Instead, their roles should be cast as champions of biodiversity in order to effectively stave off this environmental crisis and to uphold the public interest.

The international community is firmly committed to achieving “a significant reduction of the current rate of biodiversity loss” by the year 2010. The international community has also agreed that “[u]nprecedented additional efforts are needed, and these must be squarely focused on addressing the main drivers of biodiversity loss.” The ECO believes that the Ontario government should fulfill its responsibility to conserve the province’s biodiversity.

F1 Threats to spp at risk.jpg

Figure 1. This figure illustrates the primary identified threats to species at risk as a total percentage for all species at risk in the province, based on data from MNR and the Royal Ontario Museum. Habitat loss, including alteration and fragmentation, is the main threat for approximately two-thirds of Ontario’s species at risk. However, most species at risk face multiple threats in varying levels of severity. For example, hunting was likely the primary cause of the extinction of eastern elk (Cervus elaphus canadensis), but the loss of suitable forest habitat played a significant secondary role in their demise. Moreover, it is well-documented that climate change will be an increasing threat to a large number of species at risk in the years to come.

Overview of Ontario’s Species at Risk Regime

The Ministry of Natural Resources (MNR) has the lead role in protecting and recovering Ontario’s species at risk. The ministry also manages the province’s protected areas, forests, fisheries, wildlife, and the 87 per cent of the province that consists of Crown lands. MNR’s strategic mission is “to manage our natural resources in an ecologically sustainable way to ensure that they are available for the enjoyment and use of future generations. The ministry is committed to conserving biodiversity and using natural resources in a sustainable manner.”

The Old Law – Endangered Species Act, 1971

The Ontario government enacted its original Endangered Species Act in 1971. This law was ground-breaking in its day, but failed to keep pace with advancements in public policy and science. This statute was barely over a page long and contained only six sections. The old law initially regulated only four species, and by 2008 just 42 species were covered.

Under the old law, the ministry only regulated select “endangered species,” thereby granting limited protections to only a minority of Ontario’s species at risk. The majority of species at risk were classified by MNR only in ministry policy, which held little legal weight. For example, species such as the spotted turtle (Clemmys guttata) and American ginseng (Panax quinquefolius) were listed in ministry policy as endangered, but the law itself did not specifically recognize or protect them in any way. Species at risk that are threatened or of special concern were not captured by the old law. Further, MNR chose not to regulate endangered species of fish under this law.

This dysfunctional approach to classifying species was a major weakness of the old law, and served as a significant barrier to protecting species at risk. Glaring inadequacies with this approach prompted Ontario residents to file several applications for review under the Environmental Bill of Rights, 1993 over the past decade, each of which MNR denied.

The old law required that habitat of listed species be protected, with no exceptions. This approach was criticized as being excessively rigid, leading to an “all or nothing” regime for species protection that produced irresolvable conflicts between the property rights of landowners and the public good of protecting species. Avoiding these conflicts led to reluctance by governments to list new species under the legislation. In the end, the lack of tools to make habitat protection work meant that the law served neither landowners, government or – most importantly – species at risk themselves.

The old law’s failure to expressly define “habitat” caused significant problems in enforcement as well as in land use planning that affected species at risk. The weak language and the lack of definitions partly explain why the government undertook only a handful of prosecutions in the 37 years that the old statute was in force.

The old law contained few precautionary or proactive provisions to ensure that Ontario’s biodiversity would not become further imperilled. The old law did not require any form of management for species at risk, let alone any form of recovery planning.

Ontario’s experience with the old Endangered Species Act demonstrates the significant role that the structure of public policy plays in determining the success or failure of a particular initiative. This fact became increasingly apparent as calls for its reform grew in recent years.

The Need for Law Reform – Endangered Species Act, 2007

The state of Ontario’s species at risk has worsened in recent decades. Increases in the number of species at risk are based on observable declines in population levels, and a more thorough understanding of the actual state of species. There are now 183 species designated as extirpated, endangered, threatened, or of special concern. Further, there are more than 1,500 species being tracked by MNR’s Natural Heritage Information Centre that have not yet been formally assessed for their at-risk status in Ontario.

Only two species protected under the old law – the bald eagle (Haliaeetus leucocephalus alascanus) and the peregrine falcon (Falco peregrinus) – have recovered in the last decade and, as a consequence, had their at-risk status improve. In contrast, eight of the species that are associated with Ontario’s forests had their status deteriorate. Further, the total number of identified species at risk that are associated with forests more than doubled from 42 to 89 species between 2000 and 2005, according to MNR’s 2006 State of the Forest Report, although this rise is likely due, in part, to a higher level of scrutiny of the abundance and range of species.

The release of Ontario’s Strategy in 2005 reflected a notable shift in the government’s position. It publicly recognized the need to reform the province’s species at risk legislation. This strategy stated that reforms were needed “to provide broader protection for species at risk and their habitats, and to include requirements for recovery planning, assessment, reporting and enforcement.” Other objectives were to enhance the capacity for stewardship, address the role of private landowners, and to complement the federal Species at Risk Act.

The Government of Canada’s Species at Risk Act
The Government of Canada’s Species at Risk Act took effect in 2003. Its establishment was an important milestone, although aspects of that legislation and the federal government’s implementation have been problematic. For example, the Species at Risk Act generally only applies to federal lands that make up a very small percentage of Ontario’s land-base. Such lands include national parks, First Nations reserves, military bases, airports, post offices, and Coast Guard stations. The limited jurisdiction of this federal law makes the effectiveness of provincial laws such as Ontario’s Endangered Species Act, 2007 all the more important.

The Ontario government launched a review of the legislation governing species at risk in March 2006. The then Minister of Natural Resources also established an independent advisory panel to provide recommendations on possible legislative reforms. The Endangered Species Act Review Advisory Panel (“advisory panel”) presented a detailed report to the Minister in August 2006 that contained recommendations related to the legislation, stewardship, and financing. As that report notes,

In the Panel’s view a ‘best practices’ approach must ultimately be assessed based on its on-the-ground effectiveness in preventing the further endangerment of Ontario’s biodiversity and in recovering those species and habitats already at risk. Consequently, our proposals place special emphasis on measures that we believe will contribute to those goals. What should be considered ‘best’ in our view are those measures that will collectively achieve the ambitious objective of halting and reversing the tide of species decline in Ontario.

The Ontario government largely based its draft legislation on the advisory panel's framework. It also conducted an extensive public and stakeholder consultation process on the proposed legislative reforms. In March 2007, Bill 184 was introduced for First Reading in the Ontario Legislature; two months later, it passed Third Reading and received Royal Assent. The Endangered Species Act, 2007 came into force on June 30, 2008. (The general framework of the Act is presented in Figure 2.)

F2 Framework for protection and recovery.JPG

Figure 2. This figure illustrates the general framework of the new legislation. The listing of species at risk and the development of plans to protect them are now intended to be an impartial and science-based process. The government must then detail the steps it will take to conserve the species.

Public Consultation on the Endangered Species Act, 2007 (Bill 184)
In our 2006/2007 Annual Report, the ECO commended MNR on the measures it took to ensure a thorough public consultation process on Bill 184, particularly in its use of the Environmental Registry.

In May 2006, MNR posted a proposal notice on the Environmental Registry with a 59-day public comment period, supplemented by a stand-alone online questionnaire for the public to complete. The ministry also released a discussion paper to provide background information to the public, and to identify various options for changes to the legislation. In December 2006 and March 2007, the ministry then allowed for two additional 30-day public comment periods. MNR also concurrently held meetings with a wide range of stakeholders.

In April 2007, after Second Reading in the Ontario Legislature, Bill 184 was referred for debate before the Standing Committee on General Government. The committee heard presentations from 32 organizations representing forestry, mining, hunting, agricultural, environmental, First Nations, municipal, and private charitable interests.

The ministry received 2,001 public comments during the various phases of its public consultation. These submissions included 302 responses to the ministry’s online questionnaire, in addition to more than 1,200 form letters supporting legislative reform. In general, there was broad public support for the Ontario government to revise the legislation to better protect Ontario’s species at risk.

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. 4-11