Listing and Classifying Species at Risk 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.
Preface Executive Summary Introduction Purposes and Principles Listing and Classifying Species at Risk Recovery Planning	Protections and Prohibitions Permits, agreements and instruments Exemptions Effects on other legislation Effects on public rights Stewardship Activities and Funding	Enforcement and penalties Conclusion Recommendations Keys to successful implementation

The Endangered Species Act, 2007 legally recognizes the Committee on the Status of Species at Risk in Ontario (COSSARO). COSSARO is responsible for determining the classification of species at risk: endangered, threatened, special concern, extirpated or extinct (see Figure 3). Historically, this committee was composed primarily of ministry staff. This committee must now function as an independent body, whose members must have relevant scientific expertise or aboriginal traditional knowledge. This shift to the use of an apolitical body of experts is a significant improvement over past practice. A recent study has found that giving this authority to an independent body of experts results in a substantially higher number of species at risk being listed.

Figure 3. This figure illustrates the at-risk status by species type and number in Ontario, based on O. Reg. 230/08 under the Endangered Species Act, 2007.

In October 2008, MNR announced the appointment of the eleven members of of COSSARO. While the makeup of the committee reflects a broad range of scientific expertise, the ECO notes that none of its members appear to have been appointed based on expertise drawn from aboriginal traditional knowledge.

The Minister of Natural Resources has the authority to require COSSARO to assess and classify a species “that may be facing imminent extinction or extirpation” that is not already listed. The Minister also has the authority to require COSSARO to reconsider a classification of a species if “credible scientific information” indicates that a given classification is not appropriate.

Classification of Species at Risk under the Endangered Species Act, 2007

Special concern: it lives in the wild in Ontario, is not endangered or threatened, but may become threatened or endangered because of a combination of biological characteristics and identified threats. Polar bears (Ursus maritimus) are a species of special concern. Threatened species: it lives in the wild in Ontario, is not endangered, but is likely to become endangered if steps are not taken to address factors threatening to lead to its extinction or extirpation. Hooded warblers (Wilsonia citrina) are a threatened species. Endangered species: it lives in the wild in Ontario but is facing imminent extinction or extirpation. Eastern cougars (Puma concolor) are an endangered species. Extirpated species: it lives somewhere in the world, lived at one time in the wild in Ontario, but no longer lives in the wild in Ontario. Paddlefish (Polyodon spathula) are an extirpated species. Extinct species: no longer lives anywhere in the world. Eastern elk (Cervus elaphus canadensis) are an extinct species.

A new regulation made under the Act, the Species at Risk in Ontario (SARO) List regulation (O. Reg. 230/08), lists the species that are classified by COSSARO as extirpated, endangered, threatened, and of special concern. This regulation will be amended as necessary by MNR, no later than three months after the ministry has received any report by COSSARO classifying or re-classifying a species at risk. Although it is the responsibility of MNR to file the regulation, COSSARO alone determines its contents.

The advisory panel had recommended that the law allow for citizens to submit a request for an emergency listing of a species. However, such a provision was not incorporated, representing a lost opportunity for the public to bring species forward to COSSARO for consideration. Further, the regulation that lists species at risk was specifically excluded from the application for review provisions under the Environmental Bill of Rights, 1993 that would allow a similar request by the public (see Effects of Endangered Species Act, 2007, on public rights).

In drafting the legislation, MNR acted on the advisory panel’s recommendation to require COSSARO to develop criteria for species assessment and classification, but the ministry did not incorporate the requirement that there be periodic reviews of those criteria. The panel also suggested that provisions within the law should have required the development of a procedures manual to direct the operation of COSSARO and explain all aspects of this body to the public, but this recommendation was not acted upon. The law requires that the Minister make the aforementioned criteria publicly available; the ECO expects that MNR will post the criteria on the Environmental Registry for public comment on behalf of COSSARO.

The science-based listing of all species at risk by regulation is a significant improvement on the previous approach taken by MNR. However, the protections afforded by the Endangered Species Act, 2007 will only be effective for those species that are assessed and appropriately classified in the Species at Risk in Ontario List regulation (O. Reg. 230/08). Therefore, COSSARO’s role in the protection of species at risk in Ontario cannot be overstated.

The eastern wolf may provide a sobering example of the consequences of failing to appropriately classify the at-risk status of a species. The current treatment of the eastern wolf as a species of special concern is a carry-over from a now-defunct ministry policy that listed all species at risk in Ontario. In light of recent credible evidence, recognizing the eastern wolf as its own distinct species (rather than as a subspecies of gray wolf) would likely elevate its at-risk status. Re-evaluating the classification of the eastern wolf presents an early opportunity for COSSARO to exercise its responsibility to ensure that species are afforded the protection they need.

No Protections for Ecological Communities at Risk

The advisory panel recommended that ecological communities as a whole – not just individual species – should be candidates for assessment, listing, protection, and recovery. It is unfortunate that this recommendation was not adopted. In the past, MNR has undertaken a somewhat similar approach to managing species at risk; the recovery strategy for all species at risk dwelling in the Sydenham River is one example. Further, the authority for the ministry to protect ecological communities at risk would have greatly benefited some of Ontario’s most threatened natural areas, such as the few remaining tall grass prairie ecosystems where hundreds of native species dwell.

Extinct Species: Gone, but Not Forgotten?

The Species at Risk in Ontario List regulation (O. Reg. 230/08) made under the Endangered Species Act, 2007 lists all species in Ontario that are classified as extirpated, endangered, threatened, or of special concern. The regulation does not, however, identify species that are classified as extinct, despite COSSARO’s obligation to classify and report on species that are extinct. In essence, once a species becomes extinct, it will be removed from the list and wiped from the public record. In contrast, the previous ministry policy from which the regulation drew its initial list of species at risk specifically listed extinct species.

The failure to identify species that are extinct in the regulation is a significant shortcoming of the new law. It is critical that a permanent and public record of species that become extinct be maintained. Such a record serves, in part, as a tool for determining the successes and failures of the Endangered Species Act, 2007. Although the Minister must make COSSARO’s reports available to the public – including information about extinct species – this does not carry the same measure of accountability that would be achieved by listing extinct species in the regulation. Although those species may be irretrievably lost, they, and the lessons to be learned from them, should not be forgotten.

• Next section: Recovery Planning under the Endangered Species Act, 2007