Ontario Cougars: On the Prowl for Protection
In January 2010, two individuals submitted an application to the ECO alleging that commercial forestry operations in the Nighthawk Forest, near Timmins, contravened the Endangered Species Act, 2007 (ESA) by destroying cougar habitat. Since cougars are currently listed as “endangered” on the Species at Risk in Ontario List and receive habitat protection under the ESA, the applicants claim that the damage or destruction of this species’ habitat is prohibited. The Ministry of Natural Resources (MNR) denied this application for investigation in April 2010.
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Cougars in Ontario
puma, is the largest cat species in North America. A highly adaptable species, cougars were once one of the most widely distributed land mammals in the western hemisphere. However, early settlers across eastern North America viewed cougars as a threat to livestock and public safety, and hunted and trapped them extensively. By the late 1800s, cougars were believed to be extirpated in much of their former eastern range, including in Ontario. The last reported cougar shooting in Ontario occurred in 1884 near Creemore. Since that time, the presence of cougar populations in Ontario has been disputed.
Since 2002, over 2,000 cougar sightings have been reported in the province. Yet, the provincial government has been hesitant to confirm the existence of wild cougars in Ontario, since relatively few pieces of “material evidence” of cougar presence – such as photos, scat or DNA – have been collected. Many reported sightings have been dismissed by MNR as:
- misidentification (e.g., sightings of lynx, bobcats, fishers, coyotes or even house cats);
- captive cougars that have escaped or been intentionally released into the wild; or
- wild-born cougars from western populations moving eastward into Ontario.
Conversely, the Ontario Puma Foundation believes that approximately 550 cougars inhabit Ontario, with populations dispersed across the province.
In 2007, MNR began a research study on Ontario’s cougars, aimed at collecting quantitative data on the presence and distribution of the species in the province, to “test the hypothesis that there are no free-ranging cougar genotypes in Ontario.” As of August 2011, the study had not been completed.
Forestry and Cougar Habitat Protection
As an endangered species, it is prohibited to harm or harass cougars in Ontario, or to damage or destroy their habitat. Cougars received automatic general habitat protection when the ESA came into force on June 30, 2008.
Species at risk and their habitats are specifically protected by mechanisms within forest management planning. Provisions in MNR’s Forest Management Guide for Conserving Biodiversity at the Stand and Site Scales provide fine-scale direction for planning protection for cougar den sites while continuing forest operations. Area-specific Forest Management Plans (FMPs) are required under the Crown Forest Sustainability Act, 1994 (CFSA) before a commercial harvest. Along with detailed information on planned operations, management direction and monitoring activities, an FMP also details how particular species and their habitats will be avoided or protected during forestry operations (for example, by leaving buffer zones around cougar dens).
However, before being considered within an FMP, a species and/or its habitat must be identified and verified as a “value” by MNR. Although members of the public can identify values, MNR must verify them in accordance with the ministry’s Forest Information Manual before such values become subject to direction under the Stand and Site Guide, and subsequently an FMP.
Summary of Issues
The applicants allege that in damaging cougar habitat, commercial forestry operations in the Nighthawk Forest, near Gibson Lake, contravened section 10(1)(a) of the ESA, which states that no person shall damage or destroy the habitat of an endangered species.
The applicants contend that the Nighthawk Forest is cougar habitat, as several documented and independent sightings of cougars have been reported in the area. The applicants assert that the forest’s FMP failed to identify or protect cougar habitat. The applicants contend that MNR failed to follow its Statement of Environmental Values when approving the FMP, as it did not take a precautionary or ecosystem approach. Further, the applicants state that the “recent ad hoc attempts by the MNR to detect [c]ougars in the Nighthawk Forest … do not involve the public, affected stakeholders, [or] First Nations and do not meet the MNR’s obligation under the ESA and CFSA.”
Ministry Response
MNR cited several reasons for denying this application for investigation. MNR contended that cougar sightings described by the applicants were unverified and not substantive enough to confirm the presence of cougars. The ministry stated “definitive photos or DNA evidence is required to validate the presence of cougar” and notes that no occurrences of cougar in the Timmins area have been confirmed by MNR to date. The ministry further noted that “with limited unverified data, or unless a physical feature such as a den is discovered, it is not reasonable to conclude the Nighthawk Forest is cougar habitat.” Therefore, cougar habitat was not considered a “value” for the purposes of Nighthawk Forest management planning.
MNR stated that “to test whether an activity damages or destroys cougar habitat, one must assess whether an activity would impair or eliminate one or more of the functions of the habitat.” The ministry noted that current forest management practices create a mosaic of vegetation stages and patterns that would maintain habitat functionality for cougar, and would not be considered “damage or destruction” under the ESA.
For the full text of the ministry’s decision, see our website at www.eco.on.ca.
ECO Comment
MNR was technically justified in denying this application for investigation. However, the ministry’s response brings to light several concerns with how MNR interprets its responsibilities towards species at risk.
Despite sightings by local residents, MNR has never confirmed cougars or their habitat in the Timmins region. Accordingly, under current ministry policies, no further cougar-related requirements apply. The ECO is concerned that MNR’s stringent verification methods are excluding public input into the values identification process (for another example of this concern, see “Up the Creek without a Paddle” in Part 7.5 of this Annual Report).
The ECO believes MNR’s narrow interpretation of “habitat” as defined in the ESA is troubling. Since cougars are habitat generalists – that is, they adapt and survive in a great variety of habitat types – by MNR’s interpretation, cougar habitat is not destroyed unless a den is destroyed. The ECO believes that this approach is contrary to the intent of the ESA, which explicitly indicates that habitat includes areas that species depend on indirectly for life process, such as feeding and migration – functions that would not be protected under the ministry’s apparent interpretation.
The wider implications of the ministry’s limited approach to habitat protection apply to other species as well. MNR’s approach seems to ignore the gradual degradation of habitat quality. Habitat loss is not necessarily binary – lost or not lost, functioning or not functioning – and the degradation of habitat is also a major factor in a species’ health and long-term viability. To truly prevent species loss and recover those species already at risk, the ECO urges MNR to ensure that habitat quality is taken into account in its definition of habitat damage or destruction.
The ministry has a legal responsibility under the ESA to protect and recover cougars in Ontario. A final recovery strategy for the cougar is required to be prepared and made available to the public by June 2013, with a government response to the strategy required by March 2014. The ECO therefore looks forward to government action to protect and recover cougars, as is intended under the ESA.
For a more detailed review of this application, please refer to Section 6.2.2 of the Supplement to this Annual Report. For ministry comments, please see Appendix C.
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| This is an article from the 2010/11 Annual Report to the Legislature from the Environmental Commissioner of Ontario. |
Citing This Article:
Environmental Commissioner of Ontario. 2011. "Ontario Cougars: On the Prowl for Protection." Engaging Solutions, ECO Annual Report, 2010/11. Toronto: The Queen's Printer for Ontario. 42-44.
