Permits, agreements and instruments 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 creates numerous exceptions and exemptions, referred to by MNR as “flexibility tools,” to allow otherwise prohibited activities, such as the killing of species at risk or the destruction of their habitat, to occur in particular circumstances. Case-specific exceptions authorized through the issuance of permits, agreements and other instruments are created directly under the Act, and are discussed in this section. Exemptions may be created by regulation and are discussed in Exemptions under the Endangered Species Act, 2007.

The old legislation did not allow for such “flexibility tools.” The advisory panel supported this new approach but cautioned that, “[g]iven the clear and present dangers that threaten species at risk, exceptions provisions cannot be allowed to become loopholes.” The ECO concurs with the advisory panel’s warning. While the limited use of exceptions may be warranted, they should not be used to undermine the greater purpose of the law: the protection and recovery of species at risk.

Agreements and Permits under the Act

The law allows the government to enter into stewardship agreements with third parties for “the purpose of assisting in the protection or recovery” of species at risk. Such agreements may allow for otherwise prohibited activities to occur. For example, MNR could issue a stewardship agreement to a conservation organization seeking to conduct a prescribed burn to restore habitat.

Similarly, permits may be issued to allow otherwise prohibited activities to occur. A permit may be issued if the Minister is of the opinion that it is necessary for human health and safety, or if the main purpose of the activity is to assist in the protection or recovery of a species at risk. A permit may also be issued if the Minister is of the opinion that the main purpose of the permit is not related to the protection or recovery of a species at risk, but the permit meets the following tests:

  • an overall benefit to the species will be achieved within a reasonable time; and,
  • reasonable alternatives have been considered, including alternatives that would not adversely affect the species, and the best alternative has been adopted; and,
  • reasonable steps to minimize any adverse affect are required as conditions of the permit.

Subject to Cabinet approval, the Minister may also issue a permit under section 17(2)(d) of the Act to allow otherwise prohibited activities to take place without achieving overall benefit if “the activity will result in significant social or economic benefit to Ontario.” To do so, the Minister must obtain a report from an independent expert that assesses whether the possible effects of the proposed activity will jeopardize the survival or recovery of the species at risk in question. The Minister must then be of the opinion that:

  • the survival or recovery of the species at risk will not be jeopardized;
  • reasonable alternatives have been considered, including alternatives that would not adversely affect the species, and the best alternative has been adopted; and
  • reasonable steps to minimize any adverse affect are required as conditions of the permit.

MNR’s internal draft procedures state that permits under section 17(2)(d) are “…intended to permit large scale commercial, industrial, or cultural activities that have a negative impact on species at risk or their protected habitat. The intent is that these permits will only be considered in exceptional circumstances.” While somewhat reassuring, it is unclear what circumstances will be judged to be exceptional. One measure of success of the Act will be the level of government restraint in exercising its discretion to issue section 17(2)(d) permits.

The law also provides that the government may enter into agreements with or issue permits to aboriginal persons. The only requirement of such agreements or permits is that they not “jeopardize the survival or recovery” of species at risk.

The requirements outlined above provide some safeguards when the Minister is considering the issuance of a permit or agreement. However, MNR should develop and consult the public on a detailed policy – that stresses a precautionary approach – on how it intends to apply these tests. The policy should also clearly explain what constitutes an “overall benefit.” It will be important for the Minister to consider all relevant information when considering the issuance of a permit or agreement, including cumulative impacts of multiple permits and agreements related to a given species or its habitat.

A Key to Successful Implementation:

MNR should rigorously apply the Act’s “overall benefit” test and the precautionary principle, including an assessment of cumulative impacts, when screening the appropriateness of authorizing activities that would otherwise be prohibited under the Endangered Species Act, 2007.

Although MNR has committed in principle to prescribing various permits and agreements under this Act as instruments under the Environmental Bill of Rights, 1993, it has thus far failed to do so. Once prescribed, some permits and agreements will be posted on the Environmental Registry as regular instrument proposal and decision notices. For permits and agreements relating to a process carried out under the Environmental Assessment Act (which are not required to be posted as proposals for public comment), MNR has committed to posting information notices on the Environmental Registry.

Instruments Issued Under Other Laws

The Endangered Species Act, 2007 allows for prohibited activities to occur if an instrument (e.g., permit or approval) has been granted under other provincial or federal statutes, and the prescribed conditions have been met. The same general conditions apply to these exceptions as for three types of permits issued directly under the Endangered Species Act, 2007. In the case of instruments issued under other legislation administered by MNR, such as the Aggregate Resources Act, the Minister must be of the opinion that the tests within the Endangered Species Act, 2007 are met at the time the instrument was entered into, issued, made, or approved.

Instruments issued under legislation not administered by MNR are required to be prescribed by regulation under the Act in order to allow prohibited activities to occur. The Minister of Natural Resources must also have entered into an agreement with the “authorizing official” outside of MNR responsible for the issuance, making or approval of the instruments in question. Finally, the authorizing official must be of the opinion that the tests in the Endangered Species Act, 2007 are met at the time the instrument was entered into, issued, made, or approved. For example, the Ministry of Environment (MOE) could theoretically allow an otherwise prohibited activity to occur in approving a permit to take water under the Ontario Water Resources Act or approving a certificate of approval under the Environmental Protection Act, if the tests are met.

As a result, it would be possible to except, through regulation and agreement, virtually any activities under any other legislation from the requirement to obtain a permit under the Endangered Species Act, 2007. This could include approvals with significant implications for species at risk. Therefore, the content of this regulation will merit extremely close scrutiny during its development and any subsequent amendments. As of November 2008, no statutes had been prescribed in this fashion under the Act.

A Key to Successful Implementation:

MNR should exercise extreme caution in prescribing other statutes for exceptions from the Endangered Species Act, 2007, to ensure that only branches of government with a demonstrated track record in conservation are authorized to allow the harming of species at risk or the destruction of their habitat.

The ministry should develop and consult the public on its internal protocols and agreements with other branches of government – both within and outside of MNR – and explain how the tests of the Endangered Species Act, 2007 will be met in allowing otherwise prohibited activities to occur. Further, the records of how the Minister or an authorizing official met these tests in reaching a decision should be readily available to the public.



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. 34-36

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