Recovery Planning 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.
Recovery Strategies and Management Plans
Recovery strategies are required for all endangered and threatened species. In contrast, the old law was silent on measures to recover species. The Minister of Natural Resources now has an obligation to ensure that a recovery strategy is prepared within one year of an endangered species being newly listed, and within two years for a threatened species.
The law provides a five-year transition period for the preparation of recovery strategies for endangered and threatened species that were listed when the Act came into force. A recovery strategy will be developed for an extirpated species if the Minister is of the opinion that reintroduction to the province is “feasible.”
Recovery strategies must contain:
- an identification of the habitat needs of the species;
- a description of the threats to the survival and recovery of the species;
- recommendations to the Minister on the objectives for the protection and recovery of the species, including how to achieve the objectives; and,
- recommendations to the Minister on the area that should be considered in developing a regulation that defines an area as the habitat of the species.
It is MNR’s intention to develop policies relating to recovery strategies. MNR had internally targeted a public release date of December 2008 for these policies; as of January 2009, the ministry has not released this policy. MNR has also indicated that it will be releasing a policy on developing government response statements by April 2009.
For species of special concern, recovery strategies are not needed, but management plans must be developed within five years of a species being listed. An important exception is that management plans are not required to be prepared if a recovery strategy or management plan is required for that species under the federal Species at Risk Act. Based on this provision, MNR is only required to ensure the preparation of management plans for 18 of the 46 species of special concern that are currently listed in O. Reg. 230/08.
In contrast to the provisions relating to recovery strategies, the Act does not specify the required contents of a management plan for species of special concern. Failure to adequately manage species of special concern could lead to deterioration in their at-risk status. Given the lack of direction in the Act, the ECO believes that MNR should develop a guideline that lays out the required contents of management plans.
|A Key to Successful Implementation:
MNR should develop and consult on guidelines that ensure recovery strategies and management plans are robust, effective, and defensible in order to adequately protect and recover species at risk and their habitat.
The law does not specify who should prepare recovery strategies or management plans, or what their qualifications should be (see ). This omission could jeopardize the recovery planning process as the legislative framework relies on this stage to be science-based. It also necessitates impartiality to ensure that the recovery planning process is not constrained to working within existing government approaches for a particular species, particularly when they may have contributed to its decline. While it is logical that MNR staff would likely be members of a significant number of recovery and management teams, their contribution should not be limited by self-censorship.
The Environmental Commissioner of Ontario recommends that MNR ensure that recovery teams and management teams be composed of members with the necessary expertise who are acting independently.
For example, the recovery strategy for the forest-dwelling population of woodland caribou that was finalized in July 2008 was prepared by a recovery team comprised almost entirely of MNR staff. While an independent science review panel found that the recovery strategy is “reasonably sound,” the panel expressed concern that the recovery strategy “assumes the status quo and, therefore, fails to confront the central land use planning issues crucial to the success of a recovery strategy. Only a fresh path forward can achieve caribou recovery in Ontario.”
Once a recovery strategy or management plan is developed, the Minister of Natural Resources is legally bound to issue a response statement that describes the government’s course of action for a species within nine months. The Endangered Species Act, 2007 requires the Minister to ensure that all “feasible” measures contained within its response statement are implemented. The Minister has discretion to consider social and economic factors to decide whether recovery actions are feasible and, therefore, whether they should be implemented.
The government’s response to recovery strategies and management plans is one of the most critically important aspects of the new law. It will detail what actions the Ontario government will take to actually protect and recover a given species at risk. For example, it will address the recovery strategy’s recommendations for what areas should be prescribed as regulated habitat.
It is problematic that the Minister of Natural Resources is triggered to begin developing a government response statement when the recovery strategy is “prepared.” The Act provides no guidance on the meaning of “prepared” which can lead to uncertain timelines for the government to meet its legal obligations.
In the first case of a recovery strategy prepared under the new law, MNR interpreted the nine-month window as beginning on August 21st, 2008 when the ministry publicly released the recovery strategy for the forest-dwelling population of woodland caribou. The ECO believes that the nine-month window began in July 2008, when the recovery strategy was finalized by the recovery team, as reflected by the date on its cover. While this particular delay is short, delays can manifest into very real impediments to the protection of species at risk.
|A Key to Successful Implementation:
MNR should ensure that its response statements to recovery strategies and management plans are robust, effective, and defensible and that its commitments are fully implemented in a timely fashion.
There is a problematic provision in the recovery planning component of the law relating to species of special concern. Since provincial management plans are not required for species at risk that are covered by the federal legislation, there is no legal trigger for MNR to prepare a formal government response. As it is the government response that is publicly reviewed and that ultimately determines what actions will be taken for that species, there is the risk that almost two-thirds of the total number of species of special concern may not receive the necessary management and attention.
The Environmental Commissioner of Ontario recommends that the Endangered Species Act, 2007 be amended to require the preparation of government responses for all listed species of special concern, in order to outline its specific conservation actions for all of Ontario’s species at risk.
Delays in the Recovery Planning Process
The Act sets out timelines for the preparation of recovery strategies and management plans. However, the law allows for delays if the Minister believes that the issues involved are complex, if the cooperation of another jurisdiction is required or if priority is given to the preparation of recovery strategies for other species. While the law states that a delay must not occur for the development of a recovery strategy if it will jeopardize the survival or recovery of threatened or endangered species, such a provision is absent from the provision governing delays for the preparation of management plans for species of special concern.
The ECO hopes that the ministry will heed the advisory panel’s recommendation that delays should only be based on exceptional circumstances with sufficient justification.
The adherence to established timelines in the recovery planning process is extremely important. The consequence of delays is that a species at risk may become further imperilled or its habitat may deteriorate. The ministry’s recovery efforts for the forest-dwelling population of woodland caribou illustrate what occurs when timelines are not adhered to in the recovery planning process:
- MNR committed in 2001 to developing a recovery strategy for this threatened species. A finalized recovery strategy was released seven years later, dated July 2008. The Endangered Species Act, 2007 now requires MNR to have a completed government response by March 2009.
- MNR committed to developing a broader caribou conservation framework by the fall of 2007. Still not completed, the ministry has now set back the release date for a finalized “caribou conservation plan” to June 2009.
- MNR committed to developing a monitoring program for the species by February 2008, but, again, it has not been completed. The ministry committed to this date in its response to an application for review under the Environmental Bill of Rights, 1993.
- MNR committed to revising, by 2007, its forestry guideline that directs the management of caribou habitat on Crown lands. This initiative also has not been completed, but it now targeted for public release in the fall of 2009.
The ECO noted in our 2006/2007 Annual Report that this lack of progress likely ensures that forest-dwelling woodland caribou will remain a threatened species, if not causing their at-risk status to deteriorate. The ECO also stated that the scope of genuine protection prescribed for the habitat of Ontario’s forest-dwelling population of woodland caribou “will be a measure of the effectiveness” of the Endangered Species Act, 2007.
Recovery Planning and the Environmental Registry
In the fall of 2007, MNR committed to the ECO to post all recovery strategies and management plans under the Endangered Species Act, 2007 on the Environmental Registry for public notification. The purpose is to consult the public on the development of the government response: it details what actions the government will take to protect and recover each species. MNR committed to the following three-stage process:
- post a ‘policy proposal’ notice on the Environmental Registry for a 30-day public comment period when a completed recovery strategy or management plan is received from a given recovery team. This comment period will allow the public to provide input on the issues that MNR should consider in developing its government response that details what conservation measures will be implemented.
- re-post its ‘policy proposal’ notice to allow a second 30-day comment period once MNR has prepared a proposed (draft) government response. This second comment period will allow the public to comment on the specifics of the proposed steps that will be taken to protect and recover the species.
- post a ‘decision notice’ with its finalized government response. This notice will also explain how the public comments that were previously submitted were considered by MNR in reaching its decision. The Endangered Species Act, 2007 requires that MNR finalize its government response within nine months of receiving the recovery strategy or management plan from a recovery team.
In its first opportunity to follow this mutually agreed upon process, MNR failed to adhere to its commitment to the ECO. In August 2008, MNR posted an ‘information notice’ on the Environmental Registry providing a copy of the completed recovery strategy for the forest-dwelling population of woodland caribou (dated July 2008); this notice did not detail MNR’s specific responsibilities for the preparation of its government response, nor did it provide any opportunity for public consultation.
It is unclear how or when the public will be consulted, in an open and transparent manner, on the required government response. In this specific case, MNR is legally required to publish a finalized government response by March 2009 – three months earlier than the targeted release date of the ministry’s “caribou conservation plan.”
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. 21-26