Media Release

FOR IMMEDIATE RELEASE

Backgrounder to the Proposed Exemptions to the Endangered Species Act (ESA)

This document has been written to provide readers with the necessary information and background to understand both the implications of the proposed exemptions to Ontario's new Endangered Species Act (ESA) and how these exemptions fit within the broader context of the legislation.

History of the ESA

  • Passed in May 2007
  • Comes into force on June 30, 2008
  • Widely hailed as the best piece of endangered species legislation in the country
  • First endangered species legislation in Canada to combine science-based listing of endangered species with mandatory habitat protection and mandatory recovery planning
  • Provides flexibility mechanisms (permits, agreements, other instruments) to encourage stewardship and accommodate certain land uses that do not jeopardize the survival or recovery of endangered species

Key Sections of the ESA

There are five key sections of the Act that must be understood in order to make sense of the proposed exemptions - Section 9, Section 10, Section 17, Section 18 and Section 55.

Section 9

  • Prohibits harm (killing, harming, harassing, capturing) to and possession of species that have been listed as Endangered or Threatened under the Act
  • Comes into force on June 30, 2008

Section 10

  • Prohibits damage or destruction of the habitat of Endangered or Threatened species
  • Comes into partial effect on June 30, 2008, applying to the 42 species already protected under the old ESA
  • Comes fully into force in 2013, or, in the case of "fast-tracked" species, when a species-specific habitat regulation is in place (whichever comes first)

Section 17

  • Provides for permits, which authorize a person to engage in an activity that would otherwise be prohibited by Sections 9 or 10
  • In issuing the permit, the Minister must be of the opinion that the activity will not jeopardize the survival or recovery of the affected species in Ontario
  • Permits are subject to a number of conditions, including requirements to consider all reasonable alternatives to the activity, to minimize adverse effects and to provide an "overall benefit" to the species
  • In limited circumstances, the Ontario Cabinet can approve the issuance of permits for activities that do not provide an "overall benefit"

Section 18

  • Provides for "other instruments" which have the same effect as a permit
  • "Other instruments" must have been granted under other laws of Ontario or Canada (e.g. licenses and other similar authorizations)
  • Like permits, "other instruments" are subject to the condition of providing an overall benefit to the affected species

Section 55

  • Authorizes Cabinet to prescribe exemptions to Sections 9 and 10
  • Activities exempted under Section 55 will not be required to meet an "overall benefit test"
  • Exemptions will be part of a regulation under Section 55

Fast-Tracked Species

The government has "fast-tracked" ten species for habitat regulations:
  • These ten species are: Woodland caribou, Barn owl, American badger, Eastern prairie fringed-orchid, Peregrine falcon, Jefferson salamander, Few-flowered club rush, Western silvery aster, Engelmann's quillwort and Wood turtle
  • Habitat regulations for these ten species are to be in place by June 2009, at which time the habitat of the species will be protected

On May 15, 2008, the government posted 23 proposed exemptions to the ESA on the EBR registry for public comment. The document is located here:

http://www.ebr.gov.on.ca/ERS-WEB-External/displaynoticecontent.do?noticeId=MTAzMjYz&statusId=MTU0Mjg3&language=en

The public comment period ends on June 16, 2008, after which Cabinet will make a final decision on each of the exemptions including which exemptions to include, the scope of the exemptions, and the conditions that will apply.

Because Section 10, pertaining to habitat, does not come into force for another five years (or until a species-specific habitat regulation is in place), the proposed exemptions have implications first and foremost for the Section 9 prohibitions.

In other words, the prescribed activities will be exempted from the requirement not to kill, harm or harass species listed as Endangered or Threatened. The proposed exemptions would also apply to the habitat of the 42 species covered by the old ESA even though those species previously had full habitat protection.

Many of the proposed exemptions are justified and pose little threat to endangered species (e.g. exempting veterinary work; exempting commercial production of American Ginseng).

Others are very worrisome:

  • Some are cast too broadly and set insufficient conditions to ensure adequate protection of endangered species (e.g. exemptions for hydro, pits and quarries, development)
  • Some eliminate the protection formerly provided to the 42 species covered under the old ESA (e.g. exemptions for pits and quarries, development, forestry): these species and their habitat will lose the protection they received under the old legislation for the duration of the exemptions
  • Forestry, the industry with the largest impact on ecosystems in the province, will receive a one year blanket exemption

Key Issues and Recommendations

1. Forestry Industry Given a Foot in the Door for Continued Exemptions

The proposed forestry exemption would allow the industry to engage in business as usual practices until June 30, 2009. What the forestry industry expected, and continues to lobby hard for, however, is a blanket exemption from the Act, with no expiry date. The proposed exemption gives them a foot in the door, and for this reason it is critical that citizens speak out strongly against it.

Neither industry nor government has provided a reasonable legal rationale for this exemption. The industry claims that the Act imposes unnecessary red tape, and that it is already doing a good job of protecting endangered species.

This is clearly not the case for the threatened woodland caribou, whose population appears to be declining by about 11 percent a year. As logging moves northward in Ontario, woodland caribou are also being driven northward, at a rate of about 34 kilometres per decade. Research has shown that caribou have not returned to areas that have been logged. Yet the government continues to approve forestry plans that cut further and further into remaining caribou habitat.

In passing the Act, the government acknowledged that the existing system was failing to adequately protect Ontario's biodiversity and that greater weight needed to be given to species when making decisions about development. This is as true for forestry as it is for other industries. Under the current forestry system, government-approved forest management plans would allow logging of one million hectares of caribou habitat. The status quo needs to change if caribou are to survive in Ontario.

Recommendation: The forestry industry must be required to fully comply with the new ESA. The forestry exemption should be withdrawn.

2. Protection Eliminated for the 42 species Covered Under the Old ESA

The proposed exemptions for pits and quarries, development and forestry mean that protection has been eliminated for the endangered species formerly covered under Ontario's old ESA. Under the old Act, 42 species and their habitat were fully protected by law. The proposed transition exemptions for pits and quarries, development and forestry will eliminate that protection for the duration of the exemptions (two years in the case of pits and quarries and development).

Recommendation: The proposed transition exemptions should not apply to the 42 species covered under the old ESA.

3. Exemptions Result in Insufficient Safeguards

The new ESA provides flexibility mechanisms such as permits and other instruments to accommodate land and resource uses. One of the conditions of issuing permits and other instruments is the requirement to provide an "overall benefit" to affected species. Any activity that potentially harms a species or its habitat must be compensated for (e.g. through restoration efforts), so that the impact on the species is beneficial overall. The proposed exemptions will circumvent this requirement.

Exemptions are needed in situations where it is impossible to provide an "overall benefit" to an affected species. Those who engage in activities that are harmful to an endangered species should be required to demonstrate that they cannot meet the higher standard of a permit (i.e. the overall benefit test) before having that activity exempted. A serious weakness of the proposed exemptions for hydro, pits and quarries and development is that they do not require industries to explore the feasibility of all available options (permits and other instruments) before their activities are exempted.

Recommendation: The transition exemptions for hydro, pits and quarries and development should be revised to ensure that only previously-approved projects that cannot meet the higher standards of permits and other instruments are exempted.

4. Hydro-electric generating stations

The hydro exemption applies to all existing or approved hydro-electric generating stations in Ontario. It is a three year exemption, which grants the operators of these facilities time to enter into an Agreement with the government about minimizing adverse effects on endangered species if they are unable to comply with the Act.

The proposed exemption fails to ensure that the "overall benefit test" under Section 17 or Section 18 of the Act is exhausted before moving on to the lesser standards inherent in an Agreement. Further, no justification is provided for the lengthy three-year exemption period.

Recommendation: The exemption should require that all reasonable steps be taken to minimize harm and reach an "overall benefit" for affected species. It should also require that any agreements reached be subject to public scrutiny and comment on the Environmental Bill of Rights Registry. The exemption period should be reduced, allowing operators one year, rather than three, to reach an Agreement with the government about mitigating impacts.

Other Issues

1. Butternut Exemption

Butternut trees in Ontario grow primarily in the fragile Carolinian zone and are listed as both provincially and federally endangered. Butternuts suffer from a serious fungal disease called Butternut Canker, which can kill a tree within a few years of infection. The disease can spread quickly and surveys indicate that most butternuts in eastern Ontario are infected. Given how quickly and widely the disease has spread, an exemption to Section 9 is reasonable for Butternut. The terms of the exemption, however, are too sweeping and vaguely worded to allow for the reasonable protection of Butternut.

The proposed exemption would allow a person to kill a Butternut tree if it is infected by the butternut canker and is not likely to make a significant contribution to the protection or recovery of the species in Ontario. As well, any Butternut (infected or not) that has been privately cultivated could be killed at the direction of the owner or occupier of the land on which it is located.

Although it important to provide landowners with the option to remove Butternut, the scope of the proposed exemption is too broad, in light of the following:

  • many Butternuts affected by the canker are still relatively healthy and reproducing;
  • many of the best trees are found on private land; and
  • one could argue that no single tree makes a significant contribution to the protection or recovery of the species, meaning on a case-by-case basis, all are vulnerable to removal.

Recommendation: The proposed exemption for Butternut should be revised so that it applies only to infected trees that are deemed by experts to have little further chance for survival or recovery.

2. Aurora Trout Exemption

There are three fishing exemptions. The two of concern include one regarding incidental catch and another regarding Aurora trout.

The first exempts individuals who are legally fishing but incidentally catch an endangered species. The need for this exemption is understandable. It contains appropriate terms requiring individuals to release an endangered fish (or other animal) immediately if it is still alive.

The second exempts sport fishing for Aurora trout, as long as the activity is done in accordance with fishing regulations.

Aurora trout is listed as Endangered provincially and nationally. It was originally found in only two lakes in northern Ontario but became extirpated from those lakes in the 1960s. The species has been reintroduced to these two lakes and other lakes as well. One must question why sport fishing would be allowed to continue while the species is still listed as Endangered.

Recommendation: Sport fishing should not be allowed to take precedence over the recovery of an endangered species. The Aurora trout exemptions should be withdrawn.

3. Protection of Health or Safety and Property Exemptions

There are two broad exemptions regarding the protection of human health, safety and property. The first exempts persons who are exercising powers or duties granted under other legislation and are engaged in protecting human health, safety or property or enforcing the law. The second exempts those who harm an endangered species that is damaging property (subject to a number of criteria).

Clearly, exemptions are needed in some situations. However, the exemptions as written are not tailored to truly urgent situations and are thus open to abuse. Insufficient parameters are set regarding how these exemptions could be used. Hypothetically, for example, in order to address a perceived public health threat, there could be a proposal to apply for a broad pesticide that might incidentally harm an endangered species. As currently written, the exemption would allow the activity to proceed without proper review of all the potential impacts.

The assumption underlying these regulations is that in every case, enforcing another law or reducing serious property damage outweighs the negative consequences of violating Section 9 or Section 10 of the ESA. This is not an acceptable assumption, and the exemption should set a higher standard. An exemption should only be permissible if it is not possible to comply with Sections 9 and Section 10, and if it is not possible to receive a permit or instrument (under Section 17 or Section 18).

Recommendation: Exemptions regarding the protection of human health, safety and property should be revised to set clearer conditions that limit exemptions to truly urgent situations.

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Caribou can't survive without a place to live. Tell industry and government that you expect them to take action to secure a brighter future for this species at risk.

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