Protections and Prohibitions 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’s protections and prohibitions generally only apply to endangered and threatened species. These provisions prohibit the killing of species at risk and the destruction of their habitat. The timing with which aspects of the Endangered Species Act, 2007 will be applied are summarized below.

At-risk Classification Prohibition on killing, harming, and harassing General Habitat Protection Habitat Protection by Regulation Recovery planning Permits to kill or destroy habitat
Extirpated species (10 species) June 30, 2008 no discretionary discretionary yes
Endangered species: carried over from the old law (42 species) June 30, 2008 June 30, 2008 discretionary + June 30, 2013 yes
Endangered species: not previously listed, but now are listed (38 species) June 30, 2008 June 30, 2013 * discretionary + June 30, 2013 yes
Endangered species: listed in the future upon listing upon listing within 2 years of listing + within 1 year of listing yes
Threatened species: currently listed (48 species) June 30, 2008 June 30, 2013 * discretionary + June 30, 2013 yes
Threatened species: listed in the future upon listing upon listing within 3 years of listing + within 2 years of listing yes
Species of special concern: now listed (46 species) no no no June 30, 2013 n/a
Species of special concern: listed in the future no no no within 5 years of listing n/a

* - If no habitat regulation is in place
+ - Replaces general habitat protection

The law contains numerous transition provisions that provide extended timelines for protections and prohibitions to apply. For example, the general habitat protection provisions will not apply until the year 2013 for the 38 endangered and 48 threatened species that were not listed under the old law, unless species-specific habitat regulations are made earlier.

While transition periods are a legitimate way of phasing in new legislation, the risk in this case is that habitat may be destroyed – and irretrievably lost – in the intervening period. The transition period may also inadvertently encourage the deliberate destruction of habitat before the prohibitions begin to apply. Consequently, it is critical that MNR swiftly prioritize and develop the habitat regulations for these species to ensure that their status is not further jeopardized in the intervening period.

General Habitat Protections

The law prohibits destroying or damaging the habitat of endangered and threatened species. Habitat is defined as either the “area on which the species depends, directly or indirectly, to carry on its life processes, including life processes such as reproduction, rearing, hibernation, migration or feeding,” or a specific area defined by regulation for a particular species. If habitat is defined by regulation for a particular species, the regulation prevails.

MNR interprets habitat to include human-created features. For example, a gravel pit inhabited by a blue racer snake (Coluber constrictor foxii) or an old farm building that is home to a barn owl (Tyto alba) are both “habitat” for purposes of the law.

MNR released a finalized policy that addressed habitat protection for endangered, threatened and extirpated species in July 2008. This policy outlines in general terms what the law specifies, relying on other unreleased policies to provide additional details. However, the policy directs that the “[t]he identification and description of habitat will be science-based and will follow an accountable and transparent process. Identification and description of habitat will be definable and defensible.” MNR has yet to determine whether previous approaches used to delineate habitat, such as those used for the 42 endangered species regulated under the old law, are consistent with the new definitions of habitat under the Endangered Species Act, 2007 and its underlying policies.

In November 2008, MNR released a new forest management guide in draft form. The Forest Management Guide for Conserving Biodiversity at the Stand and Site will provide direction to address the general habitat protections under the Endangered Species Act, 2007 for many species at risk in the area of undertaking for commercial forestry. MNR states that “every effort will be made to provide timely updates to the direction in this guide” based on any changes in the at-risk status of species. Moreover, any species-specific habitat regulations that MNR enacts will supercede this guide. This draft guide also provides limited habitat protections for some species of special concern. For example, proposed 100 metre buffers around dens and 200 metre buffers around rendezvous sites will provide some protections for the eastern wolf that the Endangered Species Act, 2007 does not.

Species-Specific Habitat Regulations

The Endangered Species Act, 2007 allows – and, in limited circumstances, requires – MNR to prescribe habitat on a species-by-species basis through regulation for endangered, threatened and extirpated species. As described above, if MNR makes a regulation to define habitat for a particular species, the regulation prevails. MNR can prescribe any exceptions that the ministry views as appropriate within the regulated habitat.

The ministry has identified giving a high priority to developing habitat regulations for 40 species in the next five years. MNR has also indicated its intention to develop a detailed policy related to its procedures for species-specific habitat regulations. The ministry has internally identified a March 2009 public release date for this policy.

Habitat regulations may:

  • describe the specific boundaries for the area and its features (e.g., vernal pools, forest canopy, woody debris, roost or nest trees, abandoned fields, created wetlands, buildings, bridges, road culvert, etc.);
  • prescribe the areas where the species lives, used to live or is believed to be capable of living; and,
  • prescribe a habitat as an area that is larger than, smaller than, or equivalent to the area that would apply under the Act’s general definition of “habitat.”

The only limitation on the ministry’s power to define habitat is that the Minister is not allowed to make a regulation that would effectively cause a species to become extirpated or extinct.

The ministry’s policy on habitat protection, finalized in July 2008, states,

The area prescribed in a regulation as habitat for the species may be larger, smaller or approximately the same as the area protected under the general definition of habitat. During the regulation making process, the government will consider the area protected under the general definition of habitat, the best available scientific information on the species, the recovery strategy, the government response statement to the recovery strategy and the social and economic implications of habitat regulation.

It is problematic that MNR has the authority to choose to prescribe a habitat as an area that is smaller than the area described under the Act’s general definition of “habitat.” In effect, MNR can choose to decrease the amount of a species’ habitat that is to be protected, potentially for non-ecological reasons.

Allowing MNR to mix socioeconomic concerns with ecological needs at this critical initial stage of habitat protection is inconsistent with the overarching framework and intent of the legislation. Habitat should first be defined exclusively on a biological basis; other mechanisms – such as permits, agreements and exemptions – can thereafter be used to address specific socioeconomic considerations. The regulation of habitat must be clear and empirical, and socioeconomic compromises must be transparent and not disguised as habitat constraints.

In the few cases in which habitat loss is not a primary threat to a species at risk, regulating a smaller portion of its habitat may be acceptable. However, the flexibility of this aspect of the law is unnecessary due to all the later exceptions and exemptions that can be granted to address socioeconomic concerns by allowing the destruction of habitat once it is regulated (see Sections 7 and 8 of this Special Report). The ECO strongly believes that the Act’s habitat regulation-making powers should typically be applied to reaffirm and delineate the same area that is protected under the general definition, as well as any possible areas that a given species at risk could likely use for the purposes of recovery.

A Key to Successful Implementation:

MNR should ensure that habitats are prescribed on an ecological basis, rather than being driven by economic or social constraints.

Proposals for habitat regulations will be posted on the Environmental Registry for public consultation when they are developed. Additionally, notices will be posted if regulations are not required for a given species at risk. MNR intends to consult with affected land owners – and, if there is a high interest in the species, any other stakeholders it judges necessary – prior to publicly consulting on habitat regulations and posting them on the Environmental Registry. Ideally, these consultations will advance, and not undermine, the necessary protections for a given species at risk.

The law requires that species-specific habitat regulations be proposed within two years of a species being newly listed as endangered and within three years for new threatened species. However, it is troubling that there is no requirement to even develop species-specific habitat regulations for the 128 endangered and threatened species that were listed when the Act came into force; in other words, habitat regulations are only mandatory for any species that are listed after June 30, 2008. However, in May 2007, the then Minister of Natural Resources stated that MNR would regulate the habitat of a minimum of ten of these species a year once the new law came into force. The Minister also stated that the following species would have their habitat regulated by June 2009:

  • woodland caribou (Rangifer tarandus caribou);
  • barn owl (Tyto alba);
  • American badger (Taxidea taxus jacksoni);
  • eastern prairie fringed-orchid (Platanthera leucophaea);
  • peregrine falcon (Falco peregrinus);
  • Jefferson salamander (Ambystoma jeffersonianum);
  • few-flowered club rush (Trichophorum planifolium);
  • western silvery aster (Symphyotrichum sericeum);
  • Engelmann’s quillwort (Isoetes engelmannii); and,
  • wood turtle (Glyptemys insculpta).

The Endangered Species Act, 2007 also allows for a “flexible” approach in how it actually protects habitat, unlike the old law’s strict provisions. The habitat of a species at risk may be afforded strict protections from human activities, or the habitat could be more actively managed with a mix of approved uses. The advisory panel advocated that this flexible approach be adopted. How the ministry applies this flexibility will be a focal issue in assessing the effectiveness of government conservation measures for species at risk in the years to come.

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. 28-32