Species at Risk and the Endangered Species Act
Asking that the list of protected species in Ontario be expanded, the Federation of Ontario Naturalists (FON) and Sierra Legal Defence Fund (SLDF) filed an EBR application for review in 2002 asking the Ministry of Natural Resources to consider amending Regulation 328 under the Endangered Species Act (ESA). This is the regulation that lists the flora and fauna the ministry has declared to be “threatened with extinction.” Regulation 328 was last amended in March 2003, subsequent to this application. It currently lists 19 species of fauna and 17 species of flora. The applicants believe that the regulation is deficient because it doesn’t list all of the species in Ontario that have been identified as endangered and threatened by the Committee on the Status of Endangered Wildlife in Canada (COSEWIC). COSEWIC is the body responsible for listing species at risk across Canada under the federal Species at Risk Act. While MNR did add three species in 2001 – the few-flowered club rush, the horsetail spike-rush, and the slender bush clover – and seven more in early 2003, Regulation 328 only affords protection to approximately half of the species identified as endangered by COSEWIC. COSEWIC has identified 59 “endangered” species in Ontario, while Reg. 328 recognizes only 27. Further, COSEWIC has identified 40 “threatened” species in Ontario, while Reg. 328 recognizes only one of these species.
The applicants also argue that Reg. 328 should include all of the species native to Ontario that have already been assigned a rank of “S1” by the ministry’s Natural Heritage Information Centre (NHIC). These are species identified as extremely rare in Ontario, usually with five or fewer occurrences in the province or very few remaining individuals. There are currently 530 species ranked as S1 in Ontario.
FON and SLDF contend that MNR has made little progress in listing species under the ESA – in fact, four of the species currently listed under the ESA are believed to have already disappeared entirely from Ontario. Habitat loss is among the most significant threats for almost every endangered species in Ontario, and the applicants believe they must be immediately protected.
The applicants contend that MNR should undertake the review of Regulation 328 because of commitments the province has already made to protect species at risk. In 1996, Ontario signed the National Accord for the Protection of Species at Risk, in which the provinces and territories of Canada agreed “to prevent species in Canada from becoming extinct as a consequence of human activity” and “to establish complementary legislation and programs that provide for effective protection.” In allowing species to decline toward extinction when protections are available under the ESA, say the applicants, MNR is violating its commitment to upholding the Canadian Biodiversity Strategy.
MNR denied this application, saying that the public interest does not warrant a review of these issues. Furthermore, the ministry stated, the regulation of species at risk constitutes only part of the listing process. Pre-consultation with landowners of properties on which a species occurs is also critically important, because it gives MNR an opportunity to verify the occurrence of the species, inform the landowner of the ministry’s intent to regulate the species, and inform them of the legal implications of the ESA. This process, said MNR, can be very time-consuming. The ministry also stated that while the goodwill of landowners is essential to the long-term protection and recovery of species at risk, pre-consultation is also necessary to ensure that the prohibition section of the ESA can be enforced by being able to demonstrate “wilful” intent. The ESA states that no person shall wilfully “destroy or interfere with or attempt to destroy or interfere with the habitat of any species of flora or fauna.” Without pre-consultation, it would not be possible to demonstrate wilful harm, according to the ministry, since individuals could assert they were not aware of the presence of a species or its legal status.
The ministry also stated that the consideration of additional species for Reg. 328 is part of MNR’s ongoing business, and thus the matter is already subject to periodic review. As of March 2003, there were 32 species under consideration to be added to Reg. 328. In January 2002, MNR proposed adding seven of these species to Reg. 328, and the regulation was amended in March 2003 to include them, after the ministry made the decision to deny this application for review. In April 2003, MNR proposed the addition of four more species to Reg. 328. The ministry also asserted that it is currently reviewing its Vulnerable, Threatened, Endangered, Extirpated, and Extinct list.
It is the ministry’s position that the wording “threatened with extinction” in section 5 of the ESA describes a level of risk associated with species recommended for “endangered” status at both the provincial and national levels. Although a species may have been designated as nationally “threatened” by COSEWIC, the ministry said it is not considered for listing in Reg. 328 under the ESA unless it has also been recommended by MNR for “endangered” status in Ontario. The ministry asserts that aquatic species will not be included in Regulation 328, since they are under federal jurisdiction and are protected under provisions of the federal Fisheries Act. MNR also stated that the 530 species the ministry recognizes as being extremely rare – those with a rank of S1 – will not be regulated under the ESA until they are elevated by COSEWIC or MNR to the more critical rank of “endangered.”
ECO Comment
The ECO disagrees with MNR’s decision to deny this application for review. FON and SLDF raised legitimate concerns in requesting the ministry to revise Reg. 328 to give protection to Ontario’s species at risk. The ECO agrees with the applicants that it is in the public interest for the ministry to conduct a review of the issues raised in this application, and that MNR should undertake a comprehensive assessment of Ontario’s current policies, regulations and statutes, and enact appropriate changes to conserve the province’s biodiversity.
The ECO is concerned that MNR is unreasonably delaying the regulated protection of these species because of its protracted landowner consultations. While consulting affected landowners and obtaining their goodwill is laudable, it should not be at the expense of the necessary legal protection that should be given to these species. In our 1999/2000 and 2001/2002 annual reports, the ECO reported that species at risk are inadequately protected in Ontario because of a confusing blend of generally outmoded and ineffective laws and policies. The ECO has encouraged MNR to initiate the necessary public debate to assess options that would effectively prevent the loss of species and their habitat in Ontario, including options to improve recovery planning and implementation. However, Ontario’s legislative, regulatory and policy frameworks remain essentially unchanged.
In the past, the ECO has also commented on the discrepancy between the number of endangered species in Ontario listed by COSEWIC and those regulated by MNR under the ESA. The ECO also recommended that MNR develop a provincial biodiversity strategy to guide such decision-making. Most of the legislation dealing with biodiversity issues — including the ESA — is outdated and requires revision.
MNR has acknowledged that internally the ministry has identified the need for significant revisions to its legislative, regulatory and policy frameworks governing species at risk. In its internal project plans, the ministry has made commitments to develop separate policies by 2002 that would address recovery planning, listing and regulating procedures, and landowner contact procedures. These are interim guidelines for use by MNR staff, said the ministry, and will not be placed on the Environmental Registry for public comment. Nor did the ministry share these plans with the applicants when their application for review was denied. MNR has also internally identified the need to revise the ESA to harmonize it with the federal Species at Risk Act, which was passed in 2002. MNR should not have denied this application for review, as MNR’s internal plans coincide so closely with the recommendations of the applicants.
The ministry has committed itself publicly to developing a Provincial Species at Risk Strategy by 2003. MNR has stated that it intends to contact key stakeholders during the consultation process and that it will place the strategy on the Environmental Registry for public comment.
The ECO encourages MNR to follow through on the goals the ministry has set internally for its staff – to revise the ESA and the regulations that should protect Ontario’s species at risk, and to ensure that these revisions harmonize with and complement the federal Species at Risk Act. Any revisions of the existing legislation should include measures to recognize and afford protection to Ontario’s endangered and threatened species, in addition to species of special concern.
By revising the ESA and releasing its Provincial Species at Risk Strategy, MNR would be making progress toward its 1996 federal-provincial commitment “to establish complementary legislation and programs that provide for effective protection of species at risk throughout Canada.” The revision of the ESA and the content of a Provincial Species at Risk Strategy should be guided by the overall context of developing and implementing a provincial biodiversity strategy. (See Creating a Biodiversity Framework for Ontario.)
| Recommendation 9:
The ECO recommends that the Ministry of Natural Resources create a new legislative, regulatory and policy framework to better protect Ontario’s species at risk and to conform with federal legislation. |
| This is an article from the 2002/03 Annual Report to the Legislature from the Environmental Commissioner of Ontario. |
Citing This Article
Environmental Commissioner of Ontario. 2003. "Species at Risk." Thinking Beyond the Near and Now, ECO Annual Report, 2002-03. Toronto, ON : Environmental Commissioner of Ontario. 134-138.
