Environmental Commissioner's Assessment of Endangered Species Act Implementation

On March 2, 2009, the Environmental Commissioner of Ontario (ECO) released a comprehensive report detailing potential problems with the implementation of the ESA 2007, called The Last Line of Defence: A Review of Ontario's New Protections for Species at Risk. The report echoes many of the hopes and concerns previously expressed the S.O.S. Coalition.

Strengths

• Regulates a range of species at risk at different threat levels
• Impartial process to assess and list species
• Mandatory recovery strategies for endangered and threatened species
• Requires the government to respond to recovery strategies
• Contains prohibitions on the killing of species and the destruction of their habitat
• Recognizes the precautionary principle
• Provides greater opportunities for public participation

• Allows any activity to be exempted by regulation at any point in the future, subject to conditions
• Unclear whether recovery planning will be impartial and science-based
• Regulated habitat protection is discretionary for most species
• Vague requirements for what actions the government will take after a recovery strategy is developed
• Wide latitude to issue permits and agreements that may allow species to be killed or their habitat destroyed
• No mandatory expiry dates or periodic assessments of permits and agreements
• No mechanisms to prevent species from becoming at-risk

• Recovery Planning: 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. (pg. 22)
• Government Action: 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. (pg. 23)
• Habitat Protection: MNR should ensure that habitats are prescribed on an ecological basis, rather than being driven by economic or social constraints. (pg. 30)
• Use of "Flexibility Tools": 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. (pg. 35)
• 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. (pg. 36)

• Establish a statutory responsibility for monitoring and reporting on the state of Ontario's biodiversity.
• Ensure recovery and management teams are composed of independent members with the necessary expertise.
• Amend the new Act to require the preparation of government responses for all listed species of special concern.
• Include expiry dates on instruments to ensure the periodic evaluation of permits and agreements.
• Prescribe all instruments under the Environmental Bill of Rights, 1993.
• Expand the Conservation Land Tax Incentive Program to provide greater financial incentives to private landowners to protect the habitat of species at risk.