Potential weaknesses in the new Endangered Species Act

Unfortunately like any other net, there are holes in the new ESA. The question is, are the holes too big? Will species start falling through?

The coupling of science-based listing with mandatory habitat protection was not and is not an easy pill for everyone to swallow. So the legislation includes a few very significant sweeteners to help the medicine go down. There are provisions in the Act for exemptions, permits and flexibility in the creation of the habitat regulations, which provide the government with a great deal of leeway in terms of how it will implement the Act.

Exemptions

Let's begin with the easiest one to explain - exemptions. The Act allows for activities to be exempted from protections provided for species and their habitat. When the Act came into force last year, 23 exemptions to the Act were also regulated. Many of these were completely understandable-for example, incidental catch for the fishing industry.

At the other end of the spectrum, however, was a one year exemption for the logging industry. The background to this decision is very relevant. Originally, the government was contemplating giving the forestry industry a permanent exemption from the Act. Let's repeat that-a permanent exemption for an industry that has a huge impact on habitat for species at risk across the province was being considered by the provincial government. When the SOS Coalition found out about this, we fought it with all our might, and managed to get it rolled back to one year. The logging example goes to show that there is huge potential for trouble in terms of exemptions and that there is a need for the public to practice constant vigilance to ensure the ESA is not weakened.

Permits

Permits are the second flexibility measure in the new Act. These permits can allow harm to a species or its habitat under strict conditions. Without getting into the technicalities of permits, one of the things we all need to be aware of is that they can be granted only if the Minister is of the opinion that there will be an overall benefit to the species. In other words, development will only be allowed to occur if, in the end, the species is better off than what it was. Since this is a discretionary decision by the Minister, it is vital that the public be aware of how overall benefit is being defined. Three permits under consideration have been posted on the Environmental Registry for public comment so far - so we can actually give you an example of what this means.

Under posting number 010-6088 on the Environmental Registry, an aggregates excavation company applied for a permit to remove 22 "retainable" butternut trees (i.e. trees that have not been too badly affected by the Butternut canker). To achieve overall benefit, they are proposing to plant 20 saplings for every tree removed and to tend these plantings for five years. In addition to the original tree removal, the permit allows for additional tree-cutting if they find more trees as the operation expands.

Habitat Regulations

Habitat regulations also have the potential to be a weakness in the new ESA. Click here to read more about habitat regulations.

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