Wood Bull Blog

Bill 108: Proposed Amendments to the Endangered Species Act

May 24, 2019

Bill 108, the More Homes, More Choice Act, 2019, proposes numerous changes to legislation that impacts how and where development occurs in Ontario. Among the proposed changes, Schedule 5 of Bill 108 introduces a number of amendments to the Endangered Species Act, 2007, S.O. 2007, c. 6 (the “ESA”).

Species Conservation Charge

The amendments create a species conservation charge, which is a regulatory fee that may be payable by developers and municipalities in lieu of adhering to the ESA prohibitions on activities related to species that are designated by regulation as a conservation fund species. To be eligible for listing as a conservation fund species, the species must be listed in O. Reg. 230/08: Species at Risk in Ontario List (the “SARO List”) as extirpated, endangered or threatened.

The Species at Risk Conservation Fund is established to provide funding for activities that are reasonably likely to protect or recover conservation fund species or support their protection or recovery. Species conservation charges will be paid to the Species at Risk Conservation Fund.

Agreements and Permits

The amendments allow the Minister to issue a permit to a person that authorizes performance of an activity that would otherwise be prohibited under s. 9 (species protections) or s. 10 (habitat protections) of the ESA if the person agrees to pay a species conservation charge.

In addition to the prohibition exemption permit system, the amendments introduce landscape agreements, which will allow a party to carry out authorized activities within a specified geographic area that would otherwise be prohibited by the ESA. In exchange, the party will be required to perform “specified beneficial actions” that will assist with the protection or recovery of one or more species specified in the agreement. A landscape agreement may also require the proponent to pay a species conservation charge.

The Lieutenant Governor in Council (i.e. the Cabinet) continues to enjoy the authority to make regulations exempting any person, activity, species or thing from one or more of the ESA prohibitions subject to any restrictions or conditions that may be prescribed (including a condition that the person pay a species conservation charge).

Assessment and Classification of Species at Risk

The assessment and classification processes for species at risk is amended in a number of ways, including:

  • requiring a report from the Committee on the Status of Species at Risk in Ontario (“COSSARO”) classifying or reclassifying a species to be publically released within three months after it is received by the Minister;
  • extending the time in which the SARO List must be amended after the Minister receives a report from COSSARO classifying or reclassifying a species from three months to twelve months (this amendment is proposed to have retroactive effect such that any report received in 2019 will be subject to the 12 month listing period);
  • making it necessary to consider areas both inside and outside Ontario that are within the biologically relevant geographic range in which a species exists when assessing the condition of a species; and,
  • empowering the Minister to require COSSARO to reconsider the classification of a species where the Minister is of the opinion that credible scientific information indicates that the classification may not be appropriate. Previously, the Minister could only issue a direction to reconsider a classification where the Minister was of the opinion that credible scientific information indicates that the classification is not appropriate.

Suspension of Automatic Protections

The amendments will authorize the Minister to suspend the protections that automatically come into force upon listing a species as endangered or threatened for the first time for up to three years if the statutory criteria are satisfied.

In the case of species that are not listed as endangered or threatened for the first time, the Minister may limit the application of the prohibitions in s. 9(1) after considering a government response statement with respect to the species. A government response statement is the policy with respect to the actions that the government intends to take in response to a recovery strategy or management plan.

Change of Responsible Minister

The Minister responsible for administering the ESA is changed from the Minister of Natural Resources and Forestry to the Minister of Environment, Conservation and Parks.

An unofficial blackline version of the Endangered Species Act showing the changes proposed by Bill 108 is found here.  For further information, please contact us at 416-203-7160 or info@woodbull.ca.           

Author(s): Lee English

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