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EBR 011-7696 – Proposed changes to the Endangered Species Act – FRDA to MNR

857 Hartley Bay Road
RR 2 Site 10 Comp 4
Alban, Ontario P0M 1A0

January 18, 2013

Krista Adams
Senior Permits & Agreements Specialist
Ministry of Natural Resources, Policy Division
Species at Risk Branch
Permits and Agreements Section
300 Water Street, Floor 2
Peterborough, Ontario
K9J 8M5

Dear Ms. Adams:

Re: EBR Registry Number: 011-7696, Proposed approaches to the implementation of the Endangered Species Act which could include regulatory amendments to authorize activities to occur subject to conditions set out in regulation consistent with MNR’s Modernization of Approvals

The proposed regulatory changes contained in EBR 011-7696 are vague and will not meet MNR’s responsibility to endangered species and their habitat maintenance and protection.
While the ambiguity of this MNR and provincial cabinet’s proposal will serve MNR’s and cabinet’s partners in the mining, energy, forestry, and aggregate industries, it will not meet the primary purpose of the Endangered Species Act which is to protect endangered and threatened species and their habitats required for survival.

It is intriguing to note that the spring 2012 budget proposed amendments to the Endangered Species Act. These proposed exemptions – circumvention of permitting requirements, and removal of deadlines for recovery planning – faced serious public opposition and the budget amendments to the ESA were dropped. To now reposition the budget amendments as regulatory changes, which require only cabinet approval, is irresponsible, misleading and shows the continuing disrespect that cabinet and the MNR have towards the public, and as importantly, endangered species and their habitats.

Our recommendations are as follows:
1. Exemptions for activities already approved or planned should not be granted, particularly to those planned after the enactment of the ESA in 2007. Clearly any prudent business manager would or should have incorporated into their business plan the costs and potential delays associated with their proposal and the ESA.
2. Permitting by rule will not work. All sites (habitats) are not the same. Some sites could contain habitat features used for breeding, overwintering, and contain large numbers of endangered species relative to the population size and as such, are habitually used by species to complete their life cycles. These high risk sites cannot be exempted nor protected by a “one rule fits all” development.
3. Exemptions must be the exception. There may be a very few sites where the level of risk and the impacts of the proposed activity is low where an exemption may adequately address the impacts.
4. Registration for an exemption must be mandatory. How can regulators manage, monitor and enforce the law to ensure compliance when the presence of endangered or threatened species is not reported?
5. Financial or budgetary issues should be covered by fully recovering the costs of permitting. The Drummond Report recommended the following: “Move towards full cost recovery and user-pay models for environmental programs and services.”1
6. Recommit to a science based permitting process. Many projects (for example hydro-electric projects which have been scientifically proven to have threatened the populations of sturgeon and eel) have a large negative impact on the environment and ecological function. The public and the proponents need to be educated about the importance of biodiversity to the future of many endangered or threatened species. Unethical and dishonest proponents could render some endangered species extinct in Ontario.

It is our belief that open, honest and fair analysis based on science will lead to better site selection, cost effective pre-development costs as well as a cleaner environment that protects endangered and threatened species.
The proposed MNR modernization proposals will be a step back for all Ontarians. Adaptive management is what we have been doing for the last century. It has not worked well as many species have declined or disappeared. The ESA was enacted to stop these declines and protect habitat and species for the future generations of Ontarians. The ESA was a step forward and a modern approach.

The proposed changes in EBR 011 7696 in its present form, will lead to the uncontrolled privatization of endangered species and public natural resources, the privatization of the profits generated from these endangered species and resources and will weaken the MNR’s regulatory and financial ability to protect Ontario’s biodiversity. In the end, the private corporations will make profit, a few jobs may be created, but the future costs to rehabilitate the damage (if at all possible) will become a public liability and expense.

The regulatory changes by EBR 011 7696 to the ESA, which was designed to provide exemptions or even exemptions with conditions, does not meet the intent of the law and EBR 011 7696 should not be approved by cabinet.

1 Drummond Report, Recommendation 13-1, page 337

Sincerely yours

Jim Rook
French River Delta Association
Cc: Ontario Rivers Alliance
Kathleen Wynne
Sandra Pupatello
Gerard Kennedy