Ontario is killing its Endangered Species Act. Here’s what you need to know

The Ontario government is repealing the Endangered Species Act, making it easier to build mines and infrastructure projects like Highway 413. 

On April 17, the eve of the Easter long weekend, the Doug Ford government released Bill 5, the Protect Ontario by Unleashing our Economy Act. It proposes to speed up natural resource development, shift energy regulation and designate areas in the province as special economic zones where cabinet could decide other laws no longer apply. 

Among those laws would be the new Species Conservation Act, a watered-down replacement for the 18-year-old Endangered Species Act. The new act redefines and narrows habitat for animals — to the specific area they den in, for example, rather than the broader area they use to travel and find food. And it gives politicians the power to decide which species are protected. 

In Ontario’s environmental registry listing for the new law, which is open for comments until May 17, the government declared the provincial Endangered Species Act too complicated. It also says the existing act has caused delays and additional costs for housing, transit projects and critical infrastructure. In the Endangered Species Act, recovery and stewardship are explicit goals. The new act removes those words entirely, and instead only references “protection and conservation” while “taking into account social and economic considerations including the need for sustainable economic growth in Ontario.” 

Endangered species laws have been in place in Ontario since the 1970s. Those laws were passed because animal and planetary health were slipping through the cracks of existing legislation that focused on things like land use and natural resource development, Justina Ray, president and senior scientist with Wildlife Conservation Society Canada, told The Narwhal.

Social and economic considerations already dominate the other decision-making frameworks, she said, so burdening species conservation laws with project timelines and cost is problematic. 

“It undermines the very rationale for having this law in the first place,” she said, likening it to a fire department weighing the bill for water damage before responding to a blaze. 

“The purpose of the emergency response is to act when lives, and in this case, species, are at risk,” Ray said. “Not to second guess whether intervention is economically convenient.”

In the news release announcing the bill, the province promises to establish a new conservation program to support community-based voluntary initiatives that replace the Species at Risk Stewardship Program, and increase the funding for species conservation work by up to $20 million. 

“The days of making proponents wait years for approvals and permits are over. We can and will build the Ontario of tomorrow in a way that protects the environment and protects jobs,” Ontario Environment Minister Todd McCarthy stated. The release also quoted a number of mining and business representatives who support the new act.

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“By fostering a more efficient, business-friendly landscape, we are ensuring projects of strategic and critical importance to our economy can rise to address the unique and pressing needs of our time, while continuing to set the stage for Ontario’s global competitiveness for years to come,” Vic Fideli, Ontario minister of economic development, job creation and trade, said. 

Here’s what you need to know about the Endangered Species Act, and the province’s plans to replace it. 

What we know about Ontario’s proposed Species Conservation Act

The new law redefines habitat for species at risk, and outlines what has to be protected.

The Endangered Species Act defines habitat as, “an area on which the species depends, directly or indirectly, to carry on its life processes, including life processes such as reproduction, rearing, hibernation, migration or feeding.” 

By contrast, the new Species Conservation Act defines animal habitat as “a dwelling place or the area immediately around it, such as a den, nest or other similar place, that is occupied or habitually occupied by one or more members of a species for the purposes of breeding, rearing, staging, wintering or hibernating.” 

That means the areas needed for other processes critical to a species survival — like finding food — are no longer protected. 

“The current legislation requires the protection of habitat,” Tim Gray, executive director of Environmental Defence, told The Narwhal. “All of those requirements to protect habitat are erased in this new bill, and it only focuses on where the animal is actually found. So if it was a bird, that would be the nest; if it’s a tree, it’s the drip line [or the circumference] of the canopy of the tree.”

Altogether, it means project proponents aren’t as likely to mitigate harm or protect and achieve an overall benefit to the habitat. “It’s only very narrowly about the individual species,” Gray said. “All of the requirements for actually recovering species and creating new habitat, the number of individuals, all that is swept away as well.”

The government said it needed a new habitat definition because current ones have resulted in “uncertainty” and “confusion” when deciding which activities are permissible. It noted the new definition includes clear terms and parameters, while “preserving core elements of species’ habitat.”

But the Species Conservation Act empowers cabinet to define terms like “adverse effect,” “alternative habitat” and “in the wild” in coming to its conclusions on permissible activities.

Under the new legislation, project proponents with proposals that could harm a species at risk will also be able to start work as soon as they complete an online registration process, rather than waiting for a permit from the Environment Ministry. 

“Registered activities will be required to meet all associated requirements set out in new regulations. The ministry looks forward to developing these regulations in consultation with the public and Indigenous communities over the coming months,” the notice for the bill reads.

Permits are currently required for land development, infrastructure, aggregate pits and quarries and other significant projects. The proposals are reviewed by the Ministry of Environment, Conservation and Parks, which delivers guidance around best practices to minimize impacts to the species they’re likely to harm. The permitting process also assesses whether reasonable alternatives to the activity have been considered and, if harm must happen, whether the proponent has taken steps to reduce it. 

The proposal noted a “registration approach is already in place and used by the ministry for 95 per cent of projects” that are subject to the Endangered Species Act. The remaining five per cent of projects are likely more complicated, or deal with more deeply threatened species, like caribou, Ray said. According to the province, under the new law, nearly all of those remaining projects will fall within the registry system.

“There will still be requirements set out in regulation that protect species, and we will also continue to provide information and protection guidance for species through policies and implementation supports,” the notice states.

The major difference between the registry that exists and what’s proposed, Gray said, is that change to the definition of habitat, which means proponents no longer register to protect the broader area species use — just the individual.

A ‘trajectory of erosion’ in Ontario’s species at risk law

Ontario’s original protections for at-risk species were once touted as among the best in Canada. Various amendments to the Endangered Species Law have shifted that position and, Ray pointed out, there’s been no provincial review of what all these changes have achieved in terms of the wellbeing of at-risk species. Ontario had 22 per cent more species at risk in 2020 compared to 2009. 

“We’re looking at an ongoing trajectory of erosion,” she said.

For example, the More Homes, More Choices Act, passed by the Ford government in 2019, required the status of a species that also exists outside of Ontario, including outside of Canada, be considered during its listing: a lower threat category outside Ontario meant it would be given a similarly low classification in Ontario. 

The Committee on the Status of Species at Risk in Ontario, an independent committee of experts, currently classifies species using scientific information, then submits a report to the Minister of the Environment, Conservation and Parks. The ministry is required to amend the list of Species at Risk in Ontario to include those species within 12 months. 

This automatic listing under the Endangered Species Act was the reason Ontario’s species at risk legislation was once considered the best among the provinces and territories that have passed stand-alone endangered species laws. (Four provinces and Yukon have no stand-alone legislation to protect at-risk species.) Under the Species Conservation Act, that listing is at the discretion of the environment minister, who can also choose to delist species, regardless of what the science says, as well as appoint committee members. 

After a species is listed under Ontario’s Endangered Species Act, its habitat is meant to be immediately protected. The province is then supposed to develop a recovery strategy, publish a response statement and develop specific habitat protections for the species. And progress towards protection and recovery is supposed to be reviewed within five years. 

Each species faces its own threats and requires its own recovery plan. Ontario had published recovery strategies for 180 of the more than 200 species at risk as of December 2024. The new Species Conservation Act removes the requirement for the government to develop a recovery strategy, management plan, response statement and review of progress. 

This means only federally listed species will have a recovery strategy available for use in Ontario, and these are often subject to lengthy delays. But across Canada, provincial and territorial at-risk species laws are supposed to complement federal legislation, such as the federal Migratory Birds Convention Act, Fisheries Act and Species at Risk Act. 

Less than five per cent of the range of most terrestrial at-risk species occur on federal land, and protection for species listed under the Species at Risk Act only extends to individual plants and animals and their dwelling places on federal lands, such as national parks or First Nations reserves. The federal government can extend its protections to provincial lands through emergency orders and other means, but rarely does so. 

The vast majority of Ontario is comprised of provincially managed public lands, and provincial listings are meant to protect the habitat of at-risk species here as they’re not covered under federal law — similar to private lands. But now, migratory birds and aquatic species that are listed as endangered or threatened under the federal Species at Risk Act are excluded from Ontario’s proposed Species Conservation Act — the Ford government has said this will reduce duplication and allow projects to “move forward in a more efficient and cost-effective way.” 

“They’re changing the rules, and they’re saying, ‘Okay, we’re not going to take any responsibility for this set of species,’ ” Ray said. “That means that they will not do anything to help manage them on provincial lands … where [the province has] primary authority for many activities.”

In 2021, Ontario’s auditor general reviewed the province’s efforts to protect species at risk under the Endangered Species Act, releasing a critical and bleak evaluation. It found the province had never denied an application to harm an at-risk species or its habitat, nor inspected these activities it authorized to ensure they were in compliance.

What do the changes to the Endangered Species Act mean for redside dace and Highway 413?

According to the province’s own accounting, biodiversity in southern Ontario is worth an estimated $84.4 billion per year (in 2008 dollars, or $122.5 billion dollars today, accounting for inflation). That’s the value of its provision of fresh water, nutrient cycling, carbon storage, flood control, pollination, culture, tourism and aesthetics. The Credit River watershed alone provides $371 million per year in ecosystem services and the Greenbelt provides $2.7 billion per year (in 2008 dollars, or $538.7 million and $3.9 billion today, respectively).

Highway 413 crosses both.

In January, the federal fisheries and environment ministers issued a critical habitat order for redside dace, a tiny endangered minnow threatened by development in southern Ontario, and Highway 413 in particular. The fish is federally protected, and the order states that the Endangered Species Act affords the minnow and its habitat additional provincial protection. 

Redside dace have become a poster child for the fight against Highway 413. The 60-kilometre proposed route rings around the suburbs north and west of Toronto, crossing 85 waterways and the habitats of the butternut tree, the rapids clubtail dragonfly, the Western chorus frog and seven species of birds, in addition to the redside dace. 

Under the Endangered Species Act, the province established specific rules and best practices for protecting redside dace, such as techniques for installing sediment- control fencing. But provincial protections for redside dace disappear under the Species Conservation Act. 

The silver minnow, with a slash of red across its side, is still protected under the federal Fisheries Act, so any project that may harm it or its habitat must still receive a Fisheries Act authorization or a Species at Risk Act permit. But these rules have been in effect for years and failed to protect redside dace; they lost a staggering 81 per cent of their population from 2007 to 2017.

Gray noted much of the discussion in a federal-provincial working group on Highway 413 has been about each party’s jurisdiction and protection plans along the route.

Six of the bird species along the route of the highway are migratory and listed as threatened under the federal Species at Risk Act, meaning they’ll also be excluded from protections under the new provincial act. The butternut would only be protected around its roots on provincial and private lands. The rapids clubtail would likely lose protection on provincial and private lands in the area it forages and travels — activities that are no longer part of the new definition of habitat. 

“It just puts more onus on the federal government to do their job properly,” Gray said. “Now it will be very clear that the provincial government has complete disdain for any of these values along this highway, and the federal government will have to carry all the weight in ensuring that these species are not eradicated.”

The fact that the redside dace and its plight as an endangered species has become so closely tied to the fight against Highway 413 is symbolic, Ray added. It illustrates the lack of environmental laws in Canada that offer levers for regulation rather than enabling development.

“So when you have so few of them, sometimes it’s only the species-at-risk laws that have these kinds of elements, which reduces conversations down to one species, like the redside dace on Highway 413,” she said. “The redside dace is not about the redside dace. It’s about everybody else and the whole environment, but it’s the only lever there is.” 

— With files from Elaine Anselmi