Guide to Changes to Conservation and Environmental Protections and Assessments
The following is an outline of the key changes that are proposed to four environment-related statutes, which aims to highlight the main changes that will affect the land use planning process.
Note that the Conservation Authorities Act and Endangered Species Act, 2007 are proposed to fall under the purview of the Minister of the Environment, Conservation and Parks, moved from the Minister of Natural Resources and Forestry.
Endangered Species Act, 2007
- Creation of the Species at Risk Conservation Fund and a Crown Agency to administer the Fund.
- The Minister of the Environment, Conservation and Parks may designate species listed on the Species at Risk in Ontario List as “conservation fund species”. The purpose of the Fund is to provide funding for activities that are “reasonably likely to protect or recover conservation fund species or support their protection or recovery.”
- Payments out of the Fund may be made to a person who wishes to carry out an activity that is consistent with the purpose of the Fund and is reasonably likely to contribute to reversing the decline, abating, or increasing the population or distribution of a conservation fund species. The criteria for Fund recipients will be elaborated in the regulations and guidelines to be written by the Ministry.
- The amount of the species conservation charge, which is a charge payable to the Agency for the purpose of carrying out the objectives of the Fund, shall be prescribed by the regulations.
- Activities that damage or cause destruction to a habitat may be authorized and mitigated through a Landscape Agreement
- A new concept of “Landscape Agreements” is introduced to authorize activities that would otherwise be prohibited under ss. 9 and 10, including activities that would damage or destroy the habitat of a species at risk.
Landscape Agreements are between the proponent and Minister, which the Minister may enter into, as long as the criteria in the Act are met.
Among other criteria, the Landscape Agreement must identify “beneficial actions” that the authorized party will undertake to assist with the protection or recovery one or more species contained in the agreement (the “benefiting species”).
- The benefiting species is not required to be the impacted species in the agreement. However, other criteria include that at least one of the benefiting species must be an impacted species and the beneficial actions must outweigh the adverse effects on the impacted species, among others.
- The Landscape Agreement may require that the authorized party pay a species conservation charge if the impacted species is a conservation fund species.
- The permit regime has not changed substantially
- The amendments revise some of the criteria that the Minister must consider before issuing a permit, which mainly provide for the condition of paying a species conservation charge.
- The main difference between the permit regime and Landscape Agreements is that the latter is not subject to certain criteria, such as whether the activity is necessary to protect human health and safety or whether the activity will result in significant social or economic benefit to Ontario. Nevertheless, further criteria for Landscape Agreements may be introduced by regulations.
- Further, Landscape Agreements introduce a new concept of evaluating the benefits to the beneficial species against adverse effects on the impacted species, which is not a feature in the permit regime.
- The Minister may take more time to consider or reconsider a recommendation by the Committee on the Status of Species at Risk in Ontario (“COSSARO”).
- When considering whether to list a species as endangered or threatened, COSSARO must consider the condition of the species outside Ontario. If the species is experiencing low level risk to survival when considering the wider geographic range, this shall be reflected in how the species is classified.
- The Minister will have flexibility to reconsider the committee’s recommendations to the Species at Risk in Ontario List and the Minister is proposed to have 12 months’ time to add said species to the regulations.
- For new species, the Minister may temporarily suspend some or all of the prohibitions associated with protecting said species for up to 3 years.
Most of the proposed changes to the Endangered Species Act, 2007 are proposed to come into force on July 1, 2019.
| Endangered Species Act, 2007 | |
| Classification of Species | |
| 5(4) | The criteria for assessing and classifying species as endangered, threatened or special concern shall include considerations of the species’ geographic range in Ontario and the condition of the species across the broader biologically relevant range inside and outside of Ontario.
|
| 5(5) | If the condition of the species inside and outside Ontario would result in classification indicating a lower level of risk to survival than if COSSARO considered the condition inside Ontario only, the classification shall reflect the lower level of risk.
|
| 7(4) | The Minister may take up to 12 months from the date a report is received from COSSARO to make and file an amendment to the regulation so that it reflects the new information contained in the report (extended from 3 months).
|
| 8(3) and (4) | The Minister may reconsider the classification reported by COSSARO if the Minister is of the opinion that credible scientific information indicates that the classification may not be appropriate, and shall publish a notice thereof.
|
| 8.1(1) | The Minister may order by regulation that when a species is listed on the Species at Risk in Ontario List as endangered or threatened for the first time, that the prohibition in subsections 9(1) and 10(1) shall be temporarily suspended.
|
| 8.1(2) | The Minister may make such order between the dates when the COSSARO report is received and before the amendment is made to the Species at Risk in Ontario List.
|
| 8.1(3) | The Minister’s order is subject to certain criteria, including that the prohibitions would likely have significant social or economic implications and that the temporary suspension will not jeopardize the survival of the species in Ontario, among others.
|
| 8.1(5) | The period of temporary suspension shall be set out in the order and shall not exceed 3 years.
|
| 8.2(1) | Where a species is listed as endangered or threatened on the Species at Risk in Ontario List for the first time, the prohibitions against possessing and transporting things under subsections 9(1)(b) and 10(1) shall not apply to existing permit holders and parties to a Landscape Agreement or an agreement under s. 19 for a period of 1 year.
|
| 8.2(2) | If the Minister makes a temporary suspension order under s. 8.1, those prohibitions will not apply to the persons contemplated in subsection (1) for a further period of 1 year.
|
| Agreements, Permits and Other Instruments | |
| 16.1(1) | A Landscape Agreement shall meet the following requirements: (1) authorize a party to carry out activities in a geographic area identified in the agreement, (2) the authorized activities would be otherwise prohibited under section 9 or 10 with respect to one or more species in the agreement and listed on the Species at Risk in Ontario List as endangered or threatened, (3) the authorized party will execute beneficial actions that will assist with the protection or recovery of one or more species in the agreement (“benefiting species”).
|
| 16.1(2) | The benefiting species in a Landscape Agreement are not required to be an impacted species under the agreement.
|
| 16.1(3) | The Minister may enter into a Landscape Agreement only if, among other things: (a) at least one of the benefiting species is also an impacted species, (b) the authorized party is eligible pursuant to the regulations, (c) the agreement will not jeopardize the survival of the impacted species, reasonable steps are taken to minimize adverse effects and alternatives are considered, and the beneficial actions outweigh the adverse effects on the impacted species.
|
| 16.1(4) | The Minister shall consider any government response statements respecting the benefiting and impacted species and such other matters prescribed in the regulations.
|
| 16.1(5) | The Landscape Agreement may require the authorized party to pay a species conservation charge, if the impacted species is a conservation fund species.
|
| 16.1(6) to (8) | The Minister may issue policy statements governing the form and content of Landscape Agreements that the agreements must be consistent with.
|
| 17(2) | The limitations on the Minister to issue a permit have been amended to include the payment of a species conservation charge.
|
| 17(2.1) | The Minister may make the payment of a species conservation charge a condition of a permit if it relates to a conservation fund species.
|
| 18 | The section pertaining to activities regulated under other Acts that are authorized by an Instrument or permitted or required under a regulation has been revised, including the requirement to pay a species conservation charge, if applicable.
|
| 19(3.1) | An agreement or permit under section 19 may require the person or body to pay a species conservation charge.
|
| Species at Risk Conservation Fund | |
| 20.1(1) and (2) | Establishes the Species at Risk Conservation Fund, the purpose of which is to provide for the funding of activities that are reasonably likely to protect or recover conservation fund species or support their protection or recovery.
|
| 20.1(3) | The Minister may designate conservation fund species by regulation.
|
| 20.1(4) | The Agency shall administer and manage the affairs of the Fund.
|
| 20.2 | The Fund shall receive money through: (1) species conservation charges paid to the Agency, (2) the Crown, (3) donations, (4) revenue earned on money in the Fund or by the Agency, (5) refunds, and (6) sources prescribed by the regulations.
|
| 20.3(1) | Species conservation charges shall be paid by: (1) authorized parties to a Landscape Agreement, (2) permit holder, if required, (3) a person who is authorized under s. 18 to engage in a prohibited activity, if required (4) an aboriginal person, band, tribe council, or community organization by agreement or permit under s. 19, and (5) a person who is exempt from the prohibited activities by regulations and must pay the charge as a condition.
|
| 20.3(4) and (5) | The species conservation charge shall be prescribed by regulation and shall be paid to the Agency in accordance with the time and in the manner set out in the regulations.
|
| 20.7 | The Agency may make payments out of the fund to a person who wishes to carry out an activity that is consistent with the purpose of the fund and is reasonably likely to contribute to reversing the decline, abating, or increasing the population or distribution of a conservation fund species.
|
| 20.8 | The Minister may establish written guidelines respecting activities that may receive funding from the Fund.
|
| Enforcement | |
| 21 | The Minister may appoint persons or classes of persons as enforcement officers.
|
| 27.1 | The Minister may make a Species Protection Order when a person is engaging in or about to engage in an activity that has or is about to have a significant adverse effect on a species listed on, or recommended to be on, the Species at Risk in Ontario List or is subject to a temporary suspension order.
*Note that an enforcement officer may still make a stop order pursuant to s. 27 and the Minister may still make a Habitat Protection Order pursuant to s. 28.
|
| Regulations and Miscellaneous | |
| 48.1 | The Minister may establish codes of practice, standards or guidelines for the protection of species on the Species at Risk in Ontario List or their habitat.
|
| 55 | Lists the regulations that may be made by order of the Lieutenant Governor in Council; including, exempting a person or activity from the prohibitions in ss. 9 and 10, and regulations pertaining to the new Agency.
|
| 56 | Lists the regulations that may be made by the Minister; including the definition of “habitat”, the criteria for Landscape Agreements, designating conservation fund species and establishing the associated species conservation charges.
|
| 57 | There is a special requirement that the Minister must consider whether a proposed regulation is likely to jeopardize the survival of the species in Ontario or will have any other significant adverse effect on the species when making certain regulations (s. 57(1)).
The Minister may nevertheless make such regulations if certain criteria are met, for example if the Minister has considered a Landscape Agreement or permit (s. 57(2)).
|
Conservation Authorities Act
- Narrowing of the programs that Conservation Authorities may administer.
- A Conservation Authority shall provide a program or service contained in the regulations and that relates to the risk of natural hazards, the conservation and management of lands owned or operated by the authority, and the authority’s duties, functions and responsibilities under the Clean Water Act, 2006 or otherwise prescribed in the regulations.
- The Conservation Authority may provide programs and services that it determines are advisable to further its objectives; however, financing said programs is restricted based on the proposed amendments.
- Conservation Authorities may be investigated.
- The Minister may appoint one or more investigators to conduct an investigation of an authority’s operations, including the programs and services it provides. The investigator may require the production of records, conduct a financial audit, and require a member of an authority to give evidence under oath, among others.
These amendments are proposed to come into force on a day to be named by proclamation.
| Conservation Authorities Act | |
| Membership and Governance | |
| 14.1 | Every member of an authority shall act honestly and in food faith with a view to furthering the objects of the authority.
|
| Objects, Powers and Duties | |
| 21.1 | An authority shall provide programs or services within its area of jurisdiction that are prescribed by the regulations and relates to: (1) the risk of natural hazards, (2) the conservation and management of lands owned or controlled by the authority, (3) the authority’s duties, functions and responsibilities under the Clean Water Act, 2006 and under (4) the regulations.
|
| 21.1.1 | An authority may provide municipal programs and services within its area of jurisdiction on behalf of a municipality pursuant to a memorandum of understanding or other form of agreement with the municipality.
|
| 21.1.2(1) and (2) | An authority may provide such other programs and services as it determines are advisable to further its objects, subject to the financing provisions under ss. 25 and 27 related to financing by a participating municipality with which it has an agreement
|
| 21.1.3 | Every authority shall develop and implement a transition plan.
|
| 23.1(4) and (5) | The Minister may appoint one or more investigators to conduct an investigation of an authority’s operations, including the programs and services it provides. The investigator may require the production of records, conduct a financial audit, and require a member of an authority to give evidence under oath, among others.
|
| 23.1(7) and (8) | The investigator shall report in writing to the Minister, who will transmit the report to the authority. The Authority may be required to pay all or part of the costs of the investigation.
|
| 25(1.1) and (1.2) | The authority shall not include in the apportionment any capital costs connected with a program or service under s. 21.1.2(1), unless the apportionment of capital costs has been identified in an agreement with the municipality under 21.1.2(2).
|
| 27(1.1) and (1.2) | The authority shall not include in the apportionment any operating expenses connected with a program or service under s. 21.1.2(1), unless the apportionment of operating expenses has been identified in an agreement with the municipality under 21.1.2(2).
|
| 27.2(1) and (2) | An authority may determine the amounts owed by a specified municipality, as defined, in connection with the programs and services provided under the Clean Water Act, 2006 and Lake Simcoe Protection Act, 2008.
|
| 27.2(3) to (9) | An authority shall provide notice of the amount owing to the specified municipality, and the specified municipality may apply to the Mining and Lands Commissioner for review of the determination of the amount owing.
|
| Miscellaneous | |
| 40 | Sets out the regulations that may be made by the Lieutenant Governor in Council and those which may be made by the Minister.
|
Environmental Protection Act
- Expanded regime for administrative penalties.
- The scope of contraventions that may be subject to an administrative penalty is widened to effectively include the contravention of any provision of the Act or its regulations, which would not otherwise be subject to an environmental penalty.
- The maximum monetary amount for an administrative penalty is increased to $200,000 (from $100,000) for each contravention.
These amendments are proposed to come into force on a day to be named by proclamation.
| Environmental Protection Act | |
| Vehicle Permits and Number Plates | |
| 49(1) | A provincial officer may seize the number plates for a vehicle if he or she reasonably believes that the vehicle was used in connection with the commission of an offence and the seizure is necessary to prevent the continuation or repetition of the offence
|
| 50(1) | If a person is convicted of an offence, the court may make certain orders, as enumerated in the Act, in respect of any vehicle or holder of the permit for the vehicle that the court is satisfied was used in connection with the commission of the offence.
|
| 50(2) | An order under (1) shall be for a period that the court considers appropriate, not exceeding five years.
|
| 50(4) | Court may issue an order under this section in addition to any other penalty imposed.
|
| Miscellaneous | |
| 182.3(1) | The purpose of administrative penalties is: to ensure compliance with any requirements or orders under this Act, to prevent economic benefit as a result of a contravention, and to address other contraventions under the Act and its regulations that are not environmental penalties.
|
| 182.3(3) | A prescribed contravention may be in respect of: a provision of this Act or its regulations, a provision of an order under this Act, or a term or condition of an environmental compliance approval, certificate of property use, renewable energy approval, licence or permit under this Act.
|
| 182.3(8) | The total amount of an administrative penalty shall not exceed $200,000 for each contravention subject to subsection 9, where the total amount may be increased by an amount equal to the total amount of the monetary benefit acquired by or accrued to the person responsible for the contravention
|
Environmental Assessment Act
- Class environmental assessments exemptions.
- A class environmental assessment may provide that this Act does not apply with respect to one or more undertakings within the class. Further, there are specific exemptions when certain criteria are met for the enumerated class environmental assessments provided in the Act.
- The Minister may amend an approved class environmental assessment.
- Where the Minister or the Tribunal reconsiders an approval of a proponent’s class environmental assessment, that approval may be amended or revoked
- Limits on when the Minister may issue an order under Part II of the
- The Minister may only issue an order on the grounds that it will prevent, mitigate or remedy adverse impacts on existing aboriginal and treaty rights or a prescribed matter of provincial importance, and the Minister must do so within the prescribed deadlines.
The majority of these amendments are proposed to come into force on a day the More Homes, More Choices Act, 2019 receives royal assent, and the remaining provisions will come into force on a day to be named by proclamation.
| Environmental Assessment Act | |
| Class Environmental Assessments | |
| 11.4(3.1) | The Minister or Tribunal may, by order, require the proponent of the undertaking to provide plans, specifications, technical reports or other information and to carry out and report on tests or experiments relating to the undertaking.
|
| 11.4(4) | Where a Minister or the Tribunal reconsiders an approval, that approval may be amended or revoked.
|
| 11.4(4.1) | A decision under this section shall be made in accordance with any rules and restrictions that may be prescribed.
|
| 15.3(1) | A class environmental assessment as it is approved or amended may provide that this Act does not apply with respect to one or more undertakings within the class.
|
| 15.3(2) | An undertaking provided for in subsection (1) is exempt from this Act.
|
| 15.3(3) and (4) | Within the enumerated list of class environmental assessments, there may specific exemptions for certain undertakings that comply with the conditions if not further assessment or public consultation is necessary.
|
| 15.4 | The Minister may amend an approved class environmental assessment.
|
| 16(4.1) | The Minister may issue an order under subsection (1) or (3) [an order to comply with Part II of the Act before proceeding with a proposed undertaking] only if the Minister is of the opinion that the order may prevent, mitigate or remedy adverse impacts on either: 1. existing aboriginal and treaty rights or 2. a prescribed matter of provincial importance.
|
| 16(7.1) | If the Minister has not made a decision within the prescribed time with respect of a request to the Minister to make an order, the Minister must provide written reasons to the proponent of the undertaking and any person who requested the order.
|
| 16(7.2) | The Director shall review the request for an order to ensure it complies with the applicable criteria before the Minister considers it.
|
| 17(6) and (7) | Provides how orders under s. 16 shall be applied with respect to the transition resulting from the More Homes, More Choice Act, 2019.
|
Please check our 2019 Planning Reform page and other blog posts for more details on Bill 108.
