The proposed regulatory…

The proposed regulatory changes to the Endangered Species Act (ESA) per ERO number 019-8016 will almost certainly put endangered and threatened species further at risk, contrary to the purpose and intention of the ESA. Specifically, the amendments to include early exploration mining trails as an eligible activity will expand the activities exempt from the ESA and its regulations and, as a result, the amount of habitat impacted by exploratory mining activities. Although ERO number 019-8016 seeks feedback on criteria, it fails to appreciate the amplified cumulative impact trails have on sensitive animal habitats and First Nations’ traditional territories. As a result, this amendment will invariably impact First Nations’ abilities to exercise their inherent Indigenous rights and treaty rights.

The effect of this amendment will be to further circumvent the duty to consult and accommodate. The Ministry of Environment, Conservation and Parks (MECP) has already taken an unreasonable stance that exploratory mining activities fall within the lower end of the DTCA spectrum, which is incorrect and anti-reconciliatory. This will now excuse further harmful conduct which impact lands and animals relied upon by First Nations to exercise their rights without, again, any or sufficient consultation or accommodation.

The MECP has no requirement to ensure that proponents prepare and implement a mitigation plan before or as a condition of commencing exploration nor are approvals under the ESA inspected for compliance. Investigations are conducted purely on an honour-based system relying on complaints, which even when made are disregarded. What more, the MECP has adopted an overly narrow interpretation of the ESA and its regulations. The MECP posits that failing to follow these conditions of the regulations do not themselves create an offence but rather there must be evidence of harm. This is an unduly burdensome and dangerous interpretation given s. 9 and 10 of the ESA intentionally use language that is more expansive than just “harm”; it includes harassment, as well as damage or destruction of habitat.