In December, 2021, the Ontario government made a number of regulatory changes under the Endangered Species Act, 2007 (“ESA”), including changes to enable the payment of species conservation charges to the Species at Risk Conservation Fund and to streamline certain conditional exemptions for activities impacting prescribed species at risk.

These changes are a continuation of the government’s recent amendments to the ESA, which were initially introduced in 2019. One of the most significant changes for business is the introduction of a new option that allows proponents undertaking authorized activities to contribute to a fund, the Species at Risk Conservation Fund (the “Fund”), instead of themselves completing beneficial actions for species that are impacted by their activities. The Fund will be administered by a new Crown agency, the Species at Risk Agency (the “Agency”) which is tasked with the protection and recovery of prescribed species at risk. The government’s rationale for the creation of the Agency and a Fund “option” is that, by pooling funds, the Agency will be able to support actions that are large-scale and long-term for the protection and recovery of prescribed species at risk. Species that are subject to the coordinated recovery and protection actions funded by the Fund are referred to as “Conservation Fund Species”.

Revenue to the Fund will come from species conservation charges related to conservation fund species, which may be required by permits issued under the ESA, agreements entered into under the ESA, and activities that are undertaken which impact Conservation Fund Species where the proponent has the option and has chosen to pay the conservation fund fee rather undertaking beneficial actions for the species.

As part of the changes to enable the use of the Fund option, the government:

  • Passed a regulation (Ontario Regulation 829/01, Species Conservation Charges) designating six conservation fund species: Barn Swallow, Blanding’s Turtle, Bobolink, Butternut, Eastern Meadowlark, and Eastern Whip-poor-will. These are some of the most-commonly impacted species at risk in Ontario. The regulation prescribes formulae to calculate the species conservation charge for each of these species and sets out the administrative requirements for making payments to the Fund. The formulae take into consideration the costs associated with beneficial actions that a proponent would otherwise need to complete as part of their authorization to impact a species or its habitat, the cost of land (for example, to create new habitat), a benefit ratio, the costs of administration as well as inflation.
  • Passed a regulation (Ontario Regulation 830/21: Exemptions—Barn Swallow, Bobolink, Eastern Meadowlark and Butternut) and amendments enabling the use of the Fund as a compliance option, starting on April 29, 2022, for conditional exemptions for four conservation fund species: Barn Swallow, Bobolink, Eastern Meadowlark and Butternut.
  • Moved the requirements for conditional exemptions for Barn Swallow, Bobolink, Eastern Meadowlark and Butternut into this a new, separate regulation. This regulation details the conditions that need to be met in order for activities that impact these species to be exempt from the general prohibitions in the ESA.

As an example, starting on April 29, 2022, a proponent who is undertaking an activity that will impact Bobolink habitat can choose to either: (i) undertake beneficial actions for this species, in this case, to create or enhance Bobolink habitat; or (ii) use the formulae set on in Ontario Regulation 829/01 to calculate the relevant conservation charge (which factors in the impacts of the proponent’s particular activities) and make a payment to the Fund in lieu of undertaking the beneficial actions.

It will be interesting to see how many proponents choose the Fund option, since some have criticized the conservation charges as being more expensive than the actual costs of undertaking beneficial actions. It will also be interesting to monitor the activities of the Agency and the strategic actions it takes to protect endangered species in Ontario.