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Wild Animal Law of Canada

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Endangered Species Act (Ontario)('ESA')

(current to 15 September 2016)

Note Re Application of the Endangered Species Act

This law bears on the wildlife issues of:
  • PROTECTION
  • FACILITIES
  • HABITAT
The full current text of the Endangered Species Act ('ESA') and it's Regulations may be viewed at the Ontario statute website.

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Table of Contents
1. Overview
(a) General
(b) The Lists
2. Recovery Strategies and Management Plans
3. General Protections and Prohibitions
4. Enforcement
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1. Overview

(a) General

The Endangered Species Act ('ESA') is Ontario's version of 'species at risk' legislation common to most other provinces and the federal government. It's purposes are to [ESA 1]:
  • "identify species at risk based on the best available scientific information, including information obtained from community knowledge and aboriginal traditional knowledge";

  • "protect species that are at risk and their habitats, and to promote the recovery of species that are at risk";

  • "promote stewardship activities to assist in the protection and recovery of species that are at risk".
The regulatory structure of the ESA is fairly straightforward, first categorizing 'species at risk' into several lists of reflecting their degree of being at risk of extinction or extirpation [this done by the Committee on the Status of Species at Risk in Ontario ('COSSARO')] [ESA 3-5], and then setting out administrative programs for their preservation and recovery. Additionally there are several general protective and prohibitive provisions, and a general enforcement regime and offence provision for prosecution of violations of the Act.

(b) The Lists

The following lists of species at risk are established [ESA 5]:
  • Extinct

    "(N)o longer lives anywhere in the world".

  • Extirpated

    "(L)ives somewhere in the world, lived at one time in the wild in Ontario, but no longer lives in the wild in Ontario".

  • Endangered

    "(L)ives in the wild in Ontario but is facing imminent extinction or extirpation".

  • Threatened

    "(L)ives in the wild in Ontario, is not endangered, but is likely to become endangered if steps are not taken to address factors threatening to lead to its extinction or extirpation".

  • Special Concern

    "(L)ives in the wild in Ontario, is not endangered or threatened, but may become threatened or endangered because of a combination of biological characteristics and identified threats".
The species that belong to each lists are set out in the Species at Risk in Ontario List.


2. Recovery Strategies and Management Plans

The following administrative programs may be established (using an 'ecosystem approach') to aid in the protection and recovery of species-at-risk [ESA 11-13]:
  • Recovery Strategies for Endangered and Threatened Species

    Recovery strategies for endangered and threatened species shall identify the habitat needs of the species, describe the threats to the survival and recovery of the species, and make recommendations to the Minister on objective and approaches to protect and recover the species. In making a recovery strategy the "the principle that, where there is a threat of significant reduction or loss of biological diversity, lack of full scientific certainty should not be used as a reason for postponing measures to avoid or minimize such a threat" shall be applied (the 'precautionary principle').

  • Recovery Strategy for Extirpated Species

    If, in light of social and economic factors, the Minister "is of the opinion that reintroduction of the species into Ontario is feasible" then they shall ensure that a recovery strategy is prepared for that species.

  • Management Plans for Species of Special Concern

    Unless they already exist under the federal Species at Risk Act ('SARA') (see that module), managment plans for species of special concern shall be prepared. If the Minister is of the opinion, in light of social and economic factors, that measures in management plans are feasible then they shall implement them.

3. General Protections and Prohibitions

The following prohibitions and protective provisions apply to species at risk:
  • it is prohibited to "kill, harm, harass, capture or take a living member of a species that is listed ... as an extirpated, endangered or threatened species" [ESA 9(1)];

  • it is prohibited to "possess, transport, collect, buy, sell, lease, trade or offer to buy, sell, lease or trade" ... a living or dead member of a species that is listed ... as an extirpated, endangered or threatened species", or anything that is represented as such [ESA 9(1)];

    This provision is excepted for "a species that originated outside Ontario if it was lawfully killed, captured or taken in the jurisdiction from which it originated" [ESA 9(2)].

  • it is prohibited to damage or destroy the habitat of an endangered or a threatened species, or of an extirpated species listed in the General Regulation ('G Regs') for this purpose [ESA 10(1)].

    For this purpose, 'habitat' includes places "that are used by members of the species as dens, nests, hibernacula or other residences", and means either [ESA 1(1,2)]:

    • the area for the species that is set out in the General Regulation at ss.24-31, or

    • "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".
Extensive exemptions to these provisions for particular species and activities are set out in ss.8-23.20 of the General Regulation.


4. Enforcement

The ESA has typical regulatory enforcement authorities, including the appointment of enforcement officers ('EOs') [ESA 21], with powers of entry and inspection [ESA 23(3)], warrant and warrantless entry [ESA 23(1,2)], search and seizure [ESA 25,26], stop orders [ESA 27] and habitat protection orders [ESA 28].

Offences for violations of the Act may be prosecuted under ESA 36.


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