Endangered Species Act Comments

Comments by Tom Clark on the Endangered Species Act, 2007 Forest Management Plans (FMPs) as instruments of Endangered Species Act (ESA) -- FMPs should be designated as instruments (in effect regulations) of the Endangered Species Act, as intended in the original discussion of the Act, and as recognized by the Crown Forest Sustainability Act (CFSA). The appropriate mechanism for dealing with issues related to Caribou Habitat is through the use of Section 18 of the ESA - "Instruments", and as recognized by Section 11 of the CFSA. The Caribou Recovery Strategy is still the regulated document for managing Caribou in Ontario. All FMP need to be consistent with this strategy. Forest Management Plans (FMPs) can be (and should be) designated as instruments of the Act, in effect becoming the regulatory mechanism.

FMPs are the best means for implementing the intent of the ESA because:

• they include an extensive consultation;

• they require a formal Socio-Economic analysis;

• they are currently the only mechanism for operationally addressing landscape management (critical to implementation of the Caribou Conservation Plan

• they are consistent with modern concepts of landscape management (rather than the Featured species approach);

• they are required to engage aboriginal aspirations.

• they are part of a compliance system which is tested and subject to indepdent audit (as recognized by the Caribou Conservation Plan (4.1.2)

This will re-engage the importance of bottom up planning through local FMPs directed by local (FMP Planning Teams and Local Citizens Committees) and regional guidance (including range level management planning for Caribou).

Legislation has been already been adjusted specifically to allow for FMP s to be instruments, for example the CFSA:

Section 11 of the CFSA specifically refers to the FMPs being instruments:

CFSA 11 (3) If the Minister under the Endangered Species Act, 2007 has entered into an agreement under that Act or an agreement for the purpose of subsection 55 (4) of that Act, has issued a permit under that Act or has entered into, issued, made or approved an instrument described in section 18 of that Act, even if the agreement, permit or instrument, as the case may be, is not prepared in accordance with the Forest Management Planning Manual, then a forest management plan that the Minister previously approved under this Act is deemed to include the parts of the agreement, permit or instrument that the Minister specifies

Zonal Approach will hobble Caribou Recovery:

Use of the permits and exemptions, section (17) of the ESA, for activities that are covered by approved Forest Management Plans under Section 18 of the Act is contrary to the original intent of the Act. This inappropriate mechanism has caused considerable concern among affected parties. By using a well understood system, which the FMP system is, and a culture of forest planning that has developed over fifteen years, the divisive discussions now occurring can be minimized.

Use of the permitting approach appears to trigger a new requirement for a socio-economic analysis under ESA (17) that has already been conducted as part of the FMP.

The quality of information currently available for Caribou distribution is not capable of accurate designation of protection and conservation zones. Although information is being improved with recent initiatives, the data is not yet of sufficient quality to properly set boundaries.

The nature of regulations means that boundaries cannot be changed in a timely manner, consistent with the stated government policy of "Adptive Management", and is accepted as necessary for a precautionary approach.

There is no legal requirement to push ahead with setting imprecise zone boundaries. The description of how "habitat" can be regulated is provided in ESA section 55 "regulations" allows for functional biologically based descriptions:

ESA 55 (3) Without limiting the generality of clause (1) (a), a regulation under that clause prescribing an area as the habitat of a species,

(a) may describe the area by,

(i) describing specific boundaries for the area,

(ii) describing features of the area, or

(iii) describing the area in any other manner;