Ontario battle over Highway 413 casts light on flawed species-protection rules

Globeandmail.com
May 31, 2022

At the Nashville Conservation Reserve northwest of Toronto, Ryan Norris was demonstrating his birding chops.

Faster than Merlin Bird ID -- a phone app that can identify birds by their songs -- he cocked an ear and picked out an American redstart, an indigo bunting, a grey catbird and, appropriately, a Nashville warbler, among other species.

The abundance of songbirds at the 900-hectare reserve is no accident, said Dr. Norris, an ecologist and professor at the University of Guelph. As one of the largest natural spaces near Toronto, Nashville is part of an avian superhighway that birds follow every spring when heading northward from the tropics to the boreal forest.

The purpose of the outing, organized by the David Suzuki Foundation, was to talk about a more contentious superhighway: Highway 413, which Ontario Progressive Conservative Leader Doug Ford has promised will be built here, on the fringes of Toronto’s ever-growing suburban footprint.

If realized, Highway 413 would cut directly through the Nashville reserve and destroy a significant portion of its natural habitat. On a tour of the site, Dr. Norris laid out how the ecological status of the area would be degraded, both by the construction and the negative effects of multiple lanes of traffic, including stormwater runoff, road salt and metal residue, air pollution and noise. The biggest effect would be all the additional development following in the highway’s wake.

Highway 413 has emerged as an issue in this week’s provincial election because of a debate over urban sprawl and the health and climate consequences of building another major highway. But the proposed mega-project is also a microcosm of a larger battle to preserve Canada’s native wildlife.

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According to an analysis commissioned by the Environmental Defence Fund, construction of the highway would be detrimental to some 29 federally listed species at risk. Those include the redside dace, a small cold-water fish that inhabits some of the 132 streams the highway would cut across. Also threatened is the rapids clubtail, a type of dragonfly that is found in only three places in Ontario, two of which would be affected by the 413.

Most people have never heard of these species, but their presence indicates where native ecosystems have managed to hang on in the shadow of intense development. The spaces they inhabit are not pristine wilderness; invasive plant species are present throughout the Nashville reserve, for example. But they are the remnants of a wilderness that once covered southern Ontario, which today accounts for one quarter of Canada’s total biodiversity.

“If we take away one species, we’re not necessarily going to see an immediate change,” Dr. Norris said. “But if we keep chipping away, we will have no biodiversity left. Places like this will become something else.”

The federal Species at Risk Act was designed to promote the protection and recovery of threatened native animals and plants. But, as the highway project demonstrates, it is often provinces that have more influence on what happens to Canada’s wildlife, because of their jurisdiction over land use and natural resources.

This is a familiar dynamic. For years, species have lost ground when provinces have greenlit resource development in the north and property development in the south. Administratively, Ontario has done better than some by putting in place its own provincial Endangered Species Act, passed in 2007. And yet many exemptions, delays in listing species and a lack of resources for wildlife management and enforcement have meant that most plants and animals covered by the Ontario law have continued to decline.

It is a track record that predates the current government. But biologists and environmental advocates have recently focused their concerns on legislative changes made in 2019, after Mr. Ford’s conservatives came to power -- changes they say undermine the provincial act and take Ontario back to an earlier era when there were fewer legal barriers to eliminating habitat.

“At every turn, they have chosen to unravel protections for species at risk,” Anne Bell, director of conservation and education for the environmental group Ontario Nature, wrote in a blog post earlier this year.

Ontario’s poor performance on endangered species was documented in a report issued in November by the province’s auditor general, which bluntly noted that the province “does not have a long-term plan to improve the state of species at risk and there are no performance measures to evaluate the effectiveness of the species at risk program.”

The report makes 21 recommendations for remedying the situation, including bringing the province’s approach to classifying and assessing species at risk back into line with those of the federal government and other provinces and territories -- a recommendation the province said it disagrees with.

Typically, species protection has meant that a jurisdiction aims to protect the native species that occur within its borders. Under Mr. Ford, Ontario now says it may not be obligated to protect native species if they are more prevalent elsewhere. This is especially relevant in southern Ontario, where some endangered species are at the northern limits of their ranges and are more abundant in the United States. Declining to protect those species is one way for Ontario to accelerate development in environmentally sensitive areas.

“I think we have an obligation to point out what could happen the way the law is written,” said Andrea Olive, an associate professor of political science and geography at the University of Toronto. Last year, a case study of the Niagara region led by Dr. Olive determined that 37 out of 71 species at risk in the area have the potential to be “delisted and stripped of protection” after the amendments to Ontario’s legislation.

Another change could affect some species even when they are endangered both inside and outside of Ontario. An example is the Blanding’s turtle, which is in such decline across its natural range in both the U.S. and Canada that populations in Northern Ontario are regarded by biologists as crucially important for the species.

While there is no chance of the turtle being delisted in Ontario, because of its precarious status everywhere, the province has categorized it and five other endangered species under its newly created Conservation Fund. The premise of the fund is that someone who plans to disturb the species’ habitat can pay a fee to support the affected species in other locations.

The problem with this, conservation biologists say, is that species are where they are for a reason. When those conditions are lost in one place they are not easily reconstituted in another. Opponents of the scheme have dubbed it “pay to slay.”

A few project proponents have already paid into the fund. The committee that will oversee how the money will be spent was appointed earlier this year. According to Gary Wheeler, a spokesperson for Ontario’s Ministry of Environment Conservation and Parks, the committee is “taking steps to develop the funding plans for each conservation fund species.”

Joshua Ginsberg, a lawyer with the environmental advocacy group Ecojustice Canada, said this implies projects are moving ahead without a clear picture of how affected species will benefit from the fund.

“Ontario has not made any plans to help these species, but is authorizing harm to them and their habitats in exchange for money sitting in the bank,” he said.

A third issue highlighted by the auditor general is a lack of guidance that would allow the environment ministry to say no to projects on behalf of endangered species. The report points out that approvals to harm species have risen by 6,262 per cent since 2009, the first full year Ontario’s species law was in effect.

One case that is especially troubling to conservation groups is a temporary exemption for the forestry industry that the Ford government has now made permanent through changes to legislation. This has upended the federal recovery strategy for woodland caribou, one of Canada’s most iconic threatened species. That strategy mandates that provinces maintain at least 65 per cent of the caribou’s range as undisturbed habitat.

But advocates say that under Ontario’s policy landscape development has continued even in places where that limit has been exceeded. “New roads continue to be punched into undisturbed forests -- the province does not enforce limits to cumulative impacts,” said Rachel Plotkin, boreal project manager for the Suzuki Foundation.

Ontario’s major opposition parties -- the Liberals, the NDP and the Green Party -- have all told The Globe and Mail they would reverse the 2019 changes to the province’s species law. But polls show Mr. Ford on track to win another majority, which suggests the next phase of the species battle will shift from the legislation to the front lines, in places like Nashville Conservation Reserve.

“We need a counterweight to offset this constant pressure just to reduce everything to money,” said Dianne Saxe, the Green Party’s deputy leader and Ontario’s environmental commissioner before Mr. Ford eliminated the role.

She added that what is needed goes beyond a legislative rewrite. The province, she said, requires a voice within government to ensure that politicians do not squander natural assets for short-term gains.

In her former position, she said, “I was obliged to report to the legislature to tell the truth on energy, environment and climate each once a year. And I did that from the point of view of a livable world.”