Focus group on species at risk and the endangered species act what we heard a synthesis of discussio

Focus Group on Species at Risk and the Endangered Species Act ‘What we Heard’ - A Synthesis of Discussions 1.0 Context Ontario’s Endangered Species Act (ESA) 2007 came into effect in June of 2008. While species at risk exist throughout the province, the greatest numbers, by far, exist in southern Ontario. Some 90 per cent of the land base in southern Ontario is under private ownership. As such, the ESA has enormous potential to affect private landowners and land managers, with particular reference to land management activities, whether farming, harvesting timber, restoring wetland or creating wildlife habitat. Large numbers are touched by the ESA, and, indeed bear the responsibility (some would argue unfairly and inequitably) for its provisions.

While touted as the most progressive legislation of its kind in North America, concerns have been raised within the landowner and land manager community about the ESA, the implementation thereof, and associated implications for land management activities and the use of private land. As this synthesis paper elucidates, the punitive nature of the Act coupled with its procedural complexity and inflexibility in working with landowners has led to frustrations, mistrust and apprehension within the landowner and land manager community – rather than enlisting support for and participation in species at risk stewardship efforts.

2.0 Creating a Table for Exploring Concerns and Opportunities On May 4, 2011, the Eastern Ontario Model Forest, with support from the Stewardship Network of Ontario, hosted a focus group session on species at risk and the ESA. As an organization that works closely with the private landowner community, the EOMF saw a timely opportunity to create a table for landowners and land managers to share their perspectives on species at risk stewardship and the implementation of the ESA – having initially heard concerns expressed by a number of individuals connected to the forest industry.

A diverse cross-section of landowners and land managers (9 in total) participated in the focus group including individuals from the agricultural community, the woodlot owner community, forest industry, the stewardship and conservation community, the angling and hunting community, and the landowner rights movement. The discussions were intended as a starting point for further exploring some of the observations and concerns raised about the ESA and its current implementation, and, importantly, for considering options and possibilities for best achieving the objectives of the ESA on private land while reducing the impact on land management activities (the focus group agenda is included as Appendix A). In keeping with the EOMF’s role as an honest broker and partnership builder, the intent was to generate recommendations that would be shared with the species at risk policy community (senior decision makers within the Ministry of Natural Resources particularly) and those developing and delivering species at risk programs.

3.0 What We Heard This paper summarizes key themes and concerns that arose out of the focus group discussions, and presents a number of opportunities/recommendations for addressing concerns identified – as put forward by the participants. Direct quotes from participants are woven into the paper as well, in an attempt to capture further the eloquence and passion that participants lent to the discussions. As noted previously, it is the intent of the EOMF, as a facilitator and partnership broker, to share this synthesis paper with the species at risk policy and program delivery community, with

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the aim of helping to effect change that creates conditions more conducive to fostering landowner buy-in and participation in species at risk stewardship efforts on private lands.

As an important preface to this section, there was broad agreement among participants that most landowners and land managers are supportive of protecting species at risk and maintaining natural heritage and biodiversity (and many landowners are involved in such efforts through various organizations and funding support mechanisms). However, the focus group discussions strongly point to the need for a more cooperative and respectful approach to engaging landowners in species at risk stewardship efforts. Concerns about the ESA are prevalent, particularly the way in which it is being implemented – with what is seen as little regard for the implications for land management activities and the use of private land.

3.1 A Punitive vs. Cooperative Approach The goal of the ESA is to protect species at risk, slow or reverse declines in the abundance of species, and, in some cases, restore populations to a more acceptable level. While participants agreed that this is a laudable goal, concerns were expressed in relation to the ESA as a tool to achieve such ends given its punitive and rigid nature. There was broad “Everybody wants to do it [stewardship], agreement that a cooperative, stewardship-based approach but not under duress.” focusing on incentives and encouragement – rather than the threat of punitive action – would result in greater gains for all.

Research conducted in the U.S. has suggested that an authoritative, regulatory approach to protecting species at risk often has a perverse effect, in fact encouraging landowner behaviours that lead to the destruction of habitat and the loss of species (e.g., Adler 2008, Brook et al. 2003). A number of landowners in the focus group indicated that they were aware of tangible, not strictly anecdotal, examples of this happening on the landscape in eastern Ontario (as expressed by one “As the regulatory noose tightens, a perverse participant, “Even conscientious farmers are quietly clearing effect is taking hold.” woodlots.”) Some in the group felt that, while considerable resources have been invested towards the implementation of the ESA, little of that investment has found purchase in enabling MNR staff to work at a grassroots level with landowners on projects to protect or enhance habitat for species at risk.

Opportunities/Recommendations The discussions underlined that an approach based on incentives and encouragement serves to engender and inspire stewardship efforts; with quite the opposite effect arising out of a punitive approach. Particularly given the current challenges of limited funding and staffing within MNR, participants identified the need for a streamlining of administrative functions and burden, pointing to the value that would accrue from re-directing investments in staffing to support on-the-ground, cooperative projects with landowners. This type of (grassroots) approach would build a sense of trust and mutual respect, while enhancing species protections.

3.2 Infringement of and Lack of Respect for Property Rights Participants underscored the fact that the ESA is a very intrusive piece of legislation that infringes on their rights and their use and enjoyment of private land. Landowners commenting on this expressed a feeling of deep alarm, indeed “a sense of dread” in the words of one landowner.

“I find it invasive. I find it restrictive.

We need to find some workable ground.”

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Participants felt strongly that the confiscatory/regulatory elements of the ESA need to be re-examined. As one participant noted, “Many are reticent to undertake stewardship actions [to protect species at risk] because property rights are not recognized or respected. They’ve got you by the backdoor.” As echoed by others in the group, when rights are threatened, there is little impetus for landowners to engage in stewardship efforts.

“The ESA represents a quiet form

of expropriation.”

Opportunities/Recommendations

“Security of ownership of land will motivate good behavior.”

A re-examination of the confiscatory/regulatory elements of the ESA is critical, with participants calling for an approach that better respects property rights and the private use of land.

3.3 Inequities in Responsibilities for Protecting Species at Risk There was agreement that private landowners and land managers, in large part, bear the burden of the costs and responsibilities for protecting species at risk and their habitats – and that these costs and responsibilities are borne inequitably (for discussion see, for example, Arnold 2009; Brown and Shogren 1998). That is to say, they are not shouldered by the citizenry at large, as is the case of many other public services. With respect to the issue of compensation, a discussion point that arose during the focus group, there was a wide breadth of opinions among landowners and land managers about the nature and level of compensation that might be necessary. While some argued strongly in favour of financial compensation, others suggested it need not necessarily be financial in nature.

Regardless of ‘camp,’ there was general agreement that compensation would in fact cost society very little in relative terms, and that it ought to be openly discussed by governments at all levels (the reluctance to broach the notion of compensation in Canada was acknowledged during the group discussions).

Opportunities/Recommendations Opportunities for exploring compensatory mechanisms (financial and otherwise) for species at risk protection efforts should be pursued by governments at all levels (municipal, provincial and Federal) as part of the Canadian environmental policy discourse.

3.4 Bridging the Policy Disconnect: Understanding Farming and Forestry in Practical Terms A prevalent sentiment among focus group participants was that many within the policy development realm have lost touch with or do not fully understand or appreciate the day-to-day realities associated with making a living from the land, whether farming or harvesting timber. Farming and forestry are not well understood in a practical sense, and, as a result, many policies and legislative tools (the ESA a case in point), are insensitive to those realities. Many felt similarly about the level of understanding within the citizenry at large. Discussions pointed, for example, to the fact that Ontarians living in urban and suburban areas are largely unaffected by the ESA, and may not appreciate how the legislation affects those who depend on the land for their livelihood. Many argue, equally, that there is little recognition of the fact that the responsibilities and costs for environmental stewardship are borne largely on the shoulders of landowners and land managers (as elaborated in the previous section).

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Opportunities/Recommendations Those responsible for developing policy and delivering species at risk programs should be well grounded in terms of their knowledge and appreciation for farming and forestry in a practical sense. This understanding should be cultivated through on-the-ground experience on the farm or in the woodlot – and, in the words of one focus group participant, not just through “one-week training to bone up on MNR’s view” but rather through “real experience.”

Opportunities for learning through farm or woodlot field days would serve to strengthen understandings among policy/conservation professionals and the citizenry at large.

3.5 The Disappearance of ‘Boots on the Ground’ and Kitchen Table Chats The diminishing availability of – and accessibility to – ‘boots on the ground’ assistance was cited by many participants as an unfortunate trend over the past two decades. Field and extension staff numbers have diminished considerably, and ‘kitchen table chats’ have become, largely, a thing of days gone “There’s no opportunity to sit around the by. For many landowners, those kitchen table chats provided an kitchen table and bang out a deal.” opportunity to have a meaningful, open discussion with field and extension staff about stewardship possibilities – and, moreover, to “bang out” the details of projects in a respectfully negotiated fashion. In the words of one focus group participant, “You have to have a conversation with people.”

Opportunities/Recommendations Re-instating opportunities for landowners and land managers to engage with field and extension staff – in the field and at the kitchen table – would result in relationship building that is conducive to greatly enhancing opportunities for protecting species at risk through stewardship projects. Many landowners see the province’s stewardship councils as the ‘one shining star’ in MNR’s portfolio. The cooperative, voluntary approach to stewardship that these councils embrace is appealing to many landowners, and fosters enthusiasm to participate in species at risk projects and stewardship efforts more broadly. As such, it would behoove MNR to continue to support, and enrich, such programming.

3.6 Assigning Species Status and Designating Species at Risk A number of concerns were raised in relation to assigning species status and designating species under the ESA. Some feel that there is lack of balance of expertise and opinion in the process for assigning status and ultimately designating species at risk. There is a feeling that those involved in the process – from the preparation and reviews of status reports to the development of final reports and recommendations by “A major failing is that the social the Committee on the Status of Species at Risk in Ontario (COSSARO) – are typically like-minded and tend to lean toward the implications are not considered.” highest level of protection they can rationalize with the information available. Lack of objectivity was raised as a concern, with the suggestion that an independent advisory committee be formed to serve the function of providing a second objective opinion on whether there is sufficient data and rationale for designations. Among participants, there was also agreement that the socio-economic repercussions of designations are overlooked and need to be more carefully considered. In the words of one participant, “Let’s look at the implications before we take that next step to list it . . . a cool-headed assessment of where we go with it.” A call was

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made for incorporating a social science perspective in the designation process, be that at the COSSARO table or through some advisory mechanism.

Moreover, the point was made that, in some cases, the conclusions drawn are based on little or no scientific evidence or data (citing Stinkpot turtles as an example). As pointed out by one participant, the precautionary principle is used as justification when assessing and assigning species status. The preamble in the ESA, citing the definition embraced in the United Nations Convention on Biological Diversity, states that, “lack of full scientific certainty should not be used as a reason for postponing measures to avoid or minimize a threat.” While not condemning the use of the precautionary principle as such, in the words of this individual, “There is a big difference between a ‘lack of full scientific certainty’ and a glaring lack of population data for a species assessed.” The argument was made that, in many cases, there have been no targeted inventories for the species in question, and it is very likely that some species are more common than assumed based on sparse data and assumptions founded on indirect evidence. In a related vein, several participants agreed that there appears to be confusion about what an appropriate baseline population level should be for some species (with particular reference to grassland species, citing bobolink specifically). Rather than assigning a status to a species in reference to an artificially high baseline population that is the result of human activity (as in the case of the bobolink), the argument was made for considering historical population levels back to the time of European settlement in assessing a species and assigning it to a status category.

There was also discussion about when, and under what circumstances, the ESA in fact represents the best tool for reversing declines in a species. The case of butternut was raised. Habitat for butternut is not limited or threatened; rather the threat to species is an incurable, introduced disease. The restoration strategy for butternut is to find as many healthy, disease-resistant trees as possible and collect seeds and scions for propagation, with the hopes of developing disease-resistant “With or without the ESA, nursery stock. That strategy relies heavily on landowner cooperation. butternut recovery can happen through Unfortunately, as noted by several focus group participants, many the goodwill of landowners – landowners are unwilling to contact MNR or conservation authority a ‘stewardship frame of reference.’” staff to allow them to survey their properties for healthy butternut trees given apprehensions and fears of ‘what may come’ under the ESA. As noted elsewhere in this paper, participants alluded to the fact that some landowners are, in fact, cutting and removing butternut given concerns about future repercussions of the ESA. There was broad agreement that a more landownerfriendly approach that encourages stewardship without the punitive implications of the ESA would foster a much higher level of cooperation, and better serve butternut recovery efforts.

Opportunities/Recommendations It was suggested that an independent advisory committee review status reports and recommendations from COSSARO. Ideally, this advisory committee would be comprised of representatives from a number of different landowner/manager interest groups, including, for example, the Ontario Federation of Agriculture and the Ontario Woodlot Association (and open to the participation of individual landowners not affiliated with particular organizations or groups as well). The role of the advisory committee would be to provide an objective second opinion on whether there is sufficient data and rationale to assign a species to a status category, especially as Endangered or Threatened, where the full powers of the ESA apply. The advisory committee would have no decision-making authority, but its comments would accompany the COSSARO reports forwarded to the Minister, thereby informing the decision-making process. Equally, it was suggested that it would be desirable to have some social scientists at the COSSARO table or as an advisory body to COSSARO to complement the natural science perspective, which is obviously critical but does not take into account the socio-economic implications of designations and listings.

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In assessing and assigning species status there is a need for careful consideration of the following: Is there sufficient data to assign, with confidence, a status to this species? The responsibility ought to rest with the government to undertake adequate population surveys before designating species; it was suggested that there may be an opportunity to enlist the assistance of landowners, drawing on their intimate experiences and knowledge of the land.

It was suggested that historical population levels back to the time of European settlement should be considered when assessing a species and assigning it to a status category.

The following should be considered in assessing and assigning species status: Is the ESA the best alternative/tool for reversing the decline for the species in question? If yes, then how?

3.7 Permitting – Issues of Approvals and Appeals One of the purportedly positive attributes of the ESA is that its design allows certain activities to occur that might be harmful to species at risk through the issuance of a permit or agreement (so-called ‘flexibility tools’). Several focus group participants expressed concerns about the administratively laden and time-consuming process for issuing permits, suggesting that it has led to uncertainty, frustration, high costs, and, in some cases, abandonment of projects that would have resulted in beneficial outcomes for species at risk. Some felt that permits are unnecessarily fraught with unreasonable conditions. One participant shared his direct experience in this regard asserting, “It was a piss-off plus an expense.”

Participants also spoke of the need for greater clarity as to what land management activities are permissible under the ESA and under what conditions. The point was made that such is unclear at times even within MNR staff ranks, and consequently in the stewardship professional/practitioner community as well. In addition to creating possible delays with projects and perhaps “If I’m in the loop and I don’t even discouraging some with clear benefits to species at risk, the failure to understand it . . .” communicate to landowners and land managers in a consistent and clear way is creating a proliferation of misunderstandings and misconceptions about land management activities that may be perfectly acceptable under the ESA. A further issue raised in relation to permitting was that there is no formal mechanism in place for reviewing decisions to deny an application for a project or activity. As such, there is no opportunity for landowners or land managers to question, challenge, or appeal such decisions.

Opportunities/Recommendations The permitting process must be streamlined to avoid unnecessary delays in approvals. There must be a renewed effort at ensuring that unreasonable conditions are not placed on permits.

Ensuring clarity and consistency within MNR staff ranks about what constitutes a permissible or non-permissible land management activity is vital. The specifics, in turn, need to be communicated consistently and widely with landowners and land managers. Some dedicated and not-insubstantial resources ought to be

“At the moment, there’s a lot of background noise . . . it’s a matter of getting the information out there.”

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committed to this important communications and outreach task.

A formal complaint review board should be established to review local decisions on ESA permits (and agreements).

3.8 Agreements – Broadening Definition and Usage The ESA also allows for agreements. Agreements allow certain activities that affect species at risk to continue, with the proviso that mitigations are in place to protect species and their habitat. Among participants, there was a feeling that the current definition and use of agreements is too narrow, dismissive of would-be, innovative opportunities for engaging landowners in species at risk recovery efforts. One form of agreement that was identified by several participants as having particular appeal was that of ‘safe harbour,’ sometimes referred to as ‘safe haven’ (refer to Ontario Nature, 2011 for further discussion). Under a safe harbour agreement, the landowner or land manager agrees to undertake certain activities that will benefit a species at risk. In return, the landowner is exempt from the provisions of the ESA for that species and specific to the location to which it applies. For example, a farmer could delay hay cutting to allow bobolinks to nest successfully on his or her property. However, the farmer would be exempt from the ESA if he or she opted to plough the field at some future point to plant a crop other than a forage crop. Provisions exist for ensuring that properties are returned to pre-agreement conditions should a landowner decide to withdraw from participating (i.e., a landowner cannot go below baseline conditions if he or she opts out of the agreement at some point in the future). In a sense, there are ‘protections’ for both landowners and species at risk. Another mechanism for protecting species at risk that was identified as having potential utility was the issuance of ecological credits for undertaking protection or habitat creation measures.

Opportunities/Recommendations

MNR should explore opportunities for piloting safe harbour agreements with landowners and land managers. The current (and pervasive) climate of mistrust of government may result in slow uptake initially, but there may be considerable benefit in the long run, both in terms of species at risk protection and re-establishing trust and credibility in the landowner and land manager community. Ecological credits may be another avenue to explore.

3.9 ‘Accessibility’ of Project Funding Mechanisms: Species at Risk Stewardship Fund The Species at Risk Stewardship Fund (SAR SF) was established with initial funding of $18 million over a 3-year period (2007 to 2010), with additional monies devoted to it on a yearly basis to present. While regarded as a mechanism with considerable potential for encouraging species at risk stewardship efforts, a shortcoming identified was the fact that very little money finds its way to individual landowners; a result, in part, of the demanding and cumbersome nature of applying for funds (reminiscent of the permitting process). While the SAR SF is seen to be supporting some good work by conservation organizations (with paid staff and the capacity to navigate the application process), greater gains could be made by making the fund more ‘accessible’ to individual landowners – by simplifying the application process, and providing guidance as to projects that would benefit species at risk.

Opportunities/Recommendations Means of simplifying the application process for the Species at Risk Stewardship Fund (SAR SF) should be explored, making it more accessible to individual landowners. The Environmental Farm Plan Program and the

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Community Fisheries and Wildlife Involvement Program were identified as examples that might be modeled after in terms of their simplicity and straight-forwardness.

4.0 Conclusion The groundswell of concern among landowners and land managers surrounding the way in which the ESA is being applied points to a very real need for change. Some specifics, in terms of concerns and possible solutions/opportunities to address those concerns, have been presented in the preceding pages. The feedback garnered from landowners and land managers who participated in the focus group strongly suggests that the current implementation of the ESA is in fact discouraging species at risk stewardship (perhaps even accelerating losses) by remaining insensitive to land management realities and in its tendency to be largely rigid and punitive in character.

Such is echoed in a recent report produced by the George Morris Centre:

“It appears to be policy crafted largely in the absence of those responsible for carrying it out; it looks good on paper, but it is very light on ways the private suppliers of endangered species habitat can proactively participate or, moreover, reasons they would participate.”

(George Morris Centre, September 2010) There is a critical need for the Ministry of Natural Resources and others involved in species at risk policy and program development to take these concerns and recommendations to heart, in the interest of fostering greater support for species at risk stewardship. While the ESA in political arenas is touted as a very progressive piece of legislation it is seemingly serving to disenfranchise a broad community of landowners and land managers, with the ultimate result of failing to achieve its main intent – enhancing the protection of species at risk. For many, it is not upholding its “stewardship-first” tenet. A more cooperative, respectful, truly stewardship-based approach would lead to greater gains for all concerned.

“It can’t be about doing what’s expedient for politics.”

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5.0 References Cited Adler, J.H. 2008. Money or nothing: the adverse environmental consequences of uncompensated land use controls.

Boston College Law Review. 49(2):301-366.

Arnold, N.S. 2009. The Endangered Species Act, regulatory takings and public goods. Social Philosophy & Policy.

26(2):353-377.

Brook, A., Zint, M., and De Young, R. 2003. Landowners’ responses to an Endangered Species Act listing and implications for encouraging conservation. Conservation Biology. 17(6):1638-1649.

Brown, G.M. Jr, and Shogren, J.F. 1998. Economics of the Endangered Species Act. Journal of Economic Perspectives.

12(3):3-20.

George Morris Centre (Mussell, A., Schmidt, C. and Seguin, B.) September 2010. The Ontario Endangered Species Act: Understanding the Incentives, Implications, and Alternatives.

Ontario Nature. 2011. Potential for Safe Harbour Agreements in Ontario: Summary of Spring 2011 Workshops.

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