Loopholes Threaten Boreal Caribou in Ontario

Over the last five years, instead of fulfilling its federal obligation to create boreal caribou protection plans, Ontario undermined and weakened its own Endangered Species Act, threatening the future of boreal caribou in the province.
Le caribou des bois
Credit: Howard Sandler

Authored by Jennifer Skene

Ontario needs to change course if it is going to save the threatened and iconic boreal woodland caribou. Over the last five years, instead of fulfilling its federal obligation to create boreal caribou protection plans, Ontario undermined and weakened its own environmental policies. In 2013, Ontario exempted the logging industry from its Endangered Species Act’s (ESA) most important protections, leaving boreal caribou vulnerable to the devastation caused by the rampant logging ravaging much of Ontario’s boreal forest. In the absence of genuine action from Ontario to protect boreal caribou populations, this treasured species is expected to disappear from the province within the lifetime of many young children living today.

Boreal Caribou on the Brink

Boreal caribou in Ontario are rapidly losing their critical habitat, placing their future in jeopardy. They rely on intact forest and are highly sensitive to disturbance. Development, particularly logging, has reduced their historic range in Ontario by 40 to 50 percent, and they were already listed as threatened in the province when the ESA came into effect in 2008. Only two of Ontario’s 14 woodland caribou ranges are considered “sufficient to sustain caribou,” and the provincial government’s own report found that, at their current rate of decline, the species will be extinct in the Ontario in less than 77 years.

Ontario Undermining Caribou Protections

Instead of taking measures to protect the boreal caribou and support industries that sustainably use boreal forest resources, the Ontario government has undermined its own laws in order to prioritize industrial development. Controversially, in July 2013 the Ontario Ministry of Natural Resources (MNR) added 19 exemptions to its previously-renowned ESA, gutting many of the law’s protections for at-risk species. These exemptions provide extensive loopholes for major industries, allowing logging companies to avoid meeting the core protection provisions of the ESA that had been put in place to protect Ontario’s most vulnerable species.

Today, as long as they are operating under approved business-as-usual forest management plans, logging operations are exempt from the prohibition against damaging or destroying caribou habitat (see Section 22.1). This leaves most of Ontario’s boreal caribou habitat completely vulnerable to intrusive and damaging logging activities.

In a 2013 Special Report, Ontario’s Environmental Commissioner determined, “By effectively exempting most of the major activities on the landscape that can adversely affect species at risk and their habitats, the regulation thwarts the very purposes of the Act. There is no opportunity to promote the recovery of species at risk.” The Commissioner found that the exemptions “do not allow MNR to say ‘no’” to development in even the most at-risk habitats and concluded, “The opportunity to build the knowledge and capacity to deal with complex challenges facing species within MNR will be lost.”

Challenging the Exemptions in Court

Two Canadian environmental organizations, Wildlands League and Ontario Nature, challenged the exemptions before Ontario’s Divisional Court. They argued the Minister of Natural Resources had not considered the exemptions’ impact on individual species, as required under law. They also argued, as had the Environmental Commissioner, that the new exemptions were inconsistent with the purpose of the ESA, so their enactment was beyond the Minister’s authority.

Without denying that the exemptions could harm at-risk species, the court found in favor of MNR’s position that “harm to the species may be accepted in light of the social or economic benefits that will accrue.” In other words, it was acceptable for the ESA’s goal of species protection to take a back seat to ostensible economic benefits (a particularly ironic tradeoff since, as NRDC recently discussed, forest workers are increasingly seeing their jobs disappear and their wages fall, even as logging in Ontario increases.) After the Ontario Court of Appeal also found in favor of the MNR, the Supreme Court of Canada rejected the environmental organizations’ application for appeal in May 2017.

Caribou Facing Increasing Habitat Loss

There are very few protections left for Ontario’s boreal caribou. Weakened by the 2013 exemptions, the ESA provides threatened species with little shield from habitat destruction caused by industrial development: the greatest threat to the boreal caribou. The province also missed the October 5, 2017, federal deadline for submitting caribou protection plans, even though it had five years to produce them. In addition, as a recent Wildlands League report outlines, Ontario’s boreal caribou recovery strategy and conservation plans contain no enforceable protection for critical habitat.

Instead, Ontario has continued to allow rampant logging in caribou habitat, regardless of the health of the caribou populations living there. The impacts are alarming. According to Ontario’s own data, from 2013 to 2015 anthropogenic (or human-caused) activity disturbed more than 287,000 acres of caribou habitat in southern ranges—an area the size of Los Angeles.[1] New maps produced by NRDC show rapid habitat degradation in two of Ontario's already degraded ranges, Brightsand and Churchill.

Ontario Must Prioritize Caribou Protection

Ontario has the opportunity to reverse its pattern of aggressively prioritizing industrial development over boreal caribou protections.

The province should immediately stop the expansion of the industrial footprint in the critical habitat of boreal caribou ranges that have exceeded 35% disturbance. In addition, Ontario should release long-term range plans to protect at least 65% of each herd’s habitat – the minimum threshold to give the herd a 60% chance of long-term survival. In developing these range plans, Ontario should act in partnership with Indigenous Peoples and adhere to their legal responsibility to obtain free, prior, and informed consent from Indigenous Peoples.

In addition, Ontario should repeal the extensive Endangered Species Act exemptions for industry, and implement mandatory and enforceable protections for critical caribou habitat. Because the current exemptions shield logging companies from the ESA’s prohibition against damaging or destroying boreal caribou habitat, they are incommensurate with meaningful caribou protections. Rather than giving the logging industry a free pass by gutting species protections, the province should support sustainable economies, including Indigenous-led initiatives.

Meanwhile, the federal government has the opportunity under the Species at Risk Act to protect boreal caribou in Ontario, now that the province has failed to submit timely caribou range plans. Canada should assess what areas remain unprotected, and step in to prevent the degradation of the country’s most vulnerable critical boreal caribou habitat. This degradation threatens many Indigenous Peoples’ ways of life and tarnishes Canada’s international reputation as an environmental leader.

With each passing day, the likelihood of protecting Ontario’s boreal caribou for future generations decreases. It is not too late, but the time for action is now.

[1] This figure was calculated from the difference between the 2013 and 2015 Anthropogenic Range disturbance indicators for the southern ranges.