Ontario has proposed a new forestry management strategy that aims to revive a sector that accounted for $16 billion in total revenue in 2017 but that has lost over 35,000 jobs since 2000. The strategy's central premise is that Ontario's Crown forests are under-utilized and their exploitation too costly. Accordingly, the strategy proposes four "pillars" to rectify this problem:
- Putting More Wood to Work;
- Improving Our Cost Competitiveness;
- Fostering Innovation, Markets & Talent; and
- Promoting Stewardship and Sustainability.
Implementing first two pillars of the strategy will likely affect the regulations that govern the management of Crown forests. Indeed, the strategy identifies reducing the "regulatory burden" and removing "barriers to accessing wood" as key approaches.
While the strategy does not yet describe specific legislative amendments, one of the most significant changes may be to allow forestry operations to occur without needing to comply with the Endangered Species Act, 2007 (in most circumstances).
Ontario's Crown forests are managed by the Ministry of Natural Resources and Forestry pursuant to the Crown Forest Sustainability Act ("CFSA"). CFSA balances the harvesting of crown forests for wood while simultaneously seeking to protect their viability and biological integrity. CFSA replaced the 1953 Crown Timber Act, which focused on maintaining a flow of timber to the market without considering broader ecological imperatives.
CFSA divides Ontario into 41 management units. Each unit is required to have a Forestry Management Plan ("FMP") prepared in accordance with the Forestry Management Planning Manual. Each year, the operator or group of operators in a given management unit delivers a report to the MNRF.
Currently, forestry operations conducted in accordance with CFSA are subject to an exemption to the Endangered Species Act, 2007. That exemption has existed since the Endangered Species Act came into force in 2008. The exemption relies on protections set out in each FMP. It allows licensed forestry operators to kill or harm an endangered species or destroy their habitat so long as they are acting in accordance with the prescriptions and restrictions in their FMP that relate to the species in question. But what if the FMP does not address a particular species that is discovered on site? In that case, work must stop immediately. Work cannot resume until the FMP is modified to address the endangered species in question.
The Endangered Species Act exemption expires on July 1, 2020. Rather than renew it, the Province has proposed instead to amend CFSA and its regulations to address the protection of endangered species through a "one window" approach. The aim of the "one window" approach is to eliminate possible duplication between the two pieces of legislation, including the requirement to stop work and update an FMP whenever endangered species are encountered that an FMP did not account for.
The stop-work procedure has been held responsible for lower-than expected harvests in some management units. For example, the 2018-2019 annual report for the Bancroft Minden Forest lists "species at risk operating restrictions" as a reason that the wood harvest was only 52% of the annualized average planned harvest. The report noted that these operating restrictions were particularly problematic "when imposed just prior to planned start-up" which causes "significant delays and increase[d] costs as protection measures are identified on the ground". It is, however, difficult to quantify the extent to which these limitations impact total wood harvest. Annual reports from many management units consistently identify market forces, including the particular vagaries of the local wood products economy, as significant drivers of actual harvest amounts.
It is not yet clear how CFSA will account for and protect endangered species going forward. Given the importance of FMPs in the Endangered Species Act exemption discussed above, it is likely that these plans will remain the primary means of ensuring "on the ground" species protection. Strategies to achieve suitable protection could include:
- Requiring more significant "front end" planning for endangered species by requiring all FMPs to account for and provide detailed protective approaches to the species likely to be encountered in a given management unit, which approaches would then be subject to Ministry approval;
- Providing Ministry-approved prescriptive guidance for each endangered species which all operators are required to follow, regardless of the contents of their FMP;
- Setting out, in the CFSA, similar restrictions on interfering with endangered species and their habitat as currently exist in the ESA, with forestry-specific guidelines for best practices;
- Create specific conservation plans, such as the Ontario's Woodland Caribou Conservation Plan; which can either be incorporated into FMPs or can be used to evaluate proposed protections in FMPs.
Greater clarity as to which approach the Province will take will be available following Ministry review of public comments on the draft strategy.
Originally published 4 May, 2020
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