This entry is about the potential impact of Bill 184, An Act to protect species at risk and to make related changes to other Acts, which was introduced yesterday in the Ontario Legislature, on the keeping of native reptiles and amphibians in captivity in that province. Some of what follows may have application beyond that, but bear in mind that my focus is deliberately limited.
Bill 184 does affect the legality of keeping native reptiles and amphibians in captivity in Ontario, especially if the species in question are listed as endangered, threatened or, to a lesser extent, species of special concern on the list of Ontario’s species at risk. In general, the new Act parallels the existing prohibitions and requirements of the current Fish and Wildlife Conservation Act, 1997 (1997, c. 41), but is more restrictive on several points.
The text of the bill is available online as a PDF file. Follow along as I go through some of the details.
But before I go on, a disclaimer: this is based on a quick first look. And, while I’ve worked as a paralegal and am comfortable looking at legislation, I am not a lawyer and anything I could say about this bill could be totally wrong. Don’t base any decisions on what I write here.
Killing, harassing, harming, capturing, collecting, possessing or buying, selling or trading a member of an endangered, threatened or extirpated species is prohibited under section 9.
Hunting specially protected wildlife is already prohibited under section 5 of the FWCA, possession is dealt with under section 40, and buying and selling under section 48; this new bill covers more ground with less ambiguous language.
Permits can be issued, under section 17, that would allow activity otherwise prohibited by sections 9 (see above) and 10 (which protects habitat). I would imagine that any permit involving captive herps would fall under this section.
But in order for a permit to be issued, according to subsection 17(2), one of four conditions must apply:
- the activity protects human health and safety;
- the activity will assist the species’s recovery;
- the activity’s main purpose is not to assist the species’s recovery but its impact will be positive overall and its impact will be minimized (I’m glossing over some pretty technical language here); or
- the activity will have a substantial economic benefit but will not jeopardize the species’s recovery in the province (again, I’m glossing over the details, but I imagine this would apply to something that would kill individual specimens or destroy some habitat but will not doom the species overall).
Section 18 is similar, and deals with permits issued under other laws — like, presumably, the FWCA — that, under certain circumstances that the section sets out, may be considered as the equivalent to a permit under section 17.
Two questions come to mind:
- Would a licence to keep a specially protected reptile or amphibian under the current FWCA system be considered equivalent under section 18?
- Where do educational purposes fit in under this system? It’s not mentioned explicitly under section 17, but I imagine that it would belong under the second or third condition. There has to be an educational exemption, or all zoos would have to close. (Under subsection 9(4), the government can transfer ownership of an endangered animal to someone for educational purposes. But that’s the only mention I’ve seen so far.)
Speaking of the FWCA, it’s being amended. At the outset, the FWCA allowed private individuals to keep a specially protected mammal, invertebrate, reptile or amphibian, or game reptile or amphibian, “for the purpose of personal education. (1997, c. 41, s. 40(2)). This was later revised, in 2002, to exclude anything listed by COSEWIC as endangered, threatened, vulnerable or special concern (the last two are synonymous) (2002, c. 18, Sch. L, s. 3). That subsection is being amended again, to change the references to endangered species lists at both the provincial and federal levels (s. 58(2)). The change appears to be administrative: there wasn’t a provincial list before this new bill.
Remember, however, that subsection 40(2) of the FWCA deals with keeping a single animal without a permit; it’s still possible to get a permit for a species listed as special concern. I imagine, however, that these changes won’t make it any easier than it was before.
Maximum fines are much higher than under the FWCA. For corporations, a fine of up to $1 million on the first offence and up to $2 million on subsequent offences. For individuals, it’s up to $250,000 on the first offence, $500,000 on subsequent offences, and up to a year in jail in either case (s. 40(1)).
By comparison, the FWCA maximums are $25,000 and a year in jail, or two years for firearms offences, or $100,000 in cases involving commercial offences (1997, c. 41, s. 102).
The old Endangered Species Act, which this new bill will replace outright (section 57, p. 39), covered only a handful of species. The FWCA covered more, not all of which were at risk. This new bill protects species deemed at risk, but also creates a formal process to have them listed, the way the federal government did with its Species at Risk Act.
Based on the schedules, taxonomy could be a problem, especially if the government chooses not to distinguish between local specimens and exotic subspecies that are not indigenous to Ontario. For example, there will be serious problems if the MNR tries to enforce this against all rat or milk snakes — there are probably thousands of captive-bred specimens of subspecies not native to Ontario in cages across the province — and not just black rats or eastern milks. In some cases they really need to identify subspecies, or at least localities, to avoid scaring kids with pet Pueblan milk snakes.
Endangered species: Blanchard’s Cricket Frog (Acris crepitans blanchardi); Northern Dusky Salamander (Desmognathus fuscus); Blue Racer (Coluber constrictor foxii); Timber Rattlesnake (Crotalus horridus); Lake Erie Water Snake (Nerodia sipedon insularum). Added: Small-mouthed Salamander (Ambystoma texanum); Allegheny Mountan Dusky Salamander (Desmognathus ochrophaeus); Spotted Turtle (Clemmys guttata); Wood Turtle (Glyptemys insculpta).
Extirpated species: Tiger Salamander (Ambystoma tigrinum); Spring Salamander (Gyrinophilus porphyriticus).
Threatened species: Jefferson Salamander (Ambystoma jeffersonianum); Fowler’s Toad (Bufo fowleri); Blanding’s Turtle (Emydoidea blandingii); Eastern Fox Snake (Elaphe gloydi); Eastern Rat Snake (Elaphe obsoleta); Eastern Hognose Snake (Heterodon platirhinos); Queen Snake (Regina septemvittata); Massasauga (Sistrurus catenatus); Butler’s Garter Snake (Thamnophis butleri); Spiny Softshell (Apalone spinifera); Stinkpot (Sternotherus odoratus).
Special concern (not protected as above, but cannot be kept under the FWCA exemption without a permit): Five-lined Skink (Eumeces fasciatus); Northern Map Turtle (Graptemys geographica); Milk Snake (Lampropeltis triangulum); Eastern Ribbon Snake (Thamnophis sauritus).