Safe harbour habitat
 23.16 (1) In this section, “safe harbour habitat” means the habitat of a species listed on the Species at Risk in Ontario List as an endangered, threatened or special concern species that was created or enhanced in accordance with subsection (2); (“habitat refuge”) “safe harbour instrument” means one of the following instruments: 1. A permit issued under clause 17 (2) (b) or (c) of the Act that includes a condition that safe harbour habitat be created or enhanced for a species listed on the Species at Risk in Ontario List as an endangered or threatened species and that meets the requirements of subsection (3). 2. A stewardship agreement entered into under section 16 of the Act that includes a condition that safe harbour habitat be created or enhanced for a species listed on the Species at Risk in Ontario List as an endangered, threatened or special concern species and that meets the requirements of subsection (3). (“acte concernant un habitat refuge”) O. Reg. 176/13, s. 14; O. Reg. 218/18, s. 13 (1, 2). (2) This section applies to the habitat of a species listed on the Species at Risk in Ontario List as an endangered, threatened or special concern species only if, (a) the habitat was created, (i) in fulfilment of a condition of a safe harbour instrument, and (ii) for the purpose of providing habitat to the species for a limited period of time specified in the safe harbour instrument; or (b) in the case of habitat of bobolink or eastern meadowlark, an area of habitat for the species was created or enhanced, (i) in fulfilment of a condition of a safe harbour instrument, and (ii) for the purpose of ensuring that the habitat exists for the species for the time period specified in the safe harbour instrument. O. Reg. 176/13, s. 14; O. Reg. 232/14, s. 3 (1); O. Reg. 218/18, s. 13 (3). (3) A safe harbour instrument under which safe harbour habitat is created or enhanced shall include a statement by the Minister that he or she is of the opinion that, (a) in the case of an area in which it is proposed that safe harbour habitat be created for a species that is listed on the Species at Risk in Ontario List as an endangered, threatened or special concern species, the area, (i) is not currently the habitat of a species that is listed on the Species at Risk in Ontario List as an endangered or threatened species, and (ii) is suitable for the creation of habitat for the species in question; (b) in the case of an area of habitat for bobolink or eastern meadowlark that is proposed to be enhanced as safe harbour habitat for either or both of those species, the area, (i) is not currently the habitat of a species that is listed on the Species at Risk in Ontario List as an endangered or threatened species, other than bobolink or eastern meadowlark, and (ii) is suitable for the enhancement of habitat for bobolink or eastern meadowlark; and (c) the period of time specified in the safe harbour instrument as the period of time for which the safe harbour habitat must continue to provide habitat for a particular species is sufficient to, (i) in the case of a stewardship agreement or of a permit issued under clause 17 (2) (b) of the Act, assist with the protection or recovery of the species in Ontario, and (ii) in the case of a permit issued under clause 17 (2) (c) of the Act, achieve an overall benefit to the species. O. Reg. 176/13, s. 14; O. Reg. 232/14, s. 3 (2); O. Reg. 218/18, s. 13 (4). (4) Subsection 10 (1) of the Act does not apply to a person who damages or destroys safe harbour habitat if, (a) the damage or destruction occurs after the end of the period of time specified in the safe harbour instrument as the period of time for which the habitat must continue to provide habitat for a particular species; (b) all the requirements of the safe harbour instrument under which the habitat was created or enhanced that are applicable to the habitat have been satisfied; and (c) the person satisfies the conditions set out in subsection (5). O. Reg. 176/13, s. 14. (5) The following are the conditions that a person who damages or destroys safe harbour habitat must satisfy for the purposes of clause (4) (c): 1. Before beginning an activity that will damage or destroy the safe harbour habitat, the person must give the Minister notice of the activity by submitting a notice of activity form available on the Registry to the Minister through the Registry. 2. The person must ensure that the notice of activity form includes, i. a description of the activity, ii. the proposed start and end dates of the activity, iii. the location at which the activity will be carried out, iv. the name of the species for which the safe harbour habitat was created or enhanced and the name of every other species that is listed on the Species at Risk in Ontario List as an endangered, threatened or special concern species that is likely to be affected by the activity, and v. the identification number given by the Minister to the applicable safe harbour instrument and that appears on the safe harbour instrument. 3. The person must follow the requirements of section 23.3 with respect to the completion of the notice of activity form, the keeping of records relating to the notice of activity form and the updating of the information on the Registry. 4. While carrying out the activity, the person must take reasonable steps to minimize adverse effects of the activity on members of the species for which the safe harbour habitat was created or enhanced, including the steps described in subsection (6). 5. Within 90 days of the completion of the activity that damages or destroys safe harbour habitat, the person must prepare a report that includes, i. a description of the activity and of the effects of the activity on members of, A. the species for which the safe harbour habitat was created or enhanced, and B. any other species listed on the Species at Risk in Ontario List as endangered, threatened or of special concern, ii. a description of the reasonable steps the person took in accordance with paragraph 4 to minimize adverse effects of the activity on the species for which the safe harbour habitat was created or enhanced, and iii. the date on which the damage or destruction of the habitat began and the date on which it ended. 6. The person must retain the report referred to in paragraph 5 for no less than five years after it is created, and provide a copy of the report to the Ministry within 14 days of receiving a request for the report from the Ministry. O. Reg. 176/13, s. 14; O. Reg. 218/18, s. 13 (5, 6). (6) The following are the steps that a person must take to minimize the adverse effects of an activity to damage or destroy safe harbour habitat on the species for which the safe harbour habitat was created or enhanced: 1. The person must take steps to minimize damaging or destroying the habitat of the species at a time of year when the species is likely to be carrying out a life process related to hibernation or reproduction, including rearing. 2. If the person encounters an animal that is a member of the species while carrying out the activity, the person must cease carrying out the activity in the area of the encounter and provide the animal with a reasonable amount of time to leave the area before continuing with the activity. 3. If, after providing an animal with a reasonable amount of time in accordance with paragraph 2 the animal does not leave the area, the person must take measures to relocate the animal to a nearby location that is suitable and safe for the animal. 4. If the person encounters a moss, lichen or vascular plant that is a member of the species in the course of carrying out the activity and it is not necessary to kill or harm the member for the purpose of carrying out the activity, the person must, i. cease the activity in the area of the encounter, ii. install and maintain barriers or other structures to create a protective zone around the species, and iii. after establishing the protective zone referred to in subparagraph ii, continue the activity in a manner that does not impair the ability of the species to carry out its life processes, including reproduction. 5. If it is necessary to kill or harm a moss, lichen or vascular plant referred to in paragraph 4 for the purpose of carrying out the activity, the person must, provided it is feasible to do so, relocate the moss, lichen or vascular plant to a nearby location within the species’ habitat that is suitable and safe for the species. 6. The determination under paragraph 5 as to whether it is feasible to relocate a moss, lichen or vascular plant must be made by the person using the best available information with respect to the suitability of relocating that species, including information obtained from the Ministry. 7. The relocation of an animal in accordance with paragraph 3, or the relocation of a moss, lichen or vascular plant in accordance with paragraph 5 must be undertaken by, or in consultation with, a person who is knowledgeable about, or has training in, the handling of the species. 8. The person must not capture, collect, take, possess or transport a member of the species unless, i. doing so is necessary to minimize adverse effects on the member, ii. the member is captured, collected, taken or possessed in the safe harbour habitat that was created or enhanced in accordance with this section or is transported from the safe harbour habitat, and iii. the capture, collection, taking, possessing or transporting of the member is carried out by, or in consultation with, a person with expertise or training related to the species. O. Reg. 176/13, s. 14; O. Reg. 831/21, s. 18. (7) Subsection (4) applies to a safe harbour habitat even if, since the day the safe harbour habitat was created or enhanced for a particular species, the area of the safe harbour habitat has become the habitat of one or more other species listed on the Species at Risk in Ontario List as endangered or threatened species. O. Reg. 176/13, s. 14. (8) Subsection 10 (1) of the Act does not apply to a person who damages or destroys the habitat of a species listed on the Species at Risk in Ontario List as an endangered or threatened species if, (a) the habitat is located within the same area as a safe harbour habitat; (b) the damage or destruction of the habitat occurs while the person carries out an activity to damage or destroy the safe harbour habitat in respect of which notice has been given to the Minister under paragraph 1 of subsection (5); and (c) pursuant to subsection (4), subsection 10 (1) of the Act does not apply to the damage or destruction of the safe harbour habitat by the person. O. Reg. 176/13, s. 14. (9) Clause (9) (1) (a) of the Act does not apply to a person who kills, harms, harasses, captures or takes a member of a species for which a safe harbour habitat was created or enhanced or a member of any other species that is listed in the Species at Risk in Ontario List as an endangered or threatened species if, (a) pursuant to subsection (4), subsection 10 (1) of the Act does not apply to the damage or destruction of the safe harbour habitat by the person; and (b) the killing, harming, harassing, capturing or taking occurred while destroying or damaging the safe harbour habitat in the circumstances set out in subsection (4) or while taking steps to minimize adverse effects of the destruction or damaging of the safe harbour habitat on the species for which the safe harbour habitat was created or enhanced or on any other species listed in the Species at Risk in Ontario List as an endangered or threatened species. O. Reg. 218/18, s. 13 (7). (10) Clause 9 (1) (b) of the Act does not apply to the possession, collection or transport of a member of a species for which a safe harbour habitat was created or enhanced or a member of any other species that is listed in the Species at Risk in Ontario List as an endangered or threatened species if, (a) pursuant to subsection (9), clause 9 (1) (a) of the Act did not apply with respect to the member of the species; or (b) the possession, collection or transport of the member of the species is necessary to assist in minimizing the adverse effects on the species. O. Reg. 218/18, s. 13 (7); O. Reg. 831/21, s. 18.