The State of Biodiversity Protection Law in New Brunswick and Nova Scotia
Photo credit: Nick Hawkins, "Piping plover (Charadrius melodus) along the Southshore of Nova Scotia, Canada”
March 3, 2025
The Earth’s biodiversity - the variety of life on Earth - is diminishing at an alarming and unprecedented rate. The science on biodiversity trends is bleak: the 2019 IPBES’ Global Assessment Report on Biodiversity estimates that around 1 million of an estimated 8 million plant and animal species on Earth are threatened with extinction unless action is taken to lessen the threats. The report notes that the rate of biodiversity loss we are facing is at least tens to hundreds of times higher than it has averaged over the past 10 million years, with the key drivers being: habitat conversion, over-exploitation of organisms, climate change, pollution, and invasive species.[i] Biodiversity loss leaves ecosystems more vulnerable to pest outbreaks and invasive species, is tied to increase in outbreaks of infectious diseases, and impacts food security and global economies. We are faced with a biodiversity crisis and all levels of government have a role to play in addressing it.
Nova Scotia’s Biodiversity Act
In April 2021, Nova Scotia became the first jurisdiction in Canada to enact a law dedicated to the preservation of biodiversity when it enacted the Biodiversity Act. The law took effect on October 1 of that year. In July 2021, our Executive Director and Senior Lawyer, Lisa Mitchell, wrote a two-part blog on the eventful process of the Act becoming law and what remains in the Biodiversity Act. Here is a brief summary:
Bill 116, introduced in March 2019 to protect biodiversity in Nova Scotia, was withdrawn due to concerns about insufficient public engagement. After over a year of public consultation, Bill 4 was introduced in March 2021, which nearly mirrored Bill 116. An aggressive opposition campaign funded by Forest Nova Scotia ensued, pitting the bill as a threat to private landowners’ rights. The Biodiversity Act was significantly watered down as a result: the biodiversity emergency order powers were removed along with all provisions that enabled prohibitions, enforcement, and penalties.
What are we left with? Two mandatory, time-bound requirements of the Minister of Natural Resources:
To publish a report on the state of the province’s biodiversity within three years of the Act coming into force (by October 1, 2024) and every five years thereafter; and
To initiate a public review of the Act within five years of the Act coming into force (by October 1, 2026).
Also related to monitoring the state of biodiversity, the Act requires the Minister to “establish and maintain such classification, inventory, status-assessment and monitoring programs” the Minister considers necessary to assess the state of biodiversity and inform the conservation and sustainable use of biodiversity, and establish “mechanisms” to share biodiversity-related data. These requirements have no timelines associated with them.
Other discretionary (optional) powers given to the Minister in the Act include that the Minister can:
Adopt and implement policies and programs for the conservation and sustainable use of biodiversity, including incentive programs, educational initiatives, public engagement programs, coordinated efforts with other government departments or the governments of other jurisdictions, or biodiversity research;
Adopt goals and targets for biodiversity and ecosystem health;
Enter into agreements with individuals, businesses, or other governments respecting the conservation and sustainable use of biodiversity; and
Establish biodiversity management zones on provincial Crown lands with the approval of the Governor in Council, or on private lands with the agreement of the landowner.
The Act provides authority to the Governor in Council to make regulations respecting the above, including the prevention and management of invasive or alien species. The Minister must consult with the public prior to proposing a new regulation.
Regarding the Minister’s two time-bound mandatory requirements, we have now passed the October 1, 2024 deadline by over five months and have yet to see Nova Scotia’s state of biodiversity report. We contacted the Department of Natural Resources to inquire about the report’s status. The department informed us that they are currently working on it, but no details were provided regarding the report’s contents or an anticipated date of its release. Aside from this information, we have not seen signs of any activity under the Biodiversity Act. The Government of Nova Scotia’s biodiversity webpage appears to have not been updated since the introduction of the first Bill 4 in March 2019, and includes no information on the Biodiversity Act.
The Biodiversity Act itself acknowledges that “biodiversity is essential to healthy and productive ecosystems and is therefore essential to human well-being” and that current environmental laws such as the Endangered Species Act, the Environment Act, the Wilderness Areas Protection Act, and the Wildlife Act “do not address all aspects of conservation and sustainable use of biodiversity.”
The Biodiversity Act was enacted to fill gaps in these other legislative frameworks for better biodiversity protection giving the Minister the authority to take action to reduce threats to biodiversity. Like the Biodiversity Act, we see similar failures in our government to fulfill its legal obligations for endangered species protection under the Endangered Species Act, as outlined in our 2021 report Protected on Paper Only: An Evaluation of Nova Scotia’s Legal Obligations under the Endangered Species Act and by the 2020 decision of the Supreme Court of Nova Scotia in Bancroft v Nova Scotia (Lands and Forests), 2020 NSSC 175.
With the urgency of the biodiversity crisis and its negative impacts on human wellbeing, we need more from our governments.
New Brunswick’s Biodiversity Strategy
New Brunswick doesn’t have a Biodiversity Act, but the Department of Natural Resources is taking steps to update its 2009 Biodiversity Strategy: Conserving biodiversity and using biological resources in a sustainable manner. I participated in a Biodiversity Dialogue Day hosted by the Government of New Brunswick in November with representatives from several other environmental non-profits, Indigenous-led organizations, and academic institutions. The Department of Natural Resources was looking for early input on a new strategy and for advice on how it can align with the Government of Canada’s 2030 Nature Strategy: Halting and Reversing Biodiversity Loss in Canada. We were told to expect the new draft strategy to be published for public review at some time this year.
The 2009 Biodiversity Strategy sets a great aspirational vision for New Brunswick’s biodiversity:
A society that lives and develops as part of nature, values the diversity of life, takes no more than can be replenished and leaves to future generations a nurturing and dynamic world, rich in biodiversity.
Two broad goals were set under this vision: (1) to conserve the genetic, species, and ecosystem diversity of New Brunswick, and (2) to use and develop New Brunswick’s biological resources sustainably. Intended outcomes are set out for each goal, including the improved status of species at risk and the long-term sustainable use of trees and other wild flora. The Strategy describes the “biodiversity management framework” that is intended to facilitate a “coordinated, ecologically based approach” to achieving the two biodiversity goals and 20 “strategic management outcomes”, which are general statements intended to guide the development of action plans.
Rightfully, the Strategy acknowledges that the biodiversity goals cannot be achieved by one government department alone, but rather it will take a coordinated effort between several departments. The Strategy therefore sets up a Deputy Minister Biodiversity Steering Committee composed of the Deputy Ministers of Natural Resources, Environment, Agriculture and Aquaculture, and Local Government to provide leadership and direction in the Strategy’s implementation, and an Inter-departmental Implementation Committee to coordinate the implementation between departments. The Strategy further reflects this integrated approach through the expressed intention of incorporating biodiversity outcomes into land-use decisions including forest management planning, environmental impact assessment, and agriculture policies.
The 2009 Biodiversity Strategy was a great step in identifying broad goals and important concepts in biodiversity conservation. However, its lack of specific actions and accountability measures make it difficult to assess the government’s performance and progress to achieving the goals. The Strategy anticipated the development of sector-based or cross-sector action plans, but we have not seen any sign of these. The only time-bound commitment was to provide state of biodiversity reports at least every 10 years. The Department of Natural Resources’ webpage, General Status of Wildlife Assessments, links to the Government of Canada’s Wild Species Reports, which includes data on New Brunswick. These reports could be viewed as fulfilling the commitment.
The 2009 Biodiversity Strategy got many things right. However, to meet the biodiversity crisis where it is at, plans and strategies aren’t enough without action. Like Nova Scotia, we reported on the Government of New Brunswick’s performance under its Species at Risk Act in our recent edition of Protected on Paper Only: An Evaluation of New Brunswick’s Legal Obligations under the Species at Risk Act. While some progress has been made since our first investigation in 2020, the government has a long way to go to meet all of its requirements under the Act.
Although necessary in some cases, the species-specific approach taken in species at risk legislation can’t keep up with the increasing volume of species at risk of extinction. This is why more comprehensive laws focused on protecting biodiversity as a whole are necessary, and even better, integrating species and ecosystem protection into existing decision-making frameworks, such as environmental impact assessment, forest management planning, and air quality approvals.
I look forward to continuing to follow the responses of all the Atlantic province governments to this pressing crisis.
[i] IPBES, Summary for policymakers of the global assessment report on biodiversity and ecosystem services (2019) at pages 11-12.
Richelle Martin
Staff Lawyer