Understanding Nova Scotia’s Biodiversity Act Part One: The Public Process
Photo Credit: James Wheeler
July 9, 2021
In March 2021, I wrote a blog post on Nova Scotia’s Bill 4, “An Act to Provide for the Conservation and Sustainable Use of Biodiversity in Nova Scotia”. The Bill had just passed second reading in the Nova Scotia Legislature and was on its way to the Law Amendments Committee for a mandated public review before it would return to the Legislature for its third and final reading. The text of the Bill that I considered, and wrote about, on March 17 was much different from that of the Bill that ultimately passed third reading on April 13, 2021.
In Part One of this two-part series, I look back at the road that led to those changes and consider the public and political processes that played out between March of 2019 and April of 2021. I draw on the public engagement process for the Nova Scotia Environment Act to illustrate how a different approach might have facilitated a better outcome for the Biodiversity Act.
In Part Two, I consider the key differences between Bill 116 (2019) and Bill 4 (2021). I go on to assess the impact of the changes that were made to Bill 4 just before it was passed and what remains of the Nova Scotia Biodiversity Act. Finally, I discuss how the Biodiversity Act might affect our ability to protect biodiversity in Nova Scotia.
Introduction of Bill 116, March 2019
Premier Iain Rankin was the Minister of Lands and Forestry when he introduced Bill 4’s predecessor, Bill 116, on March 14, 2019. During second reading debates, he described the Bill as containing a “tool kit for biodiversity management”, and that toolkit included the “biodiversity protection order” and the “biodiversity management zone”. In his comments, the Minister emphasized the broad application of the Act, stating:
“Mr. Speaker, I want to be clear about where the Biodiversity Act applies. It will apply to all wildlife and all lands. Only the proposed biodiversity management zones require consent of a private landowner, not other actions authorized under this bill.”
Examples that Minister Rankin used to describe the purpose of the proposed law included the government’s intention to “prevent the import, selling or distribution of an invasive species not yet listed in regulation; and help prevent the destruction or disturbance of a rare ecosystem or habitat.” These examples, and in particular the role of the law in addressing invasive species, were notable themes in the government’s description of Bill 116 and later Bill 4.
The very next day, Bill 116 sailed through second reading with virtually no debate. One member of the Official Opposition spoke to the Bill. Tory Rushton, PC MLA for Cumberland South, thanked the Minister and stated: “We believe this is the right step forward”. Mr. Rushton encouraged the Minister to ensure that they “…do it right as a province”. NDP MLA Lisa Roberts also spoke in support of the Bill.
Bill 116 made its way to the mandated public review by the Law Amendments Committee on March 25, 2019. During the review, multiple public presentations included concerns over a lack of public consultation before the Bill was introduced. Despite these concerns, the Law Amendments Committee did not recommend any changes to the Bill. However, just over two weeks later, on April 12, Minister Rankin withdrew the Bill from the legislative process, promising more public consultation in the coming months.
It is worth mentioning that although Bill 116 was introduced with little public consultation, the need for public policy to address the biodiversity crisis—and recognition by Nova Scotians of that need—had been clearly evident for more than a decade. As part of the development of the Nova Scotia Natural Resources Strategy in 2010, an independent Biodiversity Panel of Expertise specifically recommended that biodiversity legislation be introduced in Nova Scotia. The same panel emphasized the importance of biodiversity education and enhancing public understanding of biodiversity protection:
“The Government of Nova Scotia should strive to enhance public understanding of the importance of protecting biodiversity, soil, water, and air quality and in collaboration with land owners, industry, non-governmental associations, and educational institutions.”
Despite these informed recommendations and the subsequent release of the Natural Resources Strategy in 2011, which included a section dedicated to biodiversity, the government of Nova Scotia failed to engage with the public and integrate biodiversity education and awareness in a way that resonated with Nova Scotians. Even after committing to the development and introduction of a Biodiversity Act in 2017, engagement with the public was paltry at best.
After shelving Bill 116 in March 2019, Minister Rankin and his Department rolled out their Biodiversity Act Public Consultation Process in July 2019. The government held five public sessions across the province over a period of a month. The sessions included a staff presentation and breakout discussion groups. I attended a three-hour session on July 24, 2019 in Bible Hill. Written submissions were accepted until July 29, 2019, and the government committed to posting “a summary report of what we heard” on their website by August 12, 2019. We provided a written submission on July 29, 2019. The promised “what we heard” report never appeared on the government’s website, and we heard nothing further about the proposed Biodiversity Act for more than a year.
Approximately 15 months later (October 2020), we learned via news media that the Minister of Lands and Forestry, Derek Mombourquette, was reaching out to “targeted stakeholders” to discuss the anticipated reintroduction of the proposed Biodiversity Act. East Coast Environmental Law and the Ecology Action Centre were not aware of these “targeted stakeholder” sessions. On October 30, we wrote a joint letter to the Minister of Lands and Forestry pointing out the extensive research, analysis, and recommendations that our organizations completed and shared with government in 2019. We were subsequently invited to two virtual meetings with officials from the Department in January and February of 2021.
Introduction of Bill 4, March 2021
On February 23, 2021, Iain Rankin became the Premier of Nova Scotia following the retirement of Premier Stephen McNeil. Premier Rankin made some changes to his Cabinet, but the MLA representatives were generally the same as those who were in place in 2019 when Bill 116 was introduced.
Bill 4, “An Act to Provide for the Conservation and Sustainable Use of Biodiversity in Nova Scotia”, was introduced by Minister of Lands and Forestry Chuck Porter on March 11, 2021. Despite the five public consultation sessions that were held in 2019 and the targeted stakeholder engagement that occurred in 2020-2021, the Bill was nearly identical to Bill 116, introduced two years earlier, with a few key changes.
In summary, the key changes were:
the purpose section was clarified;
the term “biodiversity protection order” was renamed “biodiversity emergency order”, and additional clarifications and conditions were added to the order;
new provisions were added to require the Minister to compensate a private land owner in specific circumstances where use of private land was affected by the Act; and,
a new provision was added to require the Minister to consult with the public before proposing new regulations under the Act or a substantial amendment to a regulation under the Act.
The second reading of Bill 4 began on the afternoon of March 12, 2021. Like his predecessor in 2019, Minister Chuck Porter highlighted the value of the “biodiversity management zones” and the “biodiversity emergency orders”. Once again, the Minister drew on the example of invasive species management as a beneficiary of these tools:
“One example would be to prevent the import, selling, or distribution of an invasive species. Invasive species present not just a threat to ecosystems in nature but can also have significant financial impacts to the agricultural and forestry sectors.”
The response from the Official Opposition, however, was much different than it was in 2019. Four members of the Official Opposition spoke against the Bill, with particular focus on the biodiversity management zone, biodiversity emergency orders, and enforcement provisions. Themes highlighted in their comments included: the negative impact the law would have on private landowners, overreach by government, concerns that private landowners were being vilified and punished by others, impacts to the forestry sector, and a lack of public consultation.
Despite the misgivings expressed by the PC caucus members, the Liberal and NDP members supported the Bill, and it passed second reading on March 12, moving it on to the mandated public review at the Law Amendments Committee.
The Campaign to “Stop Bill 4”
The next day, the first in a series of ads appeared in the Chronicle Herald newspaper under the heading “Stop Bill 4”. The ads and the associated webpage, radio spots, and social media campaign that followed swiftly were from the “Concerned Private Landowners Coalition” (“CPLC”), a group that previously did not exist but purported to represent “farmers, woodlot owners, housing and cottage developers and thousands of proud Nova Scotia landowners”.
The ad campaign, funded by Forest Nova Scotia, constructed a narrative about the proposed Biodiversity Act that ignored the stated purpose of the proposed law—which was “to provide for the stewardship, conservation, sustainable use and governance of biodiversity in the Province, as part of an integrated framework of legislation”—and instead framed Bill 4 as a threat to anyone who drew their livelihood or recreational enjoyment from the land. The ad campaign implied that Bill 4 was a plot by government and “Halifax Activists” to take control of private land. Below are a handful of the statements that could be found on the stopbill4.com website:
“This bill is a real threat to Nova Scotia landowners. Bill 4 isn't about the environment. It's about who gets to control private land.”
“Halifax Activists want to be able to control what rural property owners do on their land.”
“Bill 4 will give activists a tool they have wanted for many years to harass landowners and stop all agriculture, recreational activity, forestry, hunting and fishing on private lands.”
Despite the fact that there was no evidence provided by the CPLC to support its accusations, it became clear during the days that followed that the campaign messaging would have an impact. Nova Scotians, fearful that government and unnamed activists were collaborating to create law to take control of privately-owned property under the guise of solving an environmental crisis, flooded the voicemail and email inboxes of their MLAs.
Government and Public Reaction to the Campaign
The government reacted. On March 23, 2021 the Premier announced that the Bill would be amended before returning to the Legislature for third reading. The amendments would remove the provisions on biodiversity emergency orders, offences, enforcement, and fines as well as limit the scope of the Act to Crown lands. The only clear hint that the Premier gave for this very unusual decision was in a government press release where he stated:
“Listening to the concerns of my caucus members who have been speaking to their constituents contributed to these changes”[.]
The mandated public review of Bill 4 through the Law Amendments Committee went ahead, albeit with some confusion over what version of the Bill was under consideration. Oral presentations were heard virtually over Zoom on March 29, 2021, and 165 written submissions were accepted by the Committee between March 16 and April 6, 2021.
Based on my review of the written submissions:
19 appear to support the Bill (3 of those submissions were 3 sentences or less);
141 appear to oppose the Bill (73 of those submissions were 3 sentences or less, and some of the longer submissions were based on a common template, some with personalized information added, and some without); and,
5 submissions do not clearly appear to support or oppose the Bill.
Some of the themes highlighted in submissions which opposed the Bill reflected the narrative created by the CPLC, demonstrating that the campaign was effectively communicated to members of the public. For example:
“I am writing to you today to express my concern around Bill 4 – The Biodiversity Act. Landowners in my area are afraid that this bill takes away their rights to manage their own land. I understand from private landowners in my area that the threat of big fines and lack of clear rules will force them shut down public access to their land. That is a shame. I’m from Pictou County and use a lot of private land to (hike, cycle, hunt, fish snowmobile and/or ATV). Landowners have been great, they let us use their land as long as we don’t leave a mess. My fear is that Bill 4, will force my neighbors to restrict access to their land because this bill creates too big of a risk for them. Please stop this from becoming law so that we can continue to enjoy the land in this area. As a land user I oppose Bill 4.” [Name redacted, March 20, 2021, 1:35 pm]
The narrative was also reflected in comments made by members of the Official Opposition during legislative debates on the Bill, including the Opposition leader, Tim Houston.
“This bill was always about a power grab, and it's a power grab of unprecedented proportions.”
During the third reading debates, the Leader of the Official Opposition and the Minister of Lands and Forestry engaged in a heated exchange over the extent to which members of the public were consulted on the proposed Biodiversity Act. At 11:30 pm, Minister Porter read into the record a long list of organizations that were consulted, “to dispel comments by the opposition members that there was no consultation”.
The Role of Meaningful Public Engagement
As described above, the government did host a series of public consultation sessions and targeted stakeholder engagement sessions in 2019, with a few more targeted stakeholder meetings in 2020-21. It is a fact that the public consultation box was checked, but did the government genuinely engage with Nova Scotians in a way that would enhance our understanding of the biodiversity crisis and the role of the law in addressing that crisis?
All public-interest laws, whether the goal is to protect public health, address historical injustice, or enhance the environment, are impactful and may impact one specific economic or individual interest over another. In that way, the opportunity for polarization exists. This leaves open the possibility for a particular group with the motivation and wherewithal to exploit that polarization to meet their own interests. Forest Nova Scotia, through the CPLC, was effective in its campaign to create a public perception of the proposed Biodiversity Act as a threat to private property rights.
A more meaningful approach to public consultation by government to the development of a biodiversity law may have neutralized the CPLC campaign. Having reviewed the 141 submissions that opposed the Bill, I would identify the primary themes as anger, fear, and distrust. This is very much in line with the messaging that was being used by Forest Nova Scotia in their ad campaign to stop the Bill. There were very few submissions that considered the Bill itself, its provisions and stated purpose, or the issues it seeks to address.
The government had the opportunity to take a more collaborative approach to building this valuable and delicate piece of legislation in the four years since a commitment to pass the law was made by then Liberal leader Stephen McNeil in 2017, and certainly in the eleven years since the Natural Resources Strategy consultations in 2009.
Unfortunately, it was likely too late to quell the fear or dispel the misinformation created by the negative ad campaign in the eleventh hour before the Bill was to be passed.
Looking Back to Plan Ahead
East Coast Environmental Law was established in 2007, and since that time we have made it our mission to assist in the development of innovative and effective environmental laws that foster flourishing ecosystems and healthy environments in Atlantic Canada. Environmental law that is created in a vacuum is neither innovative nor effective. For many years, we have encouraged government to take a more robust and informed approach to public engagement on environmental law and policy.
We spoke to this specifically on the proposed Biodiversity Act in our 2019 joint report with the Ecology Action Centre, entitled A Biodiversity Act for Nova Scotia: An Overview and Key Recommendations.
“In our opinion, a law that is meant to address biodiversity loss and preservation in Nova Scotia must be inclusive and ambitious. Without adequate consultation and involvement of stakeholders, Mi’kmaw people and communities, the general public, and those working on the ground with biodiversity, the Act will not be understood or supported in a way that will lead to effective implementation.”
Developing public interest law and policy is both challenging and rewarding. The development of the Nova Scotia Environment Act almost 30 years ago serves as an example of a complex public policy process that successfully engaged members of the public and political representatives. The Nova Scotia Environment Act became law in 1995, under the majority Liberal government of John Savage. The public consultation process was well resourced by the Government of Nova Scotia, led by a team of senior staff at the Department of Environment, and included province-wide in-person sessions led by an independent public consultation committee.
One of the most innovative and valuable steps taken by government during the public consultation on the Environment Act was the release of a fully developed draft of the Act. Almost a full year before Bill 115, the proposed Environment Act, was introduced in the Legislature, The Nova Scotia Environment Act Discussion Draft was made available to the public. It was this detailed draft of the full text of the proposed law, along with a summary document, that served as the foundation for public engagement process. Shortly after the introduction of Bill 115, the Minister of Environment released a detailed public response to the Report of the Public Consultation Committee on the Draft Environment.
A more detailed timeline of the key steps taken in the two-year process to create the Nova Scotia Environment Actcan be found at the end of the blog post.
The debates on Bill 115 were generally congratulatory and informed. They spoke to specific provisions of the Bill, including recommendations on how to improve the application and effectiveness of the law. While there is no public record of the debates in the Committee of the Whole House on Bills, the level of engagement by members is reflected by the MLA’s 5 separate sessions to discuss the Bill.
There are many important lessons that have been learned about how to facilitate meaningful public engagement since 1994. However, even with a contemporary lens on the 30-year-old Environment Act process, the themes of transparency, independence, engagement, and accountability would have served today’s government well in the development of the Biodiversity Act.
Public Engagement on the Nova Scotia Environment Act
January 1993: Plans for the Environment Act are announced by government.
February-March 1993: A senior internal legislative review committee is established to consult with staff in every section of the Department of Environment.
March-May 1993: A private law firm is contracted to prepare a discussion draft of the Nova Scotia Environment Act.
November 1993: An independent subcommittee of the Nova Scotia Roundtable of Environment and Economy is formed to consult on the proposed legislation.*
November 1993: The Nova Scotia Environment Act Discussion Draft is released to the public. A summary background document entitled “The Nova Scotia Environment Act: Toward a Healthy Environment and a Sustainable Future” is released at the same time. A toll-free Environment Act hotline is set up.
January-February 1994: The Consultation Committee holds nine in-person public consultation sessions across the province.
April 1994: A full day multi-issue workshop session is held, open to any organization or individual who had contributed to the public review and addressed one or more of the issues. The session was facilitated by an independent team, and a public report followed.**
June 1994: The independent subcommittee of the Nova Scotia Roundtable of Environment and Economy submits an 88-page report, entitled Report of the Consultation Committee on the Draft Nova Scotia Environment Act, to government and the Roundtable.
July 1994: Report of the Consultation Committee on the Draft Nova Scotia Environment Act is released to the public.
October 28, 1994: Bill 115, the proposed Environment Act, is introduced. [Hansard 56-2(1994-95)].
November 1994: The Minister of Environment releases a detailed Response to the Report of the Public Consultation Committee on the Draft Environment.
November 7, 1994: Bill 115 passes second reading with support of all parties and is referred to the Committee on Law Amendments. [Hansard 56-2(1994-95)].
November 18, 1994: The Chair of the Law Amendments Committee reports that the Committee has met and recommends Bill 115 with certain amendments. The Bill is moved to Committee of the Whole House on Bills. [Hansard 56-2(1994-95)].
December 8, 1994: Chair of the Committee of the Whole House on Bills recommends the Bill with certain amendments. The Committee reviews Bill 115 on December 1, 2, 5, 6 and 8. [Hansard 56-2(1994-95)].
January 6, 1995: Bill 115 passes third reading with support of all parties. [Hansard 56-2(1994-95)].
*Members of the subcommittee were: Alan Parish (Chair) Chairman of the Clean Nova Scotia Foundation; Christopher Clarke, Secretary and Director of Public Relations for Bowater Mersey Paper Company Ltd.; and, myself.
**The purpose of the workshop was to:
provide a forum for focused discussion on a number of key themes which emerged from the public meetings and written submissions;
expose participants to a broad range of perspectives on key issues;
identify possible options and alternative approaches for dealing with key issues; and,
work towards consensus on the resolution of key issues.
Lisa Mitchell
Executive Director and Senior Lawyer