Understanding Nova Scotia’s Biodiversity Act Part Two: The Law
Photo Credit: Heather Cutchin
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 that will come into force in October. Finally, I discuss how those changes might affect our ability to protect biodiversity in Nova Scotia.
Bill 116 and Bill 4, as Introduced
By way of background, there were relatively few substantive changes made to Bill 116 (introduced in 2019) before it was re-introduced as Bill 4 in 2021. The primary changes made to the proposed Biodiversity Act between 2019 and 2021 related to the Minister’s authority to issue orders, the creation of biodiversity management zones, and provisions requiring compensation for private landowners whose property rights were affected by the exercise of government powers under the Bill. These changes did not necessarily improve the ability of the law to protect biodiversity but rather addressed aspects of the law that could impact the interests of private landowners, and, in particular, members of the forestry sector who own and operate on large tracts of land.
A valuable addition to the Bill was the provision which required the Minister to consult with the public before proposing new or substantially amended regulations. As a side note, a provision imposing the same requirement is present in Nova Scotia’s Environment Act (1995).
Biodiversity Protection Orders/Biodiversity Emergency Orders
The authority of the Minister to issue a biodiversity protection order under Bill 116 was quite broad. As it was introduced on March 14, 2019, subsection 21(1) of that Bill stated:
"Where there are reasonable and probable grounds to believe that a person has contravened or is about to contravene this Act or the regulations, a conservation officer, the Minister or an individual authorized to act on behalf of the Minister may issue a biodiversity protection order"[.]
Under Bill 4, as originally introduced, the biodiversity protection order was renamed the biodiversity emergency order, and the authority to issue it was both curtailed and clarified. As it was introduced on March 11, 2021, subsection 23 of the Bill stated:
"Where there are reasonable and probable grounds to believe that a person has contravened or is about to contravene Section 38 in a manner that resulted in, or is likely to result in, serious adverse effects to biodiversity and for which corrective action is needed to prevent, control, eliminate or manage such serious adverse effects, the Minister or an employee of the Government authorized to act on behalf of the Minister may issue a biodiversity emergency order"[.]
In Bill 4, the authority to issue a biodiversity emergency order was limited to circumstances where there were or were likely to be “serious adverse effects to biodiversity” and action was required to address those effects. In addition, the order powers were limited to violations of only one section of the Act: section 38. Before a decision to issue an order was made, the Minister (or another person authorized to issue the order) was required to consider specific factors, including the “conservation status of the organism, species, ecosystem or habitat affected”.
In summary, the Bill 4 biodiversity emergency order would have been significantly more difficult for the Minister or their designate to issue than the Bill 116 biodiversity protection order.
Biodiversity Management Zones
Bill 116 enabled the Minister, with the approval of the Governor in Council (Cabinet), to create a biodiversity management zone on Crown land and, with the consent of the landowner, on private land.
Bill 4 added an additional requirement that the Minister must enter into a formal agreement with the landowner before designating a biodiversity management zone on private land. Specific requirements for what must be contained in the agreement are outlined in the Act. These changes provide more clarity but would not necessarily impede the creation of a biodiversity management zone on private land where there is mutual interest between government and the landowner.
Compensation
Bill 4 added new provisions on compensation that were not included in Bill 116. These provisions required the Minister to compensate a private landowner for loss of use of their land if that use was prohibited, restricted or limited because of the Biodiversity Act or regulations.
There were two limitations applied to the requirement for compensation:
the landowner had to actually be engaged in the use of the land that was affected to get compensation; and
no compensation would have been owed if the prohibition, restriction or limitation was the result of a biodiversity emergency order.
Bill 4 as Introduced and the Biodiversity Act as Passed 27 Days Later: What Was Lost?
The amendments that were announced by Premier Rankin on March 23, 2021 were the only changes made to Bill 4 after it was introduced on March 11, 2021. In other words, there were no additional amendments made to the Bill following Law Amendments on March 29, 2021 or Committee of the Whole House on April 1, 2021.
The amendments announced by the Premier deleted sections 18 to 52 of Bill 4—over half the Bill. These provisions included: sections 18 to 22 designating conservation officers; sections 23 to 29 enabling biodiversity emergency orders; sections 30 to 51 addressing enforcement, including inspection powers, offences, and penalties; and, section 52 on compensation.
All provisions in Bill 4 that enabled prohibitions were removed. The most significant of the removals was section 38, which required a permit for any activity that resulted in:
(a) the consumption, utilization, harvesting, taking or killing of a species in excess of that prescribed by the regulations;
(b) the introduction, release or spread of an organism or pathogen prescribed by the regulations; or
(c) the loss of an at-risk habitat or ecosystem prescribed by the regulations.
It is worth noting that all of the prohibitions in the original Bill 4 would have required regulations to be passed in order to make the prohibitions enforceable. For example, if regulations were passed prescribing specific organisms or pathogens, such as the zebra mussel, for the purposes of section 38(b), the prohibition against introducing, releasing, or spreading zebra mussels would be enforceable.
In my opinion, the most immediate impact of eliminating the prohibitions in the Bill was on what was arguably the government’s signature goal in enacting the Bill: to effectively tackle invasive species in the province. It was made clear from the statements made by Minister Rankin in 2019 and Minister Porter in 2021 that the Department of Lands and Forestry was looking to the Biodiversity Act to provide authority and enforcement tools they deemed necessary to prevent and manage the introduction of invasive species. This blog does not consider whether or not there are other provincial or federal laws in place that could fill this gap.
The critical nature of the problem was highlighted in a written submission to the Law Amendments Committee from the Nova Scotia Invasive Species Council:
“Halifax is a major port in Canada and will be a point of introduction for invasive species; with little to no regulations on the importation or management of invasive species in Nova Scotia, we could end up allowing invasive species to proliferate and spread across the province.”
Looking at the history of the introduction of the Biodiversity Act in Nova Scotia, it is clear that managing the threat posed by invasive species was high on the list of government priorities. It is, however, important to recognize that invasive species are only one of five main threats to biodiversity, and habitat loss is, in fact, the primary biodiversity threat in Canada. The other prohibitions laid out in Bill 4 and created by section 38, addressing species, at-risk habitat, and ecosystems, would likely have taken considerable time before becoming operational. The public consultation process on the Bill did not include a regulatory plan, and there was no indication that the Department of Lands and Forestry had identified specific species, as required by section 38(a), or at-risk habitats, as required by section 38(c), to be considered for regulation. Presumably, the identification of such species and at-risk habitats would have resulted from the research and monitoring work that the Minister was authorized to undertake in the Bill.
Based on our experience with the 1998 Endangered Species Act, I see no reason to assume that the Department of Lands and Forestry would have been hasty in establishing section 38 regulations for anything other than invasive species. East Coast Environmental Law reported on the Minister’s failure to protect listed endangered species in 2015 and again in 2019. In both reports, we called on the Minister of Lands and Forestry to meet his legal obligations under the Endangered Species Act to complete recovery and management plans for at-risk species and to ensure that all recovery plans include areas to be considered for designation as core habitat. In the twenty-three years since the Endangered Species Act was passed, no Minister has used their authority in the Act to designate even one hectare of core habitat in Nova Scotia for an endangered species. The Minister’s failure to comply with the law was confirmed by a Nova Scotia Supreme Court in a decision released on May 29, 2020. The court found that the Minister of Lands and Forestry failed to meet the very basic requirements of the law, including the requirement to identify potential core habitat for the endangered Mainland Moose.
Turning back to the Biodiversity Act, the changes made by the Premier on March 23, 2021 also eliminated the authority of the Governor in Council to create regulations to restrict or prohibit activities in a biodiversity management zone. The relevant sections of the Bill were amended to remove the phrase “restricted or prohibited activities” and replace it with “activities necessary to fulfil the objectives”. It is unclear how the change in language in the provision was meant to replace the prohibition. Presumably, a regulation could be created to designate “activities necessary to fulfil the objectives” of a biodiversity management zone; however, there would be no means to enforce any such requirement.
The elimination of the enforcement powers and penalties goes hand in hand with removing the prohibitions. If there are no offences in the law, there is no need for enforcement.
The elimination of the biodiversity management order removed the Minister’s authority to stop harmful activities that were in violation of the Biodiversity Act, presumably to address habitat loss and degradation—a key driver of biodiversity loss. However, the conditions on the issuance of a biodiversity management order were very restrictive in Bill 4. Under the circumstances, my view is that very few orders would have been issued under the Act as it was proposed, and likely only in the most egregious circumstances.
Finally, the March 23, 2021 changes eliminated the compensation provisions set out in section 52 of Bill 4, as introduced. By way of background, the original proposed Biodiversity Act introduced in 2019 denied compensation to any person affected by the Act or regulations. When Bill 4 was introduced in 2021, it included mandatory compensation for private landowners in specific circumstances, where a particular use of land was prohibited, restricted or limited.
The Biodiversity Act, as passed on April 13, 2021, does not prohibit or restrict any activities. It does, however, enable the Minister to develop a “compensation framework for biodiversity conservation activities” as a way of incentivizing the conservation and sustainable use of biodiversity.
In addition, compensation is included in the agreement between the Minister and a private landowner where a Biodiversity Management Zone is established on private land. Following the changes made on March 23, 2021, the only tool that the government has available to manage activities on private land is to enter into an agreement with the landowner to establish a biodiversity management zone on the landowner’s land. The agreement will not include any restrictions or prohibitions but instead will speak to “activities necessary to fulfil the objectives of the biodiversity management zone”. The agreement will outline the compensation to be paid to the landowner for entering into the agreement. Presumably, the lever available to government to ensure that there is compliance with the agreement is grounded in the compensation payments.
Bill 4 as Introduced and the Biodiversity Act as Passed: What Remains?
The changes made to Bill 4 moved it from a regulatory statute to a purely aspirational one. With the loss of the offences, enforcement tools, and penalties, the law offers virtually no means of regulating activities in order to enhance and protect biodiversity in Nova Scotia. What remains, however, is an opportunity for the Minister of Lands and Forestry to undertake the work that is necessary to improve government capacity and knowledge on the biodiversity crisis, develop programs, policies, standards, and guidelines to actualize that knowledge, and engage with the public by sharing information and creating educational programs. In addition, the Biodiversity Management Zone (“BMZ”) was left relatively untouched by the changes. The Minister can enter into an agreement with a private landowner to create a BMZ on private land, and, with the approval of the Governor in Council, the Minister can create a BMZ on Crown land. As discussed above, there is, however, no authority left to prohibit or restrict activities in the BMZ.
Much of what remains in the Biodiversity Act rests within the Minister’s discretion. In fact, the Act provides the Minister with the discretionary authority to undertake more than twelve different tasks in five key areas: (1) research & monitoring; (2) cooperation; (3) education; (4) funding; and, (5) policy & programs.
The bullet points that follow summarize the Minister’s discretionary authority in each of the five areas.
(1) Research and Monitoring:
cause studies to be undertaken and cause research to be carried out [section 10]; and
retain experts [section 11].
(2) Cooperation:
undertake, promote or recommend measures to allow for public co-operation [subsection 8(c)];
consult and co-ordinate with other departments and agencies of the Province [subsection 8(d)];
co-ordinate and implement biodiversity policies and programs in cooperation with other governments [subsection 8(e)]; and
enter into an agreement with any person [subsection 9].
(3) Education:
promote the purpose of this Act [subsection 8(b)]; and
undertake educational programs [section 12].
(3) Funding:
provide funding and other support for biodiversity-related research, investigation and monitoring, as well as land securement and stewardship [subsection 8(g)].
(4) Policy and Programs:
develop, coordinate, adopt and implement policies, standards, guidelines and programs for the conservation and sustainable use of biodiversity [subsection 8(a)];
establish or adopt goals and targets for biodiversity and indicators of ecosystem health and integrity [subsection 8(f)]; and
establish and administer a biodiversity management zones [section 15].
The powers conferred upon the Minister by the Biodiversity Act will prove valuable only to the extent that they are exercised. The Act provides the Department of Lands and Forestry with opportunities to meet key biodiversity goals, if the Department is motivated and appropriately resourced. For example, the first strategic goal of the Aichi 2020 biodiversity targets is to mainstream biodiversity across government and society. The purpose section of the Biodiversity Act sets the law within an “integrated framework of legislation”, and section 5 of the Act requires the Department of Lands and Forestry to “work with other Government departments within their related mandates to achieve the purpose of this Act”. There is no other federal, provincial, or territorial Act in Canada at present that has this kind of language with a primary purpose of safeguarding biodiversity.
The Minister’s authority under the Act is broad enough to enable meaningful and effective progress on biodiversity goals and targets, including those that may come forward in the upcoming Post-2020 Global Biodiversity Framework. At the same time, the law is soft enough, with few mechanisms for accountability, that there is a risk of little progress over the next five years.
There are a handful of obligations that the Minister is required to meet under the Act. I have categorized these into three areas: (1) assessment; (2) information-sharing; and, (3) public consultation.
(1) Assessment:
establish and maintain such classification, inventory, status-assessment and monitoring programs as the Minister considers necessary or advisable to assess the state of biodiversity in the Province [section 13].
(2) Information- sharing:
establish mechanisms to share data relating to biodiversity [subsection 14(1)]; and
publish a notice containing a description of any biodiversity management zone [section 17].
(3) Public Consultation:
initiate a review of this Act within five years of it coming into force ,and make a written report respecting the review available to the public, and, in conducting the review, consult with the public, including landowners and stakeholders [section 6]; and
consult with the public, including landowners and stakeholders, in such manner as the Minister considers appropriate before proposing a new regulation or a substantive amendment to a regulation [subsection 18(2)].
It is worth noting that the requirement in section 6 of the Act for the Minister to initiate a public review of the Act within five years was added to Bill 4 with the changes on March 23, 2021. Also included in the March 23 changes were enhancements to the purpose section of the Act. A mandatory public review of the Act no later than October 2026 will provide an opportunity to gauge the success of the law and reconsider the role of offences, enforcement, and penalties at a time when Nova Scotians will (hopefully) have more data and education on the state of biodiversity in our province.
The additions to the purpose section provide context for the application of the Biodiversity Act. The purpose section recognizes the inherent value of biodiversity and the importance of reducing direct pressures on biodiversity. These elements are critical to our understanding of the impact of human activity on biodiversity and to ground support programs and policies that seek to conserve and protect biodiversity.
Did Bill 4 Reflect the Recommendations of East Coast Environmental Law and the Ecology Action Centre?
As discussed in Part One of this two-part series, East Coast Environmental Law and the Ecology Action Centre collaborated on research, consultation, publications, and recommendations related to the creation of a provincial biodiversity law, beginning in 2018. Details of our recommendations and the basis for them can be found in our joint report entitled A Biodiversity Act for Nova Scotia: An Overview and Key Recommendations and the background research report entitled Biodiversity Legislative Review, Comparative Analysis and Recommendations (Final Report).We also prepared a summary document entitled Nova Scotia Biodiversity Act: Key Recommended Provisions, as well as submissions from each of our organizations to the Law Amendments Committee in March of 2019 and March 2021.
In summary, our recommendations focused on setting a clear purpose for the Act, gathering and sharing information, setting goals and targets, creating opportunities for public engagement and education, and ensuring government accountability.
Joint Recommendations and Response in the Biodiversity Act
The following bullet points compare our key recommendations with the relevant provisions in the Biodiversity Act, as passed:
Recommendation: The Minister of Lands and Forestry and the Minister of Environment should be responsible for the Act. These Ministers should work with other provincial departments to achieve the purposes of the Act.
Response: No to joint responsibility. Yes to the Department working with other departments [section 5].
Recommendation: A clear purpose sectionshould be created to set the intention of the law and should be based on key principles, including: biodiversity has inherent value, government has guardianship role to play, public participation, transparency, accountability, precautionary approach, ecosystem management, recognition of the value of the Mi’kmaw perspective.
Response: The Act includes a purpose section setting the intention of the law and recognizing that biodiversity has inherent value but does not include the other key principles [section 2]. Many of these are in the Preamble, but that has little legal value.
Recommendation: The Act should include specific biodiversity outcomes, goals and targetswith timelines that reflect Canada’s biodiversity goals and targets, either in the statute or required to be set in regulation.
Response: No outcomes, goals or targets in the Act. No timelines. The Minister has discretion to set goals and targets and regulations can be created [subsections 8(f) and 18(1)(c)].
Recommendation: The Act should establish a Biodiversity Advisory Council that is open and transparent, led by the responsible Ministers and including other relevant Ministers, Indigenous organizations, non-governmental organiations, industry, and experts.
Response: No Council is established by the Act. The Minister has discretion to retain experts. A biodiversity council exists outside the Act, but it is not representative or transparent.
Recommendation: Establish a biodiversity inventory and monitoringprogram within 12 months.
Response: The Minister is required to establish inventory and monitoring programs [section 13]. No timeline.
Recommendation: Issue a public report on the state of biodiversityin the Province within 12 months.
Response: Yes, but with later timeline: report must begin within 3 years and be updated every 5 years [s.14].
Recommendation: Identify critical biodiversity areas and develop an integrated and coordinated biodiversity planwithin 24 months.
Response: No requirement to identify critical biodiversity areas or develop a biodiversity plan.
Recommendation: Require the development and implementation of industry sustainability plans.
Response: No requirement to develop such plans.
Recommendation: Incorporate biodiversity educationinto the public school curriculum within 12 months.
Response: No such requirement. The Minister may develop or support educational programs [subsection 8(b), section 12].
Recommendation: Establish a registry, to be called the Biodiversity Registry,for the purpose of facilitating access to documents relating to matters under this Act.
Response: No registry. The Minister is required to establish mechanisms to share data relating to biodiversity [subsection 14(1)].
Recommendation: Include relevant prohibitions and associated penalties, including Ministerial order powers.
Response: Unknown.
Recommendation: Designate enforcement officers and include enforcement tools.
Response: Unknown.
None of the recommendations made by our organizations were fully implemented in the Biodiversity Act. The two recommendations that are most closely reflected in the Act are the recommendation on inventory and monitoring and the recommendation on state of biodiversity reporting. Both of these are represented in the Act to the extent that they are mandatory. The state of biodiversity reporting requirement is time-bound, but the timeline is significantly longer than we proposed.
Arguably, our recommendation for a biodiversity registry has been met based on the requirement of the Minister to “establish mechanisms” to share data. However, the nature of the mechanisms and the information that will be shared is discretionary and unclear.
In addition to our initial recommendations outlined in the table above, East Coast Environmental Law recommended that any new regulations or any substantive amendment to the regulations be subjected to public review. We made the recommendation to the Law Amendments Committee in March 2019. Although it was not taken up by the Law Amendments Committee, it did find its way into Bill 4 and has been fully implemented in the Biodiversity Act.
Concluding Comments
Nova Scotia has passed the first Biodiversity Act in Canada. As this brief history reveals, it has been a difficult path and one fraught with many challenges. The resulting statute has potential but is not yet a model for other jurisdictions. The Nova Scotia Biodiversity Act will be in force on October 1, 2021. On that date, the clock will begin to tick on the two time-bound requirements under the Act: (1) a public report on the state of the Province’s biodiversity on or before October 1, 2024; and (2) a public review of the Act on or before October 1, 2026. In the meantime, we will look forward to the release of a regulatory plan, public consultation on goals and targets, a mechanism to share information with the public, and the establishment of biodiversity management zones. We will also look for the Minister to exercise their discretion to engage with experts and develop plans, programs, and guidelines to raise public awareness, collaborate, and take timely steps to conserve biodiversity in Nova Scotia.
Lisa Mitchell
Executive Director and Senior Lawyer