Using the Law to Protect Biodiversity

Biodiversity Blog: Part 2

September 22, 2019

There is an outcry on global, national, and local levels to address our quickly depleting biodiversity.

In May 2019, the United Nations ("UN") released The IPBES Global Assessment Report on Biodiversity and Ecosystem Services. This is the most comprehensive report of its kind ever completed and the first such intergovernmental report. The Report includes contributions from 145 expert authors from 50 countries over the past three years, with inputs from another 310 authors, and it draws (for the first time ever at this scale) on Indigenous and local knowledge, particularly addressing issues relevant to Indigenous Peoples and Local Communities. The Report assessed changes over the past half century in order to produce a comprehensive understanding of the relationship between economic development and its impacts on nature, as well as projecting possible scenarios in the coming decades.

The message of The IPBES Global Assessment Report on Biodiversity and Ecosystem Services is clear:
• 1,000,000 species are threatened with extinction;
• Nature is declining globally at rates unprecedented in human history;
• Current global response is insufficient;
• "Transformative changes" are needed to restore and protect nature; and,
• Opposition from vested interests can be overcome for public good.

Biodiversity is as much a priority on a national level. Canada is geographically the second largest country in the world, and it is home to a significant portion of plant and animal species. It is estimated that 140,000 species live in Canada, half of which are still unidentified (the majority of unidentified species are insects and have yet to be discovered). The World Wildlife Fund’s 2017 Living Planet Report Canada was a national call of urgency that the UN’s recent global report echoed. Living Planet Report Canada reported that between 1970 and 2014, Canada’s mammals declined by an average of 43%, grassland birds dropped by 69%, and fish populations declined by 20%.

In response to political pressure, in 2018, the federal government of Canada pledged commitments to protect 17% of terrestrial areas and inland water and 10% of coastal and marine areas by 2020 through the implementation of protected areas and other conservation measures. In order to make good on their promises, the government announced 68 conservation projects and 49 projects to protect species at risk of extinction.

Of the 68 conservation projects announced, 27 of these initiatives aim to create new Indigenous protected and conserved areas. Indigenous protected and conserved areas are pivotal to efforts to protect biodiversity. A recent study, released in July by the University of British Columbia, found that biodiversity on Indigenous-managed lands is higher than that on non-protected lands. The research focused on three countries for its case studies—Canada, Brazil, and Australia—and discovered that, on average, Indigenous-managed and protected lands in Canada are home to around 190 unique species of amphibians, mammals, reptiles, and birds, as opposed to 126 on non-protected lands.

Locally, Nova Scotia’s Minister of Lands and Forestry stepped up for biodiversity on March 14, 2019 when he introduced Bill 116, the Biodiversity Act. From our perspective at East Coast Environmental Law, there is much that could be done to enhance the proposed law, but we agree that Bill 116 has the potential, if passed, to provide a valuable contribution to the protection of biodiversity in Nova Scotia. The laws that we have in place in Nova Scotia today provide some basic protection to species that exist in protected areas and to species that are legally defined as endangered or threatened, but there are big gaps in both the laws and compliance with the laws (for more on that, see our recent press release on the Endangered Species Act). Bill 116 creates tools that could facilitate biodiversity conservation. In light of the overarching trend, we need this law in Nova Scotia to begin taking the steps that are necessary to address the biodiversity crisis.

One interesting tool contemplated by the Biodiversity Act is the Biodiversity Management Zone (section 12). Based on my understanding of the provision, the concept of a Biodiversity Management Zone ("BMZ") is an innovative approach to protecting biodiversity in the sense that it has the potential to be spatially and temporally dynamic. For example, a BMZ could be implemented in a particular area that is known to be nesting habitat for a species of bird for certain months of the year. During the rest of the year, when the bird is elsewhere, the BMZ status could be inactive, enabling other uses of the area to commence.

The BMZ is created by the Minister, but only with approval of Cabinet and only on Crown land. The Minister may create a BMZ on private land, but only with the approval of Cabinet, and only with the consent of the landowner. Given the limitations created by Cabinet approval and landowner consent, there would appear to be little foundation for concerns that this tool will impede the rights of private landowners.

Other provisions of the Bill address biodiversity education and public engagement. East Coast Environmental Law has long advocated for a strong purpose section, greater information sharing, public engagement, and education around the Bill as fundamental to achieving its potential.

We look forward to the next steps for Nova Scotia’s Biodiversity Act and hope to see it back in the Legislature for second reading this Fall. To view Bill No. 116 (Biodiversity Act), click here.

To read East Coast Environmental Law's Submission to the Nova Scotia Law Amendments Committee on Bill No. 116 (Biodiversity Act), click here.

To read East Coast Environmental Law’s report entitled "A Biodiversity Act for Nova Scotia: An Overview and Key Recommendations", click here.

Lisa Mitchell

Executive Director and Senior Lawyer