Laws matter: a foundational approach to biodiversity conservation in Canada

Biodiversity is in sharp decline across most if not all spatial and temporal scales. The costs this decline imposes on our economies and the societal structures and communities that depend upon them are substantial and growing (Buxton et al. 2021; Elbakidze et al. 2022). The health and integrity of most Canadian ecosystems are increasingly imperiled with few signs that negative ecological trends are being halted, to say nothing of being reversed (Canada 2018). While there is no doubt that we are making progress in some areas, there is no comprehensive set of ecosystem indicators that suggests that we are succeeding in conserving and protecting our natural heritage, no matter how one describes success (IPBES 2019; WWF 2020; Desforges et al. 2022). The causes of ecosystem decline are as complex as ecosystems themselves but all stem from the choices we make and the actions we take as a society.

Halting and reversing ecosystem decline is a massive and complex challenge. This perspective essay considers the contribution of Canada’s federal conservation laws to meeting this challenge. It offers insights into why conservation laws in general are so vital to efforts to prevent ecosystem decline in the first place and to halting and reversing it when it does occur. Our focus is on Canada’s federal conservation regime and the extent to which its legal underpinnings position Canada for conservation successes. Perhaps not surprisingly, we offer the view that in many ways the current legal framework exacerbates the conservation challenges Canada faces and is in urgent need of reform. Accordingly, we identify a suite of attributes that would characterize a modern regime capable of more effectively addressing the conservation challenges we face today and into the future. The writing partnership that has generated the essay brings together a somewhat uncommon mix of professional backgrounds and experience. Olive has two decades experience in university research and teaching around the conservation policy field generally and species at risk in particular. By contrast, Swerdfager only recently joined the academic ranks after a 35-year career in the federal Public Service that included senior executive roles in Environment Canada’s Canadian Wildlife Service, in science program leadership, habitat protection and fisheries management with the Department of Fisheries and Oceans, and as head of operations for Parks Canada Agency. The resulting paper reflects a blending of perspectives flowing from these contrasting backgrounds in a manner we hope the reader will find insightful and helpful.

Recent articles in this journal have made calls for new or amended species at risk legislation in BC (Westwood et al. 2019) and ON (Bergman et al. 2020; Bethlenfalvy and Olive 2021; Turcotte et al. 2021) and to other biodiversity laws in Canada (Beazley and Olive 2021; Ray et al. 2021). This essay picks up on those calls but focuses on the federal side with one simple message: laws matter. It begins by briefly describing the respective roles of federal, provincial, territorial, and Indigenous governments in conservation in Canada. It then offers a three-part analytical matrix for considering the foundational nature of conservation laws in general and then analyses the current body of Canada’s federal statutes through the lens of this matrix. Drawing upon this analysis, it pivots to outlining a 10-point framework of what an ideal modern legislative approach to conservation might entail. Our goal in outlining this 10-point framework is not to suggest a specific legislative agenda but rather is to invite and enhance conversation with scholars and practitioners interested in improving national conservation laws in Canada.

Similar to Ray et al. (2021), we take an expansive approach and consider “conservation law” as encompassing the assemblage of statutes and regulations that directly address the conservation of plants and animals and the broader ecosystems of which they are a part. Implicit in this definition is the notion that “conservation” includes a mix of using and protecting these plants, animals, and ecosystems. For our purposes in this essay, commonly used terms by practitioners in the conservation field such as “biodiversity conservation,” “resource conservation,” or “marine conservation” and the laws relating to them are captured under this broad umbrella.

In Canada, conservation law is a diverse tapestry woven from multiple jurisdictional threads (Forsey 1980; Becklumb 2013). The constitution divides power between the national and subnational jurisdictions. Of particular importance for our purposes, Section 132 of the constitution assigns the federal government responsibility for the implementation of international treaties signed by Great Britain on behalf of Canada prior to 1932.

The Migratory Birds Convention of 1917 is captured by this clause and gives rise to federal authority for birds listed under the convention (it is important to note that the federal government does not automatically have the authority to pass domestic implementation laws with respect to the subject matter of any international treaty or agreement it signs on to. It can, for example, move to implement any international agreement or treaty Canada signs with respect to fisheries management, given its authority for fisheries as explained below. It cannot, however, pass legislation pertaining to treaties or agreements dealing with matters of shared federal/provincial jurisdiction, which is why, for example, there is no federal omnibus statute implementing the Convention on Biological Diversity that deals with a mix of subjects of federal, provincial, and shared jurisdiction). Section 92.12 of the constitution assigns the federal government authority for “Sea Coast and Inland Fisheries.” The Fisheries Act flowing from this section extends this authority to embrace fish habitat (Fisheries Act R.S.C. 1985, c. F-14 2019).

This role, when coupled with federal authority over navigable waters (s. 91.10), establishes federal interests in virtually any development project that includes interaction with a water body. The federal government’s criminal law power (s.91.27) underpins much of its environmental protection legislation, such as laws pertaining to pollution or toxic chemicals. And finally, federal authority extends to the management of its own lands (approximately 40% of the country) and to environmental impact assessment decision-making, touching on areas of federal jurisdiction, including oceans and fish (Department of Justice Canada 2012).

Section 92 of the Constitution enumerates provincial heads of power. Provinces are assigned authority over Public Lands (s.5), Property and Civil Rights (s.13), and matters of “merely local or private nature” (s. 16) (Department of Justice Canada 2012). Taken together, these heads of power give rise to provincial authority over essentially all of Canada’s biodiversity and land base lying beyond the federal authorities described above. The authorities of Canada’s three territorial governments continue to evolve but have reached a point that on conservation matters their role is very similar to that of provinces in 2017 (Sabin 2017; Olive 2019).

Indigenous governments have a mix of authorities on their own lands as well as Aboriginal and(or) treaty rights pertaining to their traditional territories. On reserves across the 10 provinces, the anachronistic and racist Indian Act remains in place and allows for the establishment of a range of environment-related by-laws to be created by First Nation governments with respect to their reserve lands (Indian Act R.S.C. 1985 c. I-5 2019). This gives rise to a diversity of on-reserve environmental regimes that are as varied as the over 600 First Nations that have created them.

In Canada’s North, land claim settlements have created a new form of environmental governance in the form of “co-management” (White 2020). Beginning with the James Bay and Northern Quebec Agreement in 1975 (Canada 1975) and the Inuvialuit Final Agreement of 1984 (Department of Indian and Northern Affairs Canada 2005), these agreements established “co-management” systems featuring a sharing of decision-making power between the Indigenous group involved and the federal and territorial governments. While the details of these structures vary across the individual agreements, which cumulatively now cover virtually all of YT, NT, and NU, they all function not as advisory mechanisms but rather as bodies with decision-making authority with respect to the stewardship of most of the biodiversity of the North (White 2020).

Taken together, the federal, provincial, territorial, and Indigenous governments of Canada divide and sometimes share legal jurisdiction over the various elements of the country’s biodiversity. The result is a complex web of laws and regulations. Ray et al. (2021) compiled and analyzed an exhaustive inventory of 201 biodiversity-related laws flowing from this constitutional latticework. Their analysis of this collection of laws effectively documents its shortcomings, gaps, and inefficiencies and drives one inexorably to the conclusion that Canada’s legal framework for biodiversity conservation and protection is inadequate. They argue that what is needed to remedy this situation is not only statutory reform but strong federal leadership, a more integrated whole-of-government approach to biodiversity conservation, and a cultural shift toward prioritizing biodiversity needs over those of unbridled resource development agendas (Ray et al. 2021).

Having spent 30 years working in the federal Public Service, one author can attest to the frequent presence of conservation-oriented political and bureaucratic leadership as well as a widespread recognition among these leaders that greater horizontal collaboration and more prominent positioning of biodiversity in the calculus of decision-making is of vital importance. And yet, despite this leadership and recognition, program integration and value shifts have yet to occur at levels sufficient to turn the tide toward greater biodiversity conservation success. This perspective essay argues that, as currently configured, the legal foundation from which more effective leadership, program integration efforts, and conservation-oriented value shifts must begin presents a more formidable obstacle to modern and effective biodiversity conservation than is commonly acknowledged.

A modern and nuanced consideration of the societal niche occupied by laws generally suggests that they matter deeply (Tarlock 2003; Harel 2015) and that in the context of conservation their impact could be dramatic (see for example Schwartz 2008; Gibbs and Currie 2012; Olive 2014; Valdivia et al. 2019). We contend in this section that there are three intertwined foundation-setting functions of conservation law that can be readily identified. We describe these functions and then assess whether conservation laws in Canada are adequately fulfilling the function. This is summarized in Table 1 below. In our view, conservation laws

Overall, we contend that in the conservation field, laws matter tremendously because they codify priorities and values, define and influence acceptable conservation behaviour, and drive the establishment of the institutions, programs, and governance arrangements of today’s conservation regime. This paper’s analysis concludes that viewed through this three-part framework (as summarized in Table 1), the legal foundation underpinning federal conservation efforts is sub-optimal and likely incapable of effectively creating, catalysing, and supporting the modern institutions and programs needed to halt and reverse negative biodiversity trends. At the normative level, the portfolio of federal conservation laws generally does not substantively address broader biodiversity or ecosystem protection and conservation needs or express social values or goals with respect to them. While it obviously does not prohibit attention to such goals, action on them is a matter of policy and program choice and not a legal requirement.

Federal conservation law does not require the establishment of conservation goals, objectives, or measurable outcomes of any kind. In the absence of any outcome-setting requirements, the system obviously does not establish any public accountability or reporting mechanisms for charting progress toward goals or for making programmatic course corrections over time. It does not create any requirements for government to collect and store conservation data or to demonstrate that those have been used in decision-making. Nor is there any legal requirement for the government to share whatever data it does collect. Achieving conservation data transparency in Canada remains a matter of policy choices made by Ministers and their departments, not something mandated by law. Authors such as Mazzucato (2021) and Raworth (2017) have argued that addressing great societal challenges such as climate change or pandemic prevention and response requires a mindset shift toward the establishment of major societal project or “missions” around which institutions, programs, resources, and partners can be aligned. In the Canadian conservation world, no Minister is required to develop, shape, or influence markets or societal behaviours along these conceptual lines. Instead, conservation institutions and programs are left to function like the proverbial guy with a shovel and bucket following the horses in a parade, cleaning up the messes created by society’s conservation misbehaviour or inaction.

Many observers have called for the adoption of more integrated, ecosystem-based conservation solutions that transcend the silos of government programming and agency rivalries (see for recent examples Kraus et al. 2021; Ray et al. 2021). And yet federal conservation law legislatively entrenches exactly the opposite. It features separate legislation for birds, fish, forests, oceans, pollution prevention, impact assessment, and species at risk. It features four separate laws for the establishment of protected areas. If one thinks of the environment as an orange, the federal conservation regime rarely if ever considers the skin before it peels it off, pulls apart the segments, and devours them one by one in a series of programmatic gulps. The orange never gets put back together or managed as an integrated entity.

If this legislative segmentation were just a messy but largely benign dynamic, it would be irritating to some but of no great consequence. But as we have demonstrated above, government institutions and program actions flow directly from legislative foundations. Federally, there are at least six major conservation streams, each with their various subordinate rivulets, operating largely independently. Government agencies and organizational sub-units, each with their own budgetary needs and aspirations, operate within this broad but unorganized conservation portfolio. Fused operational program delivery flowing from shared conservation goals and common policy standards and guidelines is effectively stymied by the fragmented nature of conservation’s legislative foundation. Thus, while the call for programmatic fusions and synergies that transcend traditional silos make for appealing rhetorical flourishes, one cannot reasonably be surprised when these calls go largely unheeded in the federal conservation portfolio. Indeed, segmentation of the environment and attendant programmatic and inter-agency fragmentation and competition are legislatively hard-wired into the very structure of the system. It would be nothing short of astonishing for integrated and cohesive policies and program actions to emerge from it.

Our analysis and observations in this essay are focussed on the federal conservation regime. But as we note early in our paper, provincial and territorial governments have a major role in conservation and are responsible for the stewardship of the great majority of the non-aquatic species and public lands of the country. Accordingly, to the extent that there are shortcomings in the federal regime, it may well be that they are the inevitable result of Canada’s constitutional circumstances and that they can be effectively addressed by provincial/territorial regimes. Equally, it is certainly possible that our findings with respect to federal conservation systems are uniquely germane to that order of government and have little parallel in the provincial/territorial sphere. With those possibilities acknowledged, we are unaware of a provincial/territorial regime that features a set of laws that drive program fusion, profile biodiversity, and establish modern institutions and governance arrangements for conservation. Indeed, as Ray et al. (2021) so painstakingly document in their inventory of biodiversity-related law in Canada, there is much to suggest that these regimes share many of the pathologies we describe above with respect to the federal scale and that our observations may have relevance beyond the confines of our deliberately federally focused lens.

At the macro scale, charting a path toward a more sustainable future almost certainly requires deep system change along the lines suggested by big picture thinkers like Mark Carney, Naomi Klein, Marianna Mazzucato, and Kate Raworth to name but a few (Klein 2015; Raworth 2017; Carney 2021; Mazzucato 2021). Systemic change is likely required almost simultaneously at multiple spatial and temporal scales if we are to move to enduring solutions to today’s sustainability challenges. Indeed, we must acknowledge that conservation laws exist within a milieu of similarly fragmented environmental and other related (or not) laws, such as those dealing with energy, transportation, health care, and welfare, to name but a few. Even if conservation laws were to become more integrative, they would likely fail without broader integration with non-conservation laws. Legislative and institutional mainstreaming has been suggested by others such as Ray et al. (2021). This is of critical importance, and we suggest that step one is really to ensure that the system upon which conservation relies has a strong foundation before it is integrated with other long-standing government institution and programs.

As important as macro level system change is, if we are to halt and reverse the conditions of ecosystem and biodiversity decline we outlined at the beginning of this essay, it is important that change occurs in the conservation sphere as well. In our view, the role of laws in catalyzing, mandating, and supporting more effective conservation action, at minimum at the federal level, is vital yet likely underappreciated. We have, therefore, sought to make the case that our current suite of conservation laws has brought us to our current juncture in terms of ecosystem decline, and they are unlikely to lead to miraculous turnarounds in conservation program success. On the contrary, we contend that if we are to have a more effective and robust federal conservation system in Canada, we need a more modern and effective legal foundation to underpin it.

Laying out a comprehensive legislative reform agenda and a means for advancing it is beyond the scope of this paper, and our analysis is not intended to lead directly to specific recommendations for change. With that being said, as a pathway forward for discussion, we suggest that a modern conservation legislative regime capable of catalyzing change and supporting the transition to a more sustainable conservation future would

One could easily imagine each of these 10 attributes being the subject of a “mini-paper” addressing the evolution of theory and practice with respect to them. Our intent here is to offer them for consideration and further thought as opposed to a fully fleshed out “biodiversity manifesto” of sorts. Our future writings will delve into many of these areas in greater detail and will, no doubt, be well informed by any commentary or insights the current article may generate.

While beauty is always in the eye of the beholder, the most boring and drab part of any building is its foundation. While some may find elegance in the design of massive blocks of concrete and artistry in how they are configured (Agrawal 2019), the appeal of most buildings lies in their superstructures, their facades, and their inner spaces. But as dull as they may be, foundations are vital. They fundamentally condition what can be built on top of them and have huge directional impact on the nature of structures erected upon them. Foundations built to support skyscrapers will not be used to build houses on. And house foundations won’t support skyscrapers. Indeed, if foundations are ill-conceived or inadequate in any way, many building design options are simply not viable no matter how artistic and creative design architects may wish them to be and no matter how much the public might admire their work.

Conservation laws are similarly foundational. The legislative foundation of today’s federal conservation institutions and programs almost entirely pre-date the internet, the cell phone, social media, or an understanding of climate change. This foundation is not designed to support the modern, integrated, outcome-oriented, and transparent conservation programs of the nature contemplated in our 10-point framework above. They foster and entrench the opposite of all that. The analysis presented in this paper strongly implies that achieving conservation success, no matter how success is defined, will be severely hampered if not outright thwarted by this antiquated conservation legal regime. A new set of legal foundations are likely required to springboard us to success. And they are required now.