Committing to biodiversity

Speaking at the United Nations Climate Change Conference (COP28) in Dubai, Environment and Climate Change Minister Steven Guilbeault said the goal is to establish an accountability framework for Ottawa to fulfill its commitments under the Kunming-Montreal Global Biodiversity Framework (GBF). 

It was notable that the announcement came during the global climate talks. Though biodiversity and climate crises are very much intertwined, until now, they haven't been treated that way in law or policy. But Guilbeault was clear: "They are, in fact, inseparable goals."

The framework lays out 23 targets to halt and reverse biodiversity loss by 2030, achieve full recovery for nature by 2050, and a commitment to protect 30% of lands and oceans by 2030.

It's ambitious and needs to be. A landmark global report published in 2019 found that one million of the world's eight million species of plants and animals are at risk of extinction. In Canada, one in five species are at risk. And yet, action has been slow to come. Canada signed on to the Convention on Biological Diversity in 1992. In 2018, Canada's environment commissioner issued a searing report that found the federal government "had no plan for achieving Canada's biodiversity targets." The goals in place were too "aspirational" rather than practical.

Stephen Hazell, a retired environmental lawyer and founder of Ecovision Law, has worked with Ecojustice, West Coast Environmental Law and Greenpeace to push for federal accountability legislation. He says Canada sat on its hands for 30 years as species were lost. He says legislation is critical to driving action. 

And what does it need to include?

It must entrench Canada's international nature obligations in law and set out the GBF's targets as individual provisions. It must also require governments to regularly report on progress. "That way, if the target is not met, there will be repercussions," says Hazell. 

"We may not be able to get that in the statute itself, it might be in a regulation, but we want those targets set out in law."

The legislation must also require the establishment of comprehensive strategies and action plans that demonstrate how the patchwork of existing laws and regulations will work together, along with provincial and Indigenous measures, to ensure the targets and goals are met.

Historically, Hazell says biodiversity strategies have been crafted in a way that made the government look good without actually doing much for nature. To avoid that, strategy requirements need to be clearly prescribed. 

As for the action plans, he says the legislation needs provisions for corrective action to apply more resources when efforts to meet targets are falling short.

It should also create an advisory committee to help guide the implementation of GBF targets and allow the environment commissioner to audit the work that's done.

Ideally, a shield mechanism would link biodiversity legislation with other federal laws, Hazell says. That would be triggered when a target is not being met, preventing other federal laws from undermining the GBF's targets and goals.

"It's more complicated and would be more substantial," he says. "But if the government doesn't want to do that, maybe we can talk to the opposition parties about introducing it as an amendment."

Drafting this legislation won't require a reinvention of the wheel. The Canadian Net Zero Emissions Accountability Act, enacted to ensure Canada works seriously on climate change, lays out a roadmap. It's a successful approach that forced the federal government to come up with a more detailed climate plan to meet the entrenched targets.

"We're hoping this law will also make it much more difficult for the federal government to obfuscate," says Anna Johnston, a lawyer with West Coast Environmental Law. 

"Canada's been able to claim it's doing all sorts of good things on biodiversity when our numbers are clearly trending in a negative direction."

And while the federal government has pledged to reach the GBF targets, achieving them requires collaborative efforts from all levels of government.

Hazell says accountability legislation will put pressure on the provinces to take action on land they control. So far, they've made no serious efforts to halt or reverse biodiversity loss. Even though a CBD provision requires parties to enact legislation to protect species at risk, most provinces never have, and the few that did have it have since gutted it. 

However, in May, most provinces and territories agreed to collaborate on a new national biodiversity strategy with the feds.

"They have a huge responsibility in this area," Johnston says. "And to the extent to which the provinces are not holding up their end of things, (legislation) can provide transparency and show that."

Unlike the emissions accountability law, which has one goal – reduce emissions – biodiversity accountability legislation will be a more complex beast.

"We're talking about species at risk, protected areas, restoration of habitats, invasive species, pollution and climate change," says Hazell. 

"All of those are important elements, which makes it a much bigger job."

In addition to the provinces, he says Indigenous peoples, who manage most of the wild lands in Canada, are critical to making this happen. Although the federal government wasn't on board with Indigenous co-drafting of the legislation, Hazell says Indigenous nations need to be engaged, empowered and involved, and have the resources to do the work. 

The good news is that despite all the constitutional consternation on environmental issues in Canada, biodiversity doesn't stir up much. And as polarized as the climate is, Johnston says the provinces didn't kick up a fuss over the emissions accountability legislation or challenge it in court. Neither did industry. 

She doesn't expect the biodiversity accountability law will be challenged either because the political will is there. 

Says Johnston: "It's really encouraging to see this government, which has kind of staked its reputation on climate, to be coming around to the equal importance of protecting biodiversity."