Feds’ commitment to biodiversity accountability law opportunity for First Nations | Kerrie Blaise

By Kerrie Blaise

Law360 Canada (September 8, 2023, 3:31 PM EDT) --
Kerrie Blaise
Kerrie Blaise
There is clear evidence that nature and biodiversity is in a global crisis. The rate of species extinction is tens to hundreds of times higher than the average of the past 10 million years and 25 per cent of all animal and plant species are threatened.

One million species currently face extinction unless action is taken to reduce the intensity of drivers of biodiversity loss, which includes climate change. The years leading up to 2030 are the most critical if we are to halt catastrophic climate change and biodiversity loss.

Commitment, opportunity

The 15th meeting of the Conference of the Parties to the United Nations Convention on Biological Diversity (COP15) in December 2022 was the largest ever conference for biodiversity conservation. Canada along with 195 member nations committed to a historic global framework to safeguard nature and halt and reverse biodiversity loss, putting nature on a path to recovery by 2050. It is named the Kunming-Montreal Global Biodiversity Framework after the COP15’s official hosts, China and Canada.

At COP15, the federal Environment Minister Steven Guilbeault stated the government’s intention to develop a nature accountability act. In his speech, he stated, “Canada will develop a whole of government domestic biodiversity strategy and action plan to 2030 in collaboration with Indigenous peoples and provinces. And I believe, as we do for climate change, an accountability act to enshrine our 2030 nature targets in law is required.”

Many applauded this announcement and supported the need for the federal government to enact a law to enshrine its international commitments on biodiversity protection and ensure co-operation with other jurisdictions in meeting these goals. However, questions remain about what opportunities such a law would provide for First Nations, relying on their legal traditions, to declare protected areas over lands and waters.

Among the 23 global targets for 2030 set out in the Kunming-Montreal Global Biodiversity Framework reached at COP15 is Target 22. Target 22 is pivotal in providing new starting points for the defence of environmental human rights defenders and requiring conservation decision-making that fully and equitably respects the cultures and rights over lands, territories, resources and traditional knowledge of Indigenous Peoples. As the text reads:


Ensure the full, equitable, inclusive, effective and gender-responsive representation and participation in decision-making, and access to justice and information related to biodiversity by indigenous peoples and local communities, respecting their cultures and their rights over lands, territories, resources, and traditional knowledge, as well as by women and girls, children and youth, and persons with disabilities and ensure the full protection of environmental human rights defenders.

For the federal government to achieve Target 22, Indigenous Protected and Conserved Areas (often called Indigenous Sovereign or Conserved Lands), will be an important mechanism. While the meaning of an IPCA will vary among communities, they often share three core principles: (1) they are Indigenous-led, (2) they represent a long-term commitment to conservation, and (3) they elevate Indigenous rights and responsibilities. The creation of IPCAs can also support Land Back by creating the space for Indigenous communities to lead in protecting lands and waters.

The intrinsic value of IPCAs in safeguarding biodiversity echoes the growing recognition that Indigenous Natural Laws, that teach respect and responsibility to lands, have been more effective at protecting the health of ecosystems and species, than the traditional conservation practices established by governments in Canada.

Despite the opportunity provided by the Global Biodiversity Framework, we know a main challenge facing IPCAs is that Indigenous laws and knowledge systems may not be recognized by the federal or provincial governments, leaving lands open to threats from conflicting land uses and regulatory processes prescribed in Crown law. For instance, for lands where Indigenous communities have declared moratoriums on logging, mineral exploration or development, these protection measures may not be respected by not being established within the dominant legal system.

Passing a domestic law that enshrines Canada’s biodiversity targets and commitments is a pivotal aspect to the successful implementation of the Global Biodiversity Framework. However, in keeping with the framework, there ought to be provisions within the proposed nature accountability act that enables the creation of IPCAs and advances the equitable inclusion of Indigenous Peoples in conservation decision-making, as Target 22 contemplates.

Kerrie Blaise is the founder and legal counsel at Legal Advocates for Nature’s Defence (LAND), a non-profit organization dedicated to advancing access to justice that advocates for the protection of nature and honouring of Indigenous sovereignty in law and policy.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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