Biodiversity

We are living in a global biodiversity crisis. Around the world, other-than-human species are declining at alarming rates, and many are facing serious threat of extinction due to human activities.

Article 2 of the international Convention on Biological Diversity defines “biological diversity” as meaning:

“the variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part; this includes diversity within species, between species and of ecosystems”. [The term “inter alia” means “among other things”.]

As this definition suggests, “biological diversity”—or “biodiversity”, as it’s often called—is all about the variability (variety, difference, adaptivity) of the Earth’s species and ecosystems. Variability helps to make species and ecosystems resilient to sudden disasters like the spread of a new pathogen. Variability also helps to make species and ecosystems resilient to slow-burn crises like climate change.

In its Living Planet Report 2020: Bending the Curve of Biodiversity Loss, the World Wildlife Fund (“WWF”) calculates that the population sizes of mammals, birds, fish, amphibians, and reptiles around the world have dropped by a staggering average of 68% between 1970 and 2016.¹

In its corresponding Living Planet Report Canada 2020: Wildlife at Risk, the WWF concludes that the populations of Canadian species which the Committee on the Status of Endangered Wildlife in Canada (“COSEWIC”) has assessed as being at risk have dropped by an average of 59% between 1970 and 2016.² That same report says that the populations of species of global conservation concern have declined in Canada by an average of 42% in the same period.³

When compared against the tallies in previous years’ Living Planet reports, these numbers demonstrate patterns of steady decline.

Biodiversity sustains life on this planet. As it diminishes throughout the world, the intricate ecological webs that support our existence fray and tear apart.

Peoples around the globe recognize that the Earth’s biodiversity crisis threatens human life and human wellbeing, and that’s a big part of the reason why international, national, and subnational laws have been created to protect Earth’s ecosystems and attempt to repair the damage we’ve done.

Some law that attempts to address biodiversity loss, like Nova Scotia's Biodiversity Act, deals with biodiversity at a high level, taking into account wide diversities of species and ecosystems. Other laws focus more narrowly on identifying and protecting specific species that are clearly declining fast and are at risk of becoming extinct if nothing is done. Not all biodiversity issues are species at risk issues, but all species at risk issues fall under the broad umbrella of biodiversity concerns.

Within Canada, there are several examples of laws that focus on identifying and protecting species that are declining fast and are at risk of becoming extinct if we ignore the problem. The federal Species at Risk Act (“SARA”) is designed to protect species that are under federal jurisdiction and are extirpated, endangered, threatened, or of special concern. Under SARA, species that are under federal jurisdiction include aquatic species, migratory birds that are listed under the Migratory Birds Convention Act, and many species of flora and fauna that live on land. For land-based species, SARA’s protections extend mainly to species inhabiting federal lands, but the Act does create processes which the Government of Canada can use to protect species at risk that live on provincial and privately-owned lands.

Complementing and working in tandem with federal species at risk legislation, most of Canada’s provinces and territories have corresponding laws to protect species at risk within the political boundaries of the provinces. This coordinated approach reflects an agreement between the Government of Canada and the respective governments of the provinces and territories to work together to protect species at risk. That agreement has been formalized through a national Accord for the Protection of Species at Risk, and you can read more about it here.

The provincial statutes that address species at risk issues in Atlantic Canada are:

the New Brunswick Species at Risk Act;
the Newfoundland and Labrador Endangered Species Act;
the Nova Scotia Endangered Species Act; and,
the Prince Edward Island Wildlife Conservation Act.

East Coast Environmental Law regularly engages in advocacy, law reform, and public legal education activities on matters related to biodiversity and species at risk. This project page puts our work on these issues into context and provides a record of our key contributions to date.

¹WWF, Living Planet Report 2020: Bending the Curve of Biodiversity Loss (2020) at page 7.

² WWF-Canada, Living Planet Report Canada 2020: Wildlife at Risk (2020) at page 6.

³ Ibid.

Biodiversity

Canada’s International Commitments and Federal Government Action

The Convention on Biological Diversity is one of the world’s largest international treaties. It emerged from the United Nations Conference on Environment and Development (often referred to as the “Earth Summit”) which was held in Rio de Janeiro, Brazil, in 1992.

196 nations (“States”) are parties to the Convention on Biological Diversity, and Canada is one of them. Under the Progressive Conservative government of Prime Minister Brian Mulroney, Canada signed the convention in June 1992 and ratified it in December of that same year. Canada was one of the first States to sign and ratify the convention, following closely on the heels of the Maldives, Marshall Islands, Mauritius, and Monaco.

The convention has three main objectives:

conservation of the Earth’s biological diversity;
encouragement of sustainable use of the components of biological diversity; and,
encouragement of fair and equitable sharing of the benefits that flow from using the genetic resources that biological diversity provides.

The Convention also imposes a number of obligations on the States that are party to it. Among other things, State parties are expected to:

identify and monitor important components of biodiversity within their jurisdictions;
identify, monitor, and regulate processes and activities that are likely to have significant adverse (negative) impacts on the conservation of biodiversity and sustainable use of the components of biodiversity within their jurisdictions;
establish systems for protected areas;
promote the protection of ecosystems;
restore degraded ecosystems;
promote the protection of other-than-human species and their habitats;
promote the recovery of threatened species;
prevent the introduction of alien invasive species that threaten local ecosystems, and control or eradicate such species if they are introduced;
preserve the ecological knowledges of Indigenous and local communities; and,
develop national strategies, plans, or programmes for the conservation of biodiversity and sustainable use of the components of biodiversity.

Canada’s first step to meet its commitments under the Convention on Biological Diversity was the creation of the Canadian Biodiversity Strategy in 1995.

Although the Government of Canada has set various biodiversity goals and targets in the years following the creation of the Canadian Biodiversity Strategy—including targets for the protection of Canada’s land, coastal, and marine areas—to date, the federal government has not created biodiversity legislation to synthesize Canada’s biodiversity obligations and protection efforts.

The Nova Scotia Biodiversity Act

For more than a decade, the Government of Nova Scotia has been giving increasing attention to biodiversity issues within its jurisdiction.

In 2009, a provincial report entitled Our Common Ground: The Future of Nova Scotia’s Natural Resources began by stating:

“The status quo cannot sustain the biodiversity of our natural environment, enhance the economy, or preserve the rural lifestyle so valued by the citizens of this province. During a citizen engagement process on the future of the province’s natural resources, Nova Scotians made it clear that change must happen in all areas of natural resource management—and happen soon."¹

The Our Common Ground report emerged from the first phase in a three-phase Natural Resources Strategy 2010 initiative which the Government of Nova Scotia designed to support the development of a natural resources strategy for the province.

The Natural Resources Strategy 2010 initiative was prompted by the Government of Nova Scotia’s enactment of the Environmental Goals and Sustainable Prosperity Act (“EGSPA”) in 2007. Among the goals that were included in EGSPA was the goal “to ensure the sustainability of the Province’s natural capital in the areas of forestry, mining, parks and biodiversity” by 2010.

(Notably, EGSPA also included other biodiversity goals such as the goal of legally protecting 12% of the province’s total land mass by 2015 and the goal of establishing a policy to prevent net loss of wetlands within the province by 2009.)

The three phases of the Natural Resources Strategy 2010 initiative were designed to combine citizen engagement with expert analysis to inform the government’s development of a provincial natural resources strategy. Phase One was the citizen engagement phase, and Phase Two was the phase in which expert panels dug into the technical issues more deeply.

As per the EGSPA goal, the Natural Resources Strategy 2010 initiative focused on four key natural resources “issue areas”: biodiversity, forests, minerals, and parks. One of its key objectives was to set a clear direction for the conservation and sustainable use of biodiversity in Nova Scotia going forward—something the province had not been doing in a coordinated way up to that point.

As part of phase two of the Natural Resources Strategy 2010 initiative, a Biodiversity Panel of Expertise delivered a report entitled Biodiversity: The Foundation for Environmental, Social and Economic Prosperity in Nova Scotia.

The report by the Biodiversity Panel of Expertise drew on the Canadian Biodiversity Strategy’s definition of biodiversity as “the variety and interconnectedness of life, including all species of plants, animals, and other organisms, the genes they contain, and the ecosystems and ecological processes of which they are a part”.² Importantly, the report recognized that “[b]iodiversity and the quality of human life are tightly intertwined”.³

After assessing how biodiversity was understood and protected by Nova Scotia’s existing government structures and legal system, the Biodiversity Panel of Expertise found that:

“Issues related to the conservation and sustainable use of biodiversity cross divisional boundaries within the Department of Natural Resources, departmental boundaries within the Government of Nova Scotia, and jurisdictional boundaries with other levels of government. Despite this, there is no lead authority or biodiversity legislation to champion biodiversity issues in Nova Scotia.

The accuracy, availability and completeness of biodiversity information in the province is also a concern, as lack of access to information impacts the ability of scientists, political leaders, and others to make informed decisions related to the conservation and sustainable use of biodiversity in Nova Scotia.

While government, industry, and non-governmental organizations have a significant role to play in developing and implementing policy, strategy, and programs that aim to protect the province’s biodiversity, it is individual Nova Scotians who will form the front line to conserve biodiversity on privately held lands, and hold government and industry accountable for the stewardship of natural resources on public lands.

In order for this to happen, Nova Scotians need to understand biodiversity and how we benefit from the ecological services provided to us by properly functioning natural systems. Based on a more comprehensive understanding of biodiversity and its benefits, individual Nova Scotians must be engaged by government, industry, and non-governmental organizations to participate in the conservation and management of biodiversity, resulting in co-ordinated stewardship of our natural resources”.⁴[Emphasis added]

With all of this in mind, the Biodiversity Panel of Expertise made several recommendations, which it summarized as follows:

“Nova Scotia needs a Biodiversity Act and other regulatory and stewardship tools, designating the Department of Natural Resources as the lead department and the departments of Agriculture, Environment, Fisheries and Aquaculture, and Energy as key departments.

Informed decision making could be greatly enhanced with the coordination and establishment of an external science advisory body, and further development of internal scientific expertise to provide advice to the minister based on the most up-to-date scientific understanding of issues affecting biodiversity.

The Government of Nova Scotia should strive to enhance public understanding of the importance of protecting biodiversity, soil, water, and air quality and in collaboration with land owners, industry, non-governmental associations, and educational institutions.

A co-operative effort is required to survey and monitor biodiversity and manage data storage, organization, and distribution for spatially referenced biological and physical information for the Province of Nova Scotia. This effort should be led by the Department of Natural Resources.

A biodiversity education program including age-appropriate, experiential curriculum should be developed by the province to address biodiversity and ecological goods and services across all grades from primary to grade 12 in order to develop a new generation of stewards for our province’s natural resources”.⁵ [Emphasis added]

The Natural Resources Strategy 2010 initiative concluded with the development of The Path We Share: A Natural Resources Strategy for Nova Scotia, 2011-2020. One of the action items included in that strategy was for the Government of Nova Scotia to “[i]mplement new laws and update existing laws to support biodiversity”.⁶

Over the next several years, the Government of Nova Scotia made little progress on the recommendations that had been made by the Biodiversity Panel of Expertise. Notably, phase one of the Natural Resources Strategy 2010 initiative—the public engagement phase—had made it abundantly clear that Nova Scotians throughout the province wanted to see better and more transparent stewardship of the province’s natural resources. The excitement generated by the robust public consultation processes that had been carried out during phase one of the Natural Resources Strategy 2010 initiative was curdling into frustration as the provincial government stalled on making necessary changes.

Finally, in 2017—which was an election year in Nova Scotia—the incumbent provincial Liberal Party made a campaign commitment to pass a provincial Biodiversity Act if it were re-elected. The Liberal Party was re-elected, and under the leadership of Premier Stephen MacNeil, it began to take steps to create a Biodiversity Act for Nova Scotia.

In 2018, Nova Scotia’s Department of Natural Resources (“DNR”) held two by-invitation stakeholder sessions in which the key elements of a potential Biodiversity Act for Nova Scotia were discussed. The presentation by DNR addressed, at a high level, several issue areas that the proposed Biodiversity Act would cover—most of them relating to issues that had been flagged by members of the public and the Biodiversity Panel of Expertise during the Natural Resources Strategy 2010 initiative. Some of the issue areas that DNR discussed were:

the need to enable governmental leadership and coordination across departments;
the need to create standard enforcement tools;
the need to mandate information-gathering and reporting on the state of biodiversity in the province; and,
the need to enable regulatory management that would prevent the introduction of invasive species.

On the whole, however, the presentation by DNR provided few specifics about the Biodiversity Act for Nova Scotia that the provincial government was proposing to create.

In light of the Government of Nova Scotia’s movement on developing a Biodiversity Act for the province, and anticipating that there would be public consultations on the proposed legislation before a Bill was tabled, East Coast Environmental Law and the Ecology Action Centre decided to work together to conduct legal and policy research and analysis to see what a really strong Biodiversity Act for Nova Scotia could look like. Their collaborative research combined multi-jurisdictional comparative legal analysis and in-person dialogue sessions attended by many scientists, biodiversity practitioners, and members of the environmental law community.

A report based on the multi-jurisdictional comparative analysis by East Coast Environmental Law was produced in June 2018. This research, combined with the insights discovered through the in-person dialogue sessions, led to a co-authored report by East Coast Environmental Law and the Ecology Action Centre which provided an overview of important elements of strong biodiversity legislation and set out a number of key recommendations for a Biodiversity Act for Nova Scotia.

To our surprise, the Government of Nova Scotia chose to introduce its proposed Biodiversity Act for Nova Scotia without providing opportunities for public consultation on the Bill. In late February 2019, we learned that the introduction of the Bill was imminent, and we shared our co-authored overview and key recommendations with the Department of Lands and Forestry (“NSDLF”) in the hope that it might still be informative.

In March 2019, Minister of Lands and Forestry Iain Rankin, as he then was, introduced Bill 116—the first version of the proposed Biodiversity Act for Nova Scotia. The first reading of the Bill was on March 14, 2019, and the second reading happened the next day. On March 25, 2019, the Bill went to Nova Scotia’s Law Amendments Committee, and individuals, community groups, and organizations had an opportunity to comment. East Coast Environmental Law participated in the process, with Executive Director Lisa Mitchell making submissions on our behalf.

During the legislative process, concerns were raised by many—ourselves included—that there had not been adequate public consultation on the Bill. In response to the significant public concerns that were raised, Minister Rankin withdrew the Bill so that public consultations could occur.

A series of public consultation sessions took place in the summer of 2019. Lisa Mitchell attended a session that was held in Bible Hill in July 2019. Her thoughts on the session are reflected in the written submission that she later made to the Department of Lands and Forestry as the consultation process continued.

Although session participants were under the impression that the Department of Lands and Forestry would create and circulate a summary of the consultation sessions after they were complete, no such document was prepared. For some time, public conversations around the proposed Biodiversity Act died down, and we heard no more about it until the autumn of 2020 when Iain Rankin—at that time a participant in the Nova Scotia Liberal Party’s leadership race—committed to passing a Biodiversity Act if he were elected.

In the winter of 2021, after Iain Rankin was elected as the Liberal Party leader and appointed as Premier, the newly-appointed Minister of Lands and Forestry, Chuck Porter, introduced Bill 4—the second version of the proposed Biodiversity Act for Nova Scotia. The Bill was swiftly met with a fierce response from forestry interests in Nova Scotia. Specifically, Forest Nova Scotia—an organization representing some forestry stakeholders in the province—funded an aggressive campaign that mobilized public opposition to Bill 4 by spreading inaccurate information about its contents and stoking fears that the proposed legislation was an underhanded attempt to severely restrict private property interests. To respond to legitimate public concerns arising from the misinformation campaign, Lisa Mitchell published a blog post discussing the Bill and comparing it to existing legislation in Nova Scotia.

Ultimately, the Government of Nova Scotia responded to the public pressure building in the midst of the Forest Nova Scotia campaign and cut several contentious provisions from the Bill before the Bill was sent to the Law Amendments Committee. On the day of the Law Amendments process, Lisa Mitchell once again appeared before the committee and shared her thoughts on the dire need to create biodiversity legislation in Nova Scotia.

On April 13, 2021, the amended Bill 4 passed third reading, and on April 19, 2021, it received Royal Assent.

Nova Scotia’s new Biodiversity Act came into force on October 1, 2021. The statute is the first of its kind in Canada, and, despite all of the controversy surrounding its creation, we feel that Nova Scotians should be proud to see it in place.

¹ Voluntary Planning Natural Resources Citizen Engagement Committee, Our Common Ground: The Future of Nova Scotia’s Natural Resources, Final Report (March 2009) at page 3.

² Biodiversity Panel of Expertise, Biodiversity: The Foundation for Environment, Social and Economic Prosperity in Nova Scotia (February 2010) at page 3.

³ Ibid at pages 3, 5.

⁴ Ibid at page 3.

⁵ Ibid at pages 3-4.

⁶ Nova Scotia Department of Natural Resources, The Path We Share: A Natural Resources Strategy for Nova Scotia, 2011-2020 (August 2011) at page 28.

Nova Scotia's Biodiversity Act in the Media

Species at Risk

196 nations (“States”) are parties to the Convention on Biological Diversity, and Canada is one of them. Under the Progressive Conservative government of Prime Minister Brian Mulroney, Canada signed the Convention in June 1992 and ratified it (incorporated the treaty into Canada’s domestic law) in December of that same year. Canada was the first industrialized State to sign and ratify the treaty. Maldives, Marshall Islands, Mauritius, and Monaco also signed and ratified the Convention before the end of the year.

The Convention on Biological Diversity has three main objectives:

conservation of the Earth’s biological diversity;
encouragement of sustainable use of the components of biological diversity; and,
encouragement of fair and equitable sharing of the benefits that flow from using the genetic resources that biological diversity provides.

The Convention also imposes a number of obligations on the States that are party to it. Among other things, State parties are expected to:

identify and monitor important components of biodiversity within their jurisdictions;
identify, monitor, and regulate processes and activities that are likely to have significant adverse (negative) impacts on the conservation of biodiversity and sustainable use of the components of biodiversity within their jurisdictions;
establish systems for protected areas;
promote the protection of ecosystems;
restore degraded ecosystems;
promote the protection of other-than-human species and their habitats;
promote the recovery of threatened species;
prevent the introduction of alien invasive species that threaten local ecosystems, and control or eradicate such species if they are introduced;
preserve the ecological knowledges of Indigenous and local communities; and,
develop national strategies, plans, or programmes for the conservation of biodiversity and sustainable use of the components of biodiversity.

Canada’s Species at Risk Act (“SARA”), which was enacted in 2002, is part of the Government of Canada’s response to the global biodiversity crisis and its commitments under the Convention on Biological Diversity. The Act’s preamble (the introductory section which describes the federal government’s motivations for enacting the statute) explicitly recognizes that:

Canadian wildlife species and ecosystems are […] part of the world’s heritage and the Government of Canada has ratified the United Nations Convention on the Conservation of Biological Diversity, [and]

providing legal protection for species at risk will complement existing legislation and will, in part, meet Canada’s commitments under that Convention[.]

SARA is designed to protect endangered and threatened species and species of special concern within Canada from becoming extirpated (no longer present in the wild in Canada) or extinct. As a piece of federal legislation, the Act applies most straightforwardly to species that inhabit lands and waters that are under the federal government’s control.

SARA is complemented by provincial and territorial statutes that aim to protect species at risk within the respective jurisdictions of the provinces and territories. In Atlantic Canada, we have:

the New Brunswick Species at Risk Act;
the Newfoundland and Labrador Endangered Species Act;
the Nova Scotia Endangered Species Act; and,
the Prince Edward Island Wildlife Conservation Act.

Most of these statutes impose clear legal obligations on the governments that enacted them and require the Ministers who are responsible for the legislation to take various steps to identify and protect species at risk.

Over the past several years, East Coast Environmental Law has been assessing Atlantic Canadian governments’ compliance with their species at risk legislation. To date, we have assessed and reported on the Government of New Brunswick’s performance under its Species at Risk Act and the Government of Nova Scotia’s performance under its Endangered Species Act. We are currently assessing the Government of Newfoundland and Labrador’s performance under its Endangered Species Act, and we plan to turn our attention to Prince Edward Island soon.

(i) The Government of New Brunswick’s Failures to Fulfil Its Legal Obligations under Its Species at Risk Act

The Government of New Brunswick enacted its Species at Risk Act in 2012, replacing a former Endangered Species Act. As section 2 of the Act states, its purposes are:

[…] to prevent wildlife species from becoming extirpated from the Province, to provide for the recovery of wildlife species that are extirpated, endangered or threatened as a result of human activity, and to conserve species of special concern to prevent them from becoming endangered or threatened.

To meet those purposes, the Act establishes a regime that requires New Brunswick’s Minister of Natural Resources and Energy Development to create an advisory committee called the Committee on the Status of Species at Risk and work in conjunction with that committee to assess the biological status of each species at risk in the province and take action to recover or support the species’ local existence.

In September 2020, East Coast Environmental Law published a report entitled Protected on Paper Only: An Evaluation of New Brunswick’s Legal Obligations under the Species at Risk Act. In it, we reported on several failures by the Government of New Brunswick to fulfil its legal obligations under its Species at Risk Act. Among them, we noted that:

among the 39 species that are listed as endangered, at least 22 are missing recovery strategies that the Minister is required to prepare;
among the 20 species that are listed as threatened, at least 19 are missing required recovery strategies; and,
among the 24 species that are listed as species of special concern, at least 20 are missing management plans that the Minister is required to prepare.

Following the publication of our report, East Coast Environmental Law lawyers met with New Brunswick’s Deputy Minister of Natural Resources and Energy Development to discuss our findings and hear about the provincial government’s plans to meet its obligations under the Act.

(ii) The Government of Nova Scotia’s Failures to Fulfil Its Legal Obligations under Its Endangered Species Act.

Nova Scotia’s Endangered Species Act (“the ESA”) was enacted in 1998. Its core purposes are to provide for the protection, designation, recovery, and other relevant aspects of conservation of species at risk in Nova Scotia, including by protecting the habitats that species require to survive. To do this, the Act establishes a regime under which Nova Scotia’s Minister of Lands and Forestry is guided by a Species at Risk Working Group, and, on the advice of that working group, takes action to identify and protect species at risk in Nova Scotia.

In February 2015, East Coast Environmental Law published a report entitled Protected on Paper Only: Evaluation of Nova Scotia’s legal obligations to protect and recover mainland moose and other species-at-risk. In it, we reported on several failures by the Government of Nova Scotia to fulfil its legal obligations under the ESA. Among them, we noted that:

among the 28 species listed as endangered under the Act, the Minister had prepared provincial recovery plans for just 3 of them and appeared to be relying on federal recovery strategies for six others, leaving 18 species with no recovery plans whatsoever;
the 3 provincial recovery plans that had been prepared for endangered species did not fully meet the requirements of the Act; and,
among the 9 species listed as threatened under the Act, 2 were missing provincial recovery plans required by the Act and the Minister appeared to be relying on a federal recovery strategy for 1 of them.

In the winter of 2016, Nova Scotia’s Office of the Auditor General conducted a performance audit of Nova Scotia’s Department of Natural Resources (now the Department of Lands and Forestry). When the performance audit was complete, the Auditor General released a report affirming that the Government of Nova Scotia was not meeting its obligations under the ESA.

In a section providing the Auditor General’s conclusions and summary of observations, the report stated:

We believe species at risk need to be a greater priority of the Department of Natural Resources. Although the Endangered Species Act outlines specific duties to conserve, protect, and recover endangered species, the Department has not met all its responsibilities.

- No recovery or management plans for five of nine endangered or threatened species. Plans are six months to more than seven years late.
- Three of five vulnerable species do not have management plans.
- No recovery teams for four of nine endangered or threatened species (listed under Endangered Species Act and solely provincial responsibility).
- Four recovery plans past due for review by one to four years.

Natural Resources’ coordination with recovery teams is weak and we recommend a communication process be developed. The Department’s special management practices do not cover all species at risk listed under the provincial Act. We recommend the Department amend or establish practices to protect species habitat, as guided by the recovery plans.¹

In the years following our 2015 report and the 2016 report of the Auditor General, East Coast Environmental Law continued to monitor the Government of Nova Scotia’s progress in protecting species at risk in Nova Scotia as required by the ESA.

In January 2019, we published Protected on Paper Only: An Evaluation of Nova Scotia’s Legal Obligations under the Endangered Species Act, which was an updated version of our 2015 report. In it, we found that the Government of Nova Scotia’s performance under the ESA had not improved since 2015: in fact, it had worsened. As we had done in our 2015 report, we once again called on the Minister to meet their obligations under the Act.

Around this same time, an important legal proceeding began in the Nova Scotia Supreme Court (“NSSC”). Represented by local lawyer (and former East Coast Environmental Law Executive Director) Jamie Simpson, four applicants—Robert Bancroft, the Blomidon Naturalists Society, the Halifax Field Naturalists, and the Federation of Nova Scotia Naturalists—initiated a judicial review proceeding before the Court, asking the Court to review the Minister’s failures to meet several obligations under the ESA and to issue declarations stating that the Minister must act to protect species at risk in Nova Scotia by doing what the Act requires.

Because our years of work on this issue gave us knowledge and insight that we knew would benefit the Court as it considered the issues, East Coast Environmental Law applied for and was given standing to participate as an intervenor in the proceeding. Oral hearings were conducted in September and October 2019, and further written submissions were sent to the court in February 2020. The Honourable Justice Christa Brothers presided, and we were represented by our colleagues at Ecojustice throughout the entire proceeding.

On May 29, 2020, Justice Brothers delivered her written decision: Bancroft v Nova Scotia (Lands and Forests), 2020 NSSC 175 (“Bancroft”). From our respective homes, which had become our new workplaces in the midst of the global pandemic, East Coast Environmental Law staff opened the digital file, scrolled down to the page where the decision began, and saw that Justice Brothers had included as an epigraph a quote from Dr. Seuss’s book The Lorax, which states:

UNLESS someone like you cares a whole awful lot, nothing is going to get better. It’s not.

The decision was a resounding victory for species at risk in Nova Scotia—species that desperately need the protections offered by the ESA and that will disappear from this province if the Minister does not take the actions that the Act requires.

Following the NSSC’s decision in Bancroft, East Coast Environmental Law began preparing another update to Protected on Paper Only. This time, we took a different approach to the numbers, guided by some clarifications that had emerged from the court proceeding. Specifically, in our first iteration of Protected on Paper Only and our 2019 update, East Coast Environmental Law took a generous approach in assessing the Minister’s obligations to prepare recovery plans for endangered and threatened species and management plans for vulnerable species. Where it appeared that the Minister was using federal recovery strategies or management plans developed under the federal SARA to protect endangered, threatened, and vulnerable species in Nova Scotia, we counted that as likely meeting the requirements of the ESA.

The NSSC’s decision in Bancroft made it clear that our former approach to the numbers is not appropriate, for two reasons.

First, subsection 15(1) of the ESA requires the Minister to prepare recovery plans for species that are listed as endangered or threatened under the ESA, but subsection 15(9) allows the Minister to adopt existing recovery plans that have been prepared by other jurisdictions. Subsection 15(10) of the ESA requires the Minister to prepare management plans for species that are listed as vulnerable, and there is no provision which allows the Minister to adopt existing management plans that have been prepared by other jurisdictions. In Bancroft, the NSSC made it clear that the Minister cannot outsource his responsibility to prepare management plans for vulnerable species. Reliance on federal recovery strategies or management plans to protect species that are listed as vulnerable under the ESA fails to meet the requirements of the Act.

Second, the NSSC’s decision in Bancroft states that the Minister cannot rely on the existence of federal recovery strategies as meeting the ESA’s requirements unless the Minister has taken some kind of clear and positive action to adopt those strategies in lieu of preparing provincial recovery plans for endangered and threatened species. Before Bancroft, the Minister took a passive approach to “adoption” and tended to operate as though the existence of a relevant federal recovery strategy was enough to indicate provincial adoption where no province-specific recovery plan existed. The Court’s decision in Bancroft made it clear that “adoption” under subsection 15(9) of the ESA cannot be passive.

For these reasons, our latest update no longer counts the existence of federal recovery strategies as helping the Minister to meet his obligations unless the Minister has clearly adopted recovery strategies that meet the requirements of the ESA.

¹Office of the Auditor General, Report of the Auditor General: Natural Resources, “Chapter 3: Species at Risk: Management of Conservation and Recovery” (June 2016) at page 52.

Our Publications on Biodiversity and Species at Risk