Federal government’s commitment to a biodiversity accountability law provides opportunity for First Nations to lead in protected areas
A version of this blog originally was published in Law360 September 8, 2023.
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 ten million years and 25 percent 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 . That’s why LAND, in collaboration with grassroots, non-profit and Indigenous partners across the country, is working on the introduction of first-of-its kind legislation to protect endangered ecosystems and enshrine Canada’s international biodiversity targets into law.
The Commitment and 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.
LAND attended COP15 as a non-profit observer and took part in the event where federal Environment Minister 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.”
We applauded this announcement, and supported the need for the federal government to enact an endangered ecosystems law to enshrine its international commitments on biodiversity protection and ensure cooperation with other jurisdictions in meeting these goals.
While a biodiversity accountability law would enshrine Canada’s international nature obligations in law, what opportunities may it 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:
TARGET 22
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 as well), 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 the governments in Canada.
Despite the opportunity, we know a main challenge facing IPCAs is that Indigenous laws and knowledge systems may not be recognized by the federal or provincial government, 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 virtue of 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.
A challenge met with opportunity, comes hope.
To learn more about IPCAs and our efforts to draft first-of-its-kind legislation that would enshrine Canada’s international biodiversity targets into law, we invite you to join us at LAND’s launch event on September 29 aboard the Chief Commanda in North Bay. Tickets are on sale here