Abstract:Canadian environmental law has changed dramatically over the last 50 years, responding to some of the flaws and weaknesses identified by commentators seeking to explain the continuing trend in environmental degradation. The aim of this article is to tell the story of three pieces of Canadian environmental legislation, the Alberta Land Stewardship Act, the federal Species at Risk Act, and Alberta's Environmental Protection and Enhancement Act, with a view to exploring whether the environmental ambition underlying these pieces of legislation is being realized. Our overall conclusion is that there is a significant gap between the ambition of these three pieces of environmental legislation and their actual implementation but this gap arises from design choices made by the legislature and the executive, rather than something inherent in the law itself.
Gaps between environmental science and environmental law may undermine sound environmental decision-making. We link perspectives and insights from science and law to highlight opportunities and challenges at the environmental science-law interface. The objectives of this paper are to assist scientists who wish to conduct and communicate science that informs environmental statutes, regulations, and associated operational policies (OPs), and to ensure the environmental lawyers (and others) working to ensure that these statutes, regulations, and OPs are appropriately informed by scientific evidence. We provide a conceptual model of how different kinds of science-based activities can feed into legislative and policy cycles, ranging from actionable science that can inform decision-making windows to retrospective analyses that can inform future regulations. We identify a series of major gaps and barriers that challenge the successful linking of environmental science and law. These include (1) the different time frames for science and law, (2) the different standards of proof for scientific and legal (un)certainty, (3) the need for effective scientific communication, (4) the multijurisdictional (federal, provincial, and Indigenous) nature of environmental law, and (5) the different ethical obligations of law and science. Addressing these challenges calls for bidirectional learning among scientists and lawyers and more intentional collaborations at the law-science interface.
Fish habitat is essential to the stability and productivity of fisheries. In Canada, the primary legal tool for protecting fish habitat is the federal Fisheries Act. In 2012, this law was changed to narrow the scope of habitat protection. The government’s position was that the previous regime went beyond what was necessary to protect fish and fish habitat. Here, we tested that assertion by examining Fisheries Act authorizations to harmfully alter, disrupt, or destroy fish habitat issued by Fisheries and Oceans Canada during a 6-month period in 2012, obtained using access to information processes. We found the majority of projects (67%) were authorized to impact more habitat than proponents were required to compensate for, likely resulting in a net loss of fish habitat. Our analysis show an aggregate net loss — defined as authorized impact minus required compensation — of 2 919 143 m2 authorized across 78 projects. Drawing from these results, we present four recommendations for an improved habitat protection regime under a renewed Fisheries Act, emphasizing the need to establish a public registry for authorizations and monitoring data.
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