Constitutional Impacts on Conservation – Effects of Federalism on Biodiversity Protection – by Michelle

Introduction The protection of biodiversity has become an important national and international issue within the past decade (see Noss and Cooperrider 1994 for a discussion of the reasons, which range from intrinsic to aesthetic). Canada, along with over 150 other countries, ratified the 1992 Convention on Biological Diversity (CBD 1992), and is obliged to implement the provisions of the convention through programmes, plans, and legislation to protect native biodiversity (Lyster 1985). Biodiversity conservation is multi-sectoral and interdisciplinary, encompassing, inter alia, protected areas, wildlife and habitat, species at risk and land use planning, and also has implications for agriculture, forestry and mining sectors. Because of this pervasiveness, an ecosystem (or ‘whole picture’) perspective will be required to protect biodiversity. Specifically, this includes the application of ecosystembased management for the maintenance of ecological integrity (Agee and Johnson 1988; Grumbine 1990; Grumbine 1994). In Canada, for example, the concept of ecological integrity was included in the National Parks Act (R.S. 1985 Ch.N-14) in 1988 in a secondary capacity of park management, but was enshrined in policy (Parks Canada 1994) as the major priority in all management decisions. Subsequently, through the 2000 National Parks Act amendments, ecological integrity was given top priority, and now provides the legal mandate for Parks Canada to work towards this objective. Parks, however, represent a small percentage of the Canadian landscape, and the real challenge is to protect native biodiversity in other areas. Numerous scientific studies have been undertaken in Canada, and globally, regarding the biological aspects of biodiversity conservation (see CBIN 2000). There is a variety of issues to consider regarding the conservation of biodiversity, e.g. habitat, population and community dynamics, invasive species etc. Here we focus on legislative and constitutional issues. We examined whether the federal government can implement fully the provisions of the CBD imposed on Canada by ratification of the convention. Specifically, we examined whether the constitutional division of powers, as set out in the Canadian constitution, and the operational system of environmental federalism (including federal-provincial relations) limit biodiversity conservation in Canada. The first half of this article addresses the constitutional limitations on the federal government’s ability to conserve at the national level: the second half addresses the capacity of existing federal legislation to conserve at the ecosystem level.