04 Nov Habitat Matters: Habitat laws, challenges and new directions
Habitat Matters: Habitat laws, challenges and new directions
Habitat is essential to the survival of all species. Our activities across the landscape have a significant impact on the habitat of other species. As the human footprint has expanded, we have seen habitat degradation and destruction and its resulting negative impact on species abundance and distribution.
Habitat laws and regulation
Habitat laws and regulation are a central component to how we start to address this human footprint. The Environmental Law Centre’s (ELC) four-volume series provides a review of habitat law and policy in Alberta. These reports provide a review of statutes that can be used for habitat management and protection in the province; identify legislative barriers to effective habitat management and protection; consider approaches in other jurisdictions; and identify a path forward for improving laws and regulations for habitat outcomes.
The volumes are as follows:
- Habitat Law in Alberta: Executive Summary
- Habitat Law in Alberta Volume 1: The State of Habitat Laws in Alberta
- Habitat Law in Alberta Volume 2: Barriers to Habitat Management and Protection in Alberta
- Habitat Law in Alberta Volume 3: Jurisdictional Review of Habitat Laws
- Habitat Law in Alberta Volume 4: Recommended Reforms to Habitat Management & Protection Regulations in Alberta
The focus of this four-part series is on the “management” and “protection” of habitat. As such, it aims to cover not only prohibitions in law that may serve to “protect” habitat, but also discretionary decisions that can be used to manage habitat in a way that is responsive to science and known habitat factors. As well, this series of reports looks at codified aspects of habitat management and protection. While policy is often relevant, these reports only highlight certain policies to provide broader context.
For the purposes of these reports the ELC considers the following core components of effective habitat laws:
- Monitoring, assessment, and planning tools which enable large-scale habitat planning to conserve biological diversity and for the recovery of species at risk;
- Area-based conservation tools, including the designation of habitat management areas and protected areas;
- Localized/biophysical conservation, such as protection for species’ residence, nests, dens, or other habitat features;
- Mandatory habitat consideration in decision-making and integration of habitat considerations into decisions and authorizations; and
- Effective conservation compliance including enabling the use of administrative orders for habitat protection and administrative penalties and fines that provide an effective deterrence to those impacting habitat.
Figure 1: Core Components of Habitat Laws
Some of the key challenges identified as part of this work include:
- fragmented planning and decision-making;
- a major legislative gap caused by the absence of dedicated endangered species legislation;
- a highly discretionary disposition process which does not address habitat needs proactively or effectively;
- a disconnect between law and science (for example in the selection and level of protection provided by protected areas, and listing of species at risk);
- lack of flexibility and resiliency to respond to rapidly changing ecosystem conditions and knowledge; and
- excessive discretion in decision-making that impacts upon habitat and a lack of sufficient mechanisms for democratic accountability, providing limited avenues for individuals to challenge, question or require laws to be upheld.
Overcoming these challenges requires effective statutory approach to habitat. These challenges are not unique to Alberta. The ELC looked to several jurisdictions from Canada and around the world to provide some key lessons for Alberta (and Canada). This includes large landscape based assessment and planning (as established in the EU and exemplified by Germany’s approach) and mechanisms to address private land owner concerns (as addressed in the United States’ Endangered Species Act). The underlying learning is the need for a governance structure that fosters both public and political buy-in to habitat objectives.
The ELC envisions a substantive change in how we manage our activities to integrate current and evolving knowledge about habitat concerns. A focus of these recommendations is to create a system of habitat governance that first, avoids further habitat degradation such that species (or their habitats) become “at risk” and second, seeks to restore habitat for at risk species.
Habitat Law Recommendations
Habitat oriented statutory direction and planning
|1||A statute (Habitat Protection and Management Act) should be drafted and passed to create a governance system and relevant rules to effectively manage and, where required, protect valued habitats, in line with the recommendations herein.|
|2||Articulate habitat objectives to guide development of habitat monitoring, assessment, and planning.|
Prescribe a regulatory system that includes effective consideration of “at risk” habitats and habitat aspects of relevance for plants, invertebrate, and fungi (I.e., species that are often overlooked or ignored in legislation).
Legislate prohibitions and regulations to appropriately protect and/or manage localized and/or valued biophysical habitat traits, particularly for species at risk and at-risk habitats.
|4||Create a statutory “habitat hub” or central registry for habitat relevant data.|
|5||Mandate the creation of a scientific and technical habitat data committee.|
|6||Establish a methodology of assessing and evaluating habitat outcomes and thresholds for valued habitats and valued habitat functions. This methodology should be applied consistently across regulatory process and environmental assessments.|
|7||Establish habitat mapping layers to be used by planners to integrate into statutory plans.|
|8||Initiate habitat planning at relevant scales with relevant stakeholders to achieve stated habitat policy outcomes.|
|9||Direct relevant public authorities to implement habitat plans.|
Catalyse existing legislative tools
|10||Establish, implement and periodically review disturbance standards using the best available knowledge and integrating cumulative effects.
Disturbance standards should be accompanied by scientific rationale. Disturbance standards should be reviewed for accuracy and effectiveness every 5 years. This review should have a regulatory linkage with dispositions so that they can be revised in a sequential fashion to reflect any changes to the standard.
|11||Formalize a system of regulation and management of conservation offsets for use towards valued habitats.|
Integrate substantive adaptation and augmentation language and approaches in resource allocation statutes, regulations, dispositions, and authorizations.
“Substantive adaptation” means having clear processes and accountability for adapting regulations, dispositions and authorizations in law, such that evolving habitat knowledge is reflected directly in activities on the landscape and in how discretionary decisions are made.
|13||Identify “compensable adaptation” measures and create a compensation system to address these measures.|
|14||Create and fund through conservation levies to provide for compensation to allow for “compensable adaptation” in certain instances. (Existing mechanism under the Alberta Land Stewardship Act exists, however regulations are required).|
Enforcement and compliance
|15||Legislate clear enforcement powers across sectors for habitat management outcomes.|
|16||Review, evaluate, and, as needed, amend administrative penalties and fines to foster deterrence.|
|17||Legislate a public investigation trigger process for alleged offences of habitat standards and rules.|
Join the ELC for a webinar on its Habitat reports on November 28, 2019 at noon: Register here.
ABOUT THE ENVIRONMENTAL LAW CENTRE:
The Environmental Law Centre (ELC) has been seeking strong and effective environmental laws since it was founded in 1982. The ELC is dedicated to providing credible, comprehensive and objective legal information regarding natural resources, energy and environmental law, policy and regulation in Alberta. The ELC’s mission is to educate and champion for strong laws and rights so all Albertans can enjoy clean water, clean air and a healthy environment. Our vision is a society where laws secure an environment that sustains current and future generations.
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