From proteststo scientific analysis, old growth forests have been much in the news in British Columbia in recent months. What does a legal lens bring to this debate?
Past analyses undertaken by West Coast Environmental Law have laid bare the multifaceted ways in which BC’s laws are “hardwired for failure” when it comes to safeguarding the resilience of ecological systems and human communities in the face of cumulative impacts from resource development and climate change. Legal barriers identified include:
- Historic legal or policy caps on how much land may be protected and/or how great an impact on resource extraction is permitted from conservation measures;
- Exemptions and loopholes that allow economic considerations to trump conservation objectives;
- Designations and legal management objectives for environmental protection that are not applicable to most forms of development;
- Absence of mandatory triggers for conservation planning; and,
- Failure to recognize and uphold First Nations’ title and decision-making authority in the context of land use planning and environmental decision-making.
Embodied in Crown legal frameworks is a worldview that sees humans as separate from the environment; the web of life as an agglomeration of resources to be extracted; and environmental protection measures as a ‘constraint’ on the rights of resource companies. The result has been a disregard for Indigenous title and governance as well as a biodiversity crisis increasingly evident on the ground, for example in the steep decline of species such as salmon and caribou.
Further, the legal barriers noted above have inhibited the effectiveness and full implementation of past planning and conservation initiatives in BC. The report of BC’s independent Old Growth Strategic Review (OGSR), released to the public in September 2020, identifies the resulting challenges facing old growth today, such as:
- High risk of loss of biodiversity in many ecosystems;
- Risk to potential economic benefits due to uncertainty and conflict; and
- Widespread lack of confidence in the system of managing forests.
Two recent developments, however, may provide a much-needed catalyst for change.
One of these is the passing of the provincial Declaration on the Rights of Indigenous Peoples Act in 2019. With this step, BC legislatively committed to align its laws with the United Nations Declaration on the Rights of Indigenous Peoples (the “UN Declaration”) including recognition of the inherent jurisdiction of Indigenous peoples and the standard of free, prior, informed consent. Yet even with this new commitment, the accumulation of legislation that is inconsistent with the UN Declaration is immense, a problem exacerbated by the Crown’s fragmented, siloed approach to resource development and environmental regulation.
A second development may provide a partial pathway forward, namely the recommendations of the OGSR. During his successful campaign for re-election, Premier John Horgan committed that:
Read full article at http://www.slaw.ca/2021/07/22/a-new-bc-law-for-biodiversity-and-ecosystem-health/
