Operational Framework for Use of Conservation Allowances: chapter 3
Environment Canada’s Authorities Related to Conservation Allowances
Opportunities for the consideration of conservation allowances may arise through processes administered under the Migratory Birds Convention Act, 1994 (MBCA), the Species at Risk Act (SARA), the Canadian Wildlife Act (CWA) and Canadian Environmental Assessment Act, 2012 (CEAA 2012) that could allow Environment Canada to consider a proposal for conservation allowances as a means of mitigating residual environmental effects. However, each case will have to be determined on its own set of facts to see whether the proposal is consistent with the purposes of the Act in question and effectively addresses the environmental effect.
Under CEAA 2012, the Minister of the Environment, the National Energy Board and the Canadian Nuclear Safety Commission may consider in the environmental assessment process any mitigation measures that the decision maker considers appropriate for the "elimination, reduction or control of the adverse environmental effects of a designated project", including "restitution for any damage to the environment caused by those effects through replacement, restoration, compensation or any other means." Such mitigation measures may include a range of possible actions, including conservation allowances.
When used in relation to authorities provided by MBCA or CWA, conservation allowances could involve de-listing an identified portion of a sanctuary or wildlife area and, at the same time, adding a new portion of land (the allowance area) to the listed area. This provides Environment Canada with a means of dealing with allowance proposals involving federal lands or, in the case of the CWA, public lands as defined under the Act, where appropriate. The decision to list or de-list a migratory bird sanctuary or a wildlife area will be subject to the discretion of the Governor in Council upon recommendation of the Minister and will require clear justification for why it should be adopted. For example, if a third-party proponent requests the ability to conduct activities on an area within an existing National Wildlife Area, the boundaries could be amended to exclude the area proposed for impact and to include a new area that has been deemed an acceptable replacement. Once the new allowance area is added to a listed protected area, it would be subject to the enforcement provisions either for migratory bird sanctuaries under MBCA or wildlife areas under CWA.
In limited cases, allowance proposals can be considered under SARA, provided the permitting requirements under section 73 are met and the allowance helps meet the goals of the Act. Section 73 of SARA enables the government to enter into an agreement or to issue a permit authorizing a person to engage in an activity affecting a listed wildlife species, any part of its critical habitat or the residences of its individuals provided that all reasonable alternatives have been considered and the best solution adopted, all feasible measures will be taken to minimize the impact of the activity on the species or its critical habitat or the residences of its individuals, and the activity will not jeopardize the survival or recovery of the species. In cases where an allowance activity is aligned with SARA’s goals, Environment Canada could include an allowance as part of permit conditions to further protect the species in order to make that proposed impact acceptable.
The use of conservation allowances could also be established through agreements under the Department of Environment Act (DOE Act). Under the DOE Act, the Minister of Environment has authority to enter into agreements (which could include conservation allowances) for issues concerning the mandate of the Department, as long as the agreement is not contrary to or inconsistent with the purposes of other statutes falling within the Minister’s mandate.
Lastly, the FPWC, established in 1991, provides a framework for mitigating proposed impacts to wetlands that are connected to federal actions and provides Environment Canada with some of its earliest ongoing experience in the application of conservation allowances. The FPWC commits all federal departments to the overall goal of no net loss of wetland functions:
- on federal lands and waters,
- in areas affected by the implementation of federal programs where the continuing loss or degradation of wetlands has reached critical levels, and
- where federal activities affect wetlands designated as ecologically or socio-ecologically important to a region.
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