Briefing Note

Comment on Canada’s Federal

Sustainable Development Strategy

Freedom-Kai Phillips, MA (Seton Hall), LLB (Dalhousie)

Christopher Campbell-Duruflé, B.C.L./LL.B. (McGill), LL.M. (Notre Dame)

Dr Konstantia Koutouki, LL.D (Montréal), LL.M (Ottawa), LL.B (Queen's)

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Contact Information

CISDL

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Montreal, Quebec H3A 1W9, Canada

www.cisdl.org

fkphillips@cisdl.org

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COMMENT ON CANADA’S FEDERAL SUSTAINABLE DEVELOPMENT STRATEGY

By: Freedom-Kai Phillips, Christopher Campbell-Duruflé, and Dr Konstantia Koutouki

Centre for International Sustainable Development Law

Introduction

1. Canada has outlined an ambitious set of goals and targets in the Federal Sustainable Development

Strategy (FSDS) and is recognized for being supporting of public consultation on the matter.1 While

many of the targets demonstrate significant progress, the strategy remains limited in some key areas

(Climate Change) and very much lacking in others (Access and Benefit Sharing). This Briefing Note is

structured around three key questions: (1) What are the legal and institutional obstacles to achieving

the FSDS goals domestically and internationally?; (2) What are the legal and institutional innovations

that can contribute to the FSDS goals at local, provincial and national levels in support of Canada's

international treaty obligation?; and (3) What are the strengths and weaknesses of the FSDS from a

Sustainable Development Law perspective? Generally, greater policy coherence across all governance

mechanisms is needed for effective realization of the FSDS. Enhancement of domestic environmental

legislation, further localization of biodiversity governances based on respect for traditional

knowledge, enhanced mobilization of financial support mechanisms, and further integration of

Indigenous communities into decision-making will support advancement of the FSDS.

Freedom-Kai Phillips, MA (Seton Hall), LLB (Dalhousie), LLM Candidate 2016 (Ottawa); Legal Research Fellow, Biosafety & Biodiversity Law Programme, CISDL, and CIGI Scholar 2016. Christopher Campbell-Duruflé, B.C.L./LL.B. (McGill), LL.M. (Notre Dame), SJD Candidate (Toronto), Associate Fellow, CISDL and Trudeau Scholar 2016. Dr Konstantia Koutouki, LL.D (Montréal), LL.M (Ottawa), LL.B (Queen's), Professor, Université de Montréal, Lead Counsel on Natural Resources, CISDL, Executive Director, Nomomente Institute. Additional contributions provided by: Dr Marie-Claire Cordonier Segger, DPhil (Oxon), MEM (Yale), BCL&LLB (McGill), Executive Director, CISDL; Katherine Lofts, M.A. (McGill), LL.B. / B.C.L. (McGill), B.A. (Victoria), Programme Coordinator, CISDL; Carissa Michelle Wong, Hon. BSc. (Toronto), JD (Ottawa), MEM (Duke), Associate Research Fellow, CISDL and Advisor to the Canadian Climate Forum. 1 Government of Canada, “Planning for a Sustainable Future: A Federal Sustainable Development Strategy for Canada 2016-2019” Consultation Draft, (Environment and Climate Change Canada, 2016), http://www.fsds-sfdd.ca/downloads/3130%20-%20Federal%20Sustainable%20Development%20Strategy%202016-2019_.pdf. [FSDS]

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Guiding Question: (1) What are the legal and institutional obstacles to achieving the FSDS goals, across

Canada and internationally?

2. Goal 1 of the FSDS, “Taking Action on Climate Change,” faces a number of legal obstacles. Measures

to respond to climate change are strengthened through harmonization of cooperation among the

international community and related stakeholders, including through the provision of adequate

financial resources to developing countries. However, new, adequate and predictable climate finance,

as recognized in the United Nations Framework Convention on Climate Change (UNFCCC) and the 2015

Paris Agreement, will be critical to ensuring that the most vulnerable countries can adapt to the effects

of a changing climate. Enhanced mobilization of resources, including through redirection of

investments and funding towards climate finance, for instance through new climate funds, or through

instruments such as REDD+ and the new 2015 Paris Agreement Climate Change Sustainable

Development Mechanism, offers an important way forward.2 Governments and businesses may also

be called upon by public opinion to leave valuable fossil fuels in the ground to ensure that the global

“carbon budget” is not exceeded, triggering dangerous levels of climate change.3

3. Water is a key cross-cutting factor impacting a large cross-section of the FSDS. The creation and

maintenance of ecosystems resilience is crucial. Principle legal and governance obstacles impacting

the water related aspects of Goal 3 of the FSDS “National Parks, Protected Areas and Ecosystems”

include: human-induced pressures on water quality and quantity, impacts from climate change on

water availability, increased demand for water-based energy both within and beyond the watershed,

and degrading biodiversity and ecosystem integrity. An additional challenge is the absence of

prosecution, convictions, and enforcement of existing environmental laws in Canada.4 Furthermore,

there is a growing market for fresh water that needs to be examined for its potential impacts and

regulated accordingly.

4. Key obstacles impacting Goal 4 of the FSDS “Freshwater and Oceans” include fishing fleet

overcapacity, perverse subsidies, poor governance arrangements, challenges in coordination of

scientific data on stock assessments and other matters, and lack of compliance with rules on by-catch

2 UNFCCC, COP 21 “Adoption of the Paris Agreement,” FCCC/CP/2015/L.9/Rev.1, Article 6(4). 3 Fiona Harvey, IPCC: 30 Years To Climate Calamity if We Carry On Blowing the Carbon Budget, The Guardian. September 27th, 2013. Available at: http://www.theguardian.com/environment/2013/sep/27/ipcc-world-dangerous-climate-change (Accessed on November 19, 2014). 4 Ecojustice, “Getting Tough on Environmental Crime,” (2011), online: https://www.ecojustice.ca/wp-content/uploads/2014/08/Getting-Tough-on-Environmental-Crime.pdf.

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and discards.5 Increased cooperation is particularly necessary to address data collection and sharing,

and collaboration on enforcement of catch quotas. Perverse subsidies which artificially maintain the

fishing sector fundamentally undermine conservation measures in neighbouring States. Lack of

integrated governance at the local levels leads large segments of impacted communities – many

Indigenous – to remain marginalized. Data shortages regarding fish stocks and broader ecosystem

metrics remain prevalent, thereby significantly impacting development of mitigation measures.

Incidental capture of threaded or non-targeted species, often through inappropriate methods or

technologies, continues to impact fish stocks.

5. More broadly, a key obstacle involves engagement with Indigenous Peoples of Canada based on a

relationship of respect, transparency and adherence to international law. This could translate into

full adhesion to the Convention for the Safeguarding of Intangible Cultural Heritage and

implementation of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP),

specifically as it relates to self-determination and respect for traditional knowledge (TK),6

maintenance of traditional lands for future generations,7 recognition of protective rights over TK,8 and

vesting of maintenance and control of TK, including intellectual property rights, with Indigenous

Peoples of Canada.9 Recognition of the right to Free Prior Informed Consent (FPIC) in relation to

activities which impact Indigenous communities is essential, with consultation being insufficient to

discharge this responsibility. Additionally, Canada might ratify the Nagoya Protocol on Access and

Benefit Sharing to the Convention on Biological Diversity to support the protection of Indigenous

cultural heritage.

Guiding Question: (2) What are the legal and institutional innovations that can contribute to the FSDS

goals at local, provincial and national levels is support of Canada's international treaty obligation

6. Local Institutions: Increased institutional capacities and cooperation are needed to foster

comprehensive and compatible solutions. Water, ecosystem governance and climate change

adaptation have cross-cutting effects on resource often traversing multiple jurisdictions, national or

regional, and impacting various local rights holders, thereby requiring a cohesive administrative

5 MRAG, Towards sustainable fisheries management: international examples of innovation, (London: MRAG, 2010). 6 UNDRIP, supra note 12 at Preamble. 7 Ibid, UNDRIP at Article 25. 8 Ibid, UNDRIP at Article 29(1). 9 Ibid, UNDRIP at Article 31(1).

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approach both nationally and internationally. Localization of governance of natural resources and

cultural heritage is vital. While in TK is acknowledged in Goal 3 as an important contributor to

implementation of the FSDS, the role played by the holders of TK however is unclear. India localizes

collection and preservation of TK relating to conservation and sustainable use of biodiversity through

Biodiversity Management Committees (BMCs). BMCs are established at the local level as coordination

and management bodies that promote biodiversity conservation, sustainable use and documentation

of cultural practices and associated TK,10 and assist the national and state authorities pertaining to

access within their jurisdiction.11 The BMCs are composed of seven nominated members, with not less

than one third of the members being women, and not less than 18% being members of the “Scheduled

Castes/Scheduled Tribes.”12 Additionally, utilization of TK is based on FPIC and establishment of

mutually agreed terms that include fair and equitable benefit sharing.13 Kenya similarly localizes

resource governance in the area of fishers with Beach Management Units (BMUs) which utilize a co-

management model that engages local fishers and traditional authorities in decision making to ensure

conservation and sustainable use.14 Localized committees on the implementation of the FSDS which

consist of sustainability implicated stakeholders and Indigenous communities would allow for the

integration of key voices and knowledge into the decision making process.

7. Forest Concessions: In the development of policy instruments, consideration could be placed on

modalities for empowerment of local Indigenous communities, localization of governance and

integration of external schemes, standards, platforms or skills to complement governance practices.

The Democratic Republic of Congo (DRC) benefited from the development of channels allowing

communities to seek assistance of NGOs in the establishment of a forest concession, structure a

concession as a non-for-profit or cooperative, and assign operation and exploitation rights through

private agreement to third-parties while retaining concessions rights as an indivisible community

good.15 Canada could implement an approach inspired by the DRC example through the development

10 India Biodiversity Act (2002), Article 41(1). [India. BD Act] 11 India BD Act, Article 41(2). 12 India Biodiversity Rules (2004), Rule 22(2). [India BD Rules] 13 India BD Act, Article 3, 19(1); India BD Rules, Rule 14. 14 Kenya Fisheries (Beach Management Units) Regulations, 2007 of the Fisheries Act, 1989 (rev’d 1991). 15 DRC, Décret n° 14/018 du 02 août 2014 fixant les modalités d'attribution des concessions forestières aux communautés locales, Article 6, 20-21., online: http://www.leganet.cd/Legislation/Droit%20economique/Code%20Forestier/D.14.018.02.O8.2014.htm. [DRC Décret n° 14/018]

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of a concession system informed by the Tsilhqot'in criteria for recognizing Aboriginal title,16 parallel

incentives for civil society, technical and substantive support, empowerment of communities for self-

governance and economic exploitation, recognition of community biocultural protocols, preferential

fiscal incentives for engagement with sustainable landscape management investments with Indigenous

communities, and utilization of international schemes such as Verified Carbon Standard to verify

climate change mitigation impacts and generate positive economic return for the community.

Incentives for conservation could be localized and broadly dispersed across Indigenous communities

to ensure engagement of various community stakeholders and to provide an economic alternative to

the informal sector or to over-exploitation. Creation of a mechanism for disbursement of monetary

benefits across Indigenous communities broadly is also a further institutional need for Canada.

8. Global Landscape Funds (GLFs): Investments by GLFs follow a sector-specific strategy, predominately

focusing on increasing capital flows relating to ecosystem restoration, agriculture, agroforestry, and

renewable energy in emerging or development economies, and work to be symbiotic in nature with

other support or incentive programs. Grounded in a partnership-based approach which brings

together international technical expertise, NGOs and local communities, GLFs facilitate the

application of industry-recognized standards and ongoing monitoring to ensure financially viability,

regulatory compliance, and eligibility for certification. GLFs take an active role in the success of the

project, often with multiple phases of investment and capacity-building over the term of the

investment, which ranges from 10 years for rural renewable energy projects to 20 years for

restoration or agroforestry projects. Significant attention is also paid to capacity-building among local

communities and stakeholders, with workshops and training conducted around project governance,

accounting practices, and verification methods.17 Canada can develop a fund which supports

16 Tsilhqot'in Nation v British Columbia, [2014] 2 SCR 257, 374 DLR (4th) 1; The community established a claim for aboriginal title over land which was sufficiently, continually and presently occupied, and which the community held exclusive historic occupation over. 17 Moringa Partnership, “Moringa Fund,” Moringa SICAR, online: http://www.moringapartnership.com/web.php/16/en/about-us/organisation; African Development Bank, “Congo Basin Forest Fund” Operational Procedures (October 2009), at 10, online: http://www.afdb.org/fileadmin/uploads/afdb/Documents/Policy-Documents/Congo%20Basin%20Forest%20Fund%20-%20Operational%20Procedures%20EN.pdf; Livelihoods, “Livelihoods Charter” (Paris: Livelihoods, 2014), at 4-7, online: livelihoods http://www.livelihoods.eu/wp-content/uploads/2014/06/CHARTER_LIVELIHOODS.pdf; CEPF, “CEPF Operational Manual” (Arlington, VA.: CEPF, 2012), at 103, online: CEPF <http://www.cepf.net/SiteCollectionDocuments/CEPF_OperationalManual.pdf>. [CEPF Opp. Manual]

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investment in sustainable landscape management and ecosystem conservation/restoration practices,

providing positive incentives across the value chain.

9. Use of Creative Sentencing: One option for Canada to invest in conservation practices is through

enhanced use of creative sentencing across Canada, as is already done in British Columbia. This allows

judges to “use sentencing alternatives beyond the traditional options of fines, penalties and

imprisonment,” and through a court order “specify that the money may only be used for projects

concerning certain species, habitats or in specific geographic locations, as a way of mitigating damage

done by the offender.”18 By promoting the use of creative eco-centric sentencing options, broader

conservation practices can be made more practical and the objectives of restorative and reparative

justice, and of rehabilitation and reintegration of offenders can be pursued. This would not only imbed

ecology as an important societal value but also attempt to improve a system where the payment of

fines can at times be used as a loophole to further ecological damage.

Guiding Question: (3) What are the strengths and weaknesses of the FSDS from a Sustainable

Development Law perspective?

10. Goal 1 of the FSDS, “Taking Action on Climate Change,” rightfully refers to Canada’s international legal

obligations under the Paris Agreement and the treaty’s objective to limit the global temperature

increase to well below 2°C and ideally 1.5°C. Other fundamental legal principles that Canada has

committed to abide by could also absolutely be included under Target 1.1, “National Leadership on

Climate Change.” These include the framing objective of preventing dangerous climate change under

the UNFCCC (Article 2) and the specific goal of transitioning to a GHG neutral global economy during

the second half of this century agreed-to in the Paris Agreement (Article 4).19

11. Target 1.1 also includes the goal of reducing Canada’s total GHG emissions 30%by 2030, relative to

2005 emission levels, echoed in Target 1.4, “Reduce GHG Emissions from Federal Government

Operations.” This target was announced in Canada’s INDC submission to the UNFCCC on May 15,

201520 and is both out-dated and insufficient with regard to applicable legal principles, including that

18 Habitat Conservation Trust Foundation, "Investing in Conservation with Revenue from Creative Sentencing," (2009), online: http://dffsw7ptgbl26.cloudfront.net/images/hctf-creative-sentencing-report-web-version.pdf. 19 The exact wording adopted at article 4 of the Paris Agreement is “to achieve a balance between anthropogenic emissions by sources and removals by sinks of greenhouse gases in the second half of this century, on the basis of equity, and in the context of sustainable development and efforts to eradicate poverty.” 20 INDC Canada, Communicated on May 15, 2015, online: http://www4.unfccc.int/submissions/indc/Submission%20Pages/submissions.aspx.

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of common but differentiated responsibilities and respective capabilities (CBDR-RC). It was rated as

inadequate by Climate Action Tracker, on the grounds that it amounts to an increase of 8% above

1990 levels of emission and is not consistent with our fair share under the 2°C increase objective.21

One study indicated that reductions ranging from 90 to 99% would be necessary by 2030 to respect

the 1.5°C increase objective.22 The Lima Call for Climate Action adopted at COP20 introduced the

principle of increasing climate ambition over time (or progression)23 and this was reaffirmed in the

Paris Agreement (Articles 3 and 4).

12. Goal 3 of the FSDS “National Parks, Protected Areas and Ecosystems” rightly notes the

interdependence of Canadians and the natural environment, and the importance of conservation and

sustainable use of biodiversity in support of future generations in line with Canada’s obligations under

the CBD (Article 2 and 3). There remains in the FSDS, however, a lack of recognition of the role that

access and benefit sharing (ABS) plays in positively incentivizing conservation and sustainable use of

biodiversity. Target 3.1 “Species at Risk” and 3.3 “Terrestrial Ecosystems and Habitat Conservation”

are vitally linked to the “wise use” of wetlands in support of the Ramsar Convention (Article 3).

Additional emphasis is needed to enhance the prevalence of science-based decision-making relating

to identification of species at risk, and broader ecosystem governance. Conservation of marine

ecosystems such as wetlands is crucial to large species or ecosystem preservation efforts. Canada

currently has 37 wetlands listed as Ramsar Sites.24 The FSDS could note the need to increase this

number in accordance with percentages relating to ecosystem preservation and protected areas. Both

enhanced legal obligations and financial support mechanisms are needed to encourage greater

ecosystem conservation. To this end Canada could also examine its agricultural policies that often

lead to excessive pollution of water resources, unstainable use of water resources and the lack of soil

management leading to water-runoff and the underutilisation of soil for carbon capture.

13. The listed goal in Target 3.3 of 17% of terrestrial and inland water-based ecosystems classified as

protected areas by 2020 is insufficient. Given the interconnection of water-based ecosystems,

particularly wetlands, to water quality, carbon sequestration and resilience across the ecosystem

21 Climate Action Tracker, Canada, online: http://climateactiontracker.org/countries/canada.html. 22 Dr. Simon Donner & Simon Fraser, Canada’s contribution to meeting the temperature limits in the Paris Climate Agreement, February 2016, online: http://blogs.ubc.ca/sdonner/files/2016/02/Donner-and-Zickfeld-Canada-and-the-Paris-Climate-Agreement.pdf. 23 Lima Call for Climate Action, Decision 1/CP.20, article 10. 24 Ramsar Convention, “Canada: Country Profile,” http://www.ramsar.org/wetland/canada; Canada currently has 37 sites designated as Wetlands of International Importance (Ramsar Sites), with a surface area of 13,086,771 hectares

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basin, greater emphasis could be placed in the FSDS on expanding the role of protected areas coupled

with the adoption of a basin approach to ecosystem management. An indicator could be added to

Target 3.3 or elsewhere in Target 1 recognizing to role of “blue carbon.” Target 3.5 “Marine

Ecosystems” establishes that “by 2017, 5% and by 2020, 10%” of marine areas will classified as

protected areas, which is again insufficient. Goals identified in Target 3.3 and 3.5 could be considered

inherently linked with a more ambitious target of 25% by 2020 illustrating commitment to sustainable

development principles and practices. Short-term incentives could be considered to promote private

sector ecosystem restoration and conservation efforts, in conjunction with carbon verification

schemes allowing for generation of carbon credits in support of both voluntary and mandatory

programs in operation.

14. Target 4 “Freshwater and Oceans” is interconnected to Target 3, and necessitates looking at

sustainability in a holistic way. While key target areas are identified including the Great Lakes, the St.

Lawrence River, the Lake Winnipeg Basin, Lake Simcoe and the South-east Georgian Bay in Targets

4.1-4.5, lack of comprehensive baseline data, and legal restrictions on continued pollution will

continue to undermine sustainability efforts. Pollution reduction targets might be coupled with

ongoing reduction goals, and at a minimum a commitment to maintain pollution reduction efforts.

While Target 4.6 does indicate the ongoing 5% reduction annually of harmful pollutants, further

clarification could be provided by identifying the scope of vessels falling under this target, and what

the overall impact of this group will have on total vessel related pollution levels.

15. Further efforts are needed under Target 4.7 to incentivize green technologies to assist in the clean

disposal of vessel-related pollution to develop a viable alternative to permitting disposal at sea.

Beyond identification of the need to build collaboration and capacity on conservation of costal

ecosystems identified in Target 4.8, a further need for promotion of localization of governance

through collaborative models which pay deference to customary / traditional authorities in

Indigenous communities remains pressing.

16. Need remains to create a Target to protect free-flowing, “wild” rivers, and the environmental flow

regime of rivers. Legislation is limited in clarifying responsibilities of either the federal, provincial or

territorial government requiring protection of environmental flows, and a comprehensive national

approach is lacking.25 Further, lack of careful planning in promoting green energy and hydropower

25 Linda Nowlan, “CPR for Canadian Rivers – Law to Conserve, Protect and Restore Environmental Flows in Canada” 23 Journal of Environmental Law and Practice 2010.

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development will undermine the connectivity of rivers and their importance in maintaining healthy

watersheds, which are essential to water quality, flood mitigation, and myriad economic, recreational

and social-cultural values. Efforts to address water resource management under Target 4.10 require

a comprehensive approach that recognizes and is responsive to the unique interconnection of water

basins. To this we would emphasis that need for healthy, pollutant free traditional food sources for

Indigenous communities. The contamination of these food sources has been exacerbated by climate

change leading to reluctance among community members to eat considerable amounts of such food.

This of course has significant detrimental impact on the health as well as culture of Indigenous

communities.

Preliminary Conclusions

17. The aspects of the FSDS to combat climate change and its impacts can be realized, and intensive

efforts are underway, individually and collectively, to turn their stated goals into reality. The examples

of existing mechanisms summarized in this review present diverse ways and methods such a

development can be achieved.

18. An essential element that could be included in the FSDS under the “Implementation Strategies” for

Target 1.1 is increasing the institutional readiness of the federal government to participate in the

different reporting and review provisions of the Paris Agreement. These include the Nationally

Determined Contributions (NDC) to global greenhouse gas emissions reduction (Article 4) and the

Transparency Frameworks on Action and Support (Article 13). Collectively these mechanisms will

require the government to present a variety of national communications, GHG inventory reports,

biennial reports, update reports, and development strategies. Improved reporting is particularly

needed from the federal government regarding upstream and downstream GHG emissions associated

with major energy projects and regarding GHG emissions associated with land use, land use change,

and forestry (LULUCF). It is important that Canada present a more ambitious INDC target to the world

and could include it in the FSDS.

19. Additional attention could be placed on addressing water-related ecosystems through a basin

approach, significantly increasing the projected target for marine protected areas, and identify

pathways for further integration of Indigenous communities in decision-making and governance

mechanisms. Research, awareness and collaboration at all levels, especially amongst the legal research

academic community, policy and decision-makers and international organizations, to mention but few,

will be needed in order to strengthen solutions and provide further innovations on sustainable

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development to avert its impacts on ecosystems. Sustainable development can only be achieved where

there are fair, effective and transparent governance arrangements and engagement of Indigenous

communities.

20. Greater policy coherence across all governance mechanisms at all levels, and across applicable

industry sectors is needed for effective realization of the FSDS overall. Enhancement of domestic

environmental legislation, development of localized governance models, greater recognition and

respect for the role of TK in supporting sustainable development, further mobilization of financial

support mechanisms, as well as further integration of Indigenous communities into decision-making

and engagement with sustainable development investment schemes will support advancement of the

FSDS.