2. The Regulatory/Policy Framework for Wetland Conservation

• 2.1 The Canadian Environmental Assessment Act
• 2.2 The Federal Policy on Wetland Conservation
• 2.3 Other Federal Laws, Policies and International Agreements
• 2.4 Environmental Instruments of Other Levels of Government

As a context for describing and evaluating ecological benchmarks for wetlands, the regulatory/policy framework for wetland conservation at the federal level is overviewed in this section, focusing on the following legal or policy instruments:

• The Canadian Environmental Assessment Act
• TheFederal Policy on Wetland Conservation
• Other federal laws, policies and international agreements
• Environmental instruments of other levels of government

Each of these subsections explores how the legal/policy instruments relate to wetlands, and to the ecological benchmark approach for determining significance of adverse effects.

2.1 The Canadian Environmental Assessment Act

Wetlands are an important issue in EA. Directly and indirectly, CEAA confers considerable responsibility for wetlands on EA practitioners. Details on the relationship of CEAA to wetlands is contained in Appendix 2, the main points of which are as follows:

• Wetlands are integral to the basic premise of CEAA- sustainable development and environmental quality;
• Informed decisions under CEAA require that federal policy objectives be taken into account in the preparation and review of assessments;
• Wetlands are valued ecosystem components (VECs);
• CEAA regulations define the term "wetlands" and require special consideration for projects that could impact them;
• CEAA provides a process for public participation in wetland issues; and
• CEAA provides a powerful tool for protecting wetlands.

The relationship of ecological benchmarks to CEAA is further detailed in Section 1.3 "How can ecological benchmarks contribute to EA practice?" In short, the use of ecological benchmarks provides one approach for tackling the lynchpin of the CEAA process- determining whether a project is likely to cause significant adverse environmental effects. Section 5.0 "Alternative formats" demonstrates how the benchmark approach is operationalized in the practice of project assessments.

While this report focuses on EAs under CEAA, it should be emphasized that the broad scope of ecological benchmarks - drawn from federal, provincial, territorial and municipal sources - makes them an excellent mechanism for cooperating with other jurisdictions when the federal government is involved in:

• The review of an EA of another jurisdiction in which a proposed project could have an effect on resources under federal jurisdiction; and
• Project assessments, where both provincial/territorial and federal governments have an interest, that are carried out under harmonization agreements with provinces or territories.

Further, the ecological benchmarks approach and products may be of interest to other governments in conducting assessments in their own jurisdictions.

Although CEAA is a powerful tool for protecting wetlands potentially affected by federal decisions, it cannot stem the substantial cumulative effects on the wetland resource of many other development activities not triggered by the Act.

2.2 The Federal Policy on Wetland Conservation

The Federal Policy on Wetland Conservation (Government of Canada, 1991a) is the primary instrument that provides direction to the federal government on how it should deal with wetland issues both within and outside the CEAA context. The Policy articulates the objective of the federal government with respect to wetland conservation: "To promote the conservation of Canada's wetlands to sustain their ecological and socio-economic functions, now and in the future." It comprises seven strategies for wetland conservation, concerning: public awareness; federal lands, waters, programs; federal protected areas; cooperation with other governments and non-government organizations; national network of secured significant wetlands; sound scientific basis for policy, and international actions. All federal agencies, including crown corporations, are responsible for implementing the Policy.

For environmental assessment, the Policy specifies the mitigation objectives, with respect to wetlands, for projects:

• On federal lands and waters (including "federal protected areas" such as National Wildlife Areas and Migratory Bird Sanctuaries); or
• In areas where the continuing loss or degradation of wetlands has reached critical or severe levels, whether or not on federal lands; or
• Where wetlands are designated as ecologically or socio-economically important to a region.

The Policy's conditions and mitigation objectives are summarized in Table 3.

Source: Environment Canada, Canadian Wildlife Service. In preparation.

The Federal Policy on Wetland Conservation Implementation Guide for Federal Land Managers (Lynch-Stewart et al 1996) explains how to implement the Policy under CEAA. The key guideline here is that the mitigation objectives (no net loss, no loss, enhancement of wetland functions) can be best achieved using the hierarchical sequence of mitigation alternatives - avoidance, minimization and compensation.

The Policy, together with the Implementation Guide, could be considered a key source of ecological benchmarks because it contains objectives and standards for conservation. However, it is most useful as an umbrella framework that provides authority and support for the entire suite of wetland benchmarks.

Ecological benchmarks can help EA practitioners to apply the wetland policy by more precisely defining what is meant by "geographic locations where the continuing loss or degradation of wetlands has reached critical or severe levels" or wetlands of "ecological or socio-economic importance." Benchmarks may even geographically locate these special places so that practitioners can discern whether the mitigation requirements apply to their project or not.

Further, ecological benchmarks for wetlands can help EA practitioners to work out the appropriate mitigation measures as prescribed by the Implementation Guide. Avoidance is prescribed when the project is located in areas where wetland losses have been critical or severe, or if it might adversely affect an "important" wetland. Compensation cannot be used to reduce the assessment of "significance" of adverse effects. ⁶ As EA is an iterative process, once it is determined through the scoping or assessment steps that effects on wetlands are significant, mitigation options are limited to avoidance and minimization.

6 - Although compensation is identified as a valid form of mitigation under CEAA, Section 20 of the Act allows the RA discretion over which forms of mitigation are appropriate prior to the determination of significance. Once adverse effects are determined not significant, compensation may be used, along with other mitigation alternatives, to achieve "no net loss" of wetland functions.

2.3 Other Federal Laws, Policies and International Agreements

A number of other legal and policy instruments at the federal level support the conservation or protection of wetlands.

Federal law prohibits damaging or destroying important habitats, including wetlands:

• The Migratory Birds Convention Act prohibits the deposit of any substance harmful to migratory birds in areas frequented by migratory birds.
• The Fisheries Act prohibits the harmful alteration, disruption or destruction of fish habitat, and the deposit of harmful substances in water frequented by fish.
• The proposed Species at Risk Act prohibits damage or destruction of the residence of an individual of a listed endangered or threatened species.

The Government of Canada formally recognizes the ecological importance of wetlands, and has committed to their conservation:

• Signatory of the Ramsar Convention on Wetlandsof International Importance (the RamsarConvention), which commits Canada to ensuring wise use of wetlands;
• Signatory of the North American Waterfowl Management Plan, which aims to conserve two million hectares of wetland habitat in Canada;
• Signatory of the United Nations Convention on Biological Diversity, which commits Canada to conserving biodiversity and recognizes wetland conservation as integral to this goal; and
• Signatory of United Nations Conference on Environment and Development Agenda 21, which identifies wetland conservation as a priority.

In addition to TheFederal Policy on Wetland Conservation, other policy documents signal the Government's intention to conserve these valuable ecosystems, including: A Wildlife Policy forCanada, and the Federal Water Policy.

These legal and policy instruments are all sources for ecological benchmarks, but primarily serve to provide authority and support for the other wetland objectives, standards and guidelines that can more definitively distinguish between significant and non-significant adverse effects.

2.4 Environmental Instruments of Other Levels of Government

Provincial, territorial and municipal governments in Canada exercise substantial constitutional and delegated powers over natural resources, land use planning, protected areas designation and wildlife management. As such, these governments represent an important source of ecological standards, objectives and guidelines related to the management of wetlands that could enhance the practice of EA under CEAA.

The justification for including ecological benchmarks of all levels of government in a project that focuses on EAs under CEAA, relates to five main reasons:

1. The Reference Guide (Federal Environmental Assessment and Review Office 1994) suggests a broad definition of environmental standards, guidelines and objectives:
   
   "The most common method of determining whether the adverse environmental effects of a project are significant is to use environmental standards, guidelines, or objectives… Environmental standards, guidelines and objectives have been established by federal, provincial, and in some cases municipal departments, ministries, and agencies." (emphasis added)
2. The Federal Policy on Wetland Conservation (Government of Canada 1991a) directs the federal government to cooperate with other jurisdictions to promote wetland conservation:
   
   "The federal government will continue to be a partner in cooperative activities and agreements with the provinces and territories and non-government agencies to advance wetland conservation…(Specifically, the federal government will) Encourage consultation with interest provinces and territories and other parties whereby senior levels of government ensure that their wetland conservation policies and programs are supportive of each other."
3. The Federal Policy on Land Use (Government of Canada 1984) is designed to guide the internal activities of the federal government and their effects on the use of private and public land through the nation. The goal of the policy is "To ensure that federal policies and programs and the management of federal lands contribute to the wise use of Canada's land resources." The first policy statement asserts:
   
   "The federal government will pursue the achievement of the policy goal through a cooperative federal/provincial approach, and will support those provincial land-use objectives, policies and programs that it views to be operating in the national interest."
   
   One of ten guidelines of the Federal Policy on Land Use states:
   
   "Local, regional and provincial concerns, plans and zoning will be considered, and appropriate action will be taken to ensure that the federal influence on land and local environments has a positive impact."
4. An Environment Canada (Pacific and Yukon Region) lawyer advised that the federal government's respect for the laws and policies of other orders of government in Canada is:
   
   "…a practise that is carried out. For example, while the doctrine of interjurisdictional immunity states that provincial laws do not apply on federal lands and to federal undertakings, all federal government fleet vehicles are licensed in the province in which they are operated...
   
   … "There are numerous agreements and memoranda of understanding between Canada and British Columbia (BC) for harmonizing the management and protection of the environment in which the federal government agrees to incorporate BC's environmental protection standards for matters not covered by federal law in its leases and licences for the use of federal land, and vice versa." (Hobby pers. comm.)
5. CEAA provides for the harmonization of Canada's various EA processes so that the effects of projects can be assessed in an effective and consistent way across the country (CEAA 1994). Agreements with provinces and territories allow for joint EAs of projects where both governments have an interest. Ecological benchmarks that draw from all levels of government can provide common ground for the discussion of significant effects, and are an important mechanism for cooperation on project assessments.