In his 1972 non-fiction book No Name in the Street, James Baldwin asked, “Does the law exist for the purpose of furthering the ambitions of those who have sworn to uphold the law, or is it seriously to be considered as a moral, unifying force, the health and strength of a nation?”
Although Baldwin’s question referred to the US’ criminal legal system, more than 50 years later it merits deep reflection across all legal systems, especially regarding the ways laws affect natural ecosystems and Indigenous nations’ inherent land and water stewardship rights.
Wetlands governance in Canada provides a vivid example.
Wetlands are critical to planetary life, but they’ve been demonized for centuries as foreboding, dank, smelly places. People often fail to recognize their importance as ecosystems that support high levels of biodiversity and store massive amounts of carbon. They provide protection from floods, pollution and climate change, and serve as critical habitats for numerous species, many of which are at risk.
Despite their ecological, social, cultural and economic importance, over the past two centuries wetlands have been systematically destroyed for industrial, commercial and residential development. Seventy to 98 per cent of wetlands in Canada have been lost. During what the United Nations has labelled the “Decade on Ecosystem Restoration,” the need to protect remaining wetlands could not be more urgent, especially given their role in climate mitigation and adaption, and in halting biodiversity loss.
Yet provincial regulatory regimes continue to propel wetlands destruction in the interests of industrial and sprawling urban development, to the detriment of ecological connectivity and Indigenous rights. While the Ontario government recently weakened statutory protections for wetlands under Bill 23, the Quebec government’s wetlands legislation — adopted in 2017 to prevent net wetland loss in the province — has actually facilitated their devastation by simply setting out a compensation regime for their destruction, without statutory requirements that the money be used for restoration projects of the same ecological value.
Moreover, the legal regime violates inherent and constitutional Indigenous rights, as it does not ensure that those rights affected by wetlands destruction (which may include social, economic, cultural and land stewardship rights) are recognized and fully upheld when wetlands are demolished in one place and restored in another. In fact, there is no legal guarantee that wetlands destroyed on an Indigenous nation’s traditional lands will be restored in ways that would protect its rights and interests.
Take the recent case of wetlands destruction authorized in ancestral Mohawk territory to build an electric battery plant. This loss will have grave impacts on critical habitats of culturally valued species, at-risk species and inherent, constitutionally recognized Mohawk rights, without full and meaningful consultation with the community. It shows how wetlands law counters reconciliation, the UN Declaration on the Rights of Indigenous Peoples — even fundamental environmental legal principles.
Five years since Quebec established its compensation plan, it has used less than three per cent of the funds collected for restoration projects. The no-net-loss of wetlands enshrined in law is still clearly legal fiction, with no progress in sight. Not only are the hundreds of millions of dollars collected for wetlands restoration not delivering any actual outcomes, the government does not even collect data on the state of evolution of wetlands, biodiversity or at-risk species. It’s also not collecting data on the evolution of flora and fauna in the context of climate change. Society can’t manage what we do not measure. Unfortunately, this is the case for critical aspects of the ecosystems on which human and other life forms depend.
It’s absurd that environmental laws and regulations are so weak that they work against humanity’s survival, planetary health and Indigenous rights. What wetlands compensation and displacement schemes don’t acknowledge is that, once gone, many ecosystems can’t be revived. Their loss implies the loss of Indigenous rights and knowledge, and the weakening of the universally recognized human right to a healthy environment.
As multiple crises abound, people in Canada must stay engaged and collectively challenge these destructive legal ideologies. Now more than ever, Earth needs us to become what artist-activist Ai Weiwei calls “obsessed citizens” — “forever questioning and asking for accountability. That’s the only chance we have today of a healthy and happy life.”
David Suzuki is a scientist, broadcaster, author and co-founder of the David Suzuki Foundation. Written with contributions from David Suzuki Foundation Quebec and Atlantic Canada Director Sabaa Khan. Learn more at davidsuzuki.org.
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