Examining Applications of Earth System Law in Canada's Species at Risk Act

Abstract

The worsening biodiversity crisis poses urgent questions regarding the capabilities of our legal systems to address ecological issues in the face of increasing human pressures and rapid environmental change. Earth System Law (ESL) is a novel approach to legal regulation that embeds the principles of inclusivity, complexity and interdependency according to an Earth-system perspective into legal systems. Such an approach better accounts for the larger spatial and temporal scales of Earth systems while utilizing a less anthropocentric orientation. To date, ESL research has generally been limited to conceptual analysis, however this study explores the empirical application of ESL by developing an assessment tool that incorporates ESL characteristics. The tool is then used to critically assess Canada’s Species at Risk Act (SARA). Drawing on the ESL literature, the study develops detailed criteria which are used to conduct a directed content analysis of a selection (n=sixteen) of SARA documents, consisting of five recovery strategies, five multi-species action plans, five management plans and the SARA legislation itself. The specific ways and extents that SARA, via its instruments, aligns and misaligns with ESL are outlined. Results from the content analysis indicate that SARA exhibits only select ESL characteristics, particularly the meaningful inclusion of present-day beings, the recognition of unknowns in a complex world and the consideration of adaptation and precaution as productive responses to complexity. SARA is misaligned with ESL by working against many of its characteristics, such as the meaningful inclusion of both future humans and geographic areas, complete acceptance of Earth-system complexity, full commitment to adaptation and the acknowledgement of Earth-system interdependencies, outlining an anthropocentric orientation. Overall, the study offers contributions regarding the conceptual development and real-world application of ESL, the shortfalls of SARA and measures to improve outcomes for biodiversity through legal systems.