How federal law enables and constrains biodiversity offsetting in Canada

The globe is facing a serious crisis in biodiversity and almost two hundred countries, Canada among them, have responded by committing to halt and reverse biodiversity loss through their adoption of the Kunming–Montreal Global Biodiversity Framework (KMGBF). The mitigation hierarchy – avoid, minimize, remediate onsite, and, finally, offset – is a common framework for prioritizing mitigation measures with a goal of no net loss (or better) of biodiversity. Application of the hierarchy, however, must be done within a legal framework, consideration of which is often lacking. This article focuses on Canada, though its analytic framework may be instructive for other jurisdictions. It reviews six statutory regimes used to assess and regulate development impacts, considering to what extent they enable biodiversity offsetting and the pursuit of no net loss or net gain. It finds that most of the laws do allow for the pursuit of no net loss, but only one seems to provide for a goal of net gain. Statutory reforms will be required to meet Canada's KMGBF commitments. This analysis may serve as a partial guide to how other jurisdictions may approach these questions.