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PROTECTED AREAS LAW MARCH 26, 2013. Overview. Objectives of protected areas, need for legal protection Protected areas in Canada and U.S. Categories of protected areas (national parks, marine protected areas, national wildlife areas, ecological reserves)
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Overview • Objectives of protected areas, need for legal protection • Protected areas in Canada and U.S. • Categories of protected areas (national parks, marine protected areas, national wildlife areas, ecological reserves) • Campaign to protect South Nahanni watershed as National Park
Categories of Protected Areas • National Park, National Park Reserve (Banff, Nahanni) Canada National Parks Act • National Marine Conservation Area (Lake Superior, Gulf Islands) Canada National Marine Conservation Areas Act • National Wildlife Area (Suffield), National Marine Wildlife Area (Scott Islands) Canada Wildlife Act • Migratory Bird Sanctuary (Queen Maude Gulf) Migratory Birds Convention Act • Marine Protected Area (The Gully) Oceans Act • Special Legislated Protected Area (Saguenay) Saguenay-St. Lawrence Marine Parks Act • Provincial Park (Algonquin, Papineau-Labelle) • Ecological Reserve (Lac LaBlanche)
Canada National Parks ActDedication Clause 4.(1) The national parks of Canada are hereby dedicated to the people of Canada for their benefit, education and enjoyment, subject to this Act and the regulations, and the parks shall be maintained and made use of so as to leave them unimpaired for the enjoyment of future generations. What does this really mean?
Provincial Parks Act (Ontario)Dedication Clause 2. All provincial parks are dedicated to the people of Ontario...for their healthful enjoyment and education, and the provincial parks shall be maintained for the benefit of future generations in accordance with this Act and the regulations. • How do the Ontario and Canada parks dedication clauses differ substantively? • Green case; public trust established?
Canada National Parks Act 13. Except as permitted by this Act or the regulations, (a) no public lands or right or interest in public lands in a park may be disposed of; and (b) no person shall use or occupy public lands in a park. What does this section mean?
Canada National Parks Act 15.(6) Notwithstanding the Expropriation Act, Her Majesty in right of Canada may not acquire any interest in land by expropriation for the purpose of enlarging a park or establishing a new park. • What rights to compensation do property owners have when property is expropriated? • What rights to compensation do mineral rights holders have when they are expropriated? (Tener case)
Ecological Integrity in National Parks 8. (1) The Minister is responsible for the administration, management and control of parks, including the administration of public lands in parks and, for that purpose, the Minister may use and occupy those lands. (2) Maintenance or restoration of ecological integrity, through the protection of natural resources and natural processes, shall be the first priority of the Minister when considering all aspects of the management of parks.
CPAWS Wood Buffalo Case • Standard of Review • Did Minister fail to consider ecological integrity? • What does “first priority” mean in the Court or Appeal’s view? • How does the Court of Appeal interpret s.4.(1)?
Wilderness Act (U.S.) • U.S. passed first Wilderness Act in 1964 • Wilderness defined: “A wilderness, in contrast with those areas where man and his own works dominate the landscape, is hereby recognized as an area where the earth and its community of life are untravelled by man, where man himself is a visitor who does not remain. An area of wilderness is further defined to mean land retaining its primeval character and influence, without permanent improvements or human habitation, which is protected and managed so as to preserve its natural conditions...16 U.S.C. . . .
Wilderness Zoning in National Parks 14. (1) The Governor in Council may, by regulation, declare any area of a park that exists in a natural state . . . to be a wilderness area. (2) The Minister may not authorize any activity to be carried on in a wilderness area that is likely to impair the wilderness character of the area. (3) Notwithstanding subsection (2) . . .the Minister may authorize activities to be carried on in a wilderness area for purposes of (a) park administration (b) public safety. . . . .
Ecological Reserves Act (Quebec) 1. Lands in the domain of the State may be established as an ecological reserve by the Government where the Government considers it expedient for any of the following purposes:(1) to conserve the lands in their natural state;(2) to reserve the lands for scientific research and, where applicable, for education;(3) to protect threatened or vulnerable plant and animal species. . . .
Ecological Reserves Act (Quebec) 7. The following activities are prohibited in ecological reserves: hunting, trapping, fishing, any activity relating to mining, gas or petroleum exploration and development, any brine or underground reservoir exploration activity, prospecting, digging or boring, forest management activities, earthwork and construction activities, agricultural, industrial or commercial activities and, generally, any activity likely to alter the state or nature of ecosystems. However, the Minister may authorize, in writing and on the conditions he determines, any activity consistent with the purposes set out in section 1 or with the management of ecological reserves.
Wilderness Zoning in National Parks • Zone I Special Preservation (No motorized access or man‑made facilities permitted) • Zone II Wilderness (Only primitive visitor facilities and no motorized access permitted) • Zone III Natural Environment (Limited facilities and motorized access permitted) • Zone IV Outdoor Recreation (Recreational facilities and motorized access permitted) • Zone V Park Services (Includes towns and visitor facilities)
Canada Wildlife Act - National Wildlife Areas 9. (1) The Governor in Council may authorize the Minister to lease any lands, or purchase or acquire any lands or any interests or rights in any lands, for the purpose of research, conservation and interpretation in respect of • migratory birds; or • with the agreement of the government of the province having an interest therein, other wildlife.
Canada Wildlife Act - National Wildlife Areas 4.1 (1) The Governor in Council may establish protected marine areas in any area of the sea that forms part of the internal waters of Canada, the territorial sea of Canada or the exclusive economic zone of Canada.
Canada Wildlife Act - National Wildlife Areas 12. The Governor in Council may make regulations (e) specifying the use for any purpose of any lands purchased or acquired pursuant to section 9 if that use is compatible with wildlife research, conservation and interpretation
National Wildlife Area Regulations 3. (1) Subject to subsection (2), no person shall, in any wildlife area, • hunt or fish . . . (e) carry on any agricultural activity, graze livestock or harvest any natural or cultivated crop . . . (k) carry on any commercial or industrial activity . . . unless he does so under and in accordance with a permit issued by the Minister . . .
Suffield Shallow Gas Infill Development Project • Cenovus proposed 1,275 new shallow gas wells within CFB Suffield National Wildlife Area over 3 years, doubling existing 1,154 gas wells • CFB Suffield NWA created in recognition of its ecological integrity and diversity and abundance of native plant and animal species • One of few large blocks of dry mixed-grass prairie remaining in Canada (30% of all the protected grasslands in Alberta)
Suffield Shallow Gas Infill Development Project • NWA encompasses 458 km² of prairie grassland, 1100 species including 19 terrestrial species at risk under SARA • Joint Review Panel appointed on November 16, 2006 with public hearings • Compatibility of natural gas drilling with wildlife conservation? • Environment Minister determined that federal approval not be granted: “significant adverse environmental effects” “not justified in the circumstances”
How much Land should be Protected? • Our Common Future (Brundtland Commission) recommended in 1987 at least 12 percent of each country be protected. • In 1989, the WWF Canada launched Endangered Spaces campaign, calling for 12% of Canada’s lands be protected by 2000 • Federal/provincial governments committed to 12% target (not achieved, but has grown to 8%) • Convention on Biological Diversity – Strategic Plan for Biodiversity 2011 – 2020 (Aichi Targets) By 2020, at least 17 per cent of terrestrial and inland water, and 10 per cent of coastal and marine areas, conserved through protected areas
Nahanni National Park Reserve • Originally established in 1976 by PM Pierre Trudeau and Northern Affairs Minister Jean Chretien • Located in Dehcho Region of NWT 500 km west of Yellowknife • Expanded in 2009 following CPAWS, Dehcho Campaign (7X larger than original Park) • Attempt to incorporate entire South Nahanni watershed into Park
Prairie Creek Mine • Canadian Zinc’s zinc-lead-silver mine surrounded by Nahanni National Park Reserve • CZN has MOU with Parks Canada relating to mine development, IBAs with Nahanni Butte Dene Band, Liidlii Kue First Nation not Dehcho First Nations • Tailings pond immediately adjacent to Prairie Creek, tributary of South Nahanni
Cantung Mine • North American Tungsten operated Cantung mine in upper South Nahanni near Yukon border since 1971 • DIAND report estimated clean-up/restoration cost at $48 million • Tailings observed 15km downstream, 85 km upstream from park boundary • Company has “little or no assets or capacity to cover…the potential liability” ($2.55 million in clean-up fund.
Campaign for Nahanni Park Expansion - Roles • Dehcho First Nations, Nahanni Butte First Nation • CPAWS National, CPAWS NWT • Funders: Glen Davis, Pew Charitable Trusts • Parks Canada, Nahanni Superintendant, Heritage Ministers • Boreal Rendezvous 2003 (Justin Trudeau, Gord Downie)
