March 26, 2013 Protected Area Law

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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)
• Campaign to protect South Nahanni
watershed as National Park
Why Parks?
Why Legislate Parks?
Why not Parks?
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’s National Parks
Canada National Parks Act
Dedication 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
(a) migratory birds; or
(b) 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,
(a) 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
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
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
Nahanni National Park Reserve
Nahanni National Park Reserve
Prairie Creek Mine
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 cleanup/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.
Cantung Mine
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)
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