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    Public Lands and Resources Law in Canada

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    ESSENTIALS OF PUBLIC LANDS AND RESOURCES LAW IN CANADA Elaine L. Hughes ‘University of Alberta Arlene J. Kwasniak University of Calgary Alastair R. Lucas University of Calgary llc Lands and Resources Law in Canada ‘ir tw ae, ne ‘Al-ghs reserved No part of thi palin may he reproduce, stored in ‘ea sytem, of ans, Ian orm yay ney witout ten pecmaon othe pulser nthe case phtceapying or ater eprogrpbic | ‘aia ene from Aces Copyright (Canadian Copyighs Listing Ae) ‘Yeege Suet, Se 800, Toro, ON MSE TES. Pabished i 2016 ane tet soi: o7@-L 350214082 ‘trary and Archives Canada Cataloguing in Publication Hughes, Ene. (laine Los 1959, thor Public nds and esourcs nwin Cana Elie Hughes, Universi of Aber, Alene asic, Unvesty f Calay Alaa R aca, Unive (semi of Canadian Iu) leloes hinge eerencesand index. Sued in pit and eleeonc ormat OW 976-.35221-4282 (paperinl)—1SBN 978195221128 9p) | Public nds Conads, 2. Crown lands—Law ad lpsaton Cand 3. Nua esoures—Law and legis Canade 1 Keath tone) 43> ‘aor I Lucas alsa R184 author HIT Sve Eavem of a ‘ia we esussis 200 sono canes03sn19 Krseose 206 Gais-s35727 Canadit PPontario. rine ond bound in Canad 2345 wie I 40 HUBLIC LANDS AND RESOURCES LAW IN CANADA een quite crcl of oth the poi processes behind devo) Be interfering with Aboriginal el gpvernmen $8 at ayes, and several of the major element Parte Panny resource revenues" Thee are soures (0 Help PO Tange llayers of governance in the Canadian Norbit eral how they velate to lands and resources: dere gO Par toil governments, and Aboriginal, One resource seems and Northern. Aflsrs Canada webs, which ks tedigenows =yjormation om the Canadian Nort, and lms sn cone sel governance, devolution to errs, and Tes Aboriginal Spstration sd management.” Another source x Norther ign the aumerous websites ofthe Aboriginal 06s 158 tor, ntret, aid agecmentspetsning (0 the Cansaey have gh a thee ia growing body ofboth academic ana “Eo North A edhe North ad the lager Arctic for example 169° wera eps Arie Govemance and Governing, which ncedes Arctic article that maps the complex governance S04" an seaetlan North tied “Resource Development and Land Ct) the Canada pe canadian Arce: Mbieel Governance, Stadt rity, and Streamlining" E. ABORIGINAL JURISDICTION 1) Aboriginal Jurisdiction, Aboriginal Title and Use Right and Section 35 of the Constitution Act 1982 sy “Aborgnaljrsition® hs char means Aor! FSP By Ato ase tory ovr public nde ot Toe uration based on Aboriginal tl of Aboriginal MS cones Fores seve poe 36a 16 and 21, Als see Jenfer Dain, THE 2 pa athe Truc sep of Compreensn a aS cover 50s Winar evin tag on S SA oe im ais Cada Hohio he Noh ong SOT lade eg 1010001000 0010001092) 8 en deel 100100030285 100000008 ot an een Heater Exner & Joe ‘ass Mei eum Nowtern Resech Fou, 2013 ret eens 1050357001 46020967 Se ade Teen, "exue Deeope aan] Thier Rot nc Candin Arctic Malev Gve™aet, Se a Yearbook 2015, one or Te SAeEEs ote esourcematDeveopment ee Sources ofusditionand Cota 71 Aborgoa lee «sagoy of aborigines tha cones 4 sight to de and Wel neonate rio chy co nal ses on ind, sich fahing humg, and rpg, cereal es. Abrgnal ea chute the Be Sees Coot a Cann cas Depsy» rsh Colind” aibough respec by Royal Precltaton of 1783! ass om the Abts aed por dropaon of Canada’ ha le meres ger, on Es om taal fe single propyl ay say tha aboginal ies commuel rand be ed edie Wis nabs, eeepc the Crown” Aboriginal os brian the Crom undergo Crown indo and tan inte other than shat te Provincen the sume be the purport Sesion 19 othe Constinon A, 66 Aborigine aye itn and post ours in Cnt a chs wale hg had nt ten seed he Crown through an Aboriginal srende™ Cfland ough he weaning nouns oes eee tre ltnded nennguss re teny Abrignalngns aa ese itndand terest set to eay ms Ga undesandngo ra Imecharge for ari nd inant nd igi so ea pring tod poictons ‘Tborginal se is ae Aborigal is ase nd ypealy for dion purposes Abrgnal ue sigh are he pce ne ons and cus. that Abrighal pope esac plots Epes tomate explained bow, proto Eropen coil i th ee of tas Examples ave gps of Aboriginal eos sxstng ie to hn, cap and dor carey out ears ee ‘ato lands swe lee the way courts rea Abo lead sighs ay | depend upon wiciner he proceedings re os crear ahee Ape 1965 thd the Constinon Ate BE" ame ec Sect oS eth ha proves 1197158 110 (Delp For woauihoriatve version of he Royal Proclamation 316, onlin: wr wapecifi clans aw com/index ppopionscom._cowentvien-atilet IG-L2wAroyat proclamation '4cuid-Settemil Seals the dacueson ‘a Cher 1 Section 9) onthe Royal Proclamation Deana above note apa Bhdacpee 1, th. See dsusion in Monique M Pea Ros x Christin Sith, Defi Ab igi highs to Water Albert Da They Sell "Exi' Hy Exesre re The? ‘ecisiealPper 029 Cagny Canadian tte of Rese Lam 2010, Scheie B ofthe Canad a 1982 (UX), 1982, 1 ssomrsRa —_—— {72 PUBLIC LANDS AND RESOURCES LAW IN CANADA (0) Theesstingaboriginal and weny rightsofthe sborginal peoples fol Canada are hereby recognized and affirmed (@ inthis Act aboriginal peoples af Canada” Inches the Indian, Teuitand Mii peoples of Canada (oy tor preter certain in subeection (1 “seat sighs" tnclades Tighe hat now exist by way of land cams agreements oF may beso sequired. “This chapter can only briefly summarize and outline Aboriginal juriadicon over public lands and resourees, but the importance of ne rich, complex critical, and developing area cannot be overstated ‘Roorginat urtadition aw plays and will ontine o play sgaficant ieee the fatore development of public land and resources law and poli in Canada as wel asin the articulation and protection of Aborg- Ina rights and interests 2) Treaty Reserve Land “The Indian Act defines “reserve” as "a tract of land, the legal title to hich i vested in Her Majesty, chat has been set apart by Hee Majesty the use and benefit of a band” Aboriginal jurisdiction on treaty ee hus a beneficial interest, and treaty reserve land is thus not ‘roperly “publi and” although iis Crown tite land. On all eat Prere lands, til is held by a Crown, but depending on the history of ‘Tecouablishment ofthe reserve, the Crown may be provincial of fed ie acco for the Prat provinces, reaty reserve land (any i the srovinee) is owned by the province, subject wo federal constitutional [putative authority over “lands reserved for the Indians" (6 S140. seantgr example, the proprietary interest of “land reserved for Indl Ths by section 109 of the Constitution was passed tothe original con: ftdeeting provinces" The Prairie provinces are ina different stuaton fromthe other provinces because the 1930 transfer of natural resources aipeeinents between te federal government and them contained ters tei peffec that ownership ofboth established reserves are, and faut reserves would be, federally owned” Ta tain ce SC 1985, 15,820 prof dein of resem To ie teaional La, owe note 38 668,28 esalished eS Cather, shove note 1 4 Sechrest ae cree references the sreemens and consti amendmen a en 0 fe Aber agreement prove A lands cle ‘uae rar hte Province feuding those selected and uted adie oe eens wells hore coir, sl cootna 0B vee Smacesljursiion nd Contra 73 3) Aboriginal Rights, Ceded Lard and Interests, Off Reserve, the Natural Resources Transfer Agreements, and Métis Rights Overview Aboriginal peoples reserved @ number 3 rights in ceded lands and ine {erests off reserve, which would include public lands and resources ‘Typically, these are hunting, trapping, and fishing rights, or generally Fights to pursue their traditional occupations on ceded land. For ex- ample, Treay 8 (1899), which applies to parts of British Columbia, Alberta and Saskatchewan, sate ‘And Her Majesty the Queen HEREBY AGREES with the sald Indians ‘hat they shall have righ to pursue thir usual vocations of hunting, ping and fishing throughout the tet surrendered ns heretofore described, subject to such repsations as may from tne to tne be made by the Government of the county, acting unde the authority of Her Majesty and saving and except ng such tacts ae soy be Alberta Sustainable Resource Development, About Public Lands Grazing Statistics for Public Lands (Edmonton: Alberta Sustainable Resouice Development, Public Lands & Forests, 2003), online Ihupifsedathertacaforme mapa-sericestieeeivesdecumests! GrazingStatistesPublicLand.Dee2003 pall PUBLIC LANDS AND RESOURCES LAW IN CANADA Elaine L. Hughes University of Alberta Arlene J. Kwasniak University of Calgary Alastair R. Lucas University of Calgary Pull Lande and Resources Law trwin Law tne, 20 ‘Allright reser. Mo prt of thi ablation maybe eroded, soe ina {eva syste, oes ay for oy yeas wou he pit 1 ‘enperiision ot pblsber of he ace potcapyinger eter epee ‘oping licence fem Aces Copyvght (Canadian Copyright Licensing Ages) ‘Monge See, Sate 690 Trata, ON MSE TES, Published in 2016 anean Set Ste 206 Iseeora.t sonia book ISBN 9781 S2-20.9 rary and Archives Canada Cataloging in Publtion Hughes Eien Lod, 1959 autor ie onisand sours lw fn Canna lan Hughes, Uwe af Alben Alene Hasnck, Uaierhy of Clg, Alastair Lies, Univer of alas (Essen of Candin tw) Tneladesbiblgrphicl erences a nde "Suen pring and etronicormats ISBN 97:1.9221-252 (puperine) ISBN 978-1 552214209 (gl) | Public lands—Canad 2. Crown ds—Law a eistation Canad 3, Natal resources Law and elation 1 ease Areae).19- ‘ur I Luss Alar R, 1944 author Il Tie Ven Escala es ty 2018 svemiors c2ais-s9n79 5605682016 Golson Printed and ound in Cana, A CASE STUDY IN RESOURCE MANAGEMENT: ENERGY ON PUBLIC LANDS ‘Alastair R Lucas and Las Pasdo Lopez” A. PUBLIC OWNERSHIP OF ENERGY RESOURCES nergy resource extraction and energy production ae now the most ‘alae ple land uses This was tox lomy sans Ser centuses of westwarésmoving Canadian setement, prime use moved from wildlife oagrcuture and frety (with wate for expanding agricultural vse and uban development increasing impertane ef ner and energy resource extraction — parila ell nd gs Fa importance ofthe later has aeclersted in he ast haf century This pattern is apparent in the mineral reservation plies for grams of public land as setlement moved ares the western pao Incas! Apart fom the nortbera ertores, provinces were, unde the consituttonal division of propery, the weer of these publc energy Luis Pando Lope (LL, alert Senior Markt Analyse Replay Asi, Of he Utes Conserve, Clg ‘mentary a pas 137-1 38, om” ———— i EEE and BLIC LANDS AND RESOURCES LAW IN CANADA mineral resources? Grants with no mineral reservations were followed, by seservations of oa (by the Crown and bythe CPR from its Railway Bult lands) then by reservations in Saskatchewan and Alberta of “coal sad pevoleum” (leaving the status of natural gas unclear), and evento Sly fecervaions in northern and western Alberta and in British Cole ‘umbia ofall mines and minerals” ‘Sunership of offshore energy resources was largely determined through series of Supreme Court of Canada reference cases? Sub- sequcdy, federal provincial negetiatons led ¢o joint management Sen tevenue sharing for East Coast resources A moratorium on West Coast offshore diling that dates from 1972 remains in effect? Tiydro power has been important from the early days of Cam. adion seulement, This led provinces to retain hydroelectric sits 38 ‘Grown lands and formed the bass ofthe Croven hydro authorities that ‘merged, pariclarly in British Columbia, Manitoba, Quebec, New Sraewick: and Newfoundland and Labrador in the second half of the twentieth century® Over the past several decades, the previously iMegraed Crown corporation utilities have sen fist, moves towards none complete public utility regulation, and then, unbundling, t0 some degree of generation, transportation, and distribution functions, The ‘Stjerive has been tofatitate wholesale power competition 1) Energy Resources and Legislative Powers In jurisdietonal terms, energy resources, lke other public lands and ronitces, were vested in the provinces by the Constitution Act, 1067? ‘Oumership of resoutes in the northern territories and the offshore ma Relbelts mains withthe federal government. The federal government J comin At 1867 (UND, 206 3 it €3,5 108 epsimed in RSC: 1989, AP fend NO. Sere tnt of Of Share Mineral Rs Bish Caan 1967 set oe nr Big Reece re: Owned of he Be th Sta edna nd Rate rs foo) SCHEER re Mee end ier rr tere he Coin hel (983), 1 DLR) 9 (NI CA jee re Coninett She 1964] 1 SCR BS beri eerenc «4 MESSISIS tise Constance to, and Gas Law Canada Toren: ‘Cowl 1990 2074-84 5 Sentra Resources Canad, Report ofthe Publ Review Panel te Go sey cna Moaoiamon Ol ard Gas Activites the Que Chat ‘ibn Columbia (xs Nal esorces Catan 2009. ory juropowe ssecation,Habopnerm Coad Fs, Prenton TInt: Caradon Hope Asoc, 208. 1 Comtttion c, 86%, above wot, 108 ‘A Case Stuy Resource Management: Energy on Pubic Lands 223 retained some legislative powers relevant to energy resource extrac- tion and use. These include interprovincal transportation and trade, 15 well asthe lately significant powers in relation t health and the ‘environment* Following the federal-provincial hyrceatbon reventes dispute of the late 1970s, section 92A of the Consttation Act 1982 confirmed exclusive provincial powers in relation to exploration, de- velopment, and management of non-renewable natuel tesousces and forestry resources as well as sites fr hydroelectric power generation 2) Aboriginal Powers and Roles In constitutional division of powets terms, the federal government hi exclusive legislative power in relation o "Indians and Lands Reserved for the Indians"* “Indians” includes Inuit as well as Metis" This means that energy resources on Aboriginal reserve lands are within ‘exclusive federal jurisdiction — subject tothe Crown's fiduclary obi: gations towards Aboriginal people. Section 35 of the Constitution Act, 1982 provides: “existing Aboriginal and treaty rights are recognized and affirmed” Judicial interpretation has revealed an encompassing reconciliation value that informed decisions on how these rights can be {infringed by conflicting public lands use, inclading exergy resources uses, and in, what circumstances this infringement con be justified = ‘The Crown role and duty is fiduciary so tha infringing action by gov ernment can be justified only if i © consistent with the “honout of the Crown" in relation to Aboriginal people The Supreme Court has alfirmed that “Crown lands" under provincial public nds and resour- es statutes, unless clearly specified, do aot include lands for which Aboriginal ie has been judicially declared Energy projects on public lands authorized by government and its ‘agencies both federal and provincial, have become an increasing threat to Aboriginal and treaty rights. A major Issue has been intensive ll and gas development, best exemplified by northern exploration pro- sgrams and most visibly by development ofthe Athabasca Oil Sands Large pipelines — linear projects that ut through the teational lands of First Nations — have been a particular source af conic. The i 912), S129, a 90038. See Ry Hydro Qube [987] 9 SCR 213. See ‘Chapter, Section for dcunon a Avonglnaljrciiny 9. Canton et. B67 above nite 2,910, 10 Daily Cond Cian Afr and Nrter Developmen, 216SCC 2 1 Delmar v risk Colum, 1997 9SCR 010. 12 Did Hall Nation Brisk Cota ise of Foc), 20085CC 3 13 Taligatn Nation» Brisk Coanbia 2014SCE 4 aga oh —_-— F§ 224 UIC ANDS AND RESOURCES LAW INCANADA first major skirmish occurred in the easly 19705 when lage-diameter ‘natural gas pipelines were proposed to run from the Northwest Terri {nies and Yulin elds to hmihern Canadian and US markers. The ree- ‘Smmendation ofa two-year public inquiry was that pipeline should) hot proceed until land claims were setled* A sharp recesion with plummeting natural gis prices, plus increased provincial natural gas Production, elective) Killed the project. Interest in the project rose Senin thirty years late, with environmental assessinent and review Under a complex nine-year multi-agency process that incorporated National Energy Board (NEB) energy project review, environmental Impact assessment (FIA) and consideration of Aboriginal Interests? [Notwithstanding judicial review actions, the decision by the NEB was positvee* but a new "gas bubble” produced by a surge in Canadian Provincial and US gas production by a new shale resource industry Bilton directional drilling and hydraulic fracturing technology was to push the project back onto the shel. Subsequently, with afew excep- tons, land claims negotiations, particularly within provinces, proved Tunsucesefal. However, the Tsilgotin'” case seems to provide an al ternative, namely judilal declaration of Aboriginal title for claimed lands. B. OILAND GAS BD Overview In the western provinces, oil and gis rights are primarily on Crown land. For Alberta this accounts for approximately 8 percent of the province's aea’® An even higher percentage — approcimately 92 per- {Thora Berge, Norther Fone, Norther Homeland Report othe Machen ‘ny pen ingusy (uawe Miniter upp and Series Canada, 97D. 1s. Juin Review Panel fo the Mackensie Gs Proje, Foundation ir aSustain ‘ote None Future Report othe ts Ree Pal forthe Maher Gat Frente. Canadian Eoeironmental Asessment Agency 2010, 16. Cogn National Egy Bot Machel Ges Paje —Reso for Deion (chs 2 (cgay. Naonl Energy Bored. 2010, one ww neb-one gf Pptenlaginriehivencanapetnodexeng 17 Above nate. Th. Government of Alert, let il 2nd Gas Tenure, 20092, oie ww nergy eras Tenure/palstenare roche pl ‘Case Stuy n Resource Management Energy on Public Lands 225 ent of British Columbia mineral rights — are inthis category. In Saskatchewan, is 78 percent." Overall there is considerable similarity in the provinc {or sale of oll and gas rights and regulation of operations by righes hold ers All systems are designed to recover a reasonable royalty and to this end (as well as broader economic development goal) to mean tse ‘exploration activity and delineation of oil and gs eserves ‘Thus, there is usually provision foram inital non-exclusive geo- atysical exploration stage, followed as a secord stage by excites exploratory drilling. Sometimes, as in British Columba and in see katchewan” within a particular region, there isan exclusive explore. tory deiling tenure. successul exploratory well will then emi she ‘exploration permit holder to acquite a lease. In Alberta, a common tenure in addition to ditect leasing has been the Pirleum and Navooe Gas Licence, which has a term of two, out, or five years depending n location. Licence lands can be “earned” by drilling and ifeuceere, {ul, converted to five-year leases Licences could be grouped forthe urpose of lease earning. Alberta oll and gas tenures have evolved and Changed so that production continues today uncer tenures longer available. I driling is succesful in discovering commercial quant, foil oF gas, the third stage is produetion under lease tenures The lane ‘ee will involve pipeline or other transportation lilies, In adtion exploratory drilling success will be followed by celineation well dri ing to identify and maximize production from a purticular pool, Normally, as in Alberta, geophysical exploration requires no oil al g48 acquisition. Rather, this involves only the agreement of sor ‘ve owners and a non-exclusive permit from the celevant goveroment tency. 19" Beis Colambi Os Gas Combine, “Landowners formation Gide fori sod Gas Acivites in Bish Clambia a8 onte wae sodet1032Adwnond, 29” Government of Siskathewan, Minty ote Economy “Miner Righs Own | shpss4 Acquistion ona: hupitconomygnnatnuanene [2 Alberassysi isthe mow elaborate se Toys LL cl nade Com: ative Guide tthe Regulation of Oiland Gas Proc Canada a1, ln: ww nny coevPablestonsPsbleatonRRat Let 22 Pevoleam and Narwrel Ga eh, RSBC 19860381, Tad Oe 2 23 Gown Minerals eS 964,302 Se speci replat onlin we publnions orskcafdea cmp 2 eeu and Naar Gas Tne elation, Aka eg 26197, Pur een ‘Alberts Olan Gi Tenure above ote IS a Benton ean tin eg 2842006, ESSENTIALS OF GWE PUBLIC LANDS AND RESOURCES LAW IN CANADA Elaine L. Hughes University of Alberta Arlene J. Kwasniak University of Calgary Alastair R. Lucas University of Calgary Ew Pole Lands and Regus Lin Canada | ‘igh served No prt of thi publication may be repre stored in ‘eral pte, cr sansmited many form by ay teas, ouch pew ‘ep permision of the publisher onthe cae homepage aber epee ‘spying cee rm Acs Copyright (canadian Copyright Licnceg Ape. "Nonge ier, ute 800, Teron, ON, NSE TE Pblised in 2016 by levi awn sie 208 xswice Ispx-576.15520-9282 ebook SBN: 9781350214209 Livary ae Archives Cana Cataloguing in Pubition ges, Eine. (lane Lai), 1050 author lianas and sources wn Cana / Eine L gh, Univers of Aer, Alene} Rasick,Uneaty of Calay Alar R. Lan Unvrsy aly (Gena Canadian 3 Ieeade biblogapiclreeences ad nde, "ued npn and tectonic ora ; "SIN9TR1352214262 papal) ISBN 978-1392214299 (gd 1, Public ands—Canda. 2. Crown ands—Law a ein on Can 3. Naural esoutes—Law and elation cama, { Rasa spe, 149-, tuhor Il. Leas AlastirR, 1944 author I Tae WV, Sete Bema Can ian aw sreri0r4 caorssoxsn-9 Gis one 4 Fried and bound in Cana. 12345 1918 IT 6 PARKS SECTOR OVERVIEW Laura B Kumpf and Elaine L Hughes A. ABOUT PARKS. Canada is globally renowned forts parks, Canadas first national pack was established in 1885 in Banff and was protected in the public inter fst. In 1911, the worlds frst national parks service was created, the Dominion Parks Branch, now called Parks Canada. Between 1900 and 1920, Wood Buttalo National Park and Elk Isnd National Park were created forthe conservation of bison. In 1976, Nahanni National Park became the worlds first UNESCO natural World Heritage Site? Can- ada was also the first industrialized western aation to rally the Con. vention on Biological Diversity? The 1992 convention, which reathirine in its preamble the importance of biological diversity, also sates, “the fundamental requirement for the conservation of biological divers- ity isthe in-situ conservation of ecosystems and natural habitats and the maintenance and recovery of viable populations of species in their ‘natural surroundings.” Article 8G of the cmtention states that each * Lay Kump GD Alber) i corport tanyer and associat th Edmonton slice fle Thomson LLP She wax eset aetant fo ths selon dog ‘es ie sa lw tena the Universo Albee Feat of ane 1 Kevin McNamee, National Pats of Canada olin: Hitvcs Cana wn \hesanadanencylopediacatenfarclfatonl psf cata 2 Coenen on Beis Dies, 5 June 1992, HOOUNTS 7,3 LM 818 (9902 (enter in free 29 December 193), Note Canada wa the rst West ‘rmindstiizedaaion aly. mm fn4HUBLIC LANDS AND RESOURCES LAW IN CANADA party shall "establish system of protected areas or areas where special ‘reawares need to be taken to conserve biologieal diversity “hevording to Natural Resources Canada, Canada currently has 8,500 protected areas, whichis roughly 99 perosnt of ts land base, 31 Mullion hectares of which consists of forests and wooded ares, with 33.5 mullion hectares strictly protected.” Further, "95% of protected qos are within [International Union for Conservation of Nature] Cat- gore [to IV, which largely prohibit industrial activites such a for- ce harvesting, mining and hydroelectric development.” In 992, the federal terrterial and provincial governments made a commitment. raetes tepresentaive network of ecological regions wnder A Staement Sf Commament to Complete Canada’s Networks of Protected Areas? By 2009, they managed to create protected areas in twenty-eight out ek chireynine tervestril regions But in only two out of twenty-nine fnarine regions’ The Organisation for Economic Co-operation and Developmen has ranked Canada 70th globally for is ecean protee- tion? The international targets to have 12 percent protected areas Mle Canada has protected 10 percent. Over 60 percent arc less that TD square kilometres; as such Canada only ranks sateen out of thtty for areas protected but ranks four out of forty for strong >otecton twithin the areas designated" However, some provinces, such as Brit: veh Columbia, have met the 12 percent target. The United States has ‘doubled the international target by protecting 25 percent.” “The parks sector Is unique in that it emibodis an array of natural resources, which gain protection depending on the type of park desig estan Parks designations vay federally and provincaly aud fall ona Spectrum of being strictly protected to being not protected tall (open {te public use). David Boyd separates the designations as generally fll: ing into four categories: parks, wilderness ares, ecologel reserves, J) Nawal Reoures Canada, Protected Areas olin woo cangecafores eo 4 Td STi enrden, Progress and Poles in Canals Prouted Aras. Orerview Thome throne lsu and Emerging Challenges nthe at 2st Cestry~ sore eal Cis Tleon, xsonmental La Coss nd Materials {Toronto Caewel, 2005) 9375. sect hicht ed Rese nd Exommetl Mangere in Ca 8 a eon and Umea, hc (Doe Mil, Ont Oxf Unies Press Canad, 2009 330, darren een Cen Satih on Marne rote Ares Canada Or tama es nd Oceans Canad, 2010) 33 15 Mtneely above note 6 a3 9 Michell la 330. ———————— | aco eee Parks Secor Ovestew 275 and wildlife management areas” According to Boyd, parks have dual mandates of conservation and recreation, wilderness areas restrict commercial development, ecolopieal reserves have strict rules Limiting sctivties, and wildlife management ares allow compatible activites ‘The designations are found in the legislation where a purpose, dedication, or objective may be stated, or the legislation and regula tions will include prohibitions to determine ts level of protection. The objective of parks management has trandormed significantly over the last decade from being protected for the public benefit (focused on recreational use) to wildlife and ecosystem protection for the benefit ‘of future generations. Now parks are estblshed withthe objective of protecting biological diversity and maintaining or restoring ecological Imtegrity. However, parks stil play an important role in fuelling the tourism industry and hosting Various recreational activites such as hiking, camping, and, in particular, intemnationally recognized skiing eas sich as Marmot Basin in Jasper National Park and Sunshine Vit lage in Danff National Park. There ae some protected areas, such as the Gully Marine Reserve, where even gaining acess tothe area is very restricted, B. FEDERAL LEGISLATION Federally, Parks Canada, Environment Canada, and Fisheries and | Oceans Canada each participate in establishing parks and protected areas. Ateas are protected in national parks, national ma "on areas, national wildlife aress, marine wildlife areas, marine protect cd areas (MPA), and migratory bird sanctuaries In 1908, a federally appointed expert panel recommended “Parks Canada should ‘ensure ‘ecological integrity isthe first priority in all aspects of parks manage ment,” which is now reflected i the legislation 10 David Boyd, Umaaval Lee Rethining Canaan Enviroment Lo Paley (Vancouver UBC Pes 2003) a 19, ha u 12 ht 13 Meinard Dole & Chris Tolelson, Emmet Law: Cases and Matera (Forts Carwel 2009) 388° V——_—_—_—_—_—_—_— 276 PUBLIC LANDS AND RESOURCES LAW IN CANADA 1) National Parks ‘The main federal statute isthe Canada National Parks Act adminis- tered by Parks Canada, which gets its authority from the Parks Canada ‘Agency Act.” According to Parks Canada, national parks “are estab lished to protect and present oustanding representative examples of natural landscapes and natural phenomena that occur in Canadas 39 aural regions” and range from the S-agiase-ilomette St Lawrence Islands National Park to the 45000-square-kilometre Wood Bullalo National Park! A conflict inherent inthe legislation isthe provisions dedicating th: park to the publie for use, contrasted with the prov sions making ecological integrity the first priority, which is discussed further in the easelaw to follow. Section 4(1) of the Act states, “The national parks of Canada are hereby dedicated tothe people of Canada for their beneit, education and enjoyment, subject to this Aet and the regulations, and the parks shall be maintained and made use of 50 a3 to leave them unimpaired forthe enjoyment of futute generations” Ac- cording to secon 8(1), the minister is responsible forthe "administra: | ‘on, managerient and control of parks, including the administration ‘of publi lands in parks and, for that purpose, the Minister may uve land occupy those lands." However, section 8(2) states "Maintenance for restoration of ecological integrity, through the protection of nat ural resources and natural processes, shall be the ist priority ofthe Minister when considering all aspects of the management of parks" The Act defines ecological integrity as a “condition that is determined to be characteristic ofits natural region and likely 10 persist, includ ing abiotic components and the composition and abundance of native species and bological communities, rates of change and supporting ‘When parks are established, the minister must (I) create a manage ‘ment plan within five years that includes “a long-term ecological vision for the park, aset of ecological integrity objectives and indicators and Provisions for resource protection and restoration, zoning, visitor se, public awareness and performance evaluation’ and (2) publish status Feport every two years on the status ofthe patks and the progress om 15 Scio a1 16 Pats Canada “Nona Parks of Canada online: www ekg pindexasp Wt Above nels 18 Binsao. skaSecur Overview 27 establishing new parks. Where applicable, the minister is also 10, “provide opportunities for public participation at the naional, regional And local level, including participation by aboriginal organizations, bodies established under land claims agreements and representatives of park communities"™ ‘While national parks ate sheltered from natural source explor- ation and development, in particular from mining and oil and gas development, those activities impact the integrity ofthe parks by oper- ting near the border. Mineral exploration and development was pro hibited in national parks in 1930 under the National Farks Act.” The parks also experience pressure from within the borders from the tour- {sm industry and park communities, which have resulted in extensive ‘commercial development and tourist activity. However, the minster ‘can declare part of the parkas a wilderness area, where activities likely to impair the wilderness character of the area cannot be authorized” ‘With respect to exploiting resources, the Act specifies thatthe Governor ‘in Council may make regulations respecting the exerelse of aditional renewable resource harvesting activities in particular parks, including activities under land claims agreements” For example, in Gros Morne "National Park, snowshoe hare sharing snd timber harvesting are con- sidered traditional renewable resource harvesting activites allowable ‘with a permit The Governor in Council ean also (1) clase areas of the park for purposes of park management, public safety, or the conserva- tion of natural tesoutces, 2) estab mits wu tse resewable resoue- ces that may be harvested in any petied, or to vary any such limits established by the regulations, for purposes of conserva on; and (3) pro- hibit or restrict the use of equipment in the park for the purpose of protecting natural resources.” Regulations vay depending on the park, but the Gavernor in Couneil can make regulations far te preservation, control, and management of the parks, including protecton of ts resour- , including management and regulation of fishing Regulations ean also be made respecting the issuance, amendment, ad termination of 18 Diss and 20), 20 id 120 21 Above ote 2 Above note 1516 Bs Bude Petra edn 617 2 Gros Mere National arf Canada Snowe Hae Ruan, SOR/005- 205, Gros Morne Naonal Parke Canad Tiber Hareing Regulates, 25 wear Mc HOOD 36 tay tt. 274 WUBLIC LANDS AND RESOURCES LAW IN CANADA leases, licences, easements, o servitudes of or cver public lands. Other regulations include those relating to any public works or services; roadways and trafic, surveying of public lands, and the regulation of business, occupation, trades, amusements, spots, or any other activity or undertaking” ‘Some national parks incade park communities, such as Banff lo: ‘ated within Banff National Park. Those comrunities must have com- ‘munity plans that include a growch strategy, which are consistent with ‘the management plan for the park and with the principles of no net negative environmental impact and responsitle environmental stew- atdship and heritage conservation According to Parks Canada, the Aci, “limits commercal development in natcnal park communities, The boundaries ofall communities in the national parks wil be Fixed and commercial development will be capped ir those communities” 1m Sunshine Village Corp v Canada (Minister of Canadian Heritage), the court required an environmental impact asteasment of the cumila” tive impact of Banffs Sunshine Village expansion project, which Jamie Benidickson regarded as “judicial recognition of the status of environ- ‘mental values in national-parks management Under the 1992 Can- adian Environmental Assessment Act (50W repealed), the government ‘could "require that an environmental aeessment be conducted for any project outside the boundaries of a national fark that may adversely lect is ecologial integrity?" Where the minster believed that a pro- ject "may cause significant environmental effects” on «national park, fn environmental assessment ofthe effects on those lands could be required, which considered the ecological integrity of the park. Unfortunately, the new Canadian Enviroumental Assessment Ac 2012” applies only to projects designated by the Regulations Design ing Physical Activities" Under these regulations, national parks are nol treated differently than other non-proteced federal land in terms of the types of projects that can result in an assessment being needed Gaehough there are afew activities in National Wildlife Areas and ME wid 28 ig 398 30 990, 20 CELR (NS) 171 (FCA): Jamle Hendon, Eeonmentat Law he (oronio, O8 eta La 201) 2 30 31. SC 1992 e375 48, Chrsopher JA Wilkinson, Praeted Ares Law in Oat Canada Mantenane of Ese! negra theManapemen rot” (G008) 28 Nata ress Joel 10 22. Canin Envonenal semen At S199, 37,8480 FuthsSectr Oneview 279 tema pac amtuate sted as projects that do reguze an environ ‘mental impact astessment) 1 Canadian irks and Widen aaian Heritage) the pail ang the esate the fat pony, as required te cana Natioal Parks Act, when a reat ced approved to be ex- {iblshed in Wooe Bulllo National Parke uneseeP world heritage sea th const the largest herd af bison osc, Grane whooping rane.” The road was spp fermined that it wis *not likely to coves mental effects The trial judge '5 not the only corsieration Sy of conflicting interests" that the mintsters decision simply According to Shauy stands for the view that eo {ors for Paks Canaca to cons section 8() simply dates Packs rematn unimpalted for itegrty is just CCanade’ manage st nesting area roved as the minister de- igificant adverse environ {termined tht ecological integrity a that thee is “delice balancing ‘The Federal Court of Appeal determines was “not unreasonable, either patent oe in Fler, “the Wood Bufo Road Becton ogical integrity is just ane of several se sider in park managene the pre-existing section the use of Ca fancy way to describes cons focny entry in the national parks" In Maman’ rane tte Lake Luise Cop the court ered an set aside for Chateau Lake interpreted by the courts ae anagement tole* In Zoochech Care the applicants were denied popueseeth 28 nhucton to preven the egg ofthe cormorant population In Pont Plc See oe thoughe to 2003 FA 17 Ibid pare? nd pare dat pars 06 Flakes “cologne tn Cand’ National cf Law” (orl 2010) 29 Wind fa 204 FC Laan It Then Adore ote pars -2 SC 2000 32 Path The Fae Pr. w of egal and Scilla rh EEE ‘a0 BLIC LANDS AND RESOURCES LAW IN CANADA | te arming the ecosystem)? The court held chat Parks Canada be bag hore would be irparabl arm wahout dhs ul 2 onstrted a az inte public erst. According to Flake, Fas ae oaion, upbeldby the cout, “conims] s view hat neve carr Plog integrity does noxmean let nature be and sag si can be necessary foster an eater rows 2G able eraectory* Coe Fst Nation v Cann (Miniter of Cenadian Hera Cen cert Nata ad also challenged broad aPPrOS the Mie flo Navona Parkas oul vefere ath the Wem tn yams punt and ap inte pak The decision was app tothe | ahs rc Canada, where he court quate the Mints 0S | Septem er, ling the Crown di ot dicharg ts const aero ge twas aaa detslon instead « deceon obliga ice and direct engagement wih the MKSEW TERING The potential impact of the road 2) ‘National Marine Conservation Areas vn coda aay has the espns of ets nation Paks Cade 0 eed ras cana wen nie ME wet onl one Coen rx Fog o on ie Comer rn At The Fathom FV | the Canada Nan pe snguenay sawn Marie Pte | Nana Mains Fr gue the pogam. The agen SL then er ged tubes Marin pcs sence Marne he ae ape Nana ane in he planning 2 Gal Haus nal Marne Cone servation Ae md OeingeSte™ The ately ado fr Re and nee eae eo econ in cranny note eto | Toon Conan Gna Pers Canada en). 2008 F340 ns ie. 45 ides prs 36 ad 1. a. Above note 39011 %S dowsscc tears Me idea pars oF 0d 8 16 el Marne Conscrvation Az At SE_2002 5 Cenk ce Mae Pa SSR An A Ren se Lawn Mare Pak COUR PAL ae Nana Marine Conseration Ara of Canada oie ra ee aleg ogee nmap spines 30% | Fark Sector Crevew 281 Postponing preventative measures The purpose under the Act sto protect and conserve “representative marine areas for the benef, ede fation and enjoyment of the people of Canada and the world Mar. ine protected areas (MPAs) under the Act must be "managed and used {in a sustainable manner that mests the needs of present and futere generations without compromising the structure and funetion ofthe ecosystems” Each MPA must include atleast one zone that fosters and encourages ecologically sustainable se of marine resources” and at least one zone that “fully protects special features or sensitive cle- ments of ecosystems.” The Act also explicitly prohibits any person from exploring and exploiting hydrocarbons, minerals, aggregates, ot ‘any other inorganic matter within the MPA>* However, hg is sill permittedifitis im accordance witha licence issued under the Fisheries Aa? 3) Federal Protected Areas Networks ‘While Parks Canada is responsible for national parks, national matine conservation areas, and natonal heritage sites, Environment Canada and Fisheries and Oceans Canada each have a network of protected Environment Canada is responsible for national wildlife areas snd rnarine wildlife areas under the Canada Wildlife Actas well x4 migea- tory bird sanctuaries under the Migratory Birds Sanctuary Regulations together these form Environment Canada's Protected Areas Network, sudministered hy the Canadian Wildlife Service® The networh protects over 11.8 millon hectares, including 15 milion hectares of aquatic habitat consisting offity-one national wildlife areas, ninety-thnee ti ‘ratory bird sanctuaries, and one proposed marine wildlife aren.” Fisheries and Oceans Canada is responsible for Canadas Net- work of Marine Protected Areas According to Fisheries and Oceans Canada, 56,000 square kilometres of oceans and the Great Lakes ‘Above noe #7, preamble, as £90). id 48). 13. Ih 150), ona Wife at, RSC 196, W-5; Mirtry Bd Sencuary Regains, CRC. «1036, Envonment and Climate Change Canad, “rote Arcs oie: ec cap a cena et, SC 1996, 3 281 PUBLICLANDS AND RESOURCES LAW IN CANADA ave protected through MPAs. As of 2010 there were 797 MPAs with 4305 Mnonaged provincially, 83 managed federally, and 9 managed by Thon governmental organizations oF through co-menagement, such & The Saguenay st Lawtence Marine Park” The Oceans Act states that Fisheries and Oceans Canada is to develop and implement a nation: Elayetem of MPAs where the minster can designate and zone MPAS, ‘Ss well as prohibit activites" According to Aldo Chircop and Bruce Marchand, the Oceans Act "sa ground-breaking pce of legislation in waar lawe which provides a framework for the cevelopment of na Tonal oceans strategy, integrated planning and management, and inst- {uonal responsibilities" The preamble ofthe Oceans Act sets the tone for te porpose in promoting the understanding ofthe ocean systems {o foster sustainable development and that “conservation, based on wos ecosystem approach, is of fundamental importance 10 maintaining ‘ological diversity and productivity in the marine envionment.” The ‘Ruraeo adopts the precautionary principe stating, “Canada promotes the wide application ofthe precautionary approach tothe conservation, ‘Ranagement and exploitation of marin resoures in order to protect rranstGrources and preserve the marine envirouent” Also im re ‘potting the economic importance of the oceans, especially 1 coastal CEiimunitics it promotes integrated managemert, meaning i collab SRanom with other levels of government, ministers, boards, agencies, era flected Aboriginal organizations and coastal communities forthe development of national strategy. ‘The 004 Convention on Biological Diversity ade a target of estab: lishing an ecosystem-based MPA network by 2012 and having 10 per ent ef marine areas protected by 2020, while Canada currently bas 1 ercen protected" In 2005, “Canada's Federal Maine Protected Areas Prrntcgy” was ereated to address the declining Beal of the oceans ‘The sategy had the objective of establishing a systematic approach 0 MPA planning and stressed the importance of iregrated management nd ig applying the ecosystem and precautionary approach in 201}, senor setematic approach was crated when the National Framework 0. Abore note 38,= 350-0). ane te dt Broce Marchand, “Oceans Act Uneired Sexs forOfsbor ee nnn Canada” G00) 26 Dao La ural Tat 23. ae ans Canad, Natal romeo for cond Neo Man ease nas Otawn Petes end Oceans Cana, 210 a8 anne Scene Canna “ede Marne routed Aes Stneay #3 er Sed mpagecfceanapenbentonwederepmled/ndex 36 thud 3and i-1 Wks Seto Overview 283 for Canada's Network of Marine Protected Areas was released, to estab- tae’ thirteen bioregions° The framework star, Canada’s vision a8"An ecologically comprehensive, resents snd ere: Sentative national network of marine protected areas that rome he biological diversity and health ofthe marine environment fn press and future generations The framework recognizes that concerrerene sfforts must be balanced with socioeconomic considertions wet

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