Summary of Environmental Law in Canada

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15 Private Land Use Planning and Management

 

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Under the Canadian constitution, regulation of land use in Canada is largely the responsibility of the provincial governments. All provincial legislatures have enacted statutes providing for the creation of plans to guide development, establishing policies for particular planning areas, and giving municipalities the power to pass zoning by-laws limiting the uses of various classes of land.

The federal government has certain programs that affect land-use planning. For example, it funds research on better urban design and federal regional development programs for protecting environmental resources in the agricultural area, particularly regarding soil conservation.

Administration of land-use planning, including the power to make decisions on the current and long-range use of land, is generally assigned to local authorities. Provincial governments, however, maintain control through their supervisory roles and through appeal processes.

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15.1 Zoning and Environmental Regulation of Private Land

 

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Legal instruments used by municipalities to control the use of land include official plans, zoning by laws, subdivision control, site plan control, demolition control, and expropriation powers. However, provincial governments typically retain a significant degree of control over the exercise of these powers, including the right to issue general policy statements that must be taken into account in planning decisions.

As a rule, the basic planning document is an "official plan," which is prepared by a municipality with public input. An official plan sets principles and policies concerning the nature, pattern, extent, and scheduling of future growth and change within the whole municipality for a specified period of time. The plan normally sets out a series of policies establishing the objectives of the municipality for each of the following subject areas: housing, industrial and commercial development, health, transportation, environmental protection, economic development, heritage preservation, public utilities, municipal finance, public participation, agriculture, floodplain protection, management of environmentally sensitive areas, aggregate (gravel) extraction, and land severance and subdivision.

Zoning bylaws regulate the use of land and many other aspects of building construction (e.g. density, height, bulk, setbacks, parking, etc.). They are adopted in accordance with the official plan and must conform to the plan's stated purposes and intention. A zoning bylaw is a legal document passed by the municipal council. A zoning bylaw is usually very specific in its provision and it is only in limited circumstances (e.g., flooding, marshy areas) that zoning bylaws can be used to prevent any development from taking place, rather than restricting the kinds and intensity of development. Municipalities may restrict development by designating an area as environmentally sensitive.

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15.2 Takings/Expropriations and Other Limitations on Regulation

 

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Expropriation is the taking of privately owned land by a public authority or by a private corporation that has been authorized in the public interest, such as utility and transmission companies. Canada does not have a constitutional provision in the matter of expropriation.

Each province has enacted legislation governing expropriations. These statutes define criteria for determining the amount of compensation and they set out procedures for resolving disputes. Expropriation provisions are also contained in specific legislation such as that regarding natural resources and transportation.

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15.3 Policies and Incentives for Conservation on Private Lands

 

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About 11 percent of Canada's lands are privately owned. The vast majority of the population lives in these areas, which are concentrated within 250 kilometres of the Canada-US border.

Federal

The Canadian Wildlife Service administers the Canada Wildlife Act. It focuses its efforts on partnerships to help retain and manage the many and varied wildlife habitats across Canada. These partnerships have been with non-governmental conservation organizations, private industry, agencies of all three levels of government, native groups, and private landowners. Efforts have been concentrated on private land stewardship across the agricultural and forested landscapes of Canada. The federal government also encourages donations of ecological lands. Landowners donating property receive federal tax credits. Properties with important environmental values are then donated to authorized conservation organizations or municipalities so that they permanently protect their environmental value.

Provinces and Territories

Wildlife habitats may be secured by a number of governmental and non-governmental agencies through the use of lease agreements and management agreements on private lands. In some provinces, covenants or easements deriving from the common law or from statute can be used to permanently conserve land in its natural state through partial or complete restrictions on use or development. The holder of an easement or covenant can be an individual, a non-governmental conservation group, a private company, or a government body.

In many provinces, there are legislative regimes in place for the protection of private lands. The Government of Quebec, jointly with the Federal Government and Ducks Unlimited, has published a guide "Conservation Options: Owner's Guide". Inspired from an American book, this guide suggests different options to preserve the natural and ecological character of a property for the owner's and future generations' benefit. Options go from a declaration of intent, to the sale or donation of the property, or a lease, a convention between owners, a personal easement of conservation. The more the option has social value, the more advantageous are financial and fiscal incentives for the owner.

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15.4 Land Tenure

 

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Land in Canada is owned by the "Crown" (the federal or provincial governments) except where the Crown has granted the land or legal interests in it (such as timber and mining rights) to private individuals or companies, or where the land is subject to treaty or other rights of aboriginal peoples. The proportions of Crown land vary from province to province. In Nova Scotia, for example, 70 per cent of the province is privately owned, while in British Columbia and Quebec, over 90 per cent of the land is owned by the provincial Crown. Some land is also held in trust by the federal Crown as reserves for Indian bands under the federal Indian Act. A very small amount of provincial lands are owned by the federal government, such as national parks and Department of National Defence lands. In the territories, most of the land is owned by the federal government or has been transferred to aboriginal peoples pursuant to land claims agreements.

In many areas of Canada, environmental issues and aboriginal issues are closely intertwined. However, the law regarding aboriginal property rights and legislative powers is extremely complex, and is beyond the scope of this summary.

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2003