Summary of Environmental Law in Canada

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16 Environmental Management of Public Lands

 

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(See also Chapter 20: Forests and Forest Management.)

Governmental power to manage public lands comes from two sources: the right of ownership of land and the constitutional authority to legislate in relation to the land.

As discussed in Section 15.4, Land Tenure, the provinces own most of the land and natural resources in Canada. This, combined with their extensive legislative powers, gives the provinces the dominant role in the environmental management of public lands in Canada, except in the North.

Federal

The federal government does play a role regarding nationally significant landscapes and important wildlife habitats. This occurs when: (1) the federal government identifies natural areas of national significance in terrestrial and aquatic environments; (2) the federal government and a provincial government agree to manage specific areas under federal conservation policies; or (3) international agreements require the protection of migratory species by the joint action of the different levels of government. The federal government can also manage public lands through its jurisdiction over Indian and federal lands and the management of navigation, railroads, aviation, and telecommunications.

Wetlands are an important part of the protected territory in Canada. Over 29 percent of Canada's wetlands are in locations that fall under federal control or jurisdiction. There is no comprehensive federal legislation that specifically protects or conserves wetlands, but some wetland protection may be achieved through non-wetland statutes such as the Migratory Birds Convention Act, the Canada Wildlife Act, the National Parks Act, or the Fisheries Act. To assist in the management of federal wetlands, as well as to provide guidance to provincial and territorial wetland managers, the federal government issued, in 1991, the Federal Policy on Wetland Conservation.

Provinces

Public lands are primarily under provincial jurisdiction. Provinces have enacted statutes for the creation and management of public lands for conservation or recreational purposes. Wetlands are also protected at the provincial level. This is usually done through policies and programs; not through specific legislation. For example in 1984, the Ontario government released the Guidelines for Wetlands Management in Ontario. However, some provincial statutes can indirectly allow the protection or conservation of wetlands within a province.

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16.1 Institutions for Public Land Management

 

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Agreements between the federal government and the provinces are usually established for the protection of public lands. Governments have extensive powers for regulation and control of public lands, including the power to expropriate privately owned land needed for a public purpose.

The management of federal public lands for the conservation of wildlife is part of Environnement Canada's responsibilities. Public land management in provinces is generally done by a governmental body that is part of the provincial ministry or department responsible for the administration of Parks Acts (environment, natural resources, etc.).

At the municipal level, management powers are limited. Municipalities are able to intervene only if their enabling legislation allows it. For example, municipalities may have the power to manage regional parks when authorized to do so by the provincial ministry responsible for municipal affairs.

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16.2 Other Publicly Owned Lands

 

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A variety of agencies are engaged in environmental management of public lands paralleling the ownership of public land and the legislative jurisdiction affecting public land.

As its name implies, the Department of Indian Affairs and Northern Development (DIAND) has extensive responsibility for managing federal land in the North and Indian lands in all parts of the country.

Other federal agencies with land ownership responsibilities exercise environmental management powers regarding that land. Examples are military facilities, harbours, most airports, federal buildings, and national parks. In addition, federal Crown corporations own, and therefore control environmental management of, substantial holdings of land, such as railways. Whether these lands are "public lands" is subject to debate.

In 1980, the federal government adopted the Federal Policy on Land Use. This policy sets out a land management practice for the acquisition, use, and disposal of lands belonging to the government of Canada.

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16.3 Protected Areas and Parks

 

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(See also Section 9.7: Protection of Fresh Water Ecosystems.)

Protected areas and parks are now essential elements in national and global conservation strategies. Such areas strive to preserve geological and physical features, ecosystems, and wildlife habitats such as forests, wetlands, and lake systems in order to perpetuate species diversity.

Federal

The establishment and management of protected areas and parks by the federal authorities is possible under the National Parks Act and the Canada Wildlife Act. The National Parks Act states that the national parks are "dedicated to the people of Canada for their benefit, education and enjoyment" and "shall be maintained and made use of so as to leave them unimpaired for the enjoyment of future generations." The Act governs all national parks and assigns management powers to the Canadian Parks Service. The Act ensures that any attempt to increase, reduce, or delete national parks is subject to a political and public review. It also requires that the federal government own all rights to national parkland. Thus, if a park is to be established or extended within a province, the provincial government must agree to transfer such rights to the federal government.

In 1986, the federal government approved a national marine parks policy under the National Parks System Plan. The policy is aimed at representing each of Canada's 29 marine regions within a system of national marine parks. The objective is to establish marine parks along the Atlantic, Pacific, and Arctic coastlines and in the Great Lakes to protect and conserve Canada's marine heritage. In 1988, the National Parks Act was amended to permit the establishment of marine parks. For example, the Saguenay-St.Lawrence Marine Park was established in 1998.

The federal government administers two types of wildlife reserves: national wildlife areas and migratory bird sanctuaries. These two types of reserves provide an opportunity for federal-provincial cooperation in the protection of natural areas and wildlife habitats of national and international value. The Canada Wildlife Act promotes wildlife research, interpretation, and the conservation of wildlife habitat. The federal Minister of the Environment is given the authority to purchase, lease, or accept through donation, lands for research, conservation, and interpretation of wildlife. The Minister may enter into agreements with provincial and municipal governments, as well as non-governmental organizations, to achieve these goals. Unlike the National Parks Act, the Minister can make changes to the boundaries of national wildlife areas and permit the extraction of natural resources without the approval of Parliament.

In 1984, the federal, provincial, and territorial Parks Ministers established the Canadian Heritage Rivers System to give national recognition to important Canadian rivers and to ensure that they are managed so as to conserve and interpret the natural and cultural heritage they represent. Provinces are invited to participate on a voluntary basis.

Provinces

At the provincial level, each legislature has enacted statutes for the establishment and management of protected areas and parks. There is a wide range of protection status for protected areas and parks depending on the legislation in place in each province. For example, there are wilderness parks, nature reserves, waterway parks, historical parks, and ecological reserves. Protected areas and parks are created for the preservation of natural areas and for recreational purposes. Despite those objectives, exploitation for economic reasons is sometimes possible (logging and mining exploration and development, and recreational operations and businesses). The provincial legislatures have the power to adopt regulations to control or prohibit any activity in these areas.

Many provinces have adopted policies and guidelines to provide goals and objectives (e.g., amount of territory to be protected, type of protection) to assist the government in the planning and management of existing and future protected areas or parks. Some provinces, such as British Columbia, Alberta, Nova Scotia and Quebec have recently invested in the development of provincial parks.

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16.4 Protection of Cultural or National Heritage

 

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Both the federal government and the provincial governments have jurisdiction to protect cultural and national (or provincial) heritage. At the federal level, there is the Canada Heritage Act. Most provinces have enacted similar legislation to assist in the protection of lands. Often, such statutes create institutions to encourage the preservation of heritage and culture. For example, the Ontario Heritage Act created the Ontario Heritage Foundation. Provincial legislation protecting culture and heritage assists municipalities to recognize part of their territory as a heritage site by way of a by law, and to control the demolition of historic structures.

As a result of settlement agreements signed between the Crown and aboriginal groups, large tracts of northern lands are being reclassified from Crown lands to special forms of private ownership governed by the complex provisions of these agreements. Many of these agreements contain provisions for research, recognition, and preservation of sites that are culturally and historically significant to the aboriginal group.

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2003