Ecological Integrity and the Law

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1 FACULTY OF LAW Ecological Integrity and the Law Shaun Fluker Associate Professor of Law October 6, 2016

2 Ecological integrity issues are understood more as a matter of politics than ethics or law The judiciary tinkers at the margin of EI disputes and largely defers to Parks Canada when it comes to putting EI to work

3 A thing is right when it tends to preserve the integrity, stability and beauty of the biotic community. It is wrong when it tends otherwise. Aldo Leopold, 1949

4 Parks for people versus Parks for preservation

5 Legislation (North America) 1972 U.S. Water Pollution Control Act 1978 Great Lakes Water Quality Agreement National Parks Act, R.S.C Canada National Parks Act, S.C. 2000

6 Stephen Woodley Parks Canada Ecological integrity is defined as a state of ecosystem development that is optimized for its geographic location. For parks and protected areas this optimal state has been referred to by such terms as natural, naturally evolving, pristine and untouched. It implies that ecosystem structures and functions are unimpaired by human-caused streeses, that native species are present at viable population levels and, within successional limits, that the system is likely to persist. hi Faculty of Law

7 Ecological integrity in the parks hi Faculty of Law

8 2000 Ecological Integrity Panel Report Ecological integrity as... The condition of an ecosystem where the structure and function of the ecosystem are unimpaired by stresses induced by human activity. Paradigm or baseline ecological integrity large northern parks hi Faculty of Law

9 Canada National Parks Act, S.C. 2000, c. 32 ecological integrity means, with respect to a park, a condition that is determined to be characteristic of its natural region and likely to persist, including abiotic components and the composition and abundance of native species and biological communities, rates of change and supporting processes. hi Faculty of Law

10 Canada National Parks Act, S.C. 2000, c. 32 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. 8(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. hi Faculty of Law

11 To deliver on these commitments, there is an urgent need for Parks Canada to refocus on nature conservation and stewardship, and to reverse the relentless focus on marketing, tourism and increasing visitation with little regard to the impacts on nature. To ensure our national parks are passed along unimpaired to future generations of Canadians, as required by law, we specifically call on the Government of Canada to: Prohibit any further expansion of the development footprint in Banff and Jasper National Parks, starting with saying no to the proposed Lake Louise Ski Resort expansion as well as any other ski area expansions in Banff, to the proposed resort at Maligne Lake, and to any new recreational corridor through caribou and grizzly bear habitat in Jasper. Re-focus on protecting ecological integrity in our national parks as the overarching management priority, including re-investing in science, ecological monitoring and public reporting; Ensure that reforms of the Canadian Environmental Assessment Act require the most stringent level of review in and around our national parks, including cumulative impacts. Ensure the current funding allocated for infrastructure in national parks is used to maintain and upgrade existing infrastructure, not to expand the development footprint in national parks, for example by building new or expanded roads. Ensure new national parks are created through nation-to-nation dialogue and support comanagement with Indigenous peoples, and that existing parks are managed in ways that respect and support Indigenous rights and knowledge. Restore open, transparent decision-making and public accountability processes in our national parks. Focus investments in national park visitor experiences on nature interpretation and education programs with the explicit goal of nurturing nature stewards. Canadians value unspoiled natural beauty and wildlife above all else in our national parks. We have a collective duty to pass along these special places unimpaired so future generations can share what we have the privilege of experiencing today. Fulfilling this promise requires urgent action to re-focus on conserving nature as the first priority in all aspects of national park management. Signatories: équiterre, ecojustice, Pembina Institute, Greenpeace, CPAWS, David Suzuki Foundation, Sierra Club of Canada Foundation, Ecology Action Centre, West Coast Environmental Law, Environmental Defence, Nature Canada, Wildlife Conservation Society Canada

12 Judicial Interpretations Canadian Parks & Wilderness Society v. Canada (Minister of Canadian Heritage), 2001 FCT 1123 at paras , aff d 2003 FCA 197. Mountain Parks Watershed Assn v. Chateau Lake Louise, 2004 FC 1222 ZooCheck Canada v. Parks Canada, 2008 FC 540 hi Faculty of Law

13 Wood Buffalo Road Decision Further, I agree with counsel for the respondents that the record, when read in its totality, is consistent with the Minister and her delegates according first priority to ecological integrity in arriving at the decision under review. That the decision is clearly not consistent with treating ecological integrity as the Minister's sole priority is clear. However, that is not the test. I reiterate: subsection 4(1) of the new Act requires a delicate balancing of conflicting interests which include the benefit and enjoyment of those living in, and in close proximity to, Wood Buffalo National Park. This is particularly so when that Park is as remote from services and facilities as is in fact the case and as is likely to remain the case for some time. In the circumstances, while Wood Buffalo National Park, like other National Parks, is dedicated to the people of Canada as a whole, it is not unreasonable to give special consideration to the limited number of people of Canada who are by far most directly affected by management or development decisions affecting the Park. I am satisfied that it was reasonably open to the Minister and her delegates to conclude that the interest of those people overrode the first priority given to ecological integrity where impairment of such integrity can be minimized to a degree that the Minister concludes is consistent with the maintenance of the Park for the enjoyment of future generations. hi Faculty of Law

14 Chronicles of the Canadian High Court of Environmental Justice: Canadian Parks and Wilderness Society v Maligne Tours Posted on February 16, 2016 by Shaun Fluker By: Shaun Fluker PDF Version: Chronicles of the Canadian High Court of Environmental Justice: Canadian Parks and Wilderness Society v Maligne Tours Case Commented On: Canadian Parks and Wilderness Society v Maligne Tours, 2016 FC 148 In a decision issued February 8, 2016, the Honourable Mr Justice James Russell denied an application by the Canadian Parks and Wilderness Society and the Jasper Environmental Association for judicial review of a decision made by the Superintendent of Jasper National Park to approve in concept a new accommodation facility for the shores of Maligne Lake. The Applicants argued that the Superintendent acted unlawfully by making this decision outside of his authority and in contravention of the park management plan, and moreover that the decision is contrary to the overall first priority of maintaining or restoring ecological integrity in Canada s national parks. The legality of the Superintendent s decision in this matter rests on two determinations: (1) the legal status of the 2010 Jasper National Park Management Plan; and (2) whether the decision is in accordance with the legislated first priority of ecological integrity for the park. This comment reviews the decision by Justice Russell in an imagined space. In a stunning political move, the Trudeau government has amended the Federal Courts Act, RSC 1985, c F-7 to establish the High Court of Environmental Justice. The mandate of this new Court is to hear de novo appeals from decisions by the Federal Court of Canada on environmental law issues. The Supreme Court Act, RSC 1985, c S-26 was also amended to remove any appellate jurisdiction by the Supreme Court of Canada over the High Court of Environmental Justice, with the exception of environmental cases where a constitutional issue is raised by a party. In announcing the creation of this new Court, the Minister of Justice and the Minister of Environment and Climate Change stated that ABlawg has been selected as the Court s official reporter. THE COURT: The Canadian Parks and Wilderness Society (CPAWS) and the Jasper Environmental Association (JEA) seek to have this Court quash the decision made by the Superintendent of Jasper National Park to approve in concept a new accommodation facility for the shores of Maligne Lake and prohibit the Superintendent from any further consideration of the proposal. The proponent of this new facility is Maligne Tours, a registered Alberta corporation with an existing lease on the shores of Maligne Lake to operate a day lodge, gift shop, and boat tours on the lake. In 2013 the Superintendent invited Maligne Tours to file a conceptual proposal for new facilities to enhance the visitor experience at Maligne Lake. The proposed new facilities included a 66 room hotel to be built on lands covered by the existing lease and a group of rustic tent cabins located on lands outside the existing lease. This latter fact is relevant to the legal dispute here. Parks Canada solicited public comment on this

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