BILL S-210: A REASONABLE STATUTORY FRAMEWORK TO PROTECT GATINEAU PARK

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1 BILL S-210: A REASONABLE STATUTORY FRAMEWORK TO PROTECT GATINEAU PARK BRIEF SUBMITTED TO THE SENATE STANDING COMMITTEE ON ENERGY, THE ENVIRONMENT AND NATURAL RESOURCES MARCH 27, 2007 Stephen Hazell Executive Director Nicholas Street, Ottawa ON K1N 7B7 Tel: (613) Fax: (613) info@sierraclub.ca web:

2 SIERRA CLUB OF CANADA AND GATINEAU PARK Sierra Club of Canada has approximately 10,000 members, supporters, and youth affiliate members across Canada. Members are volunteers who work in Club campaign activities, as well as outings and Club development. Sierra Club of Canada has five chapters, British Columbia Chapter, the Prairie Chapter, the Ontario (formerly Eastern Canada) Chapter, the Québec Chapter and the Atlantic Canada Chapter with local groups across Canada including Ottawa. The Sierra Youth Coalition is Sierra Club of Canada's youth arm. One of Sierra Club s key mandates is wilderness and species conservation. Wild areas, and the wildlife that lives in them, are increasingly under threat across Canada, from industrial resource extraction, climate change and development pressures. While early settlers in Canada wrote of eking out existences in our vast wilderness areas, today almost half of these natural areas have been degraded, fragmented and impaired by industrial use or out rightly converted to cities, towns and farms. One means of protecting our remaining wild spaces and wildlife is by creating protected areas, at federal and provincial levels. However, although protected areas do often offer wilderness areas a reprieve from the onslaught of development and industrial use, they also raise numerous conservation challenges. Sierra Club of Canada has advocated legislated protection of Gatineau Park for several years, participating in meetings of the National Capital Commission (NCC) and participating in the Coalition for NCC Reform. Stephen Hazell, Sierra Club s executive director, is an expert in protected areas law and has been engaged in the study of different legislated options to protect Gatineau Park for many years as a member of the Gatineau Park Committee of the Canadian Parks and Wilderness Society s Ottawa Valley chapter. INTRODUCTION Canada s Parliament overlooks one of the most biologically diverse wild spaces in our land, with 53 mammal species, 234 bird species, 52 fish species, 28 reptile and amphibian species, more than 1,000 invertebrate species and more than 1,000 plant species. Hectare for hectare, Gatineau Park exhibits more biodiversity than any other place in Quebec. One or more packs of wolves probably the threatened Algonquin wolf hunt whitetail deer and other prey 40 km from Parliament Hill. Yet this 363 square kilometre natural treasure has been overlooked by Parliament and poorly treated by the National Capital Commission, its manager. Gatineau Park is one of the most heavily used wilderness parks in Canada, with 1.5 million visitors per year. It has eight times the annual visits per square kilometre as Banff Canada s most commercialized national park. As a result, Gatineau Park faces a continuing barrage of threat to its ecological integrity. New roads such as the Laramée-McConnell connection and the Mackenzie King Estate access road, along with new housing development inside the park and on 1

3 its periphery, continue to fragment wildlife habitat. Exploding levels of trail use by bicyclists, skiers, all-terrain vehicle riders, snowmobilers, rock climbers and hikers also increase the stress on ecosystems. If Gatineau Park was a national park, it would be on the critically endangered list. National parks are protected by law, but not Gatineau Park. Incredibly, Parliament has enacted no law governing how land in the park is to be used. The NCC owns most of the land in the park and thus has some control over development. But decisions to build new roads or expand skiing facilities are made at the discretion of the NCC and in secret. And without a statutory framework, the NCC lacks the tools to properly manage the Park. The notion that Gatineau Park should be protected in a natural state is not new. Nearly 100 years ago, Frederick Todd of the Ottawa Improvement Commission first recommended officially that a large natural park be established in the Meech Lake area. In 1958, the Greber Report included Gatineau Park as a major feature, stating that the future development needs to be judiciously guided and controlled, rather than to be improved upon. Preservation of the distinctive character of the land is essentially the basis upon which control is to be enforced. Gatineau Park is a crucial part of Canada s natural and cultural heritage. It is long past time that it became a real park, by law, if we want our children and grandchildren to be able to enjoy this magnificent wilderness as much as we do. This brief describes the elements of a comprehensive legislated regime to protect wild landscapes such as Gatineau Park, and possible statutory options that have these elements. The brief concludes with an analysis of Bill S-210 with an assessment as to whether or not the legislation sets out a reasonable framework for protecting the ecological integrity of the Park. KEY ELEMENTS OF A STATUROTY FRAMEWORK FOR PROTECTED AREAS Key elements of a legislated framework to protect wild landscapes such as Gatineau Park include the following: Park boundaries defined by law and prohibition on sale of public lands within park boundaries Process for acquiring ecologically important private lands within the boundaries of the park Dedication clause that the protected area is to remain unimpaired for future generations Direction to the management authority that stipulates a requirement that ecological integrity be the first priority in park management Prohibitions or restrictions on land uses within the park that are inconsistent with protection of the ecological integrity of the park Regulatory and permitting authority to enable management of the parks 2

4 Defined Park Boundaries The current boundaries of Gatineau Park are quite unclear as noted in the brief of the New Woodlands Preservation League. A 1960 order in council included a map plan indicating the Gatineau Park boundary, but the legal effect of this order in council is uncertain. The National Capital Commission recognized the boundaries problem in the 1990 Master Plan for Gatineau Park underlining that the park s boundaries were not fixed by law and proposing to provide the park with official status. This was not done. The 2005 Master Plan stipulated that the NCC would determine the most appropriate legal framework to preserve the park and its ecosystems. Apparently the NCC established a committee to examine options for creating a regulatory or legislative framework and that committee completed its work in May 2006, with outcomes not disclosed. In addition to clearly defined park boundaries, the legislated framework should prohibit sales of public land within the protected area, or restrict such sales for limited specified purposes according to a transparent process requiring Governor in Council or parliamentary approval. Process for acquiring Ecologically Important Private Lands Gatineau Park includes many privately owned properties which considerably complicates the establishment as well as the management of the protected areas to ensure that the Park s ecological integrity is protected. Many parks operate successfully with private lands within their boundaries (Adirondack Park in New York State being a leading example), but the legislation creating the protected area needs to establish a process to allow the parks authority to manage, and where necessary prevent, land development such as sub-divisions, and acquire ecologically significant private lands as they come available on the market. Dedication Clause Most parks laws include a dedication or purpose clause that explains why the park is being created and to establish the purpose of the law. For example, the Canada National Parks Act states that: s. 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. The current legal framework for Gatineau Park is inadequate in this respect. The National Capital Act provides that: s.10.(1) The objects and purposes of the Commission are to (c) construct, maintain and operate parks, squares, highways, parkways, bridges, buildings and any other works. Otherwise, Gatineau Park is barely mentioned in the National Capital Act and regulations and there is certainly no clause establishing nature conservation as an objective or purpose for the National Capital Commission in its management of the Park. 3

5 Ecological Integrity Direction Most parks and protected areas statutes include provisions directing parks management to protect and conserve the natural values of the park. For example, the Canada National Parks Act provides that: s.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. Such a provision is especially important if the parks management authority is an organization, such as the National Capital Commission, that focuses primarily on land development. Prohibitions on Inappropriate Uses Most parks and protected area statutes prohibit certain human activities and uses that are inconsistent with protecting the ecosystems of the park, or set out a regime for prescribing limits on such activities and uses according to certain criteria. For example, mining and oil and gas exploration are prohibited in national parks, and are authorized in some circumstances by permit in other federal protected areas such as national wildlife areas. The National Capital Act includes no such prohibitions or restrictions on industrial or commercial use, new roads or subdivision developments. Regulatory and Permitting Authority Most protected area laws include wide-ranging regulatory authority to enable the parks authority to manage human use of the park. The regulatory authorities set out in the National Capital Act are strikingly limited. Under s.20.(1), the Governor in Council may make regulations for the protection of any property of the commission and for preserving order or preventing accidents on any property of the Commission. Current relevant regulations are limited to the NCC Traffic and Property Regulations, which include provisions relating to: operation of vehicles on NCC property and protection of Commission property (e.g., entry, depositing refuse, disturbing or injuring any wild animal or bird, discharging firearms, hunting and fishing, bathing, camping, obstructing stream or body of water) The authority of the NCC to issue permits for activities is similarly constrained. 4

6 OPTIONS FOR STATUTORY PROTECTION Several options exist for providing legislated protection for Gatineau Park. Three of these options have been well-described in a 1990 Canadian Parks and Wilderness Society Ottawa Valley Chapter (CPAWS) publication entitled Legislative Protection for Gatineau Park These three options were: Amend National Capital Commission Act Establish a national park under the Canada National Parks Act Enact a new federal statute the Gatineau Park Act. A fourth option, not discussed in the CPAWS publication, is to establish a national wildlife area under the Canada Wildlife Act. Other protected area laws that could be considered as models include the Saguenay-St. Lawrence Marine Park Act and New York s Adirondack Park Act. Sierra Club of Canada s preference is for a new stand-alone federal statute, the Gatineau Park Act, to be enacted. The 1990 CPAWS publication provides a draft bill, which Sierra Club of Canada believes to be a good beginning. This is the best way to achieve all of the key elements of a protected areas law outlined above, while respecting the unique circumstances and history of the Gatineau Park area and the fact of private property holdings in the Park. However, this statutory option would likely need to be taken up as a government bill, given that it envisages the establishment of a new agency to manage the Park. In the past few years, there has been a considerable and ultimately unhelpful focus on establishing Gatineau Park as a national park. This option should not be pursued, in part because of the legal requirements relating to federal land ownership set out in the Canada National Parks Act, and resistance to the option on the part of Parks Canada Agency and, very likely, the Government of Quebec. Establishment of a national wildlife area is administratively easier and does require that the federal government own the lands in the national wildlife area. The biodiversity of Gatineau Park justifies establishment of a national wildlife area, but the chronic lack of funding in Canadian Wildlife Service for national wildlife areas may make this option difficult to achieve. This leaves the final option, amendment of the National Capital Act, discussed below in the context of Bill S

7 BILL S-210: A REASONABLE STATUROTY FRAMEWORK TO PROTECT GATINEAU PARK Sierra Club of Canada takes that view that Bill S-210 represents a reasonable framework for protecting Gatineau Park. The Bill, as amended by provisions proposed by the New Woodlands Preservation League, would include most of the key elements of a legislated regime as outlined above. Bill S-210 provides for park boundaries clearly defined by law, a process for enlarging the boundaries of the park, a prohibition on the sale of federal public lands in the Park, and a process for acquiring private lands in the Park as they become available for sale. While the Preamble to Bill S-210 acknowledges the importance of preserving and protecting Gatineau Park, Sierra Club strongly supports a clear statement of legislative intent. Thus, Sierra Club of Canada supports the proposed amendment that the Bill include a dedication clause modelled on the Canada National Parks Act that states that: Gatineau Park is hereby dedicated to the people of Canada for their benefit, education and enjoyment, subject to this Act and the regulations, and it shall be maintained and made use of so as to leave it unimpaired for the enjoyment of future generations. Given that Bill S-210 does not establish a parks authority to manage Gatineau Park, relying instead on the National Capital Commission, an amendment along the lines suggested by the New Woodlands Preservation League is especially important so that the NCC ensures that ecological integrity is the first priority in park management. This amendment would provide that: Maintenance or restoration of ecological integrity, through the protection of natural resources and natural processes, shall be the first priority of the Commission when considering all aspects of the Park s management. Bill S-210 does not include prohibitions or restrictions on land uses within the Park that are inconsistent with protection of the ecological integrity of the Park, nor does it enhance the regulatory and permitting authority of the NCC to enable management of the Park. Amendments to address these issues should be considered by the Senate Committee, but could be deferred until some future date once the NCC gains some experience in managing the Park under the new legislated framework. Sierra Club of Canada therefore strongly urges the Senate Committee on Energy, the Environment and Natural Resources to support Bill S-210 with the two amendments proposed by the New Woodlands Preservation League. 6