(EBR Registry Number: AB04E6001)

A Model Protected Areas Act for Ontario

November 8, 2004

Submitted by:

Evan Ferrari, Director, Parks and Protected Areas ProgramWildlands League, a chapter of CPAWS401 Richmond St. W., Suite 308Toronto, OntarioM5V 3A8Tel. 416-971-9453 ext. 43ferrari@wildlandsleague.org

Albert Koehl, Staff LawyerSierra Legal Defence Fund30 St. Patrick St., Suite 900Toronto, OntarioM5T 3A3416-368-7533 ext. 26akoehl@sierralegal.org

Executive Summary

This Model Protected Areas Act provides legal language along with explanatorycomments for an effective legislative scheme for protected areas in Ontario.

Ontario’s natural areas are an important part of our cultural identity and therefore must betreated with great care --- even reverence --- as befits any cultural icon. Indeed, in a worldof shrinking natural areas our obligation to protect these areas may be considered a dutynot only to our children but also to the global community.

Although protected areas belong to all Ontarians this does not entitle individuals orgroups to do as they please in those areas. Rather, this collective ownership requires thatthe activities of any individual or group must be consistent with the enjoyment of all otherusers and the desire to leave such areas unimpaired for future generations. We believethat the most divisive issues, including such matters as mining, logging, and hunting, areoften improperly framed as debates about the merit of these activities in general. Webelieve that the issue in the context of protected areas is whether such activities have aproper place in areas that are “protected”1 and that constitute only a small percentage ofthe overall landscape. We believe that the core of a proper protected areas system is the protection of ecologicalintegrity. This entails regulating not only what occurs within protected areas but alsoreducing the damaging activities that occur near protected areas with adverse impactswithin protected areas. Otherwise protected areas will simply become unsustainable“islands” of nature.

We believe that the public, as owner of the protected areas, has a right not only to beconsulted on key management documents but also to be informed about the progress ofthe managers of those areas in carrying out stated objectives and goals. We also believethat management plans are vital to ensure that the health of protected areas, which areultimately the capital of the citizens of the province, is not squandered with poorlythought out or inappropriate activities.

We believe that aboriginal people have an important role to play in the management ofprotected areas so that all Ontarians benefit from their traditional ecological knowledge.Finally, we believe that to be truly protected, officers entrusted with oversightresponsibility in protected areas must be given the powers necessary to effectively carryout their duties.

We wish to give special emphasis to three particular issues:

1. Ecological integrity must be the overriding priority in the decision-making for ourprotected areas system;

1 The Environmental Commissioner of Ontario in his 2003/2004 Annual Report noted that protected areas"should be havens for wild species …" (at p. 41)

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2. Industrial activities must be banned from our protected areas, including AlgonquinPark; and

3. Roads and motorized access must be severely restricted in accordance with the specialcare we give protected areas areas.

We applaud the provincial Ministry of Natural Resources for undertaking this importantlegislative reform and we commend it for proposing ecological integrity as the keyguiding principle. What remains to be done is to properly articulate the goals for a trulyprotective Protected Areas Act. With this objective in mind, we provide the followingmodel act for your review and consideration.

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Acknowledgements:

We wish to thank the parks experts and interested individuals who reviewed and providedcomments on this model act. These individuals include Ian Attridge, Michelle Campbell,David Boyd, Prof. Paul Wilkinson, Marc Johnson (Canadian Nature Federation), GregorBeck (Ontario Nature), Prof. Tom Nudds, Sara Mainville, Chris Wilkinson, Anna Baggio,Melissa Tkachyk (Earthroots), Ken Buchan, Prof. Paul F.J. Eagles (University ofWaterloo), Jerry DeMarco, Gillian McEachern, Anne Bell, and Ian Whyte.

Of course, we are responsible for the end product and do not suggest that our Model Actfully reflects the views or opinions of any group or individual that reviewed the drafts.

Commentary:

The choice of name for this act reflects a desire to make it clear that the main objective is toprotect natural and heritage areas from degradation as opposed to an objective that stresses use orexploitation whether for recreation or otherwise. The National Parks Act tries, perhapsunsuccessfully, to balance these competing values of conservation and use by dedicating parksfor the enjoyment etc. (subject to the Act) of present generations while leaving them unimpairedfor future generations. Certain acts, however, make clear that conservation is the top priority.These acts include Quebec's Parks Act, PEI's Natural Areas Protection Act, Nova Scotia'sWilderness Areas Protection Act, and Newfoundland's Wilderness and Ecological Reserves Act.

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Executive Summary........................................................................................................... 2PREAMBLE....................................................................................................................... 6SHORT TITLE.................................................................................................................. 7INTERPRETATION......................................................................................................... 7Protected Areas of Ontario............................................................................................. 12PURPOSE......................................................................................................................... 13APPLICATION TO CROWN........................................................................................ 14PROTECTED AREAS ADVISORY COUNCIL.......................................................... 14DUTIES AND RESPONSIBILITIES OF MINISTER.................................................16APPLICATION OF ACT................................................................................................24 ...........................................................................................................................................24Classes Of PROTECTED AREAS................................................................................. 24ZONES WITHIN PROTECTED AREAS.....................................................................26MANAGEMENT PLANS............................................................................................... 28ABORIGINAL PEOPLES ............................................................................................. 33PERMITTED AND PROHIBITED USES.................................................................... 35BOUNDARIES.................................................................................................................42ADMINISTRATION ...................................................................................................... 43STATE OF PROTECTED AREAS REPORT..............................................................44SPECIAL PURPOSE FUND...........................................................................................46ENFORCEMENT............................................................................................................ 47OFFENCES...................................................................................................................... 49REGULATIONS.............................................................................................................. 51 ...........................................................................................................................................52Schedule 1......................................................................................................................... 52Schedule 2......................................................................................................................... 53Schedule 3......................................................................................................................... 53Schedule 4: Prohibited motorized vehicles.................................................................... 53

Regulation respecting Protected Area Zones............................................................ 54Regulation respecting the appointment, duties, and term of the Protected Areas ...55

BIBLIOGRAPHY............................................................................................................ 55

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Books and Articles:...................................................................................................... 55Ontario Ministry of Natural Resources Documents................................................. 56Legislation:................................................................................................................... 56

Yukon Environment Act........................................................................ 57

PREAMBLE

WHEREAS the people of Ontario:

Treasure the natural and cultural heritage areas of the province as an integral partof their identity;

Value the conservation of nature and the maintenance and restoration of theecological integrity of its protected areas;

Desire laws that ensure public participation in the planning and management ofprotected areas within a context of government accountability and transparency;

Desire that visitor use and tourism in protected areas be managed to ensure both themaintenance of ecological integrity and a quality experience for this and futuregenerations;

Believe that the management of our protected areas must be guided by theprecautionary principle; and

Believe that existing laws must be improved and strengthened to ensure enduringprotection from harm for protected areas, including the diversity of life, naturalfeatures, and cultural heritage within them.

THEREFORE the Lieutenant Governor of Ontario, by and with the consent of theLegislature, enacts as follows:

Commentary: The preamble is an opportunity to set out the guiding principles of the act. TheCanadian Environmental Assessment Act is an example of an act with a preamble. Many acts donot have preambles, and arguably the purposes section of the Act covers much of the sameground, but in more visionary language. On the other hand, The Canada National MarineConservation Areas Act, for instance, has a quite extensive preamble.

The reasons for a protected areas act have dramatically changed from the guiding principles ofthe first parks legislation in Ontario, the Public Parks Act of 1883, which allowed municipalitiesto create and manage urban parks within their boundaries. The Province introduced a ProvincialParks Act in 1913, which established the idea of a parks system in Ontario. At that time tourismwas a central focus although concerns were beginning to surface about the welfare of wildlife (C.Wilkinson 2001). The Provincial Parks Act was last revised in 1954, in part to accommodate thepost-WWII recreation boom. The number of parks increased from 8 in 1954 to 94 by 1967. By2001 there were 270 provincial parks in Ontario. This number of protected areas (including parksand conservation reserves) is to increase to over 600 under the Ontario Living Legacy. An MNR press

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release of September 9, 2004 said: "Today there are 316 parks, 249 conservation reserves and 10 wildernessareas in the province. Ontario’s system of parks and protected areas welcomes more than 10 million visitorsa year from Ontario and around the world." See http://www.mnr.gov.on.ca/mnr/csb/news/2004/sep09nr_04.html Conservation reserves, which are currentlyregulated under the Public Lands Act, cover an area of approximately 9,000 km2.Many provinces and territories, including Ontario, have promised to amend and improve theirprotected areas legislation but have not yet done so. The previous British Columbia governmentdrafted the Protected Areas of British Columbia Act in 2000, but did not pass it.

SHORT TITLE

1. This Act may be cited as the Protected Areas Act.

INTERPRETATION

2. (1) The definitions in this subsection apply to this Act and the regulations.

“adaptive management” means a process of learning that is facilitated by feedbackobtained from planning, monitoring and evaluation.

Commentary: This definition is taken from the section on Adaptive Management in the FederalPanel report (p.3-2). Although there are views to the contrary, we believe this definition isneeded. “appropriate use” means recreational or other use that has been reviewed and approvedof in a management plan, is determined to be consistent with the goals or objectives of aparticular protected area zone or category and the protected areas system as a whole, andincludes consideration of the time of the year, location, or level of use.

Commentary: In terms of appropriateness for time of the year, an example is the Harlequin duckissue in Jasper when rafting was banned in mating season, a decision that was upheld by thecourts). And in terms of the level of use, 1000 birders at Long Point in migratory season may befine, but not 20,000.

The definition of "appropriate" does not include any reference to "ecological carrying capacity" of aparticular protected area zone or category" because carrying capacity is very difficult to measure. It may bea useful organizing framework but it may be very difficult to "operationalize." Parks Canada’s MarketingDivision apparently told the EI Panel that they had a database of 4500 reports that allowed them to calculatethe “biological and social carrying capacity of any park.” The EI Panel called them out on this in public infront of 200 people in Quebec City and they had to admit they didn’t know what they were talking about.

“biodiversity” means the variability among living organisms from all sources including,among other things, terrestrial, marine and other aquatic ecosystems and the ecologicalcomplexes of which they are part; this includes diversity within species, between species,and of ecosystems.

Commentary: We have included a separate definition for "biodiversity, although we recognizethat some experts suggest the term may be synonymous with EI. We have opted for the view thatthey are not synonymous, but rather that EI is a particular state of biodiversity.

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This is directly from the 1992 International Convention on Biological Diversity (Article 2).Canada was the first industrial country to ratify the treaty. This is also the definition used in theQuebec Natural Heritage Conservation Act.The Environmental Commissioner of Ontario's 2003/2004 report says: "Protected areas are thevery foundation of any concerted effort to conserve biodiversity." (at p. 41)

“Council” means the Protected Areas Advisory Council established under s. 5(3).

“ecological integrity” means, with respect to a protected area, a condition that isdetermined to be characteristic of its natural region and likely to persist, including abioticcomponents and the composition and abundance of native species and biologicalcommunities, rates of change and supporting processes. Commentary: It may be that this definition should include reference to areas outside of parksgiven the impact of activities in those areas to areas within parks. This definition is taken from the National Parks Act.Alternatively, the Ecological Integrity Panel(established under Canadian Heritage Minister Sheila Copps in 1998 to examine the ParksCanada approach to maintaining EI and provide recommendations for improvements) definitioncould be used. That definition reads:

An ecosystem has integrity when it is deemed characteristic for its natural region,including the composition and abundance of native species and biologicalcommunities, rates of change and supporting processes.

The Panel goes on to say that "[i]n plain language, ecosystems have integrity when they havetheir native components (plants, animals and other organisms) and processes (such as growth andreproduction) intact. (at p. 2 of v.1)

Some commentators conclude that ecological integrity is consistent with the concept ofbiodiversity and that the two may be considered highly synonymous (Wilkinson 2001)."Ecological integrity, like biodiversity, is fundamental to maintaining and supporting species,ecosystems, and landscapes" (C. Wilkinson 2001). At the same time, biodiversity is a"measurable phenomenon that is capable of being monitored and managed (Noss 1992, PEICNP2000). "Ecological integrity" is elsewhere called "biodiversity conservation" (C. Wilkinson2001). These commentators recommend that biodiversity conservation be made the priority ofnew protected areas legislation.

The EI Panel Report, vol. II, notes (at p. 6-1) that "[a]ssessing and understanding ecologicalintegrity requires three interrelated tools: inventory, research and monitoring."

"Enforcement Officer" means a person designated under s. 31 of this Act or belongingto a class of persons so designated.

"Environmental Registry" is the registry maintained by the Ministry of the Environmentpursuant to the Environmental Bill of Rights, 1993.

"Management Plan" means a program and policy, or any part thereof, preparedaccording to the timeframes set out in this Act in respect of a protected area or

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proposed protected area and includes the maps, texts and other material describingsuch program and policy.

Commentary: This definition is from the existing Ontario Provincial Parks Act.

"Management Plan Evaluation Report" means a report described in section 13 of theAct.

“Minister” means the Minister of Natural Resources or such other member of theExecutive Council to whom the administration of this Act may be assigned under theExecutive Council Act;

Commentary: Federally and in most provinces, the Minister of Environment has been maderesponsible for the protected areas system. Many of the MNR's responsibilities involve resourceexploitation instead of resource protection. Historically, given the emphasis on park use, it mayhave been appropriate to put the MNR in charge. However, the emphasis of this proposed act isresource conservation, perhaps more in line with the functions of the MOE. On the other hand,we note that the MNR is responsible for many of the activities that occur outside parks butimpact the area inside parks. These activities include the oversight of forestry activities andCrown land management. Thus, given the focus on protecting ecological integrity in the proposedAct and the ability of the MNR to influence the activities outside parks, therefore the MNR maybe best suited to protect EI within parks.

"Ministry" means the Ministry of Natural Resources or the ministry of the member ofthe Executive Council to whom the administration of this Act may be assigned under theExecutive Council Act; “Precautionary approach” means that where there are threats of environmental damage,lack of scientific certainty will not be used as a reason for postponing measures to preventenvironmental damage, and is the application in practice of the precautionary principle.

Commentary: This definition is largely from the NMCAA. It is an easier test to meet (i.e.“environmental damage” less burdensome than “serious or irreversible damage”). The firstalternative definition is from CEPA, with removal of term “cost-effective”. We opted for theprecautionary "approach" which is a manner of implementing the "precautionary principle."

Alternative definitions include:1. "means that in cases where there is a lack of scientific certainty, such uncertainty shall not beused as a justification for delaying action" or2. "means where there are threats of serious or irreversible damage, lack of full scientificcertainty shall not be used as a reason for postponing measures to prevent environmentaldegradation."

"Protected Area" means a protected area in the province of Ontario named and describedin Schedule 1, 2 or 3.

Commentary: This definition will be revised to accord with subsection (4) below. We havedivided protected areas into Schedules 1, 2 and 3, with specified protections applicable to each.Existing recreation areas and parks have been put in Schedule 3 (ie a lower class of protected

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area from a Wilderness or other area) to recognize that it may be acceptable to have fewerprohibited uses in such areas.

Our definition is modeled on that of the National Parks Act. It is debatable whether we shouldadd some additional definition of "protected area"? Others have identified "protected area" asone that has been selected for its ecological, biological and/or cultural significance, withboundaries permanently regulated by legislation and that excludes logging, mining andhydroelectric development." (Honouring the Promise, at p. 10) The IUCN – World ConservationUnion includes categories of protected areas that would permit industrial activities. "Schedule" means a schedule to this Act.

“Species at risk” means an extirpated, endangered or threatened species or a species ofspecial concern.

Commentary: This definition is from the federal Species at Risk Act although we avoidreferencing that Act specifically. There are no definitions in the Ontario ESA. "Extirpated,"means species that are extinct in Canada but existing elsewhere.

We recognize that our definition of EI may be problematic with respect to the SARA definition.Under an ecosystem approach some level of extinction may in fact be natural. For instance, inAlgonquin Park a decision was made not to interfere with the recent mite infestations that werekilling large numbers of moose. In the long run, however, there was no problem. Thus, it isperhaps worthwhile noting that in some cases managing at a species level may be inconsistentwith the larger ecosystem approach.

In other cases, a natural process may see grasslands turn to forest. This will adversely affectsome species of animals, however, it would not be consistent with EI to interfere with thisprocess despite the impact on certain species. In this way, EI can be seen as a particular state ofbiodiversity. Species are a constituent part of an ecosystem. EI implies the management of anecosystem. EI also implies that natural processes should be allowed to occur. In nature the rarityof a species may be normal, leading ultimately to extinction. More research may be needed todetermine if rarity is actually a normal condition. In these terms, government intervention maynot at all be consistent with EI. Adaptive management based on appropriate research will answersome of these questions ie "is the event natural?"

It may be worthwhile referring to scientific definitions such as those from The Committee on the Status ofEndangered Wildlife in Canada (COSEWIC) [see: http://www.cosewic.gc.ca/eng/sct6/sct6_1_e.cfm], theCommittee of the Status of Species at Risk in Ontario (COSSARO), and Natural Heritage InformationCentre (NHIC) rankings.

(COSEWIC determines the national status of wild Canadian species, subspecies and separate populationssuspected of being at risk. COSEWIC bases its decisions on up-to-date scientific information andAboriginal Traditional Knowledge. All native mammals, birds, reptiles, amphibians, fish, molluscs,lepidopterans (butterflies and moths), vascular plants, mosses and lichens are included in its currentmandate. COSEWIC maintains three lists: 1) Species at Risk: species designated in the extinct, extirpated,endangered, threatened, or special concern categories; 2) Not at Risk: species that have been evaluated andfound to be not at risk; and 3) Data Deficient: species for which there is insufficient scientific informationto support a risk or not at risk designation.

COSSARO is a technical committee of the MNR that recommends designations. The work of COSSARO isintegrated with the work of COSEWIC. Designations assigned by OMNR/COSSARO apply at the

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provincial level, while those of COSEWIC apply at the national level. There may be some differencesbetween provincial and national designations.

The Natural Heritage Information Centre (HNIC) was established in 1993 as a joint venture between theMinistry of Natural Resources and three partners, namely the Nature Conservancy of Canada, NaturalHeritage League and The Nature Conservancy. The centre is now part of the Science and InformationBranch of the MNR and is located in Peterborough, Ontario, Canada.

The goal of the HNIC is to generate a permanent and dynamic atlas and data bank on the character,distribution and conservation status of natural areas, critical flora and fauna, communities and specialfeatures in Ontario. It objectives include assembling and organizing information on endangered species andspaces from all available sources, such as atlas projects, naturalist groups, universities, museums, andinventory/monitoring programs by public and private sector agencies and organizations; making informationon endangered species and spaces more accessible for ecologically-sound land use planning, and in supportof biodiversity protection programs; tracking priority species, ecological communities and sites to guidebiodiversity conservation activities by public and private sector conservation organizations; and maintaininga central repository of natural heritage data and information in Ontario.)

"State of the Protected Areas Report" means a report described in s. 27.

Commentary: Parks Canada already has a State of the Parks Report, albeit the provisions creatingthis obligation appear to be given scant attention by Parks Canada. The more difficult question isthe manner in which the performance of individual parks are scrutinized and evaluated. Werecommend a Management Plan Evaluation Report.

"Superintendent" means a person who is designated by the Minister as asuperintendent to have charge of a protected area.

Commentary: Given the new purposes and priorities of the Act, we considered a new title for thisofficial but could not find one that was preferrable to the existing one. For instance, a title suchas "area guardian" or "protection officer" or "conservation officer" may be more consistent withthe notion of ecological integrity being the overriding priority in the protected areas system.

"Undertaking" means "undertaking" as defined in the Environmental Assessment Act,R.S.O. 1990, as amended.

Commentary: "Undertaking" is defined in the EA Act as

(a) an enterprise or activity or a proposal, plan or program in respect of an enterprise oractivity by or on behalf of Her Majesty in right of Ontario, by a public body or publicbodies or by a municipality or municipalities,

(b) a major commercial or business enterprise or activity or a proposal, plan or program inrespect of a major commercial or business enterprise or activity of a person or personsother than a person or persons referred to in clause (a) that is designated by the regulations,or

(c) an enterprise or activity or a proposal, plan or program in respect of an enterprise oractivity of a person or persons, other than a person or persons referred to in clause (a), if anagreement is entered into under section 3.0.1 in respect of the enterprise, activity, proposal,plan or program; ("entreprise")

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One might consider incorporating this definition directly into the proposed Act?

(2) This Act applies to the Kawartha Highlands Signature Site Park Act, except thatwhere there is a conflict between this Act and that Act, the Kawartha HighlandsSignature Site Park Act applies. Commentary: The Kawartha Highlands Signature Site Park Act was the product of a long,sometimes acrimonious fight between various groups including traditional users of the area. Werecommend against re-opening this debate in the process to establish the new act.

There may be other acts that should be referenced in this subsection.

(3) This Act supercedes and replaces the Wilderness Areas Act, which is herebyrepealed, and includes all lands formerly covered by that Act, as well as anyConservation Reserve created by the Public Lands Act, and all lands designated asparks under the Ontario Living Legacy strategy, and all Forest Reserves created bythe Ontario Living Legacy Strategy at such time as existing mining claims on thoselands expire whether or not the boundaries for such areas have been fully defined atthe time of the coming into force of this Act.

Commentary: Certain parks-related acts such as the Niagara Parks Act have not been includedsince their provisions reflect purposes quite different from this act.

PROTECTED AREAS OF ONTARIO

3. The protected areas of Ontario are hereby dedicated to the people of Ontario,subject to this Act and the regulations, and shall be maintained and made use of soas to leave them unimpaired for the enjoyment of future generations.

Commentary: This provision is largely taken from the Canada National Parks Act (NPA). Boydnotes that, "Legal experts believe that by explicitly dedicating parks to future generations, thelaw creates a trust-like obligation upon the government to manage parks in a manner thatmaintains their ecological integrity" (at p. 5). "Since 1930 federal parks legislation has requiredthat "the parks shall be maintained and made use of so as to leave them unimpaired for theenjoyment of future generations."

S. 2 of the current Provincial Parks Act (PPA) says "All provincial parks are dedicated to thepeople of the Province of Ontario and others who may use them for their healthful enjoyment andeducation, and the provincial parks shall be maintained for the benefit of future generations inaccordance with this Act and the regulations." The proposed clause improves upon the currentdedication clause by setting up protection as a key requirement, qualifying public use, andrequiring that they be left unimpaired, rather than simply “maintained.”

Some acts include the words "unimpaired in perpetuity for present and future generations" butwe are unclear about whether "perpetuity" adds some timeframe beyond "future generations".

We have tried to use specific trust language, i.e. the ministry is the trustee of protected areas,which must be managed in the interests of beneficiaries including present and future generations.It may be worthwhile to consult a trust lawyer directly. (Also, we must be careful how the

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intergenerational equity clause is worded and be sure that the mandate to protect EI clearlyoverrides decisions about recreational use; see also Manitoba PPA for e.g. of dedication clause.)

PURPOSE

4. The purposes of this Act are to

(a) provide for the establishment, management, protection, and appropriate use ofprovincial protected areas so as to leave them unimpaired for present and futuregenerations, with a particular emphasis on conserving biodiversity and otheridentified features; and

Commentary: One remaining issue is how to incorporate into this purpose the notion ofprotecting biodiversity or flora and fauna. Should the element of protection not just be for futuregenerations of humans but also for fauna and flora? How do we incorporate the notion ofstrengthening or restoring biodiversity?

(b) Achieve the following objectives in relation to individual protected areas, and theprotected areas system as a whole:

(i) as a first and overriding priority, maintain and restore ecologicalintegrity, including natural processes and biodiversity;+

Commentary: We use the words "first and overriding priority" to make it clear that that EI is theguiding principle. We have not included the language "by employing an adaptive managementapproach" to the end of this subparagraph to avoid the difficulties experienced in the WoodBuffalo National Park case.

(ii) protect representative examples of ecosystems;(iii) protect outstanding, unique, rare, and vulnerable species, natural

features, and phenomena;(iv) promote public consultation and community involvement and

stewardship in the establishment and management of provincialprotected areas;

(v) protect and provide opportunities for scientific research,environmental education and awareness, and appropriate uses; and

(vi) provide a means for determining the effects of human activity on thenatural environment.

Commentary: Purpose sections are key in setting the tone for the agencies that implementlegislation and for courts that interpret it. The importance of including a purpose section thatclearly provides for ecological protection has been highlighted in numerous reports and articles(see Swaigen 2001, Campbell and Thomas 2001, Environmental Law Centre 1999). For aCanadian example of a strong purpose section, see the Nova Scotia Wilderness Areas ProtectionAct, s.2.

Subsection (2) is necessary because it outlines the main principles and objectives to guide theagency in the implementation of the Act. The lack of a set of objectives has been identified as akey weakness in the current PPA (Swaigen 2001 at 230).

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Paragraph (vi) would include "appropriate recreational uses" but we opted for "appropriate uses"since it is a defined term.

APPLICATION TO CROWN

5. This Act binds the Crown.

Commentary: Consideration might be given to expanding this section. For instance, the NovaScotia Wilderness Act, s.4 is far more detailed. It says:

(1) This Act and the regulations bind Her Majesty in right of the Province and HerMajesty's corporations, boards, commissions, agents, administrators, servants andemployees.

(2) This Act binds Her Majesty in right of Canada and Her Majesty's corporations,boards, commissions, agents, administrators, servants, and employees.

(3) For greater certainty, the persons referred to in (1) and (2) are subject to aprosecution, an order, and other remedies pursuant to this Act and the regulations

PROTECTED AREAS ADVISORY COUNCIL

6. (1) The Minister shall within twelve months of the coming into force of this Act,with the approval of the Lieutenant Governor in Council, establish and appoint aProtected Areas Advisory Council to advise the Minister on matters in relation to,

Commentary: In other words, the Minister with Cabinet approval. Other options, in lieu of anAdvisory Council, include a Round Table.

(a) the establishment of protected areas, including the proposed boundariesof such an area;

(b) the management, including management planning, zoning, categorization,and monitoring of protected areas;

(c) the development of a system-wide protected areas strategy;

(d) additions to the protected areas system and opportunities for landsecurement;

(e) development and revision of the list of ecological integrity indicatorsunder paragraph 15(2)(b); and

Commentary: The advisability of such a committee to recommend increases in parks also has theadvantage of tempering political decisions based more on economic than ecological factors onwhich areas are best protected. Boyd notes that, "the areas with the highest biodiversity value,which face the greatest threats from human activities, currently receive the least amount ofprotection. (Unnatural Law, at 179).

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We believe a major financial commitment, with appropriate legislative provisions is needed for arestoration and land acquisition program for Southern Ontario where parks are underrepresentedbut where there is not enough public land to complete the system. Therefore, a land acquisitionand restoration project is needed on a large scale. Such a program will pay real dividends forfuture generations and for many species at risk in this area. We will give additional thought toincorporating appropriate provisions for such a program in this model act.

We use the term “land securement” as opposed to “acquisition” to reflect a broader set of legal instrumentsfor controlling land beyond acquisition of title.

(f) threats to the ecological integrity of a protected area emanating frominside a protected area or from an area near or adjacent to a protectedarea.

Commentary: Legally mandating the commission of a high level advisory council, made up ofexperienced ecologists and social scientists, would help increase the capacity to manage andmake decisions that support the protection of ecological integrity. For example, this approach isfound in Newfoundland & Labrador’s Wilderness and Ecological Reserves Act (ss.6-12).Indeed, Ontario had a similar group to this in the past.

In addition, the setting up of a provincial parks advisory council was a main recommendation ofthe BC Parks Legacy Panel to strengthen the way protected areas are governed.

(2) The Council shall consist of no less than five members, and shall be made up ofat least three of the following: Aboriginal representative with traditional ecologicalknowledge, biologist, ecologist, geologist, forest ecologist, and human geographerwith expertise in protected areas.

Commentary: It may be that there is a better way to define the requirements of this Council giventhat it may be difficult to determine who falls into each of these categories. This list is notexhaustive --- it could be more or less specific depending on what is desired. We believe that theCouncil should not have industry or ENGO representatives, but rather should be scientific innature.

Arguably, the Council should simply be defined as requiring individuals with expertise inprotected areas management and with a requirement for non-governmental representatives. Onemight ask if the Council should have members with a tourism/recreation background expertise?The Council, however, is not restricted to the members set out above. Indeed, we believe it wouldbe advisable for the Minister to include persons of with other practical knowledge such asindividuals with experience in land acquisition or other securement options, planning, recreation,and other social science fields.

The Newfoundland Wilderness and Ecological Reserves Act sets up an Advisory Council withexplicitly defined membership and duties. The Cabinet appoints the Council members, 6 of the11 of which are to represent the public (ie as opposed to reflecting some specific expertise,although presumably the members can engage the appropriate experts). We have left many of thedetails of the proposed council to the regulations. In the Newfoundland Act these details are inthe act itself. The Council's main function in WERA is to recommend appropriate protected areas,

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a function for which it may accept recommendations from the public. In our proposed act, wesuggest a broader role for the Council, including a significant role in the protection of ecologicalintegrity of a park from stresses originating beyond a park.

(3) The Minister shall set the remuneration of the Council.

Commentary: Subsections (1) and (2) were modeled after ss. 8 and 10 of the National Parks Act,and ss. 6 and 9 of the Nova Scotia Act. The Council could be modeled after the National ParksAct EI Secretariat

A general agreements section has been included here, but one may want to consider a particularagreements section (see for e.g. s. 10(2) of the NPA)?

Another alternative would be to make it clear in this section that Ontario Parks will be responsible formanagement. We prefer to keep everything related to parks management in one act, as opposed to setting upsomething like an Ontario Parks Agency Act.

DUTIES AND RESPONSIBILITIES OF MINISTER

7. (1) The Minister is responsible for the administration and management of this Actand the regulations.

(2) The Minister may enter into agreements with any federal and provincialministers and agencies, Aboriginal governments, local governments, other persons,including owners of land near or adjacent to a protected area, and organizations forcarrying out the purposes and furthering the objectives of this Act.

Commentary: We will do further research into land claims issues. The province participates inland claims negotiations with aboriginal groups and there would therefore be some overlap withprovincial protected areas legislation.

8. (1) The Minister shall make maintenance and restoration of ecological integritythe first and overriding priority when making decisions regarding all aspects of themanagement and the designation of Schedule 1 and 2 protected areas [wildernessparks, ecological reserves, waterway and aquatic parks, natural environment parks,and conservation reserves]. (2) The Minister shall consider the maintenance and restoration of ecologicalintegrity when making decisions regarding all aspects of the management anddesignation of Schedule 3 areas (historical parks and areas of cultural heritage andrecreation parks).

Commentary: One might consider simply eliminating subsection (2), and make the protection ofEI the overriding priority for all management decisions? Note that even the Kawartha HighlandsProvincial Park makes the protection of EI the overriding priority (albeit only in its preamble),even though many recreational and traditional uses have been allowed in the park.

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(3) The Minister shall actively seek to maintain and restore the ecological integrityof protected areas by working with landowners and holders of land interests near oradjacent to protected areas, and by participating in provincial and regional land useplanning, environmental assessments, and other decision-making processes theoutcomes of which are reasonably expected to affect the ecological integrity of aprotected area.

Commentary: Various provincial (ie Nova Scotia Wilderness Act) and federal statutes (seeCanada National Parks Act and the federal EI Panel Report) already recognize the importance ofecological integrity.

In wilderness parks and ecological reserves, it is appropriate to require the highest level ofadherence to ecological integrity. In other areas, there is a commitment to consider EI, but it isnot an overriding priority. This will provide a certain amount of flexibility in decision-makingregarding appropriate recreational and other uses.

The QuebecParks Act is a good example where the concept of creating differing levels ofcommitment to EI is used.

Ontario legislation, namely the Kawartha Highlands Signature Site Park Act, specificallyrecognized ecological integrity as the "overriding priority in the management and administration"of that park. (See ss. 2 and 8.) The recently passed Oak Ridges Moraine Conservation Act alsoemphasizes ecological integrity as one of its objectives.

Subs. (3) obliges the Minister to try to protect the areas around parks to protect them frombecoming "islands". The process that governs this effort is set out in subs. (5). In many areas ofthe province the activities that occur outside of protected areas are under the jurisdiction of theMNR for instance logging activities are governed by the MNR as are aggregate activities. Wewill consider ways of strengthening this process.

Commentary: 1. In some cases it may be necessary to prohibit hunting and fishing activities in areas aroundprotected areas if they are inconsistent with EI. The Fish and Wildlife Conservation Act is alsounder the jurisdiction of the MNR.

(4) Before an undertaking is approved in an area near or adjacent to a protectedarea, the government ministry or agency responsible for the approval of such anactivity, shall, in addition to any requirements under the Environmental AssessmentAct or other legislation, consult with the Minister, and

Commentary: The definition of undertaking is in the Interpretation section above and is takenfrom the Ontario Environmental Assessment Act. We use the words "near or adjacent to" aprotected area for fear that "adjacent" would be interpreted as being limited to land that borders aprotected area and excluding land that is only a few metres away but not bordering the protectedarea.

An alternative definition might be considered for "undertaking" if not the one in the Ontario EAAct. We had considered using the words "development" or "industrial activity" but is there aneasy way to define such terms in terms of triggering an EA? For instance, would a mid-sizedhotel be a development?

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Another question is the definition of "adjacent" ie should it be defined as a certain distance fromthe park or by reference to impact, but if the latter then this begs the ultimate question, namely, isthere an impact? It may be worthwhile to replace "adjacent" with a distance ie within 25 or 50kilometres of a protected area.

(a) the Minister shall prepare and provide to the Council a written reportdetailing the relationship between the proposed activity or project andthe protected area and the potential effects on the environment andinclude recommended mitigation measures and other actions,

(b) the Council shall review the report and recommended mitigationmeasures and make a recommendation on whether an environmentalassessment under the Environmental Assessment Act would beappropriate with regard to the proposed activity, and

c(c) the Council shall submit the written report and its recommendations to

the proponent or approving ministry or agency, and to the Minister.

Commentary: The Advisory Council report must be made public under the EBR pursuant to s.9below.

It may be advisable to incorporate here a provision similar to the federal EA Act wherebydevelopments that may impair a park's EI may be subject to an EA? This would then mean theproponent would have the obligation of submitting an EA. The federal act says:

"48. (1) Where no power, duty or function referred to in section 5 is to be exercised orperformed by a federal authority in relation to a project that is to be carried out in Canada and theMinister is of the opinion that the project may cause significant adverse environmental effects on

…

(a.1) a park or park reserve as defined in subsection 2(1) of the Canada National Parks Act…"

Or should we be pushing for an amendment to the provincial EA Act to include a provisionsimilar to the one in the federal act, but mandatory instead of discretionary?

(5) The proponent and the approving ministry or agency shall consider the reportsubmitted under subsection (4)(b) and the precautionary approach before making adecision regarding the proposed activity.

Commentary: It may be that something should be added after 4(b) since the report can simply beignored under the proposed section. Perhaps add something to the effect that the Minister canrequest an environmental assessment in specified circumstances, especially with respect to large-scale industrial or commercial developments. Should a citizen "bump-up" for EA be added? Onthe other hand, the existing proposed provisions would be far better than what exists now, and itmay be best to try to achieve such a process at this point.

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Also, the fact that the report must be made public under the EBR means that citizens will havethe means to bring public attention to the negative impact of proposed developments.

Activities in areas adjacent to protected areas have a great potential to affect the EI of protectedareas, and thus a requirement for intra-Ministry consultation before a development or industrialactivity is approved is the minimal step that should occur to ensure that the effects ofdevelopments on protected areas is fully considered. The type of process the Minister mustfollow could depend on the type of protected area in question. Wilderness Parks could beafforded greater protection than Recreation Parks.

As recommended in the Federal Panel report (Section E), it is important to require the Minister toengage in regional integration activities as a way to act proactively in the protection of ecologicalintegrity.

We will consider adding the BC Legacy Panel's reference re "collaborative planning andmanagement across protected area boundaries and on lands and waters adjacent to protectedareas; integrate management for wildlife habitats, corridors, fire, insects, access, range andrecreation protected area boundaries." However, we recognize that BC is in worse shape thanOntario with respect to provincial parks (although no mining or logging is allowed in BC parks).

(6) The Minister shall,

(a) within 12 years of the coming into force of this Act, instruct the Councilto prepare and complete a comprehensive study on the adequacy of thecurrent provisions to protect the ecological integrity of protected areasfrom threats emanating from outside protected areas, and if existingprovisions are found to be inadequate, make recommendations on howthis Act can be strengthened to protect the ecological integrity ofprotected areas from the negative impacts of activities carried on outsideprotected areas; and

(b) within one year of the comprehensive study, amend the act as necessaryto ameliorate the shortcomings in the Act with respect to the protection ofecological integrity from threats emanating from outside protected areas.

Commentary: This provision ensures that if existing provisions to protect the EI of protected areas fromoutside threats are found to be inadequate based on the experience of the next twelve years, then amechanism nonetheless exists to study this problem and to recommend amendments.

In fact, we believe that a stronger legislative scheme is necessary. However, the case for such a scheme maybe difficult to pass currently. However, we are recommending a process that allows for such strengtheningof the act based on empirical evidence.

We believe a stronger scheme may include a hierarchy of prohibitions of activities outside of parks,including

a. a mandatory duty on government to ensure that all activities in areas adjacent to protected areas do notaffect the EI of protected areas;b. a requirement that all activities over which government bodies grant approvals are based on theoverriding duty to protect EI of protected areas;

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c. MNR and MOE approvals protect EI within protected areas;d. EA approvals and consultation are required for all activities outside of protected areas.

(7) The Minister shall provide for landscape-scale connectivity between naturalareas that receive protection regardless of whether such areas are administeredunder this Act and may enter into agreements for that purpose with federal andprovincial ministers and agencies, Aboriginal governments, local governments, andother persons, including owners of land near to or adjacent to a protected area, andorganizations.

Commentary: Such connectivity between all protected areas, whether under this act or otherwise,is an important way to ensure the long term health of wildlife populations and for protectingareas from becoming so-called “islands of extinction.

NOTE:

We believe that these provisions will likely be insufficient to preserve the ecologicalintegrity of protected areas. We therefore also recommend that the OntarioEnvironmental Assessment Act be amended as a consequence of the new ProtectedAreas Act in a fashion similar to recent changes to the Canadian EnvironmentalAssessment Act. The federal act was recently amended to provide for EAs of projectsthat have an impact within parks. We recommend a similar change to Ontario'sEnvironmental Assessment Act.

S. 48(1) of the CEAA reads:

Where no power, duty or function referred to in section 5 is to be exercised orperformed by a federal authority in relation to a project that is to be carried outin Canada and the Minister is of the opinion that the project may causesignificant environmental effects on

(a.1) a park or park reserve as defined in subsection 2(1) of the Canada NationalParks Act, …

the Minister may refer the project to a mediator or a review panel in accordancewith section 29 for an assessment of the environmental effects of the project onthose lands.

(1.1) In deciding whether or not a project may cause significant adverseenvironmental effects on a park or park reserve as defined in subsection 2(1) ofthe Canada National Parks Act, the Minister shall take into account its ecologicalintegrity, as that expression is defined in that subsection.

We further recommend that the amendment to Ontario’s Environmental AssessmentAct specifically require an EA for all roads intended for commercial or industrialactivities that are to be built within 50 kilometres of a Schedule 1 or 2 protectedarea. The distance of 50 kilometres is based on research conducted by Prof. TomNudds. (See

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When roads are proposed or built near protected areas the result is often significantopposition and even litigation, particularly when those roads are for commercial orindustrial purposes. A precautionary approach suggests that an environmentalassessment would be appropriate. These roads can have a dramatic impact onwildlife whose habitat straddles park boundaries because of accidents with motorvehicles, increased but unplanned new access routes, and habitat destruction. In thelong run proper EA's would lessen the turmoil that surrounds such roadconstruction.

This provision is also necessary in light of the MNR’s failure to make a seriouseffort at developing a “Roadless Wilderness Policy” as it was required to do underthe 1994 Class Environmental Assessment for Timber Management. The failure bythe MNR to make a serious effort to comply with this requirement has been broughtto the attention of the MNR on numerous occasions by environmental groups.Indeed, the Environmental Commissioner of Ontario has on several occasionscriticized the Minister’s conduct in relation to the inadequacy of the existing policy,which largely addresses only with roads within protected areas.

9. (1) Subject to s. 23 [prohibitions], the Minister may allow the construction,maintenance and operation of structures, buildings, facilities, roads, trails orbridges that are required for essential protected area purposes that are otherwiseprovided for in this Act or consistent with its purposes.

Commentary: 1. We must decide if any of these activities should undergo an EA. The MOE recently passed its Class Environmental Assessment for Provincial Parks and Conservation Reserves, (See Order inCouncil 1900/2004, dated September 23, 2004 signed by Minister of Environment LeonaDombrowsky under s. 9 of the Environmental Assessment Act) a process that has gone on formany years. This Class EA will have four categories of undertakings --- from A to D --- withcategory D undertakings subject to a mandatory EA.

Activities in parks are subject to the EA Act but the Act has not been applied to projects in parksbecause of a series of "temporary exemptions" orders issued under s. 29 of the EA Act since1980. The order exempts a number of activities including management plans, capitalconstruction, and boundary regulations. The exemption order does not apply where the projectmay affect the habitat of a species designated under the Endangered Species Act. In order tomaintain the exemption order the government must comply with provincial parks policy and thePlanning and Management Policies, among others, which are also thereby given legal status. Theorder also obliges the government to consult with the public when it intends to amend oreliminate park boundaries. Failure to comply with the exemption order puts the MNR at risk ofbeing in breach of the EA Act.

Sierra Legal and other groups submitted strong criticisms to the MOE of the proposed MNRapproach given that few items fell into the category of automatic EAs and because the MNRproposed to retain significant discretion in determining the category of a specific undertaking.For instance, we had suggested in our comments to the MOE, dated June 21, 2002, that a non-exhaustive list should be added to Category D including commercial forestry (Algonquin Parkonly), mining (exploration and development), hunting, major capital projects such as roofedaccommodations, conference facilities, golf courses, etc. In addition, we had noted that, "from an

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ecological integrity point of view, many of these activities should clearly be prohibited in parksand reserves and should not be proposed at all." None of our recommendations were accepted bythe MNR during any of the public review process. In the prohibitions section (below) of theproposed Model Protected Areas Act these activities are indeed prohibited, thereby overridingthe Class EA.

There will be obvious contradictions between our proposed protected areas act and the Class EA.For instance, the Class EA document suggests that golf courses will be subject to an EA. Ourmodel act, however, simply prohibits golf courses. From a legal point of view, this is not aproblem since although the Class EA contemplates an EA for golf courses the new protectedareas act would simply prohibit them, therefore never getting to an EA. (2) Subject to s. 23 [prohibitions], the Minister may allow appropriate uses inprotected areas that are consistent with s. 8 [EI] and provided the activities havebeen approved under a management plan.

“Appropriate uses” is a defined term and allows for recreation and visitor uses. We consideredbut did not include a provision allowing recreation and visitor use activity based on "ecologicalcarrying capacity" because of the difficulty of such a measure. (It might be possible, for instance,to measure the tradeoffs between the number of visitors and degradation to a protected area.There are tools available to measure these tradeoffs. The MNR apparently has a study that looksat mechanisms to make such calculations or that has alternative economic tools for valuingparks.) The inclusion of this subsection ensures that the management planning process studiesand approves all recreational and other uses in protected areas and that they have been deemed tobe consistent with the mandate to protect ecological integrity. It should help to ensure that allappropriate recreational activities are allowed, but that they do not take precedence overconcerns regarding EI.

10. (1) The Minister, in exercising the powers provided in this Act, shall use aprecautionary approach.

Commentary: This provision closely follows the wording in CEPA. In 2001, the Supreme Courtof Canada applied, and therefore incorporated into Canadian law, the precautionary principle to acase involving the ability of a town to regulate the use of pesticides. The Court in 114957Canada Ltee v. Hudson relied on the formulation of the precautionary principle from the BergenMinisterial Declaration on Sustainable Development, which read:

Where there are threats of serious or irreversible damage, lack of full scientificcertainty should not be used as a reason for postponing measures to preventenvironmental degradation.

(2) For greater certainty, the precautionary approach shall apply to decisionsincluding, but not limited to, management planning, policy development,classification, zoning, roads, appropriate uses, permitting and licensing, boundaryreduction, expansion or alteration, the de-listing or establishment of protected areas,buildings, and other development.

Commentary: Including a legislative requirement to apply the precautionary approach wouldrecognize unequivocally the need to make decisions regarding the establishment andmanagement of protected areas by erring on the side of caution (Swaigen 2001 at p. 231). The

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principle is recognized widely in international treaties, and has been incorporated in the mainprovisions of the federal CEPA and the National Marine Conservation Areas Act. It has alreadybeen recognized at the policy level by the MNR (in Beyond 2000: Strategic Directions).

“Industrial activity and commercial development” portion might also be included in (b),depending on how the prohibitions section is structured

11. (1) The Minister shall provide opportunities for public participation with respectto

(a) the development of protected area policies and regulations for individualprotected areas and the protected areas system as a whole,

(b) the formulation and review of management plans,

(c) the development of the protected areas network strategy, and

(d) the classification, addition or enlargement of protected areas.

(2) The Minister shall cause the following decisions or instruments to be posted onthe Environmental Bill of Rights Registry for a public comment period of no lessthan 60 days prior to their implementation:

(a) management plans, including sections therein dealing with the boundaries ofzones within protected areas;

(b) Management Plan Evaluation Reports;

(c) State of the Protected Areas Report;

(d) classification of protected area;

(e) the protected areas strategy;

(f) Advisory Committee Reports under s. 6(4); and

(g) protected area policies and regulations.

Commentary: Alternatively, it may be sufficient to simply establish the principle of EBRinclusion and timelines prior to a decision, then leave the detail to the EBR regulation definingthe classification of instruments. We may need to give further clarification to the question ofwhether there is to be public comment on individual protected areas or on the whole system, orboth.

See National Parks Act, s. 12 for similar legislation.

(3) Final copies of the decisions or instruments listed in (2) shall be posted within 30days of their finalization on a website maintained by the Ministry.

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12. The Minister shall investigate, study, and monitor the provincial protected areassystem and make an annual listing of areas that have the potential for inclusion inthe system.

Commentary: This section is based on a similar provision in the U.S. National Park Act. Theclause does not explicitly speak of completing the protected areas system --- a notion that is bestto avoid given the fact of changing ecosystems.

There is some overlap here with the responsibilities of the Advisory Council.

APPLICATION OF ACT

13. (1) This Act applies to:

(a) all lands to which the Provincial Parks Act and the Wilderness Areas Act, as ofthe date of enactment of this Act;

(b) all Conservation Reserves under the Public Lands Act as of the date of thecoming into force of this Act;

Commentary: Conservation Reserves do not fall under the existing Provincial Parks Act.However, we believe they are properly included under any new legislation for protected areas.Conservation Reserves are governed by the Public Lands Act and were created pursuant to anamendment to the Act in 1994.

(c) all lands designated under the Ontario Living Legacy as Conservation Reserves;

(d) all lands that, on the day this section comes into force, are classed as ForestReserves under the Ontario Living Legacy, on and after the day any lease, permit orother authority under any statute, regulation or order in council respecting mines,minerals or mining or aggregate extraction for such lands expires or is revoked,cancelled or otherwise terminated. Commentary: It may be necessary to be more specific about how the Ontario Living Legacy isdescribed along with the description of Forest Reserves. Conservation reserves were created byland use designation and, later, policy and reference to EAA exemption orders.

(2) The Minister may create protected area reserves to include Forest Reserves andother areas of interest for inclusion in the protected areas system.

Commentary: This provision requires elaboration and clarification.

CLASSES OF PROTECTED AREAS

14. (1) The Minister shall designate all lands to which this Act applies into one of thefollowing classes of protected areas as defined in Schedules 1, 2, and 3:

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(a) Wilderness Parks,

(b) Ecological Reserves,

(c) Waterway or Aquatic Parks,

(d) Natural Environment Parks,

(e) Conservation Reserves,

(f) Recreation Parks, or

(g) Historical Parks and Areas of Cultural Heritage.

Commentary: The Ontario Provincial Parks: Planning and Management Policies, also called theBlue Book, passed by Cabinet in 1978, outlined the goals, objectives, and principles for theemerging parks system. This document also established six park classes including all of theabove classes (the existing class of "Nature Reserves" has been renamed "Ecological Reserves)to which the classes of Waterway and Aquatic Reserves and Conservation Reserves have beenadded. The classification system acknowledges that each individual park cannot meet all of theobjectives of the park system.

Ontario Parks attempts to complement its own classification system in using the InternationalUnion for the Conservation of Nature's (IUCN) Protected Areas Management Categories. (C.Wilkinson 2001)

The IUCN has six categories of protected areas as follows:1. Strict Nature Reserve/Wilderness Area --managed mainly for science or wilderness protection;2. National Park – managed mainly for ecosystem protection and recreation; 3. NationalMonument – managed mainly for conservation of specific natural features; 4. Habitat/SpeciesManagement Area – managed mainly for conservation through management intervention; 5.Protected Landscape/Seascape – managed mainly for landscape/seascape conservation andrecreation; and 6. Managed Resource Protected Area – managed mainly for the sustainable use ofthe natural ecosystems.

We understand that the MNR has recently completed a study to determine how its parks fit inotthe UICN classification system. This report has not been made public.We propose a new designation called "Areas of Cultural Heritage" that could include areasnominated by Aboriginal peoples to cover areas of cultural importance, such as sites of ancientvillages or rock paintings. We believe such a class of protected areas is important to respectOntario and Canada's aboriginal heritage. Such areas should be considered for full aboriginalmanagement.

The current classes of parks in terms of their numbers can be found at:http://www.ontarioparks.com/english/bldg.html These numbers are somewhat confusing. The Wildernessclass parks for instance shows only 8 but this shows 11 targets being met as they consider the portions ofAlgonquin, Missinaibi and the Mississagi wilderness zones here as well. To search individual parks by classone can use the database at: http://www.ontarioparks.com/english/yourparks.html This database is not up todate.

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(2) The Minister shall assign all lands or waters in subsection (1) to Schedule 1, 2 or3.

(3) On establishment of a new protected area, including an area under paragraph 13(1)(c) [Forest Reserves], the Minister shall specify into which class the protectedarea shall be assigned and cause it to be added to the appropriate Schedule.

(4) A failure by the Minister to classify a protected area pursuant to subsection (3)means that the area shall be treated as a Schedule 1 area.

(5) The Minister may change the Schedule assignment of a protected area, if suchchange is consistent with the desire to protect the ecological integrity of an area.

Commentary: It may be necessary to change a protected area’s designation based in a change inscientific understanding about the area’s EI.

ZONES WITHIN PROTECTED AREAS

Commentary: A separate heading exists for "zones" to reduce the confusion from existing MNRpolicy by which classes and zones can be similarly named. For instance, existing policies includeboth "recreation" parks and "recreation" zones within those parks.

15. (1) The Minister shall divide each protected area into zones in accordance withan approved management plan, or upon recommendation by the Council.

(2) Notwithstanding subsection (1), the zones in each protected area shall be limitedby the following,

(a) Wilderness Parks contain wilderness zones, ecological reserve zones,historical zones, and access zones;

(b) Ecological Reserves contain ecological reserve zones, historical zones, andaccess zones;

(c) Waterway and Aquatic Parks contain natural environment zones, wildernesszones, ecological reserve zones, historical zones, and access zones;

(d) Natural Environment Parks contain natural environment zones, developmentzones, wilderness zones, ecological reserve zones, historical zones, and accesszones;

(e) Conservation Reserves contain natural environment zones, developmentzones, wilderness zones, ecological reserve zones, historical zones, and accesszones

(f) Recreation Parks contain natural environment zones, development zones,ecological reserve zones, historical zones and access zones.

(g) Historical Parks and Areas of Cultural Heritage contain natural environmentzones, development zones, ecological reserve zones, historical zones, andaccess zones.

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Commentary: To ensure consistency, classes should be described in the Schedules, which formpart of the Act and therefore cannot be easily changed. Each Schedule will have a list of theparks that fall under that class. This class cannot be changed without changing the Act. This issimilar to what is done in the National Parks Act, Nova Scotia Wilderness Areas Protection Act,and the BC Parks Act.

Prior to the introduction of a new protected areas bill in the Legislature, a study should beundertaken to determine if the existing classes of protected areas need to be re-defined, and ifnew classes need to be established. New descriptions should be formulated using modernlanguage and incorporating the concepts of ecological integrity, ecosystem conservation andmanagement, and biodiversity protection.

It may be worthwhile to give more thought to the protected areas classes, definitions, and zones.For instance, is it too confusing to call an area a Wilderness Park and then have a WildernessZone in that area? Others believe that parallel names is preferable since it transfers the conceptsfrom whole park purposes to the zone purpose. Our main concern is to have proper protection. Inthe future it may be possible to be innovative with the current categories but for the time beingthe existing classes and zones will avoid transitional confusion. It is probably adequate to leave zoning to the regulations since the classes are carefully definedand the Act should have adequate safeguards to prevent, for instance, a Wilderness Park fromhaving a large recreation zone.

The current name "Nature Reserve" in the MNR policy has been changed to "EcologicalReserve" to more accurately reflect this type of protected area.

The zoning within a protected area should remain fairly flexible while pre-empting politicalinterference in the integral qualities of each protected area zone. This suggests adding certainspecifics about zones into the Act as we have done, and leaving other aspects of zoning to theregulations. The zone descriptions set out in the Regulation below are taken almost verbatimfrom the Policy and will need to be updated and amended as appropriate to reflect new ecologicalvalues in the Act.

Currently, zoning is discretionary and there is no guidance as to how to apply the various zones.Including zoning descriptions, purposes, and development restrictions in the Act would improveaccountability and consistency but it is unclear how best to do this. Mandating the purpose ofzones would also help guide the determination of appropriate allowable uses in each zone andtype of protected area.

Currently less than half of parks have management plans, which means that many parks do nothave designated zones within the parks. Therefore it is possible that mandating that all parkshave management plans will mean they must be properly zoned. Such zoning decisions will ofcourse meet with resistance from various sectors. Are these zones adequate and are any of theallowable developments problematic?

In making the descriptions of zones, should consider how the description will protect ecologicalvalues. We have added aquatic zones although we realize that there may be a long list ofproblems in dealing with them such as 3-dimensionality, fluidity, etc. “Marine” technicallymeans related to the sea, but it is used worldwide in relation to fresh water too, e.g., ParksCanada’s proposed Marine Conservation Area in Lake Superior.

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(3) The Minister may change the zoning in a protected area if necessary to protectthe ecological integrity of an area.

MANAGEMENT PLANS

16. (1) The Minister shall, within five years after the establishment of a newprotected area, or within ten years of the coming into force of this Act in relation toan existing protected area, prepare a management plan for each protected areacontaining,

Commentary: In his 2003-2004 Annual Report (at p. 47) the Environmental Commissioner ofOntario recommended that the “MNR require the preparation and timely revision of managementplans for all protected areas, including provisions for public consultation.” We believe that theonly way to give full effect to this recommendation is to require management plans in theproposed Protected Areas Act, instead of leaving such a crucial matter to policy or theregulations. Indeed, the ECO noted that,

… a fundamental component of new protected areas legislation should be explicitplanning requirements. Planning should be mandatory for all of Ontario’s protectedareas, including a legal requirement for public consultation and scheduled reviews. Ofequal importance are the resources available to the ministry to carry out planning,management, monitoring and enforcement. (at p. 47)

Management plans were first called master plans when the Ontario government first developedthem in 1967. The management plan is to provide

(a) a definition of the role, significance, and classification of a park withinthe park system;

(b) a statement of policy for the protection, planning, development, andmanagement of the resources and attributes of a park, including zoning;

(c) guidance for the preparation of required natural resource, client services,site, and development and operations plans required to implement parkpolicies and achieve park objectives;

(d) a rationale and priorities for the funding of capital developments andpark operations;

(e) a record of public consultation and input to the planning process; and (f) a basis for auditing the development and management of a park.

(Swaigen at 304) The MNR also develops "resource management plans" which are more specific attempts toprotect a park's vegetation, wildlife, fisheries, and landforms. (Swaigen at 304)

The ECO in his 2003/2004 Annual Report stressed the importance of management plans noting:

… the challenge for protected areas goes well beyond simply drawing lines on a map ---sometimes called a "paper park" --- which provides little actual protection. These areasrequire sound planning and ongoing management. Management plans are meant totranslate provincial policies into detailed statements of government intent --- the rules tobe followed --- for each individual protected area." (at p. 42)

The ECO went on to say that the majority of provincial parks do not have management plans."only 125 out of 314 provincial parks (40%) currently have an approved management plan.

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Ontario's Provincial Auditor raised similar concerns in his 2002 annual report …" (at p. 43) TheECO also said that, "the proportion of non-operating parks lacking management plans isdisturbing." (at p. 43)

The ECO report also noted that management plans are not currently required for conservationreserves, “since the applicable section of the Public Lands Act has not yet been proclaimed aslaw. Thus, MNR is not legally obligated to plan for conservation reserves. This problem is thenfurther compounded, since MNR itself recognizes that at this point any existing plans will nothave the force of law.” (ECO Annual Report 2003/2004 at p. 44) There are two types ofmanagement plans for conservation reserves, namely, “a statement of conservation interest” or a“resource management plan.” Only 62% of conservation reserves (145 of 234) have approvedplans. There is no requirement under the Public Lands Act for the review of such plans. (ECOAnnual Report at p. 45)

We agree that management plans are vital instruments for the care of our protected areas. In thesame way, official plans for cities are or management plans for capital funds are vital. Ifprotected areas are the treasures of our province, then surely no only would contemplate leavingthem to be guided by anything other than a well thought out and mandatory instrument dedicatedto the task. Protected areas are the capital of the citizens of the province; these areas thereforerequire no less than a mandatory official plan.

Under s. 7.1 of the existing PPA the park superintendent is given wide discretionary powers forall management actions. A superintendent is not required to follow the management plan. S. 8.1of the PPA does not require the creation, implementation, and review of management plans. Only39% of Ontario's provincial parks have an approved management plan as of 2000 (Kirk 2000).MNR has produced only 12 management plans in the last 5 years and the average age of existingmanagement plans is over 15 years therefore shorter timelines are not likely realistic.

Federally, amendments to the NPA in 1988 strengthened the government's commitment todevelop park management plans.

Currently management plans are intended to govern what will happen inside a park over a 20-year period. In 1983, the MNR adopted guidelines for the development for management plans.

We are concerned that advisory groups that currently provide input into management plans havememberships primarily composed of consumptive groups such as resource harvesters insteadindividuals with a broader environmental perspective. We hope that the added prohibited usesand other requirements on Management Plans will somewhat deal with the fact of unbalancedrepresentation on advisory bodies.

(a) a long-term ecological vision for the protected area;

(b) a list of indicators and objectives designed to adequately assess the ecologicalintegrity of protected areas, which will be monitored throughout theimplementation of the plan, which, at a minimum will include,

(i) the status of any identified species at risk including the status of thehabitat of such species at risk, particularly species that rely on thegreater protected area ecosystem,(ii) etc;

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Commentary: Parks Canada uses the term “suite of ecological integrity indicators.” Paragraph (b)is taken from the Sierra Legal report for the EI Panel relating to proposed changes to then Bill C-70 (the proposed federal National Parks Act). Subsections (3) and (4) are largely taken from thesame report.

(c) provisions for resource protection and restoration;

Commentary: We have not included a provision regarding the "restoration" of resources since thequestion "restore it to what?" would be extremely difficult to answer ie restore it to pre-Europeanlevels? The EI Panel included this term [check] but did not specify a timeframe for restoration.

(d) zoning designations based on ecological information and, where relevant,taking into account aquatic ecosystems;

(e) opportunities for the inclusion and application of traditional ecologicalknowledge of aboriginal peoples;

(f) a statement of appropriate uses for particular zones;

Commentary: Consideration was given to defining appropriate visitor uses in relation to"carrying capacity" but we believe this not to be a helpful measure.

(g) a list of objectives and measures to diminish contaminant emission sourceswithin a park including cumulative emissions from motor vehicles and othermotorized equipment;

Commentary: One other way to regulate vehicle usage would be to require certain standards. For instance,Yellowstone has a new policy that says only the new generation of machines are allowed as they are muchless polluting.

(h) the implementation of government best practices related to energyconsumption and energy conservation;

(i) public education, awareness and outreach,

(j) performance evaluation,

(k) an ecosystem monitoring program, which provides for:

(i) the completion of ecological inventories;(ii) the development of monitoring indicators, including biotic andabiotic components;(iii) a method for data collection, analysis and synthesis; and(iv) a method for collecting and reporting data for a State of theProtected Areas report.

Commentary: In this section we will want to add sections relating to public participation,invasive species, research partnerships with industry and academia.

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In May 2001, Ontario released “An Approach to Monitoring in Ontario’s Parks and ProtectedAreas”, which we will look at to make sure it is consistent with the above.

(3) The list of ecological integrity indicators referred to in paragraph (2)(b) shall beprescribed by the Minister within two years of the coming into force of this Act andwill include indicators relating to biodiversity, ecosystem stressors, ecosystemfunctions, and any such other indicators as the Minister considers appropriate.

(4) The Minister shall, at least every six years, review the indicators prescribedunder subsection (3) and prescribe any changes to the list to ensure that theindicators are reflective of scientific advancements.

(5) The Council may review any Management Plan and may recommend anyamendment that is necessary to make the plan consistent with the objectives of thisAct.

Commentary: The federal Act requires that management plans be tabled with the House, butgiven the number of provincial protected areas relative to federal parks such a requirement maybe too onerous. It would likely be too onerous to require this Advisory Council to review andapprove all plans, and ultimately this is the responsibility of the MNR staff.

(6) Notwithstanding the requirement in subsection (1), the Minister may designate agroup of no more than five protected areas within a particular region to be guidedby a joint Management Plan, provided the Council reviews and approves any suchdesignation by the Minister.

Commentary: This provision acknowledges that it may not be necessary from the point of viewof ecological integrity or feasible from a financial resources perspective for all protected areas tohave their own management plan. Thus, we provide a mechanism for the Minister to avoid thepreparation of a management plan for each protected area. We recommend however that there bean appropriate check on this power. For this reason, we recommend that the Protected AreasAdvisory Council review any such joint plan.

(7) The Minister shall ensure that a Management Plan Evaluation Report is preparedevery six years for a protected area that details the results of implementation,monitoring, and compliance with the objectives of each Management Plan or jointlydeveloped Management Plan.

Commentary: The problem with existing management plans, aside from the fact that the majorityof parks do not have one, is that there is very little documentary evidence to show that the plan isbeing carried out. This process will inform the Management Plan revision process and provide alocal and provincial understanding of the level of compliance with Management Plans and alsoinform the State of the Parks Report.

(8) The Minister shall review and update the Management Plan for each protectedarea at least every 12 years.

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Commentary: Ministry policy currently requires that management plans be reviewed every ten years.However, 72% of existing management plans are already ten years old or more. In addition, the MNR hasonly reviewed and updated nine management plans in the last decade. (ECO Annual Report, 2003/2004 atp. 43)

(9) The Council may, for the purpose of determining whether a Management Plan isconsistent with the objectives of this Act, review any such plan and advise theMinister and the public on its conclusions and recommendations.

(10) Notwithstanding subsection (5), a resident of Ontario may apply to the Ministerat any time for a review of any section of a Management Plan and the Minister shallmake public the reasons for accepting or denying such request within 120 days ofany such request.

(11) Notwithstanding subsection (1) or any other provision of this Act, a protectedarea for which a management plan has not been developed within the timeframespecified in this Act shall be subject to the following additional prohibitions untilsuch time as a management plan for that area takes effect:

(g) hunting, trapping, or snaring of an animal;(h) fishing;(i) roads, and(j) such other activities or undertakings as are set out in the

regulations.

Commentary: This provision is a de facto default provision. In cases where the Minister hasfailed to implement a management plan for a protected area, then the restrictions in this sectionapply.

Although it would be too onerous to have the Advisory Council review each management plan,however, should we include a mechanism whereby certain management plans may be reviewed,perhaps on the instigation of members of the public?

Currently, management planning is discretionary in provincial parks. The Ontario AuditorGeneral recently noted that only 117 of the 277 provincial parks have management plans, and ofthese 68 have not been reviewed for more than 10 years. Management planning (along withreporting) is crucial to protecting EI because management planning is a vital to the process ofadaptive management. Without a formalized management planning process, management mayoccur on an ad hoc basis, without public participation or guiding priorities, and thus withoutaccountability.

To provide for a certain amount of flexibility and cost-effectiveness, the provision allowingcertain protected areas to be guided by joint management plans has been added. This shouldmake it easier for some protected areas, such as recreation areas or conservation reserves, thatmay not require complex or individual management plans to comply with the mandatorymanagement plan requirement.

Monitoring is also recognized as a key component of adaptive learning and ecosystemmanagement (see Federal Panel report, Chapter 6). The Ontario Auditor General recommended

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developing monitoring programs for parks and protected areas in a recent report, which theMinistry accepted (page 220). However, a general monitoring program will not be sufficient;monitoring programs tailored to each protected area (or a group of protected areas if beingmanaged by a joint management plan) will be necessary to ensure appropriate management.

Subsection (1) gives an "out" to the MNR if financial resources do not allow for a managementplan for a particular protected area or areas. Until such time, however, specific conditions orstandards will apply --- these conditions might be called "default" conditions. This is based onthe notion that if activities take place in an area not governed by a management plan, then suchactivities should be as restricted as possible to protect the area until a proper plan is put in place.This position is highly defensible from a resource management point of view.

Finally, we also raise the issue of fire suppression, which in many cases will be contrary to theoverriding priority of ecological integrity. Currently, MNR policy (seehttp://204.40.253.254/envregistry/020808ep.htm andhttp://204.40.253.254/envregistry/013196ep.htm ) calls for total suppression unless there is apark specific fire plan. However, only a few parks have a fire plan. We should therefore consideradding a provision to this section that naturally occurring fires shall only receive a “monitoredresponse” in wilderness and natural environment zones unless the Management Plan directsotherwise.

17. The superintendent of a protected area shall actively participate in recoveryplans under the Endangered Species Act and work in cooperation with the provincialministries or agencies responsible for species at risk, and where appropriate, thefederal departments and agencies responsible for species at risk.

Commentary: The Auditor General recently reported that the Ministry in general has notestablished recovery plans for most of the species listed under the ESA and states that withoutsuch plans it is difficult to manage species at risk effectively and ensure their future sustainability(page 215). The ESA does not explicitly provide for recovery plans. One obvious shortcoming ofthe provincial species at risk legislation is that "endangered species" is not even defined.Nonetheless, the proper place to correct such deficiencies is not in this proposed act. OnlyNewfoundland and Nova Scotia have legislation that requires the preparation and implementationof recovery plans.

ABORIGINAL PEOPLES

Commentary: This section requires input from aboriginal communities. We anticipate that thegovernment will consult with aboriginal communities on matters relevant to this Act. We set outbasic provisions relating to aboriginal matters.

Land use planning decisions, including the creation of protected areas along with variousextraction activities, affect aboriginal communities given their reliance on the land. The impactof the creation or existence of a protected area must be recognized and hopefully mitigated. Atthe same time, the traditional ecological knowledge (TEK) of Aboriginal people about the landprovides a positive opportunity for the better management of certain protected areas throughcooperative arrangements.

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IUCN – The World Conservation Union has explicitly acknowledged the need to accommodatetraditional uses in protected areas. We need to consider whether to add specific exemptions forAboriginal people from the Prohibitions below ie for hunting, fishing, gathering, and trapping.

Historically, Aboriginal Peoples have seen parks as, at best, an abstract Europeanconstruct far removed from their own culture's holistic view of land and place or, atworst, just another way of constraining Aboriginal and treaty rights andexpropriating lands.

For non-Aboriginal people … The establishment of early parks … was driven in partby a desire to preserve "pristine" landscapes at a time when awareness of thedestructive impacts of industrialized society was growing. But these areas were alsoset aside as pleasure grounds, with an emphasis on scenic beauty and the potential todevelop recreational activities and businesses within their boundaries. (Honouringthe Promise, at p. 6)

18. Nothing in this Act shall be construed so as to abrogate or derogate from theprotection provided for existing aboriginal or treaty rights of the aboriginal peoplesof Canada by the recognition and affirmation of those rights in section 35 of theConstitution Act, 1982.

Commentary: This section is identical to s. 2(2) of the National Parks Act.

19. Notwithstanding s. 23 [prohibitions], the Minister may,

(a) authorize the use of park lands, and the use or removal of flora and othernatural objects, by aboriginal people for traditional spiritual and ceremonialpurposes;.

(b) where an agreement for the settlement of an aboriginal land claim that is giveneffect by an Act of the Legislature makes provision for traditional renewableresource harvesting activities or stone removal activities for carving purposes withinany area of a park, or where aboriginal people have existing aboriginal or treatyrights to traditional renewable resource harvesting activities within any area of apark, the Lieutenant Governor in Council may make regulations respecting thecarrying on of those activities in that area.

Commentary: These provisions are modeled on the federal parks act provisions.

20. The Minister shall ensure that in the formulation of each management plan, (a) opportunities for co-operative management with local aboriginal

communities is considered;(b) traditional ecological knowledge of aboriginal peoples are considered;

and(c) an aboriginal person with traditional ecological knowledge is considered

for involvement among the individuals preparing the plan.

Commentary: The goal is to ensure that benefits of protected areas, especially if they are ontraditional lands, be shared by Aboriginal people. We might add such things as hiring practices

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and contracting criteria to the need to ensure that protected area activities do not interfere withtraditional uses. These suggestions are partly based on court decisions but it also makes sense toengage Aboriginal people given their traditional knowledge of the land. This knowledge mayfeed into management, planning, and even expansion decisions. Protected areas may also providea unique opportunity for Aboriginal people to maintain their traditions and even to pass them onto the next generation. Active involvement of Aboriginal people may enhance the likelihood ofprotecting intact natural ecosystems over the long term. (Honouring the Promise, at p. 4)

21. Prior to establishing new protected areas or enlarging an existing protected area,the Minister shall identify and consult with all local Aboriginal communities whoselands or traditional territories are affected by such establishment or enlargement.

Commentary: Historically, Aboriginal people were often not consulted when parks were created.Thus the imposition of restrictions on the use of traditional lands led to resentment andopposition to parks creation. (Honouring the Promise, at p. 8) The Lands for Life process, laterreferred to a Ontario's Living Legacy, was undertaken without any meaningful Aboriginalconsultation. (Honouring the Promise, at p. 14)

Boyd (Unnatural Law, p. 176) notes, that "there is a duty on governments to consult withAboriginal people in a meaningful way, before making decisions about new parks." He cites thecase of Makivik Corp. and Nunavik Inuit v. Canada in support. The resolution of land claimsmay also result in lands being taken out of parks.

Meaningful consultation in the designation of parks process could also facilitate strongerrelationships with park managers and also lead to better management regimes in the future.(Honouring the Promise, at p. 4)

In this section subsistence activities would also have to be accommodated. Management plansshould perhaps include allowances for such activities. The other key issue for consultation isneeded include land claims and aboriginal rights claims that affect protected areas.

PERMITTED AND PROHIBITED USES

22. (1) Hunting, trapping, snaring of an animal, is permitted in ConservationReserves specified in the regulations and pursuant to a permit or license issuedunder the regulations or pursuant to aboriginal or treaty rights.

(2) Fishing is permitted in protected areas specified in the regulations and pursuantto a permit or licence issued under the regulations or pursuant to aboriginal ortreaty rights.

Commentary: This provision should be linked to studies about the condition of species that arebeing hunted and the results of monitoring programs.

Any legislative provision dealing with hunting is certain to be controversial. We attempt to setout this provision in a manner that is less provocative than might be the case if it were simply setout as a prohibition.

Currently s. 4 of the PPA allows for hunting in designated parks by way of an exemption to s. 9of the Fish and Wildlife Conservation Act, which states that "A person shall not hunt, trap, or

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possess wildlife in a provincial park or Crown game preserve." However, the province of Ontarioallowed hunting in the expansions to wilderness class provincial parks in addition to the 68 parksthat already allowed hunting.

The Fish and Wildlife Act, 1997, s. 99(1), already prohibits hunting, trapping or possession ofwildlife in provincial parks except as authorized by regulations. We have two options if huntingis to be allowed in some parks. We can specify particular parks where hunting is to be allowed byadding a specific schedule to this Act, or by dividing the prohibitions into groups that apply onlyto some park classes ie within Schedules 1, 2 or 3. Alternatively, the prohibition re hunting insome classes of parks can be made referable only to some classes of parks and in other cases theprohibition would be subject to the regulations. However, the Act may become very cumbersomeif some activities are allowed in some parks and prohibited in other parks. Such exceptions mightbest be done by way of regulation provided there are some safeguards against the regulationbeing passed too easily, i.e. without public consultation.

Although this paragraph prohibits hunting, it may be permitted by way of regulation pursuant tosubs. 2 below.

One particular issue is whether an amendment is required under the Fish and Wildlife Act, giventhat hunting and fishing may currently be permitted under that Act. We contemplate a systemwhereby hunting will only be allowed if a particular protected area is included in a schedule 5.Thus if the FWA is left as is, it would become a confusing parallel method of permitting hunting.However, since Schedule 5 is a legislative provision (ie part of this Act) therefore a regulationunder the FWA would not trump it. It is therefore obviously better to avoid such a potentialconflict the first place.

(3) Commercial harvesting is permitted in Algonquin Provincial Park untilDecember 31, 2015 subject to the following conditions,

(a) logging is restricted to zones in the park designated at the time of the cominginto force of this Act as Recreation-Utilization Zones,

(b) The Minister shall, no later than two years after the coming into force of thisAct, prescribe the timelines for a gradual phase out of all logging activity leadingto December 31, 2015 with a reduction in logging of no less than 40% by 2010,and

(c) The Minister shall undertake a study relating to alternative or similar economic

opportunities within or outside the park for communities affected by the loggingphase out and assist in the retraining, as necessary, of affected workers.

Commentary: Algonquin Park was Ontario's first provincial park, established in 1893. At thattime the prevailing views on the necessity for parks differed greatly from today. At that time,"Algonquin National Park" was to be managed "as a public park and forest reservation, fish andgame preserve, health resort and pleasure ground for the benefit, advantage and enjoyment of thepeople of the province" (Killan 1993). The park was originally established as a forest reserve inresponse to dwindling timber supplies outside the park and to protect the headwaters of majorrivers used for hydro-electric power and for log transport. (Honouring the Promise, at p. 8)Given that Algonquin Park is one of the cornerstones of the Parks system it is important that the

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conditions in the park reflect the highest conservation values, as opposed to highlighting thevarious exceptions.

Our preference is to have logging phased out of Algonquin Park as soon as possible. We present,however, this compromise provision to allow adequate time for the development of alternativeemployment opportunities and for job re-training.

The issue is not whether logging is generally an appropriate activity but rather whether it isappropriate in the small parts of the province that are protected. The extraction of trees isinconsistent with the stated purposes of protected areas. We obviously respect the fact thatpeople need to earn a livelihood. Direct and indirect employment opportunities provided bylogging in Algonquin are important to local communities. The government has an obligation toprovide alternative economic opportunities for communities in areas affected by the loggingphase out. The phase out is, however, necessary in order to allow protected areas to be governedby articulated objectives. It would of course be difficult to tout the prohibition against industrialand commercial activities in Ontario’s protected area system when one of the largest, best-known, and most visited protected areas is exempt from the prohibition.

Subs. (4) is from the MNR Policy (p.38). We believe the zone is currently called a "RecreationUtilization Zone" but since such a zone is not contemplated in the proposed Act, some specialzoning provision for logging in Algonquin will have to be made. We will also determine if this"Recreation Utilization Zone" in fact still exists and debate whether it should continue to existand if so in what form. In addition we will consider what type of phase out clause or clausedisallowing the issuance of any new timber licenses in Algonquin would be appropriate. (Seealso the Prohibitions section.)

The Wildlands League did a full report on the economics of a phase out in Algonquin Parkentitled, ALGONQUIN PARK, Restoring Nature’s Place: How we can end logging in AlgonquinPark, protect jobs and restore the park’s ecosystems on a phase out of logging in AlgonquinPark. The report can be found at: http://www.wildlandsleague.org/algonquin.pdf

(3) Operate an existing lodge or camp in Algonquin Provincial Park.

(4) A use specified in the regulations but consistent with the Act, may be carried outin the zone of each protected area.

23. (1) Except as otherwise provided for in this Act, within a protected area, noperson shall,

Commentary: If we wish to make certain prohibition referable only to certain parks then theseprohibitions can be made to accord with the appropriate schedule of protected area ie we may notthink it necessary that all prohibitions apply to all classes of parks.

It may also be that we want to make some of the prohibitions "subject to the regulations".

(a) engage in prospecting or claims staking, acquire a mineral right or apetroleum right, or carry out mineral or petroleum development, quarrying,aggregate extraction, or mining;

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Commentary: In 1978, the provincial Cabinet approved a new parks policy statement,which ruled out industrial resource extraction in most classes of parks. The Provincial.Parks Act, however, was never updated to reflect this change. This provision legislatesthe prohibition and prevents the prohibition from being compromised by regulations. Wehave included “aggregate extraction” for clarity even though the term “quarrying” wouldnormally include it.

Boyd notes (Unnatural Law, p. 173) that only Quebec and PEI explicitly prohibitresource extraction in their protected areas. He goes on to say, however, that "Ironically,these laws may have discouraged politicians in these provinces from creating parks, asQuebec and Prince Edward Island have the lowest percentages of land in protected areasin Canada." Nfld and Nova Scotia prohibit NEW industrial activity. The Mining inProvincial Parks Regulation in Ontario lists 23 parks where mining is allowed.

Currently, 23 provincial parks are exempt from the prohibition against mining in parks.This provision would mean that such mining would become illegal. The provision wouldhowever be inconsistent with the Mining Act, which allows such mining. Arrangementswill have to be made to withdraw those areas from the Mining Act.

(b) subject to subsection 22(3), acquire a timber right or carry out forestry orcommercial logging activities;

Commentary: Although such a prohibition is stringent, it is made in the context of aprovince where logging, hunting, and mining is prohibited on only a very smallpercentage of land.

(c) subject to subs. 22(1), hunt, trap or snare an animal;

Commentary: A recent Oracle poll found that 77% of Ontarians oppose hunting in parks.Since protected areas belong to all Ontarians, decisions about hunting should not bedetermined based entirely on the wishes of local as opposed to the provincial community.Protected areas are given special care; the shooting of animals is largely inconsistentwith the stated conservation and protection aspects of this legislation. The protection isafforded not only to humans but also to animal and plant life. Currently, 115 provincialparks, 303 Conservation Reserves, and 10 Wilderness Areas allow hunting. In otherwords, 428 “protected areas” allow hunting while only 207 such areas do not allow it.These figures must be reversed.

(d) Contruct, expand, use, upgrade, or alter a road for the purpose ofaccessing a commercial or industrial activity that is carried on wholly orpartly outside of a protected area;

Commentary: This provision will pre-empt the type of litigation that was required in a recent caseinvolving Lake Superior Provincial Park. In that case, the MNR had to take a logging company toCourt to uphold its order that a former logging road that ran through the park from being expandedand used for convenient access to the company’s logging area on the outskirts of the park.

(e) Use a motorized vehicle other than on a road or trail designated for that purpose or use or operate a motorized vehicle or equipment of a type setout in Schedule 4, except in order to provide emergency services;;

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Commentary: We have not included “mechanized vehicles” such as bicycles. It may be that theuse of mountain bikes should be prohibited in cases where their use leads to erosion and otherproblems. We believe, however, that it is the type of use that is destructive and is therefore bestleft to Management Plans.

(f) construct or develop an energy-resource development, including a hydro-electric or water-resource development or associated impoundment

(g) carry out agriculture activities;

(h) carry out peat extraction activities;

(i) construct or develop a transmission or distribution line, pipeline ortunnel;

(j) construct, maintain or operate a structure, building or facility, utility lineor bridge for commercial purposes;

(k) create, construct, maintain, use, or operate a road, railway, aircraftlanding strip, or helicopter pad other than for the purposes of this Act,

Commentary: In part, this section is intended to prevent the a repeat of the numerous cases thathave been fought in court against the use of roads that serve commercial or industrial uses thatexist outside parks but use parks as thoroughfares. One such case is the controversial road inLake Superior Provincial Park. The MNR recently succeeded in Court to uphold its power toprevent the reopening of an old logging road to allow a logging company to access its loggingareas outside of that park. Such litigation is very time consuming and expensive. A similarcontroversy exists in St. Raphael Park. Such roads obviously undermine the purpose of parks asplaces for the preservation of nature.

Some exception is likely needed to allow for access across a long narrow waterway park. Anadditional prohibition against flying helicopters below certain heights or landing them, onpermanent or temporary pads, or flying planes below a certain height also needs to be set out.

(l) create, construct, maintain or operate a ski hill or a golf course;

(m) alter the surface of the land in the carrying out of activities that are notpermitted by the Act;

(n) remove or destroy any natural object, flora or fauna, whether living ordead;

Commentary: We have not included the word "damage" since this would likely be too broad. Forinstance, a camper throwing a rope over a tree branch that breaks could be prosecuted.

(o) remove, destroy, or damage any object of scientific, historical,archaeological, cultural or palaeontological interest;

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(p) introduce a substance or thing that may destroy or damage existing flora,fauna, or ecosystems;

(q) dump or deposit any litter, garbage or refuse other than in containersprovided or designated by the Minister for that purpose, or

Commentary: Consideration should be given to an additional provision to prohibit the gatheringof plants ie mushrooms.

(r) land or operate a float plane other than for emergency purposes and forthe exceptions listed in the regulations;

Commentary: In the Boundary Waters Canoe Area in Minnesota just south of Quetico, the USWilderness Act prohibits any plane flying lower than a specified height effectively banning floatplanes. We have left out such a prohibition and propose that float-planes can be prohibited (orpermitted) by regulation where necessary. Exceptions need to be prescribed for remote protectedareas, to allow for access to fishing areas as in Quetico Provincial Park for aboriginal groups, andperhaps to access existing lodges.

(s) traffic in or possess wildlife caught or obtained from inside a protectedarea other than wildlife obtained under the Act or regulations;

(t) take or sell water for commercial or industrial purposes from a waterresource within a protected area;

(u) build a private residence or, after January 1, 2017, live in a privateresidence; or

(v) carry out aquaculture activities.

Commentary: We recommend a date of 2017, to allow lessees to make appropriate alternativearrangements.

Currently two provincial parks still have cottages. Algonquin Provincial Park has 305 cottagesand Rondeau Provincial Park has 299 cottages. In 1954, the government required that all cottagesbe removed at the end of existing leases. Minister Vince Kerrio reversed this decision in the early1990s when all cottage leases were extended to December 2017. Many of the cottage owners inRondeau Park are from the United States. Local municipalities oppose the termination of theleases for fear of the economic losses this might entail for their communities.

We need to somehow provide authority for parks conservation staff to carry on routine functionand to do things like remove trees and other flora and fauna and take other necessary actions thatmay be prohibited by sub (1) if there would be a threat to human health and safety or a threat tothe EI of the protected area (for e.g. invasive species or wildlife overpopulation). We will have toadd some exceptions.

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It may be necessary to make clear that a park use permit for camping and recreational purposesdoes not authorize the removal, destruction, disturbance, damaging or exploitation of any naturalresources or work, occupancy, undertaking or activity incidental to it (e.g. see BC PA, s.21)?

Incompatible and inappropriate industrial, commercial and other uses should be prohibited in thelegislation (see for example Swaigen 2001, Campbell & Thomas 2001). The current Planningand Management Policies prohibit the majority of activities listed above, however, as policy, it isnot legally binding. To achieve the protection of ecological integrity, guaranteed legal protectionagainst these activities is necessary. For Canadian examples, see s. 24 of the Newfoundland &Labrador Wilderness and Ecological Reserves Act, s.17 of the Nova Scotia Wilderness AreasProtection Act. Prohibiting such activities by law was also a major recommendation of the BCLegacy Panel.

(2) Except as otherwise provided for in this Act, within a protected area, no personshall deposit or discharge any material into waters or into or in any place leading towater that may impair the quality of the water, whether or not the water body isactually impaired;

Commentary: This prohibition is stronger than the OWRA prohibition, which has beeninterpreted to mean that the circumstances of a discharge such as flow conditions can be takeninto account. There is obviously good reason to make the prohibition stronger in a protected area.We might also consider making the prohibition apply to situations where the discharge occursoutside of a park, but this may be pushing the envelope on such a prohibition since the Actlargely only covers what happens in protected areas.

Note: Consideration should also be given to incorporating into this Act or amending Ontario’sEnvironmental Protection Act along the lines of the U.S. Clean Air Act, which provides higherstandards for the protection of the air within national parks. See Clean Air Act, s. 160 (42 USC7470 (1990) at http://www.epa.gov/oar.caa/caa160.txt See also the National Park Service web site athttp://www2.nature.nps.gov/air/Permits/ which explains that “The Clean Air Act includes measuresto prevent significant deterioration of air quality (PSD) in areas where air quality is better thanthe national standards established by the Environmental Protection Agency (EPA) to protectpublic health and welfare.”

(3) Except as otherwise provided for in this Act, within a protected area, no personshall carry on any activity that could impair the ecological integrity of any protectedarea or is otherwise restricted or prohibited by the regulations.

(4) Lands under consideration for addition to the protected areas system shall bewithdrawn from industrial activity, such as mining, logging, and oil or gasdevelopment.

Commentary: Alternatively, this section could say: "Subsection (1) applies to lands underconsideration for addition to the protected areas system."

24. (1) Where a substance that is capable of degrading the natural environment,injuring fauna, flora or cultural resources or endangering human health isdischarged or deposited in a protected area, any person who has charge,management or control of the substance shall take reasonable measures to prevent

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any degradation of the natural environment and any danger to the fauna, flora orcultural resources or to persons that may result from the discharge or deposit.

(2) If the superintendent of a protected area is of the opinion that a person is nottaking the measures required by subsection (1), the superintendent may direct theperson to take those measures and, if the person fails to do so, the Minister maydirect those measures to be taken on behalf of Her Majesty in right of the Province.

(3) A person who fails to comply with a direction given by a superintendent undersubsection (2) is liable for the expenses reasonably incurred by Her Majesty in rightof the Province in taking the measures directed, and those expenses may berecovered from that person, with costs, in proceedings brought in the name of HerMajesty in any court of competent jurisdiction.

Commentary: This section is modeled after s. 32 National Parks Act, which employs polluter-pays principle; this concept already exists in the Ont. EPA, however, would it be beneficial torepeat it explicitly here?

25. Notwithstanding section 12, the Minister may issue a license authorizingscientific research within a protected area, including the carrying out of activitiesnecessary to such scientific research that would otherwise be prohibited by this Act,if it is deemed that such activity will not impair the ecological integrity of anyprotected area.

Commentary: This part is modeled on the NS Wilderness Areas Protection Act, s.21. We hadconsidered adding the words "degrade any zone within a protected area" to "impair EI of anyprotected area" but believe this would be too onerous and might prohibit some legitimatemanipulations.

BOUNDARIES

26. (1) The Lieutenant Governor in Council may, by order, for the purpose ofestablishing or enlarging a protected area, amend Schedule 1, 2, or 3 by adding thename and a description of the protected area, or by altering the description of theprotected area, if the Lieutenant Governor in Council is satisfied that Her Majestyin right of the Province has clear title to or an unencumbered right of ownership inthe lands to be included in the protected area.

Commentary: In practice, when reference is made to the "Lieutenant Governor in Council" thismeans that a decision can be made by the Cabinet ie without the approval of the Legislature. Inother words, there would be no requirement for public consultation or involvement. On the otherhand, if a decision is made by the Legislature ie by first, second, and third readings, then theprocess is open and obviously subject to public involvement, including in some cases, committeehearings by MPPs with public submissions. (2) If a court of competent jurisdiction finds that Her Majesty in right of theProvince does not have clear title to or an unencumbered right of ownership inlands within a protected area, the Lieutenant Governor in Council may, by order,

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amend Schedule 1, 2, or 3 by removing the name and description of the protectedarea or by altering that description.

(3) Except as provided by subsection (2), no amendment may be made by theLieutenant Governor in Council to any Schedule to this Act for the purpose of de-listing a protected area or removing any portion of a protected area.

Commentary: In other words, the Cabinet cannot reduce the boundaries of a protected area.Under the existing PPA the Cabinet can increase but also reduce the size of a park. Sub 3(2) says:"The Lieutenant Governor in Council may set apart as a provincial park any area in Ontario, mayincrease or decrease the area of any provincial park and may delimit any provincial park."

Boyd (Unnatural Law, p. 174) lists many examples of parks that were drastically reduced in sizeor eliminated, sometimes without public knowledge.

It is important to preserve protected areas and their boundaries by law (Swaigen 2001, Campbell& Thomas 2001). It should not be cumbersome to establish protected areas, however asignificant amount of scrutiny should be required to remove or reduce existing protected areas.Thus, as in s.5 of the NPA, it is appropriate to allow new areas and additions to be accomplishedby order or regulation, but require an Act of legislature to remove or reduce areas. Under theexisting PPA, parks can be reduced or eliminated by regulation.

Governments create laws and, pursuant to those laws, they can create regulations. Both laws andregulations have legal force, but there is a critical distinction in how laws and regulations arecreated. Laws must go through first, second, and third reading and accompanying debates inprovincial legislatures or Parliament before coming into effect. This is an open, public, andgenerally time-consuming process. In contrast, regulations can be created behind closed doors byfederal and provincial cabinets, without public notice or debate (Boyd, 2002 at p. 5).

ADMINISTRATION

27. (1) Subject to subsection (2), and as otherwise provided for in this Act or theregulations, no public lands or right or interest in public lands in a protected areamay be disposed of, used or occupied contrary to this Act.

Commentary: This section was modeled after the NPA, s.13.

(2) The Minister may…

Commentary: 1. Do we need to include here a list of instances where the Minister may enter into leases forrights-of-ways, occupation for scientific monitoring stations etc. (as in NPA s.15)?]

2. Should adverse possession explicitly be prohibited, as is done in the BC Parks Act, ss. 16 and19?

28. (1) The Minister may, for the purpose of establishing or enlarging any protectedarea, purchase or otherwise acquire, accept and take possession of land,

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improvements on land, timber rights, mining rights or other rights, and amendSchedules 1, 2, and 3 accordingly.

Commentary: This clause is from the BC Parks Act, s.11. Query whether "improvements onland" or other provisions are needed?

(2) For the purpose of establishing or enlarging a protected area, land may beacquired under the Ministry of Government Services Act.

Commentary: This subsection is modeled after the present s. 3(3) of the Ontario ProvincialParks Act.

STATE OF PROTECTED AREAS REPORT

29. (1) For the purpose of understanding ecological integrity through a process ofadaptive management, the Minister shall,

(a) prepare a State of Protected Areas Report every ten years, based on theindividual Management Plan Evaluation Reports; and

Commentary: Federally the first State of the Parks Report was tabled in 1990. Such reports allow the publicto assess government achievement of the objectives of the Act.

(b) complete the first State of Protected Areas Report no later than six yearsfrom the enactment of this Act.

Commentary: When should the first State of Protected Areas Report be prepared? We havechosen the figure six years to allow a reasonable time for the preparation of the first report.

(2) The State of Protected Areas Report should at least include information on,

(a) identified external and internal stresses to protected areas,

Commentary: "Stresses" should be defined.

(b) the maintenance and restoration of ecological integrity,

(c) progress to implement the protected areas strategy,

(d) the identity of candidate areas for protection;; and

(e) the adequacy of existing funding levels to operate the Protected Areassystem.

(3) The Report shall be posted on the Environmental Registry for comment for aperiod of no less than 90 days

(4) The final Report shall be presented to the Legislature.

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Commentary: The process of adaptive management involves developing policies, planning,research and monitoring, evaluation and reporting to form a feedback loop that facilitateslearning. Boyd says that in the legal context, "adaptive management means adjusting laws andpolicies to reflect new knowledge and changing conditions". (Unnatural Law, 236). He notes thatadaptive management recognizes the variability of natural systems and the resulting uncertaintyin regulating environmental issues. For instance, new protected areas may have to be added toreflect a better understanding about what is needed to protect a representative part of awilderness park.

A crucial part of the feedback loop is reporting (see Federal Panel report, Chapter 3 and pages 6-9 to 6-11). Area-based Management Plan Evaluation Reports are important because they wouldprovide monitoring information, which would help to understand the stresses on an individualprotected area’s ecological integrity. These individual reports would then feed into a system-level State of the Protected Areas Report to better understand progress towards protectingbroader ecosystem integrity.

The State of the Protected Areas Report should be presented to the Legislature to provideaccountability in the assessment and evaluation of progress towards the system’s objectives. Forexample, such a requirement is provided in subs.12 (2) of the NPA, and was a recommendationof the BC Parks Legacy Panel.

30. (1) The Minister shall, within three years after the coming into force of this Act,prepare a preliminary system-wide protected areas strategy, and within five years ofthe coming into force of this act, prepare a final system-wide protected areasstrategy, to be presented to the Legislature respecting any deficiencies in thenetwork of protected areas across the province, with a view to ensuring that all ofOntario’s natural regions and important ecosystems are adequately represented.

Commentary: This section is necessary given the Ontario Living Legacy work that was done in1999 only applied to a portion of the province.

(2) The system-wide protected areas strategy shall be reviewed and updated everyten years and presented to the Legislature.

Commentary: Protected areas strategies establish goals and objectives for system-wide planningand a means of measuring or assessing the progress being made in achieving the stated goals.They assist in identifying representative natural areas within natural regions, the selection ofpotential areas to be protected, assessing feasibility, and ultimately the establishment of newprotected areas. For example, at the federal level, the National Parks System Plan guides systemplanning.

Developing and maintaining a system plan for the protected areas system was one of therecommendations of the BC Parks Legacy Panel in its 1999 final report.

(3) The system-wide protected areas strategy shall contain the following elements,

Commentary: What elements should be included?

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SPECIAL PURPOSE FUND

31. The Minister shall establish a Special Purpose Fund to which all revenuesobtained in the operation of protected areas under this Act shall be deposited andused in the Minister's discretion for the purposes of this Act.

Commentary: 1. It should also be made clear that the protected areas system is not to be operated on a cost-recovery basis.

2. And as per Swaigen (1982) it may be advisable to add a provision for financing the acquisitionof new protected areas.

This Special Purpose Fund already exists in Ontario for protected areas. Tis section simplyenacts existing policies. Inadequate funding for protected areas is a leading reason for the declinein the ecological integrity of parks. (Boyd 2002) Staffing levels and budgets must be adequate toensure that protected areas are in fact protected. Boyd also notes that "In the past 15 years inOntario, while the area of parks has increased by 50%, the number of visits has increased by60%, the parks management budget has declined by 62%. This provision is not intended toreplace appropriate financial resource commitments from government but rather to secureexisting revenues for use in protected areas. The dramatic increase in the number of protectedareas in Ontario through the Ontario Living Legacy process means staffing levels and budgetswill have to increase.

32. (1) The following amounts shall be held in a separate account in theConsolidated Revenue Fund:

1. All fines, fees and rentals paid under this Act or the regulations.

2. All amounts received by the Crown under agreements made under thisAct or the regulations.

3. All costs recovered by the Crown under subsection ____.

(2) Money standing to the credit of the separate account is, for the purpose ofthe Financial Administration Act, money paid to Ontario for a special purpose.

(3) The Minister may direct that money be paid out of the separate account tothe Minister or a person specified by the Minister if,

(a) the payment will be used for a purpose related to protected areas; or

(b) the payment will be used to,

(i) refund all or part of an amount paid under this Act or theregulations, or

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(ii) make a payment under subsection ____.

(4) The Minister shall ensure that a report is prepared annually on thefinancial affairs of the separate account.

(5) The Minister shall submit the report to the Lieutenant Governor inCouncil and shall table the report in the Legislature.

ENFORCEMENT

33. The Minister may appoint persons, whose duties include the enforcement of thisAct, to be superintendents for the enforcement of this Act and the regulations andfor the preservation and maintenance of the public peace in protected areas, and forthose purposes park superintendents are provincial officers within the meaning ofthe Provincial Offences Act.

34. The Minister may designate persons or classes of persons employed in the publicservice of Ontario or by a provincial, municipal or local authority or an aboriginalgovernment, whose duties include law enforcement, to be enforcement officers forthe purpose of the enforcement of specified provisions of this Act or the regulationsin relation to any protected area under this Act, and for that purpose enforcementofficers have the powers and are entitled to the protection provided by law toprovincial officers within the meaning of the Provincial Offences Act.

35. (1) Every superintendent and enforcement officer shall be provided with acertificate of designation in a form approved by the Minister and shall take andsubscribe an oath prescribed by the Minister.

(2) A certificate of designation provided to an enforcement officer shall specify theprovisions of this Act or the regulations that the enforcement officer has the powerto enforce and the parks in which that power applies.

(3) In the discharge of their duties, superintendent, enforcement officers andpersons accompanying them may enter on and pass through or over privateproperty.

36. (1) A superintendent or enforcement officer may, in accordance with and subjectto the Provincial Offences Act, arrest without warrant

(a) any person whom the superintendent or officer finds committing an offenceunder this Act; or

(b) any person who, on reasonable grounds, the superintendent or officer believeshas committed or is about to commit an offence under section __.

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(2) A superintendent may, in accordance with and subject to the Provincial OffencesAct, arrest without warrant any person whom the warden finds committing anoffence under any other Act in a protected area.

37. (1) A superintendent or enforcement officer may

(a) enter and search any place and open and examine any package or receptaclein accordance with a warrant issued under subsection (2) at any time during theday or, if so specified in the warrant, during the night; and

(b) seize any thing that the superintendent or officer believes on reasonablegrounds is a thing described in subsection (2).

(2) If a justice of the peace, on ex parte application, is satisfied by information onoath that there are reasonable grounds to believe that there is in any place,including any building or any vehicle, vessel or other conveyance, or in any packageor receptacle,

(a) any thing in relation to which there are reasonable grounds to believe anoffence under this Act or the regulations has been committed, or

(b) any thing that there are reasonable grounds to believe will afford evidencewith respect to the commission of such an offence,

the justice of the peace may issue a warrant authorizing a superintendent orenforcement officer named in the warrant to enter and search the place or to openand examine the package or receptacle, subject to any conditions specified in thewarrant.

(3) A superintendent or enforcement officer may exercise any powers undersubsection (1) without a warrant if the conditions for obtaining a warrant exist butby reason of exigent circumstances it would not be practical to obtain one.

38. (1) Subject to subsections (2) and (3) and sections 35 and 36 [revise sectionnumbers], where a superintendent or enforcement officer seizes a thing under thisAct or under a warrant issued pursuant to the Provincial Offences Act,

(a) sections of the Provincial Offences Act apply; and

(b) the superintendent or officer, or any person that the warden or officer maydesignate, shall retain custody of the thing, subject to any order made under section__________of the Provincial Offences Act.

(2) If the lawful ownership of or entitlement to a seized thing cannot be ascertainedwithin 30 days after its seizure, the thing or any proceeds of its disposition areforfeited to Her Majesty in right of Ontario, if the thing was seized by asuperintendent or by an enforcement officer employed in the public service of

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Ontario, or to Her Majesty in right of Canada, if the thing was seized by anenforcement officer employed by a federal, municipal or local authority or anaboriginal government.

(3) If a seized thing is perishable, the superintendent or enforcement officer maydispose of it or destroy it, and any proceeds of its disposition shall be paid to thelawful owner or person lawfully entitled to possession of the thing, unlessproceedings under this Act are commenced within 90 days after its seizure, or shallbe retained by the warden or officer pending the outcome of those proceedings.

OFFENCES

39. (1) Every person who contravenes this Act is guilty of an offence and onconviction liable

(a) on a first conviction,

(i) in the case of an individual, to a fine not exceeding $50,000 for each day onwhich the offence continues, to a term of up to one year in jail, or to both,and

(ii) in the case of a corporation, to a maximum fine of $200,000 for each dayon which the offence continues.

(b) on any subsequent conviction,

(i) in the case of an individual, to a fine not exceeding $100,000 for each dayon which the offence continues, to a term of up to one year in jail, or to both,and

(ii) in the case of a corporation, to a maximum fine of $500,000 for each dayon which the offence continues.

(2) Every person who contravenes subsection ____ is guilty of an offence and liable

(a) in the case of a corporation, to a fine not exceeding $1,000,000, and

(b) in the case of an individual, to a fine not exceeding $200,000, to a term inprison of up to one year, or to both.

Commentary: Subsection (2) is for offences from the Act that are considered to be the mostserious types of offences ie perhaps for impairing water quality.

(3) Every person who contravenes a provision of the regulations, or a condition of apermit, licence or other authorizing instrument issued under the regulations, isguilty of an offence and liable to a fine not exceeding $25,000

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or any lesser maximum amount that may be prescribed by the regulations in respectof that provision or in respect of that permit, licence or authorizing instrument.

40. (1) Proceedings in respect of an offence under this Act or the regulations may notbe commenced more than two years after the later of

(a) the date on which the offence was committed; or

(b) the date on which evidence of the offence first came to the attention of anenforcement officer or the Minister, whichever occurs first.

(2) A document purporting to have been issued by the Minister, certifying the dayon which the Minister became aware of evidence of the offence, is admissiblewithout proof of the signature or official character of the individual appearing tohave signed the document and, in the absence of evidence to the contrary, is proof ofthe matter certified.

41. (1) When a person is convicted of an offence under this Act, the court may, inaddition to any punishment imposed and having regard to the nature of the offenceand the circumstances surrounding its commission, make an order

(a) prohibiting the person from doing any act or engaging in any activity thatmay, in the opinion of the court, result in the continuation or repetition of theoffence;

(b) directing the person to take any action that the court considers appropriate toremedy or avoid any harm to any resources of a park that resulted or may resultfrom the commission of the offence;

(c) directing the person to pay the Minister an amount of money ascompensation, in whole or in part, for the cost of any remedial or preventiveaction taken by the Minister as a result of the commission of the offence;

(d) directing the person to post a bond or pay into court an amount of moneythat the court considers appropriate for the purpose of ensuring compliance withany prohibition, direction or requirement mentioned in this section; or

(e) requiring the person to comply with any other conditions that the courtconsiders appropriate.

Commentary:• see NS Act, s.8, NPA ss.18-23, Nfld Act s.25 etc. for e.g.s• See NS Act, ss. 30-38; NPA ss.24-31; Nfld Act, ss.26-7• Should we have different punishments for contravention of different sections, should we

have different punishment for contravention of the regs, should we include a separate sectionfor wildlife poaching (as in NPA, s.25-6)

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• Should we provide for additional powers of court (e.g. see NS Act, ss. 32 and 34)

REGULATIONS

42. (1) The Lieutenant Governor in Council may make regulations:

(a) for the care, preservation, improvement, control and management ofthe protected areas;

(b) prohibiting or regulating and controlling the occupation of publiclands in protected areas or designating areas therein in which land maybe leased or occupied under licence of occupation and describing suchareas by metes and bounds or in relation to highways, lakes, rivers orrailways;

(c) regulating and controlling the use of lands in protected areas;

(d) prohibiting the erection of buildings or structures in protected areas,or regulating and controlling the nature, cost, type of construction or thelocation of buildings or structures that may be erected therein;

(e) governing the granting, issue, form, renewal, transfer andcancellation of leases, licences of occupation and other rights to publiclands in protected areas and prescribing terms and conditions inconnection therewith;

(f) prohibiting or regulating and controlling the use or keeping of horses,dogs and other animals in protected areas;

(g) prohibiting or regulating and controlling the erection, posting orother display of notices, signs, signboards and other advertising devicesin protected areas;

(h) prohibiting or regulating and controlling the use, setting out andextinguishment of fires in protected areas;

(i) prohibiting or regulating and controlling pedestrian, vehicular, boator air traffic in protected areas;

(j) prohibiting or regulating and controlling and issuing permits for theuse of vehicles, boats or aircraft or any defined class thereof in protectedareas;

(k) for issuing permits to persons to enter, travel, and stay [? and camp]in protected areas;

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(l) prohibiting or regulating, controlling and licensing trades, businesses,and occupations in protected areas;

(m) regulating, controlling and licensing and requiring the use of guidesin protected areas;

(n) prescribing the maximum periods of stay of persons, vehicles, boats,vessels or aircraft in protected areas;

(o) setting fees that may be charged in protected areas for specifiedactivities, whether or not such fees are prescribed in other protectedareas; and

(p) respecting any matter necessary or advisable to carry out effectivelythe intent and purpose of this Act.

(2) Any regulation under subsection (1) may be made applicable to allprotected areas or to any class of protected area or to any part or zone of aprotected area.

Additional Comments:

1. Re Buffer Zones surrounding parks – could lobby for amendment to Public Lands Act,allowing Minister to designate public lands adjoining certain categories of parks as a controlledbuffer zone (e.g. see Alberta Wilderness Areas… Act, s.12); OR could include such a provisiondirectly in this Act

2. Do we need to allow for the setting up of park reserves where there may be outstandingAboriginal claims? This is a major issue for Parks Canada. In that act unresolved claim areas areadded to National Park Reserves.

3. Re JR – Standard of review – could this be mandated in the legislation to avoid the problemsencountered in the CPAWS/Wood Buffalo Park case re patent unreasonableness? Is there anyprecedent for mandating standard of review in any Act?

Schedule 1

PART 1: Wilderness Parks are areas where the forces of nature are permitted to functionfreely; visitors travel by non-mechanized means, and protected areas have a minimumsize of 50,000 hectares

PART 2: Ecological Reserves areas that represent distinctive or unique naturalecosystems, species or natural phenomena, or preserve the habitat of a species at risk orare protected for educational and research purposes

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Schedule 2

PART 1: Waterway or Aquatic Parks are areas that incorporate outstanding recreationalwater resources with representative natural and historical features to provide high qualityrecreational and educational experiences. These parks include an area of at least 200metres from the high water mark of each shoreline of the water resource and include thewater column and the bed of the particular water body.

Commentary: This definition needs to be revised since "water routes" applies mainly to rivers.

PART 2: Natural Environment Parks are areas that incorporate outstanding recreationallandscapes with representative natural and historical features to provide high qualityrecreational and educational experiences.

PART 3: Conservation Reserves are areas originally created under the Public Lands Actand include both aspects of Waterway or Aquatic Parks and Natural Environment Parks.

Schedule 3

PART 1: Recreation Parks are areas that support a wide variety of outdoor recreationalopportunities for large numbers of people, while protecting natural features.

PART 2: Historical Parks and Areas of Cultural Heritage are areas that representdistinctive historical or cultural resources, including areas of traditional aboriginalsignificance, in open space settings and are protected for interpretive and researchpurposes.

Schedule 4: Prohibited motorized vehicles

The following vehicles are prohibited from use in protected areas except for protectedarea management purposes:

1. ATVs, 2. Boats propelled by motors of a horsepower greater than _______ or water jet-propelledmachines designed for use on waterways.

Commentary: We may want to make some exception for boat use for existing cottages, althoughan appropriate power and size restriction on those boats should apply. This might best beaddressed in the regulations. “Seadoos” have no place in protected areas.

A special provision might be considered for motorized vehicles in what are currently calledConservation Reserves. Our view, however, is that ATVs and similar vehicles have no place inprotected areas.

3. Snow machines, except for emergency purposes and for the purposes of this Act.

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SUPPLEMENT

Regulation respecting Protected Area ZonesCommentary: We have left this section for the regulations to allow a degree of flexibility for thedefinition of each zone.

1. In this regulation, Protected Areas zones are defined as follows:

(a) "Wilderness Zones" are zones where development will be limited to wildernesscampsites, portages, trails and signs necessary for route identification, andwilderness campsites will be limited to facilities such as designated fireplaces andprimitive privies;

(b) "Ecological Reserve Zones" are zones where development will be limited totrails, necessary signs, such as those relating to back-country travel, and temporaryfacilities for research and management;

(c) "Natural Environment Zones" are zones where development will be limited toback-country campsites, portages, trails, signs necessary for route identification,minimal interpretive facilities, and similar simple facilities which support low-intensity recreational use;

(d) "Development Zones" are zones where development may include roads foressential park purposes; visitor control structures; day-use facilities; carcampgrounds; basic commercial service facilities including outfitting, food andbeverage, and transportation; orientation, interpretive, educational, research andmanagement facilities;

(e) "Historical Zones" are zones where development will be limited to trails;portages; necessary signs, including those necessary for back-country travel;interpretive, educational, research and management facilities; means of travelappropriate to the historical resource; historical restorations or reconstructions,where appropriate;

(f) "Access Zones" are zones where development will be limited to roads essentialfor park purposes; visitor control structures, basic day-use facilities; small carcampgrounds; basic commercial services including outfitting for back-countryusers; orientation, interpretive, educational, research and management facilities.

(g) "Recreation Zones" are zones where human recreation is permitted althoughlimited to activities that have a low impact on natural areas.

2. Algonquin Provincial Park, Killarney Provincial Park and Quetico Provincial Park willhave the following additional zones:

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Commentary: Since these zones likely already exist in MNR policy, therefore we must leave it tothe MNR to complete the details of this regulation. It is too cumbersome to put all of this detailin the Act itself, and provided the Act requires the regs to set out the specific zones of each park,then there are sufficient safeguards against the zoning regulations undermining the purpose of theAct, especially given our statutory language which requires that zones respect the overridingpriority of ecological integrity. This format is also as suggested by Swaigen in Environment onTrial.

Regulation respecting the appointment, duties, and term of theProtected Areas

BIBLIOGRAPHY

Books and Articles:

An Action Plan for Ontario's Forests and Wildlife, December 2003

Boyd, David: Wild by Law: A Report Card on Laws Governing Canada's Parks andProtected Areas, and a Blueprint for Making these Laws More Effective; May 2002.

Boyd, David: Unnatural Law: Rethinking Canadian Environmental Law and Policy,UBC Press, 2003.

Campbell, Michelle and Thomas, Vernon: Criteria for Evaluating Protective ParksLegislation: How Does Ontario Measure Up?, 2001.

Eagles, Paul: A Study of the Ontario Provincial Parks Act, University of Waterloo, 1984.

Environment Canada: Ecological Integrity Panel Report (and extensive materials on theEC website relating to the debate over ecological integrity that was ultimatelyincorporated into the new federal parks act.)

Environmental Commissioner of Ontario: Annual Report 2003/2004; 2002/2003.

Ferrari, Evan, Powerpoint presentation on need for new protected areas law, 2004.

Hughes et al.: Environmental Law and Policy, 2003.

Killan, Gerald: Protected places: A history of Ontario's provincial parks system; Toronto,Dundurn Press, 1993.

Peart, Bob: Research materials

Swaigen, John: Does Ontario Need a New Provincial Parks Act?: (And Commentary byEagles, Paul)

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Swaigen, John: Parks Legislation in Canada: A Comparison of the New CanadaNational Parks Act and Ontario's Existing Provincial Parks Act, Journal ofEnvironmental Law and Practice, 2000.

Swaigen, John ed., Environment on Trial, 1993

Wildlands League: Protected by Law: A Discussion Paper on the Need for a NewProvincial Parks Act, Sept 2002.

Wildlands League and National Aboriginal Forestry Association: Honouring thePromise: Aboriginal Values in Protected Areas in Canada (September 2003)

Wildlands League, Restoring Nature's Place: How we can end logging in AlgonquinPark, protect jobs and restore the park's ecosystems, 2000.

Wilkinson, Christopher and Eagles, Paul: Strengthening the Conservation ofBiodiversity: Reforming Ontario Provincial Parks Act; Natural Areas Journal, 2001

Wildlands League and Sierra Legal Defence Fund: Workshop; Toronto, September 27,2004.

Ontario Ministry of Natural Resources Documents

Ontario Provincial Parks: Planning and Management Policies, 1992 Update.

Approved Land Use Strategy

A Class Environmental Assessment for Provincial Parks and Conservation Reserves,Phase III: Submission to Ministry of Environment, 2001 and related documents

Room to Grow

Ontario Living Legacy

Class Environmental Assessment of Ontario Parks, 2002

Order in Council 1900/2004 dated September 23, 2004 under s. 9 of the EnvironmentalAssessment Act and relating to the Class Environmental Assessment for Provincial Parksand Conservation Reserves.

Legislation:

Ontario Conservation Land Act, R.S.O. 1990, c. C.28.

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Conservation Authorities Act, R.S.O. 1990, c. 27.Fish and Wildlife Conservation Act, 1997, S.O. 1997, c. 41Provincial Parks ActOntario Provincial Parks: Planning and Management Policies, 1992 Update Ontario Heritage Act, R.S.O. 1990, c. O.18

Public Lands Act, RSO 1990, c. P.43Wilderness Areas Act, R.S.O. 1990, c. W.8Planning Act of Ontario, R.S.O. 1990, c. Endangered Species Act, R.S.O. 1990, c. E.15, including regulation 328 listingendangered species in Ontario.

Nova Scotia Wilderness Areas Protection Act, 1998

NewfoundlandWilderness and Ecological Reserves Act, RSNL 1990

CanadaNational Marine Conservation Areas Act, Canada National Parks Act, S.C. 2000, c. 32Canada Wildlife Act, RSC 1985, c. W-9, as amended.Migratory Birds Convention Act, 1994, SC 1994, c. 22Oceans Act, SC 1996, c. 31 [check this act for reference to precautionary principle]Saguenay-St. Lawrence Marine Park Act, SC 1997, c. 37.Gwaii Haanas National Park Reserve and Haida Heritage Site

QuebecNational Heritage Conservation Act British ColumbiaPark Act, RSBC 1996, c. 344Ecological Reserves Act, RSBC 1996, c. 103Environment and Land Use Act, RSBC 1996, c. 117Draft Protected Areas of British Columbia Act

YukonParks and Land Certainty Act,Yukon Environment Act

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