Protected Areas: Nature Must Come First
“A thing is right when it tends to preserve the integrity, stability and beauty of the biotic community. It is wrong when it tends otherwise.”
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The Ontario government balances many different stakeholder interests and priorities in its decision-making. This balancing is evident in the policies and laws that govern activities on Crown land, which makes up the majority of the province’s lands. However, a small part of this Crown land has been set aside for the primary purpose of protection.
The Ministry of Natural Resources (MNR) has been entrusted with the responsibility to manage Ontario’s protected areas. The province has approximately 600 protected areas that cover about nine per cent of Ontario’s area. Society has made the moral, scientific, and political choice to manage these areas for their natural, evolving, pristine or untouched qualities.
The maintenance of ecological integrity is the first priority in guiding all aspects of the planning and management of Ontario’s protected areas. The Provincial Parks and Conservation Reserves Act, 2006 makes this purpose very clear, while also directing that the restoration of ecological integrity shall be considered. Ecological integrity is effectively a state in which all the natural components are present and in good working order.
Nature comes first in these sites. They are special places where Ontarians protect and learn about the province’s biodiversity. They range from the iconic Algonquin Provincial Park to many smaller areas across the province that may not be as well known. All of them share a common purpose to protect the features and functions of the natural environment.
In this year’s Annual Report, the ECO examines how MNR was addressing ecological integrity, ranging from the high-level policy directions for the entire protected area system through to the assessment of individual undertakings in protected areas. The ECO analyzes how MNR incorporated ecological integrity in its decision-making, including how the ministry articulated this priority and ensured accountability in the choices that it makes.
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Ecological Integrity and Environmental Assessment in Protected Areas
MNR must comply with the Environmental Assessment Act (EAA) for a range of projects in provincial parks and conservation reserves. These undertakings are subject to the ministry’s Class Environmental Assessment for Provincial Parks and Conservation Reserves (“parks class EA”) that was approved by the Ministry of the Environment (MOE) in September 2004.
The parks class EA predates the Provincial Parks and Conservation Reserves Act, 2006. As such, it does not reflect the law’s purposes, principles, and objectives. It contains only a single reference to ecological integrity as it applies to one specific protected area. This inconsistency between the parks class EA and the law poses serious problems, which, unless fixed, will be exacerbated in the years to come.
In 2008, members of the public filed an EBR application that illustrates the serious disconnect between MNR’s parks class EA and the law’s stated priority of ecological integrity. The applicants were concerned that the ministry was considering the issuance of a work permit to construct a new snowmobile trail though a conservation reserve without adequately assessing the impact on the ecological integrity of the site. The applicants requested that MNR develop a management plan for this site to replace the existing management statement in order to better consult, plan, and assess options for this protected area.
MNR denied this EBR application, and stated that “adequate protection for the environment” already exists in how it chooses to apply the law and its parks class EA. The ministry stated that this project’s potential for environmental harm was “nil or negligible” in its screening of this Category B project under its parks class EA. Despite this conclusion, the district biologist at MNR initially recommended refusing the permit application as the proposed trail would be routed through a deer yard, thereby causing significant ecological impacts.
In applying its parks class EA in this case, MNR took the position that its own work permits regulation would not allow them to deny an application; therefore, the ministry was obligated to issue a permit and allow the construction of a snowmobile trail through a protected area. In taking this position, MNR essentially predetermined and nullified the essential process of its class environmental assessment.
It is disconcerting how the ministry interpreted and applied its own regulatory framework in this case. In denying this EBR application, MNR failed to address its central point: the ministry’s management of this protected area inadequately addressed the maintenance of ecological integrity. The option to deny a proposed project, particularly when it runs counter to the legal purpose of a protected area, should always be an alternative that is seriously considered.
The screening of a project in such a manner does not meet any reasonable interpretation of a planning process that makes ecological integrity its first priority. MOE shared a similar concern in issuing an Order under the EAA to MNR on this specific issue, requiring that the ministry assess the project’s impacts on the ecological integrity of this protected area. Likely as a result of MOE’s intervention, MNR chose not to proceed with this project. This type of scenario is likely to repeat itself until MNR makes ecological integrity the priority in how it operates.
This case revealed that a significant problem exists with the work permits regulation under the Provincial Parks and Conservation Reserves Act, 2006. MNR field staff interpreted O. Reg. 345/07 (Work Permits) as giving the ministry limited discretion to refuse to issue work permits; the onus fell on MNR staff to rationalize why a proposed activity was inappropriate. However, subsequent to this incident, MNR corporately took the position that it does indeed have the discretion to refuse to issue such permits. Any regulations or other decision-making processes affecting protected areas should be designed to assume that only approvals that have demonstrated their compatibility with the maintenance of ecological integrity are allowed. The burden of proof should be on why a proposed activity may be appropriate, rather than on having to justify why it is not.
There is some question as to whether MNR uses the flexibility provided in the parks class EA appropriately. The EA process assigns projects to one of four categories based on their potential for negative environmental effects and public concern. These categories then stipulate what steps MNR must undertake for a project, ranging from the approval to proceed without further evaluation or consultation (Category A) to an individual environmental assessment (Category D). While many types of projects are pre-assigned a category, the ministry has broad discretion to categorize a project as it sees ft. The lower the assigned category (if Category A is considered the lowest level of assessment and Category D the highest), the less assessment and consultation is necessary. In simpler terms, it involves less paperwork and less time, as well as less of a chance of adverse public reaction because notice of the project is not as widespread.
MNR does not track or count Category A projects undertaken in Ontario’s provincial parks and conservation reserves. Beyond this lowest category, the ministry has chosen to make every other undertaking a “It is disconcerting how the ministry interpreted and applied its own regulatory framework in this case. In denying this EBR application, MNR failed to address its central point: the ministry’ management of this protected area inadequately addressed the maintenance of ecological integrity.”
Category B project since 2004 with only one exception. It is only once a project has been rated as a Category C that a more detailed environmental study report (ESR) and wider consultation is required. For example, since 2004, culling cormorants and deer in protected areas have been handled as Category B undertakings. Such projects are profound decisions to make. They may be beneficial to the maintenance and restoration of the ecological integrity. However, such projects still should be viewed as being of high public concern meriting more thorough consultation, as well as requiring detailed environmental study reports to explain the impacts and alternatives.
In several other cases, MNR chose to categorize deregulating parts of several protected areas as Category B projects without the benefit of widespread consultation and a thorough assessment. These projects included deregulating part of a park to accommodate a new sewage lagoon for a commercial facility outside the park, and deregulating part of a park to construct an access road into an adjacent residential subdivision. Deregulating even a small part of a protected area is not a decision that should be weighed lightly. It should be treated as an issue of high public concern, as these areas have been set aside on behalf of Ontarians for the greater purpose of protecting the environment.
Ecological Integrity and the Planning Framework for Protected Areas
In 2008, members of the public filed another EBR application requesting that the Provincial Parks and Conservation Reserves Act, 2006 be amended. The applicants were concerned that the current wording of the law does not ensure that the maintenance of ecological integrity is adequately reflected in the required management direction for each protected area and how these directions are then implemented by MNR. MNR denied this EBR application, stating that the applicants did not present any evidence that was not already considered during the public consultation process to develop the Provincial Parks and Conservation Reserves Act, 2006. Moreover, the ministry stated that no evidence was presented by the applicants to suggest that a failure to undertake the review could result in significant harm to the environment.
The ministry’s response failed to address any of the main issues raised by the applicants. The applicants raised valid concerns about the ambiguity in the Act with respect to how MNR should develop and apply management direction for protected areas. In effect, they were asking that plans properly reflect the law and that the government follow its own plans.
In the past, numerous experts raised similar criticisms of the old Provincial Parks Act. While the new Provincial Parks and Conservation Reserves Act, 2006 remedied some long-standing planning deficiencies, such as making the preparation of management direction mandatory, it does not address how management plans or statements must be adhered to by MNR.
The Ontario government has established other planning regimes that explicitly direct that ministers, ministry officials, and other decision- makers exercise their authority consistent with approved plans. For example, the Planning Act, which regulates municipal land use planning, requires that a decision made by a minister of the Crown “shall be consistent with” any policy statements issued under that law; they also shall conform with provincial plans or shall not conflict with them, as the case may be. These particular policies and plans are intended to reflect and apply provincial interests as described by the government, very much like what the Provincial Parks and Conservation Reserves Act, 2006 intends for protected areas.
Weakening Accountability: The Shift to Class Environmental Assessments over the EBR
The EBR requires that plans for protected areas be posted on the Environmental Registry as policy proposal notices, followed at a later date with a decision notice. These requirements ensure: the general public receives notice of the proposed policy and has the opportunity to submit comments; the ministry consider the public comments; and the ministry must consider its Statement of Environmental Values (SEV) in reaching a final decision. This system also provides accountability as these policies are subject to the scrutiny of the ECO who impartially reports to the Ontario Legislature and the public on the merits of initiatives. When MNR does use the Environmental Registry for these types of policies, it maintains a high level of public consultation that the ECO has previously commended.
MNR also develops more detailed policies for protected areas, beyond management direction, that focus on a specific issue. Over the years, these kinds of policies have been referred to as implementation plans, resource management plans, stewardship plans, and vegetation or wildlife management plans. Under whatever name, plans are policies for the purposes of the EBR. These policies provide much more detail and direction on a specific set of issues than would be appropriate in a management plan or statement. When the ministry seeks to implement a project that is described in these policies, the parks class EA applies. In this fashion, both the policy and the project are respectively subject to the EBR and EAA at different steps in the process.
Until recently, MNR adhered to the EBR by posting such implementation plans on the Environmental Registry for proper public consultation. This was also consistent with the parks class EA, which explicitly excludes coverage of implementation plans. However, in 2008, MNR began to treat all such detailed plans as projects under its parks class EA, rather than as policies subject to the EBR. The consequence of this action is that the general public will be denied many of its rights under the EBR.
For example, MNR currently has three different implementation plans for Presqu’ile Provincial Park. These three policies are to provide detailed direction for the management of the beach and dunes, the park mainland, and High Bluff and Gull Islands. MNR treated the first implementation plan as subject to the EBR, and the latter two as not and exclusively covered under the parks class EA. As a consequence, many of the public’s rights were denied for the latter two plans. For example, only local residents and some specific stakeholders received notice and had the opportunity to comment on the latter two plans.
MNR is now bundling multiple projects through a single use of its parks class EA. The ministry has never taken this approach in the past, although its 2009 draft Ontario Protected Areas Planning Manual now expressly encourages it. For example, the implementation plan for Presqu’ile Provincial Park’s mainland area includes four category B projects that are to continue until the year 2019: managing vegetation; managing deer by using an annual cull; controlling invasive and nuisance species; and, controlling erosion.
This implementation plan also contains many other planning issues without making any connection to being part of the parks class EA. MNR’s new draft planning manual states that this bundling of issues has the benefit of “shorter timelines, lower process costs, quick response, [and the] need for approval in the short term to meet priority government objectives.”
ECO Comment
The public expects the Ontario government to act as the steward of our protected areas, putting nature first in protecting these natural treasures. Fortunately, ecological integrity is the first priority by law for Ontario’s protected areas. However, on its own, this legal statement is insufficient for the task at hand. Two fundamental barriers are evident: aligning MNR’s corporate culture and the government’s policies with this vision.
MNR should operationally treat conserving biodiversity as the single unifying concept for the ministry, especially within the Ontario Parks branch as ecological integrity is synonymous with this concept. A serious disconnect exists when MNR staff are frequently directed to seek “balance” in managing issues when the law sets out a clear priority for protected areas. Ecological integrity should be the primary criterion to be used in all decisions that affect protected areas.
The Provincial Parks and Conservation Reserves Act, 2006 requires that MNR prepare a new planning manual for protected areas by September 2009. This detailed policy will outline how management direction for provincial parks and conservation reserves will be developed. It is imperative that MNR embed the core principles and objectives of the Provincial Parks and Conservation Reserves Act, 2006 in this manual. The ECO believes that the new planning manual should guide how the ecological integrity of Ontario’s protected areas is maintained and restored as necessary. Substantial changes should also be made to MNR’s parks class EA to reflect that ecological integrity is now the priority.
| Recommendation 7:
The ECO recommends that MNR ensure that the first priority of the Provincial Parks and Conservation Reserves Act, 2006 – ecological integrity – is also clearly reflected and prioritized in all policies, manuals and guidance documents that influence the planning and management of Ontario’s protected areas. |
MNR anticipates releasing its State of Ontario’s Protected Areas Report in 2009. The law directs that it will include a broad assessment of the extent to which the objectives of protected areas are being achieved, the degree of ecological representation, and known ecological threats, as well as the socio-economic benefits. It is extremely important that this report provide a frank assessment of the state of protected areas. An objective of the report should be to enable the ministry to focus its resources on key systemic issues, be they common threats to ecological integrity or the need to expand government policy to adequately address a developing issue.
| This is an article from the 2008/09 Annual Report to the Legislature from the Environmental Commissioner of Ontario. |
Citing This Article:
Environmental Commissioner of Ontario. 2009. "Protected Areas: Nature Must Come First." Building Resilience, ECO Annual Report, 2008-09. Toronto, ON : Environmental Commissioner of Ontario. 54-61.
