Far North Act, 2010
Ontario’s Far North is among the largest ecological systems on the planet and, for the most part, remains largely intact. At approximately 452,000 square kilometres (km2), this region covers 42 per cent of the province and is larger than most countries. Covering the northern third of Ontario, it is roughly split between the boreal forest on the Canadian Shield to the south and the bogs and fens of the Hudson Bay Lowlands to the north. The Far North includes approximately 158,000 km2 of boreal forest, providing habitat to more than 200 sensitive species, including the threatened population of woodland caribou (Rangifer tarandus caribou). This region is also a carbon sink of global significance, absorbing more than 12.5 million tonnes of carbon dioxide annually and storing almost 8,000 times that amount of carbon.
communities. Approximately 24,000 people live in these communities, which are typically accessible only by air or winter roads. Presently, large-scale development generally is limited to mineral exploration and development; the Musselwhite gold mine and the Victor diamond mine are both in active production, and intensive prospecting is underway in the area known as the “Ring of Fire.” The Far North is not yet open to commercial timber harvesting, which occurs in the middle-third of the province in the Area of the Undertaking (AOU). Protected areas currently cover 8.6 per cent of the Far North; the majority of these lands are contained in a single site, Polar Bear Provincial Park, on the shores of Hudson and James Bays.
In July 2008, the Premier announced that the government would protect at least 225,000 km2 of Ontario’s Far North. The vision is to have First Nations and the Ontario government collaboratively map an interconnected network of conservation lands across the Far North that would be permanently protected. The protected lands would give priority to “key ecological features such as habitat for species at risk or important carbon sinks.” The government would work with all northern communities and resource industries to create a broad plan for sustainable development. New commercial forestry opportunities would be made available through the planning process, and the opening of any new mines in the Far North would require community land use plans, jointly developed with First Nations. Never before has such comprehensive land use planning occurred in northern Ontario.
The Ontario government originally cast this initiative as a key part of its plan to fight climate change. The government’s 2008-2009 Climate Change Action Plan Annual Report stated that this legislation will create a framework for “sustainable growth” that protects the province’s natural resources, and recognizes the carbon storage and sequestration capacity of natural areas. Without question, climate change will have a profound effect on northern Ontario within our lifetimes. By the year 2050, annual and seasonal mean temperatures are expected to increase between 2°C and 7°C, depending on the season and location in northern Ontario. Climate change will affect everything from the numbers and types of species to the loss of permafrost, causing massive changes in surface hydrology and the release of significant amounts of methane, a powerful greenhouse gas.
In October 2010, the government passed the Far North Act, 2010. In the same year, the government expanded its approach, promoting the Far North Act, 2010 as part of its five-year Open Ontario Plan to strengthen the economy. It stressed the legislation’s importance for future mineral development, especially in the Ring of Fire. Between 2007 and 2010, the number of unpatented mining claims tripled to over 90,000 in the Far North.
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The Vision for the Far North
joint planning process between First Nations and the Ontario government. It confirms that this process will be consistent with the recognition and affirmation of existing Aboriginal and treaty rights in the Constitution Act, 1982, including the duty to consult. A broader purpose of the Far North Act, 2010 is to support “the environmental, social and economic objectives for land use planning” for the peoples of Ontario.
Joint Planning Body
Any First Nation with a reserve in the Far North, or with which the Minister of Natural Resources has agreed to work, may indicate its interest in establishing a joint planning body. Once established by the Minister, the joint planning body’s purpose is to “advise on the development, implementation and co-ordination of land use planning in the Far North” and other agreed-upon advisory functions. Additionally, it can advise the Minister on the allocation of funding to support First Nations in their planning work, as well as make recommendations related to dispute resolution. Membership of the joint planning body is to be divided equally between members of First Nations and the Ontario government.
Far North Land Use Strategy
The legislation requires that the Minister of Natural Resources develop a broad strategy to assist in the preparation of individual community based land use plans. The strategy must take into account the Act’s objectives, as well as any advice provided by the joint planning body. It will also detail the requirements for amending community based land use plans and specify the allowable and restricted activities for each category of land use designation. As of July 2011, MNR had not yet publicly announced when it would begin to develop the strategy; some components of this unwritten strategy already are being notionally fleshed out and applied in the four community land use plans that have been shared with the public so far.
Community Based Land Use Plans
First Nations initiate the planning process under the Far North Act, 2010 by expressing their interest to the Minister; ministry staff then work with the First Nations through a joint planning team to prepare terms of reference to designate the planning area and prepare the community based land use plan. Once the Minister and the council of each of the First Nations have approved the terms of reference, the Minister may make an order designating the planning area, and a community based land use plan may then be developed jointly.
In preparing the community based land use plan, First Nations and the Minister must take into account the Act’s objectives and the Far North Land Use Strategy. Public notice and the opportunity to comment must be provided during the development of the draft plan.
Each land use plan will: map out a zoning system; list permitted and prohibited activities; designate one or more protected areas; specify how significant cultural and ecological features are addressed; and deal with any issues adjacent to the planning area that the team has identified. The parties also must specify when the community based land use plan is required to be reviewed. Community based land use plans must be approved by both the Minister and the council of the First Nations.
Unless previously authorized, specific types of development are prohibited in the Far North until a community based land use plan is approved. These prohibited activities include: opening a mine in prescribed circumstances; commercial timber harvesting; oil and gas exploration/production; constructing or expanding an electrical generation facility; constructing or expanding electrical transmission and distribution systems; and constructing or expanding all-weather transportation infrastructure. Subject to conditions, the Minister may issue orders that authorize some of these prohibited activities to proceed, such as electrical generation and transmission or allweather transportation infrastructure. Moreover, Cabinet may issue an order authorizing any of these prohibited activities if it is in “the social and economic interests of Ontario.”
The lack of a community based land use plan also does not restrict: feasibility studies or similar assessments, including wind testing; activities associated with environmental clean-up; or prospecting, mining claim staking, mineral exploration or obtaining a mining lease or licence of occupation for mining purposes in accordance with the Mining Act.
Authorization of Commercial Timber Harvesting
Once a community land use plan has been approved, MNR can request that the Ministry of the Environment (MOE) authorize the creation of a new declaration order under the Environmental Assessment Act (EAA), which is required to allow commercial timber harvesting in the plan area. Both MNR and MOE are separately required to consult the public using the Environmental Registry on the creation of a new declaration order under the EAA. Once a plan area is covered by an approved declaration order, forest management planning may proceed under the Crown Forest Sustainability Act, 1994.
Protected Areas
After a community based land use plan is approved, the First Nations’ council may request that the Minister make a regulation that establishes the boundaries of protected areas that have been zoned in the plan. The Far North Act, 2010 allows for “protected areas” to be regulated under this legislation; however, nothing in the Act prevents these lands from being regulated as provincial parks or conservation reserves under the Provincial Parks and Conservation Reserves Act, 2006 (PPCRA), the legislation that MNR normally uses to protect lands across Ontario.
There are substantial legal differences between the level of protection and management afforded by the PPCRA and the Far North Act, 2010.
The Far North Act, 2010 does establish clear prohibitions by law for protected areas, a superior approach to that taken in numerous other jurisdictions. The legislation states that the following types of development, land uses and activities are prohibited in protected areas:
- prospecting, mining claim staking and mineral exploration;
- opening a mine;
- commercial timber harvesting; and
- oil and gas exploration or production.
However, any of these prohibitions can be over-ridden by order of Cabinet, subject only to consideration of the legislation’s objectives and if such an exception “is in the social and economic interests of Ontario.” Protected areas under the Far North Act, 2010 essentially are intended to be non-operating areas from a management perspective. By contrast, the PPCRA requires the active involvement of MNR staff as each regulated area must have management direction, which involves, at least in principle, ecological monitoring and enforcement activities. From a practical perspective, protected areas under the Far North Act, 2010 are essentially lines on a map without any clear obligations on anyone to act in a stewardship role.
Community Based Land Use Plans to Date
Four plans have been approved as of July 2011 under the legislation. The Far North Act, 2010 grandfathered “Keeping the Land: A Land Use Strategy for the Whitefeather Forest and Adjacent Areas,” developed jointly by Pikangikum First Nation and MNR and approved in June 2006. In July 2011, three more plans were finalized after undergoing public consultation: Cat Lake and Slate Falls First Nations, Little Grand Rapids First Nation, and Pauingassi First Nation. According to MNR, 25 communities have initiated some stage of planning activities.
The community based land use plans developed to date include three types of land use designations: general use area, enhanced management area and dedicated protected area. General use areas and enhanced management areas allow for all types of land use activities, but the latter may specify additional guidelines to restrict the timing or nature of some activities. Presumably, these land use designations will later be reflected in the broader guidance for all plans in the Far North Land Use Strategy.
| Table 2.2.1 Land Use Designations in Community Based Land Use Plans Under the Far North Act, 2010 as of July 2011. | ||||
|---|---|---|---|---|
| Plan Area | Dedicated Protected Areas | Enhanced Management Area | General Use Area | |
| A Land Use Strategy for the Whitefeather Forest and Adjacent Areas (June 2006) | 1,221,719 ha | 436,025 ha (35.7%) | 426,553 ha (34.9%) | 359,141 ha (29.4%) |
| Pauingassi Community Based Land Use Plan (July 2011) | 138,763 ha | 106,628 ha (76.8%) | 32,135 ha (23.2%) | 0 |
| Little Grand Rapids Community Based Land Use Plan (July 2011) | 188,738 ha | 188,738 ha (100%) | 0 | 0 |
| Cat Lake-Slate Falls Community Based Land Use Plan (July 2011) | 1,512,064 ha | 506,282 ha (33.5%) | 342,345 ha (22.6%) | 663,437 ha (43.9%) |
| Total | 3,061,284 ha | 1,237,673 ha (40.4%) | 801,033 ha (26.2%) | 1,022,578 ha (33.4%) |
The Cat Lake-Slate Falls Community Based Land Use Plan covers the largest plan area to date. This plan allows development in about two-thirds of its plan area, similar to the plan approved for the Whitefeather Forest, which is likewise directly adjacent to the AOU. Within this plan, the dedicated protected areas generally are located along major waterways and typically do not include areas with the potential for tourism or mineral development. While some parts of the (yet to be regulated) protected areas include significant ecological values, such as mature forest stands or caribou calving grounds, others do not.
Funding
In March 2008, the Ontario government transferred $1 million to Nishnawbe Aski Nation (NAN) for individual First Nations to build the capacity for land use planning; 38 First Nations communities and Tribal Councils received funding from NAN. At the same time, the Ontario government allocated $30 million over four years for its land use planning in the Far North. In March 2010, the Ontario government set up a $45-million fund over three years for skills training in northern Ontario, which included $2 million annually for training for First Nations communities involved in land use planning. In September 2010, a further $10 million over two years to directly support First Nations working on land use planning was allocated.
ECO Comment
Developing the Far North Act, 2010 was controversial and difficult for all involved – First Nations, the Ontario government and the many stakeholders. It also was a genuine effort by all to better the communities, economy and environment of northern Ontario. The end result is positive: the Far North Act, 2010 is a step toward acknowledging and addressing the shared responsibility of the Ontario government and First Nations for planning and safeguarding the land and its peoples. The ECO commends the Ontario government on its efforts to work with First Nations to plan the orderly development and protection of northern Ontario.
Some critics of the Far North Act, 2010 interpreted it as stopping development in half of the Far North. In reality, the Act opens up half of northern Ontario to different development opportunities through an orderly process that satisfies the requirement to meaningfully involve First Nations. This approach makes practical business sense, on top of its prudent measures to safeguard one of the largest and most intact ecological systems on Earth.
MNR merits high praise for the law’s objective to protect areas of cultural value and ecological systems in an interconnected network of protected areas that is at least 225,000 km2. This ambitious target – to protect more than half of the Far North – far exceeds international protected area targets. If the Ontario government achieves its Far North target, which may take more than a decade, the coverage of “protected areas” across the entire province would rise from 9.4 per cent to 26.5 per cent. At least symbolically, this commitment makes the Ontario government worthy of global acclaim. It is critically important, though, that ecological representation of both features and functions be a cornerstone of this planning process.
As with most laws that lay out a planning framework, the devil is in the details – how it gets implemented. The relative success of the Far North Act, 2010 will rely strongly on the financial capacity of MNR to adequately gather the necessary ecological information to input into the planning process, as well as to collaborate with First Nations in ongoing dialogue. The success of the planning process also hinges on how well the Ontario government supports building the capacity of First Nations to develop community based land use plans and, then, to jointly manage the lands going forward. Inadequate government funding, including the lack of the necessary policy development and support, could jeopardize the long-term success of the Far North Act, 2010. In the long term, it is unclear what role MNR will take with regard to ecological monitoring, management, enforcement and public reporting on the implementation of the Far North Act, 2010. This lack of clarity and certainty is worrisome given the ministry’s current capacity challenges (see Part 5.1 of this Annual Report).
The Far North Act, 2010 is commendable for its explicit objective of “the maintenance of biological diversity, ecological processes and ecological functions, including the storage and sequestration of carbon in the Far North.” Beyond its immediate symbolic value, this objective can be used as a metric of success going forward. For example, with regard to biodiversity, MNR has already proposed allowing mining and timber harvesting in the “protected” habitat of threatened woodland caribou in the Far North by means of an exemption under the Endangered Species Act, 2007. While the Far North Act, 2010 strives to achieve a balance between conservation and development, sometimes this type of trade-off will have significant, and possibly irreversible, ecological consequences.
The Ontario government strongly promoted that a key purpose of the Far North Act, 2010 is to address the storage and sequestration of carbon in the Far North. However, it is unclear how this purpose will be achieved, and it is of concern that little mention of carbon storage, sequestration and management occurs in any of the plans to date. For example, the Cat Lake-Slate Falls Community Based Land Use Plan states that further discussion is needed to determine the plan’s potential contribution to the mitigation of climate change; yet, it already lays out proposed areas for development and protection. Much like our earlier concerns regarding biodiversity, the Ontario government must treat the climate change commitments enshrined in the Far North Act, 2010 as more than rhetoric if the law truly is to be judged as a precedent-setting model for the world in the years ahead.
For a more detailed review of this decision please refer to Section 4.11 of the Supplement to this Annual Report. For ministry comments, please see Appendix C.
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| This is an article from the 2010/11 Annual Report to the Legislature from the Environmental Commissioner of Ontario. |
Citing This Article:
Environmental Commissioner of Ontario. 2011. "Education and Outreach." Engaging Solutions, ECO Annual Report, 2010/11. Toronto: The Queen's Printer for Ontario. 14-19.
