Ontario's Half-Parks? Conservation Reserves and Mining
In 2001, the ECO received an application submitted by three environmental organizations requesting that the Ministries of Natural Resources and Northern Development and Mines conduct a review of the necessary statutory, regulatory and policy changes that would permanently protect McLaren Forest Conservation Reserve. At issue was the conflict between new protected areas in Ontario and existing mining claims, new mining claims, and new mineral exploration.
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McLaren Forest
McLaren Forest, north of Sturgeon Falls, was listed as a candidate conservation reserve in October 1998. In July 1999, MNR publicly announced that the area was a conservation reserve under Ontario’s Living Legacy Strategy. However, as of May 2002, no regulation has yet been filed under the Public Lands Act to give legal effect to that decision. Subsequent to its proposed designation as a conservation reserve, five mining claims were staked on the site in the summer of 2001. The EBR applicants asserted that this conflict between protected area designations and new mining activities is a province-wide problem. The applicants also highlighted threats in at least seven other sites, including the existence of about 700 mining claims in Lake Superior Highlands Conservation Reserve.
Ministry Response
MNR and MNDM both denied the application for review. The ministries stated that a review was not in the public interest, based on the recent Living Legacy planning processes. MNDM replied that “the Government accepted the Lands for Life Round Tables’ recommendation that existing mining tenure not be included in the protected areas.” However, MNDM did acknowledge that the applicants have “some legitimate concerns regarding interim protection,” but stated that any problems are simply administrative in nature. MNR also stated that the applicants’ concerns were “primarily administrative in nature,” but the ministry did acknowledge that “some lands that had been recommended to form part of the conservation reserve did not receive interim protection.” MNR also stated that “the actual likelihood of any significant impact is minimal, since it is extremely rare that a mining claim actually becomes a mine.” However, assessment work conducted following the staking of a mining claim can involve the removal of vegetation and other disturbances. Such impacts are of importance as the sites in question were to be given protection based on their environmental significance.
Withdrawal Orders
MNDM stated that, in an earlier effort to expand Ontario’s protected areas, withdrawal orders had been issued under the Mining Act in 1996 for parts of McLaren Forest Conservation Reserve. However, MNDM explained that MNR did not provide it with a new request to withdraw the site based on Ontario’s Living Legacy process. As the original 1996 withdrawal orders did not cover the entire site, McLaren Forest Conservation Reserve remained partially open for staking. MNDM has since adjusted the withdrawal orders “to encompass the entire area recommended under Ontario’s Living Legacy land use strategy, but the claims staked in the interim remain in good standing because they were legally staked.”
McLaren Forest recommended for protection in 1997
MNR’s and MNDM’s reasons for denying the application do not appear to be valid. In 1997, MNDM and MNR signed a Memorandum of Understanding that provincially significant natural heritage areas would be withdrawn from staking under the Mining Act before the areas were identified by MNR to the Lands for Life Round Tables or their locations were made public. The purpose of this memorandum was to provide interim protection during the planning process. MNR identified McLaren Forest as a provincially significant natural heritage area and recommended it to the Round Tables for protection in 1997. MNR also adopted a policy that “once a candidate natural heritage area is proposed as a conservation reserve, the Ministry is to request that the surface and mining rights for the area be withdrawn from staking.”
McLaren Forest Conservation Reserve should have been withdrawn from staking and should have received interim protection with other such protected areas as part of the Land Use Strategy. In June 2001, MNR stated on its Web site that McLaren Forest Conservation Reserve “had been withdrawn and protected from resource extraction activities such as new mineral exploration.” But on June 26, 2001, several claims were staked within the proposed boundaries of McLaren Forest Conservation Reserve, and, coincidentally, only two days later, MNR placed a notice on the Environmental Registry stating its intent to regulate McLaren Forest Conservation Reserve.
The ECO discovered that MNR did not request that MNDM withdraw the area from staking until November 9, 2001. The claims in question were legally staked, since MNDM did not issue an order to withdraw the area from staking until November 21, 2001. The applicants, and the public at large, would have held the perception that this area was receiving interim protection until its regulation. However, the possibility now exists that these areas will not be incorporated into the regulated conservation reserve.
| Chronology: McLaren Forest Conservation Reserve and Mining |
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Similar application about Mellon Lake Conservation Reserve in 2000
In 2000, the ECO received a similar application for review centering on the issue of mining and protected areas, specifically dealing with Mellon Lake Conservation Reserve. This application for review was also denied by MNR and MNDM. The ECO disagreed with their rationale for denying the application, reporting in its 2000/2001 annual report that “without government clarification of the public policy contradictions, the Mellon Lake conflict will probably be repeated across the vast area covered by the OLL Strategy, as each proposed protected area is regulated, or as the public becomes aware of mining activities in areas they thought were protected.”
Late response from MNDM
MNDM did not provide a response to the application for review related to McLaren Forest Conservation Reserve within the 60 days required by s. 70 of the EBR. MNDM received the application on December 3, 2001, and did not provide its decision to the applicants until February 14, 2002. MNDM stated that the delay was caused as a result of “extensive review with multiple revisions,” including the involvement of the minister’s office. It should be noted that, earlier, MNDM also did not meet the minimum requirements of the EBR for handling the application for review regarding Mellon Lake Conservation Reserve.
ECO Comment
The ECO believes that MNR should reassess the statutory, regulatory and policy framework governing protected areas in Ontario (see also 2001 Request to Review the Provincial Parks Act). Clearly, areas such as McLaren Forest Conservation Reserve are not being protected, despite commitments by MNR and MNDM to do so. Based on the strong case presented by the applicants, the ECO believes that a review by the ministries was in the public interest.
Slightly more than a month after denying this application for review, MNR and MNDM announced a major shift in policy (see pages 231-239 in the Supplement for further discussion). In a letter to the Ontario Prospectors Association, the ministers of both ministries stated that “the status quo is unacceptable.” Both ministers also made a commitment that there will be no new exploration on untenured land within Ontario Living Legacy sites, since the “general consensus among stakeholders is that the concept of ‘half-parks’ and the uncertainty about where and how mineral activity can take place is untenable.” Additionally, the ministers stated that a process will be developed to examine options to address existing mineral tenure in such sites. MNDM has also committed to developing a provincially significant mineral potential manual to be adopted in all future planning initiatives. However, as of May 2002, no other details of this change in policy had been released and a proposal notice had not been placed on the Environmental Registry.
Based on this public reversal of policy, it appears that MNR and MNDM should not have denied this application for review under the EBR. While it is difficult to assert that the EBR application caused the reversal in policy, it seems likely that it contributed to the policy change. It would have been appropriate for the ministries to acknowledge this contribution in their reviews of the application. By denying the application, but subsequently altering policy, the ministries are not operating in a transparent fashion. Such behaviour may be seen as an attempt to discourage the public from exercising their rights under the EBR in future situations.
| Recommendation 14:
The ECO recommends that the Ministry of Natural Resources create a new legislative framework for provincial parks and protected areas, including conservation reserves, with the mandate of conserving biodiversity. |
| This is an article from the 2001/02 Annual Report to the Legislature from the Environmental Commissioner of Ontario. |
Citing This Article
Environmental Commissioner of Ontario. 2002. "Ontario's Half-Parks? Conservation Reserves and Mining." Developing Sustainability, ECO Annual Report, 2001-02. Toronto, ON : Environmental Commissioner of Ontario. 117-121.
