Overview
Canadian federal law offers seven different types of protected area designation: National Park, National Park Reserve, National Historic Site, Marine Conservation Area, Marine Conservation Area Reserve, Marine Protected Area, and National Wildlife Area.
The first three charts in this section evaluate each of the seven designations based on the three characteristics of IPCAs as outlined by the Indigenous Circle of Exerts (ICE). These charts also identify some overall advantages and disadvantages of each designation for the creation of IPCAs.
While none of the federal protected area designations grant sole Indigenous leadership in land management, most of them allow for Indigenous co-management agreements, and some require Indigenous participation in management.
Following this survey, this section delves into detail on each of the seven protected areas. The charts in this section present information on permitted activities in each area. The charts also outline the process for creating each protected area designation.
It is important to note that federal protected areas on provincial Crown land cannot be created or expanded without the province’s agreement. Property, land use, and natural resources all fall within provincial authority. Crown land located within provinces is owned by the provinces, so a park cannot be created on this land without provincial consent.
On the other hand, the federal government has authority over federal Crown lands (including much of Nunavut), coastal waters, and the ocean. Protected areas could be created in these places without provincial consent.
Table: IPCA Characteristics Assessment, Advantages and Disadvantages of the Canada National Parks Act
| National Park | National Park Reserve | National Historic Site | |
|---|---|---|---|
| Legislation | Canada National Parks Act | Canada National Parks Act | Canada National Parks Act |
| IPCA Characteristic #1: Indigenous-led | No | No | No |
| IPCA Characteristic #2: Long-term commitment to conservation | Included in legislation – requires legislative amendment to remove protections | Included in legislation – requires legislative amendment to remove protections | Created by order/regulation – can be overturned more easily than in an Act |
| IPCA Characteristic #3: Elevate Indigenous rights and responsibilities | Minister can enter into agreements with Indigenous governments to support management
Minister must provide opportunities for Indigenous participation in management |
Minister can enter into agreements with Indigenous governments to support management
Minister must provide opportunities for Indigenous participation in management |
Minister can enter into agreements with Indigenous governments to support management
Minister must provide opportunities for Indigenous participation in management |
| Advantages | Strong baseline protections
Support traditional renewable resource harvesting |
Strong baseline protections
Support traditional renewable resource harvesting Support Aboriginal rights and title claims |
Strong baseline protections
Support traditional renewable resource harvesting |
| Disadvantages | Certain areas can be zoned as wilderness, discouraging human involvement with the natural environment | Certain areas can be zoned as wilderness, discouraging human involvement with the natural environment | Baseline level of development involved to support interpretative and educational services |
Table: IPCA Characteristics Assessment, Advantages and Disadvantages of the National Marine Conservation Areas Act and the Oceans Act
| Marine Conservation Area | Marine Conservation Area Reserve | Marine Protected Area | |
|---|---|---|---|
| Legislation | Canada National Marine Conservation Areas Act | Canada National Marine Conservation Areas Act | Oceans Act |
| ICE Characteristic #1: Indigenous-led | No | No | No |
| ICE Characteristic #2: Long-term commitment to conservation | Included in legislation – requires legislative amendment to remove protections | Included in legislation – requires legislative amendment to remove protections | Created by order/regulation – can be overturned more easily than in an Act |
| ICE Characteristic #3: Elevate Indigenous rights and responsibilities | Minister can enter into agreements with Indigenous governments and organizations to support management
Support for co-management |
Minister can enter into agreements with Indigenous governments and organizations to support management
Support for co-management |
Support co-management with Indigenous governments |
| Advantages | Strong baseline protections | Strong baseline protections
Support Aboriginal rights and title claims |
Faster to establish than Marine Conservation Area
Temporary protections available |
| Disadvantages | Takes longer to establish than Marine Protected Area | Takes longer to establish than Marine Protected Area | Easier to overturn protections (when compared to Marine Conservation Area) |
Table: IPCA Characteristics Assessment, Advantages and Disadvantages of the Canada Wildlife Act
| National Wildlife Area | |
|---|---|
| Legislation | Canada Wildlife Act |
| IPCA Characteristic #1: Indigenous-led | No |
| IPCA Characteristic #2: Long-term commitment to conservation | Created by regulation – can be overturned more easily than in an Act |
| IPCA Characteristic #3: Elevate Indigenous rights and responsibilities | Support co-management with Indigenous governments and organizations
Minister can appoint advisory committee to support management |
| Advantages | Flexible protections
Indigenous governments and organizations can submit proposals for areas for protection |
| Disadvantages | Discretionary protections |
Parks Canada Agency Act
The Parks Canada Agency Act created the Parks Canada Agency to ensure “that Canada’s national parks, national historic sites and related heritage areas are protected and presented for [present] and future generations.” The Parks Canada Agency Act also recognizes that it is in the national interest to:
- “Protect the nationally significant examples of Canada’s natural and cultural heritage in national parks, national historic sites, national marine conservation areas and related heritage areas […];
- Present that heritage through interpretive and educational programs for public understanding, appreciation and enjoyment […];
- Carry out Canada’s international obligations and agreements to protect, conserve and present that heritage and to contribute towards the protection and presentation of the global heritage and biodiversity;
- Include representative examples of Canada’s land and marine natural regions in the systems of national parks and national marine conservation areas;
- Commemorate places, people and events of national historic significance, including Canada’s rich and ongoing aboriginal traditions;
- Ensure the commemorative integrity of national historic sites;
- Maintain or restore the ecological integrity of national parks; and
- Ensure the ecologically sustainable use of national marine conservation areas […]”
The Minister responsible for Parks Canada Agency is responsible for National Parks, National Historic Sites, and National Marine Conservation Areas. The Parks Canada Agency is responsible for recommending new National Parks, National Historic Sites, and National Marine Conservation Areas for protection.
Canada National Parks Act
Table: Canada National Parks Act In-Depth
| National Park | National Park Reserve | National Historic Site | |
|---|---|---|---|
| Legislation | Canada National Parks Act | Canada National Parks Act | Canada National Parks Act |
| Responsible Government Department | Parks Canada Agency | Parks Canada Agency | Parks Canada Agency |
| Overall Goals and Values | Protect parks for benefit, education, and enjoyment of present and future generations (s. 4(1)) | Protect areas proposed for National Park where subject to claim regarding Aboriginal rights (s. 4(2)) | Protect historic landmarks and objects of national importance (s. 42(1)) |
| Establishment | Order in Council/Legislation (s. 5(1)) | Order in Council/Legislation (s. 6(1)) | Order in Council/Regulation (s. 42(1)) |
| Strength of Protection (Based on IUCN Protected Area Categories) | II National Park | II National Park | III Natural Monument or Feature
V Protected Landscape |
| Decision-Making Authority | Minister/Superintendent responsible for management (s. 8(1))
Minister can enter into agreements with Indigenous governments to support (s. 10(1)) Minister must provide opportunities for Indigenous participation in management (s. 12(1)) |
Minister/Superintendent responsible for management (s. 8(1))
Minister can enter into agreements with Indigenous governments to support (s. 10(1)) Minister must provide opportunities for Indigenous participation in management (s. 12(1)) |
Minister/Superintendent responsible for management (s. 8(1))
Minister can enter into agreements with Indigenous governments to support (s. 10(1)) Minister must provide opportunities for Indigenous participation in management (s. 12(1)) |
| Hunting* | Prohibited (with exceptions) | Permitted (with exceptions) | Prohibited |
| Fishing* | With permit (with exceptions) | With permit (with exceptions) | With permit (with exceptions) |
| Trapping* | Prohibited (with exceptions) | Permitted (with exceptions) | Prohibited |
| Development | Can develop telecommunications and scientific monitoring stations (s. 15) | Can develop telecommunications and scientific monitoring stations (s. 15) | Development consistent with protection of historical resources
Can develop telecommunications and scientific monitoring stations (s. 15) |
| Natural Resource Extraction | Traditional renewable resource harvesting allowed in certain parks by special regulation (s. 17(1)) | Traditional renewable resource harvesting is always allowed (ss. 17(1), 40) | Traditional renewable resource harvesting allowed in certain parks (ss. 17(1), 40) |
| Access | Motor vehicle and off-highway vehicle access in certain areas (with permit) | Motor vehicle and off-highway vehicle access in certain areas (with permit) | Motor vehicle and off-highway vehicle access in certain areas (with permit) |
| Activities Allowed | Outdoor recreational activities | Outdoor recreational activities | Outdoor and interpretative recreational activities |
| Activities Prohibited | Damaging or destroying plants or natural objects (unless permitted)
Polluting or diverting water (unless permitted) |
Damaging or destroying plants or natural objects (unless permitted)
Polluting or diverting water (unless permitted) |
Damaging or destroying historical resources, plants, or natural objects (unless permitted)
Polluting or diverting water (unless permitted) Camping (unless permitted) |
* Indigenous hunting, fishing, and trapping (and all other traditional and cultural practices) are permitted in National Parks and some National Historic Sites in accordance with park establishment agreements or land claim agreements (e.g., all National Parks and National Historic Sites in Nunavut and the Northwest Territories).
National Parks
Under the Canada National Parks Act, National Parks are created for the “benefit, education and enjoyment” of present and future generations and must remain “unimpaired” for this purpose. Cabinet can create or increase the area of a National Park by means of an Order in Council.
In practice, Cabinet will typically amend the Canada National Parks Act by taking an amendment through Parliament. Once a National Park has been created, Cabinet cannot reduce its area using an order– this would require a full legislative amendment.
The Minister who oversees Parks Canada (currently the Minister of Environment and Climate Change) is responsible for managing National Parks.
When exercising this responsibility, the Minister’s priority must be maintaining or restoring ecological integrity. Under the Canada National Parks Act, ‘ecological integrity’ is defined as “with respect to a park, a condition that is determined to be characteristic of its natural region and likely to persist, including abiotic components and the composition and abundance of native species and biological communities, rates of change and supporting processes.”
Park management decisions made by the Minister that do not meet these criteria could be subject to a legal challenge.
The Minister appoints a superintendent for each park, who must develop a management plan for each National Park. These plans must be approved by the House of Commons and the Senate and must be reviewed at least once every ten years. The planning process must provide opportunities for Indigenous participation and collaboration as well as public consultation “where applicable.”
National Park Reserves
National Park Reserves are created where land proposed for a National Park is subject to a claim regarding Aboriginal rights and this claim has been accepted for negotiation by the federal government. Traditional renewable resource harvesting activities, such as hunting and trapping, can be continued in National Park Reserves. These distinctions separate National Park Reserves from National Parks.
In addition, the establishment of a National Park Reserve is like that of a National Park: it may occur through an Order in Council or more commonly through a legislative amendment.
Once a National Park Reserve has been created, Cabinet cannot reduce its area using an order. Reducing the area require a full legislative amendment.
If, down the road, the claim regarding Aboriginal rights is settled, the Governor in Council can make one of the following orders, depending on the settlement:
- Remove the land from the national parks system;
- Change the size of the National Park Reserve; or
- Transform the National Park Reserve into a National Park.
The Minister is responsible for managing National Park Reserves. When exercising this responsibility, the Minister’s priority must be to maintain or restore ecological integrity.
Park management decisions made by the Minister that do not meet this priority could be subject to a legal challenge.
One example of a National Park Reserve is the Gwaii Haanas National Park Reserve. When the National Park Reserve was created, the Canada National Parks Act was amended to confirm the Minister’s powers to enter into an agreement with the Council of the Haida Nation (see Agreements section below). It also details the Minister’s powers if there is a resolution of the Haida Nation’s claims regarding Aboriginal rights and title in the Gwaii Haanas Archipelago.
National Historic Sites
Cabinet can create a National Historic Site by an Order in Council or by legislative amendment. National Historic Sites are created to commemorate national historic events, or to protect landmarks and historical resources of national importance.
Once a National Historic Site is created, the Superintendent can prohibit any activities that threaten to harm the Site.
National Historic Sites can be governed by the National Historic Park General Regulations and the National Historic Parks Wildlife and Domestic Animals Regulations. National Historic Sites can also be located within the boundaries of National Parks or National Marine Conservation Areas and can be managed under those legal arrangements.
Agreements
Section 10 of the Canada National Parks Act allows the Minister to enter into agreements with Indigenous governments, Indigenous organizations, and bodies established under Land Claim Agreements, to support the management of National Parks, National Park Reserves, and National Historic Sites.
Canada National Marine Conservation Areas Act
Table: Canada National Marine Conservation Areas Act In-Depth
| Marine Conservation Area | Marine Conservation Area Reserve | |
|---|---|---|
| Legislation | Canada National Marine Conservation Areas Act | Canada National Marine Conservation Areas Act |
| Responsible Government Department | Parks Canada Agency (s. 2(1)) | Parks Canada Agency (s. 2(1)) |
| Overall Goals and Values | Protect and conserve marine areas for public benefits, education, and enjoyment (s. 4(1)) | Protect area proposed for Marine Conservation Area where subject to claim regarding Aboriginal rights (s. 4(2)) |
| Establishment | Order in Council/Legislation (s. 5(1)) |
Order in Council/Legislation (s. 5(1)) |
| Strength of Protection (Based on IUCN Protected Area Categories) | Ib Wilderness Area V Protected Seascape |
Ib Wilderness Area V Protected Seascape |
| Decision-Making Authority | Minister responsible for management –can enter into agreements with Indigenous governments and organizations to support (s. 8)
Minister must create an advisory committee to support management (s. 11) |
Minister responsible for management –can enter into agreements with Indigenous governments and organizations to support (s. 8) Minister must create an advisory committee to support management (s. 11) |
| Hunting | N/A | N/A |
| Fishing | With licence (s. 15) | With licence (s. 15) |
| Trapping | N/A | N/A |
| Development | N/A | N/A |
| Natural Resource Extraction | No exploration for or production of hydrocarbons, minerals, aggregates, or other inorganic materials (s. 13) | No exploration for or production of hydrocarbons, minerals, aggregates, or other inorganic materials (s. 13) |
| Access | Public access (with exceptions) | Public access (with exceptions) |
| Activities Allowed | Activities consistent with management plan (with permit) (s. 15(1))
Outdoor recreational activities |
Activities consistent with management plan (with permit) (s. 15(1))
Outdoor recreational activities |
| Activities Prohibited | Dependent on zone (s. 4(4)) | Dependent on zone (s. 4(4)) |
Overview
The Canada National Marine Conservation Areas Act recognizes the importance of protecting marine ecosystems to preserve biodiversity.
It also reflects instructions from Parliament to:
- “[C]onsider traditional ecological knowledge in the planning and management of marine conservation areas, and
- [I]nvolve…Aboriginal organizations, Aboriginal governments, bodies established under land claims agreements, and other appropriate persons and bodies in the effort to establish and maintain the representative system of marine conservation areas…”
Marine Conservation Areas must be managed sustainably to ensure that ecosystems are protected, and the needs of present and future generations are met. Marine Conservation Areas can include submerged lands, internal waters, waters in the territorial sea, and/or waters in Canada’s exclusive economic zone, as well as any coastal lands or islands within Canada.
Marine Conservation Area
Government can create or increase the area of a Marine Conservation Area by an Order-in-Council or through legislative amendment. Once a Marine Conservation Area is created, its size cannot be decreased by use of an Order in Council.
Each Marine Conservation Area must be divided into zones, including at least one zone that “fosters and encourages ecologically sustainable use of marine resources” and at least one zone that “fully protects special features or sensitive elements of ecosystems.”
The Minister of Environment and Climate Change is responsible for managing Marine Conservation Areas.
Within five years of creating a Marine Conservation Area, the Minister must work collaboratively with Indigenous organizations and governments, bodies established under Land Claims Agreements, and other organizations to prepare a management plan for the Area.
These management plans must be reviewed at least once every ten years. Management plans must be informed by principles of ecosystem management and the precautionary principle.
For each Marine Conservation Area, the Minister must create a management advisory committee to provide advice on creating, reviewing, and implementing the management plan.
Marine Conservation Area Reserve
The Federal government can create or increase the area of a Marine Conservation Area Reserve through the use of an Order in Council or by legislative amendment. If a proposed Marine Conservation Area is under negotiation by the federal government due to an accepted Aboriginal rights claim, a Marine Conservation Area Reserve will be created.
Once a Marine Conservation Area Reserve is created, the Canada National Marine Conservation Areas Act cannot be amended to decrease the size of the Area. If the claim regarding Aboriginal rights is settled, the Cabinet can make one of the following orders, depending on the result:
- Remove the land from the marine conservation system; or
- Transform the Marine Conservation Area Reserve into a Marine Conservation Area.
The Minister is responsible for managing Marine Conservation Area Reserves.
Within five years of creating a Marine Conservation Area Reserve, the Minister must work collaboratively with Indigenous organizations and governments, bodies established under Land Claims Agreements, and other organizations to prepare a management plan for the Reserve.
These management plans must be reviewed at least once every ten years. Management plans must be informed by principles of ecosystem management and the precautionary principle.
For each Marine Conservation Area Reserve, the Minister must create a management advisory committee to provide advice on creating, reviewing, and implementing the management plan.
Agreements
To support the management of Marine Conservation Areas, the Minister can enter into agreements with Indigenous governments, Indigenous organizations, bodies established under Land Claims Agreements, and other persons and organizations.
Oceans Act
Table: Oceans Act In-Depth
| Marine Conservation Area | Marine Conservation Area Reserve | |
|---|---|---|
| Legislation | Canada National Marine Conservation Areas Act | Canada National Marine Conservation Areas Act |
| Responsible Government Department | Parks Canada Agency (s. 2(1)) | Parks Canada Agency (s. 2(1)) |
| Overall Goals and Values | Protect and conserve marine areas for public benefits, education, and enjoyment (s. 4(1)) | Protect area proposed for Marine Conservation Area where subject to claim regarding Aboriginal rights (s. 4(2)) |
| Establishment | Order in Council/Legislation (s. 5(1)) |
Order in Council/Legislation (s. 5(1)) |
| Strength of Protection (Based on IUCN Protected Area Categories) | Ib Wilderness Area V Protected Seascape |
Ib Wilderness Area V Protected Seascape |
| Decision-Making Authority | Minister responsible for management –can enter into agreements with Indigenous governments and organizations to support (s. 8)
Minister must create an advisory committee to support management (s. 11) |
Minister responsible for management –can enter into agreements with Indigenous governments and organizations to support (s. 8) Minister must create an advisory committee to support management (s. 11) |
| Hunting | N/A | N/A |
| Fishing | With licence (s. 15) | With licence (s. 15) |
| Trapping | N/A | N/A |
| Development | N/A | N/A |
| Natural Resource Extraction | No exploration for or production of hydrocarbons, minerals, aggregates, or other inorganic materials (s. 13) | No exploration for or production of hydrocarbons, minerals, aggregates, or other inorganic materials (s. 13) |
| Access | Public access (with exceptions) | Public access (with exceptions) |
| Activities Allowed | Activities consistent with management plan (with permit) (s. 15(1))
Outdoor recreational activities |
Activities consistent with management plan (with permit) (s. 15(1))
Outdoor recreational activities |
| Activities Prohibited | Dependent on zone (s. 4(4)) | Dependent on zone (s. 4(4)) |
Marine Protected Area
Under the Oceans Act, the Minister of Fisheries and Oceans (“the Minister”) by ministerial order, or Cabinet by regulation, can create a Marine Protected Area (MPA) for one or more of the following purposes:
- Protecting commercial and non-commercial fishery resources and their habitats;
- Conserving endangered or threatened marine species and their habitats;
- Protecting unique marine habitats;
- Conserving marine areas with high biodiversity;
- Protecting marine resources and habitats; and
- Conserving and protecting marine areas to maintain ecological integrity.
The Oceans Act defines ecological integrity as “a condition in which (a) the structure, composition and function of ecosystems are undisturbed by any human activity; (b) natural ecological processes are intact and self-sustaining; (c) ecosystems evolve naturally; and (d) an ecosystem’s capacity for self-renewal and its biodiversity are maintained.”
The Minister is responsible for managing Marine Protected Areas (MPAs) and ensuring that the network of MPAs covers important and diverse habitats. If the Minister creates an MPA by order, the MPA must be created by regulation within five years, or the order must be cancelled.
Emergency Marine Protected Area
By Order in Council, Cabinet can create an Emergency Marine Protected Area if the Minister believes that a marine resource or habitat is at risk. This order expires in 90 days and is intended for temporary protection while long-term management options are determined.
Canada Wildlife Act
Table: Canada Wildlife Act In-Depth
| National Wildlife Area | |
|---|---|
| Legislation | Canada Wildlife Act |
| Responsible Government Department | Environment and Climate Change Canada (s. 2(1)) |
| Overall Goals and Values | Conserve wildlife and habitat while supporting research and interpretation |
| Establishment | Regulation |
| Strength of Protection (Based on IUCN Protected Area Categories) | IV Habitat/Species Management Area |
| Decision-Making Authority | Minister responsible for management – can appoint advisory committees to support (s. 3) |
| Hunting | Prohibited (unless permitted) |
| Fishing | Prohibited (unless permitted) |
| Trapping | Prohibited (unless permitted) |
| Development | No industrial activity (unless permitted) |
| Natural Resource Extraction | No aggregate or other natural material extraction |
| Access | No vehicle access (unless permitted) |
| Activities Allowed | Site-specific – must be conducted in a way that minimises negative impacts on wildlife and wildlife habitat |
| Activities Prohibited | Agricultural or grazing activities (unless permitted) Recreational activities (unless permitted) |
National Wildlife Areas
The Minister of Environment and Climate Change (“the Minister”) is responsible for creating and managing National Wildlife Areas. National Wildlife Areas are created to protect wildlife and wildlife habitats.
By regulation, the Minister can create a National Wildlife Area. The Canadian Wildlife Service prepares a management plan for each National Wildlife Area, which identifies permitted activities.
With Cabinet’s permission, the Minister can purchase or acquire lands to support the conservation of wildlife, including by creating a National Wildlife Area.
While staff from the Canadian Wildlife Service usually nominate sites for National Wildlife Areas, Indigenous governments have previously submitted proposals which have been successfully adopted for protection.
Migratory Bird Sanctuaries
Under the Migratory Birds Convention Act, the Minister of Environment and Climate Change can, by regulation, establish and manage Migratory Bird Sanctuaries. This is part of implementing the 1916 Migratory Birds Convention with the United States. This convention focusses on protecting migratory birds (both individuals and populations), their eggs and nests, and habitats (on federal lands), from disturbance and hunting. This also may indirectly conserve other animal and plant habitats.
Migratory Bird Sanctuaries are typically established on unceded/Crown lands but also may be established on private lands, all with the consent of the owner (federal or provincial department, Indigenous, or private). The Canadian Wildlife Service can manage activities on sanctuaries, such as enhancing habitat, monitoring, research, conducting inspections, and enforcing regulations.
While Migratory Bird Sanctuaries are largely a federal program, some arrangements with Indigenous communities may be made where they own, use, or co-manage these areas, potentially as IPCAs.
Updates to the international Convention acknowledge the value of Indigenous knowledge, practices, and institutions. The rules regarding closed seasons and harvesting restrictions are determined by the regulations outlined in treaties, land claims agreements, self-government agreements, and co-management agreements made with Indigenous Peoples.
Under the Migratory Birds Convention Act the Minister can change or suspend the application of the regulations for conservation purposes. [13] In addition, permits can be issued for Indigenous applications. In northern Canada, Indigenous Peoples have the right to carry firearms in Migratory Bird Sanctuaries for traditional hunting and trapping purposes.
Anyone, including Indigenous Peoples or individuals, can be appointed as game officers, and the Minister’s permitting and enforcement powers can be delegated to any government or person in Canada.