## Supplemental Information on Cana da’s Aggregate Compliance Approach Petition

September 13, 2011

On January 31, 2011, Canada formally submitte d a petition to EPA pursuant to 40 C.F.R. §80.1457, requesting approval of an a ggregate approach for compliance with the Renewable Fuel Standard renewable biomass provisions for plan ted crops and crop residue from Canada. Among the information to be included in a petition, or an explanation why it is not needed, is: “A description of any applicable laws, agricultural practices, econo mic considerations, or other
relevant factors that had or may have an effect on th e use of agricultural lands within the geographic boundaries specified [i n the petition], including information regarding efficacy and enforcement of relevant laws and regulations.” 1

Canada’s petition provides information regarding agricultural practices, economics, governmental policy, and other relevant factors that would indicate an aggregate compliance approach for crops and crop residues from Canada is appropriate (Peti tion at 10-12), including
information similar to that EPA considered for the United States. 2 In particular, the Petition states that: (a) Federal and provincial government policies pr omote sustainable agricultural practices; (b) the vast major ity of Canada’s forestland ( over 90%) is under governmental ownership and control; and (c) Canada has strong national a nd provincial policies against deforestation. Although no adverse comments we re submitted on Canada’s petition, EPA has requested additional clarification with respect to Canada’s laws and policies.

Canada has numerous laws, regulations a nd policies that influence land use and that would or could restrict expans ion of agricultural lands. The following provides a summary of the key legislation and policies at the national and provincial level, in cluding international commitments, that support Canada’s petition that an aggregate compliance approach is
warranted.

Total agricultural lands and forest lands have stayed stable in Canada for decades, evidencing Canada’s commitment to land use manage ment and the efficacy of Canada’s current laws and policies. Nonetheless, Canada con tinues to pursue and implement initiatives and policies for conservation and the protection of fo restland and other native ecosystems, including grasslands.

I. THE MAJORITY OF THE LAND BASE IN CANADA IS SUBJECT TO GOVERNMENTAL CONTROL, RESTRICTING THE LANDS AVAILABLE FOR
AGRICULTURAL PURPOSES.

Canadian agriculture is a shared jurisdic tion. Provincial and territorial governments exercise rights over and have primary responsib ility for the management and protection of land

resources. 3 This includes land use planning legislat ion and regulation, which determines which

1 40 C.F.R. §80.1457(b)(5).

2 75 Fed. Reg. 76,790, 76,823 (Dec. 9, 2010).

3 See Constitution Act, 1867, 30 & 31 Victoria, c. 3 (U.K.), §95.

1parcels of land are used for agricultural purposes and just as importantly, how neighboring parcels are used. Municipal governm ents also play a role in the stewards hip of agricultural land through the delegation of author ity from provincial and territori al governments. The federal government is primarily responsible for federal Crown lands, military bases, aboriginal lands, and national parks. Of all the land in Canada , approximately 41 percen t is federal Crown land and 48 percent is provincial Crown land while th e remaining 11 percent of Canada’s land is in private hands. Almost all agri cultural land is privately held.

A. Public Land Management and Regulation

1. Federal Crown Lands

The majority of federal Crown land is situ ated in the Yukon, the Northwest Territories, Nunavut and National Parks, and includes lands rese rved in agreements w ith Aboriginal peoples and lands under water (See Attach ment: Map of Canada lands). Much of the land base in the
Yukon and Northwest Territories are in the bore al zone, which is defined as the broad, circumpolar vegetation zone of hi gh northern latitudes c overed principally with forests and other wooded land consisting of cold-hardy trees. 4 In addition to the geograp hic restrictions noted in the Petition (at 12) and below, use of these lands is subject to control by the government, which places additional limits on what lands are available for agricultural use.

The Federal Government through the Minist er of Indian Affairs and Northern Development is responsible for ad ministering territorial lands and its resour ces in the Yukon, the Northwest Territories and Nunavut through various Acts. 5 The Territorial Lands Act, R.S.C., 1985, c. T-7, governs management of federal Crow n lands in the Northwest Territories and Nunavut, including thei r sale or lease. 6 Under the Territorial La nds Act, the Governor in Council has authority to set asid e areas as land management zones for the protection of the ecological balance or physical characteristics of any area in the Northwest Territories or Nunavu (§§4, 5), and may withdraw lands fr om disposal. Persons using su ch lands in violation of any regulations issued or without au thorization may be subject to fines ($5000 for violations of regulations and $300 or imprisonme nt for a term not exceeding six months or to both for to stop unauthorized use) (§§7, 21). The territori al government for the Northwest Territories has certain delegated authority unde r the Northwest Territories Act, R.S.C., 1985, c. N-27, and for Nunavut under the Nunavut Act, S.C. 1993 t

failure

, c. 28.

For the Yukon Territory, the Yukon Act, S.C. 2002, c. 7, delegates authority to the Commissioner of the Yukon to regulate use and dispose of public lands (§45). The federal government, however, retains author ity to set aside lands for prot ection of natura l resources and

4 For more information on the boreal zone, see Natural Resources Canada, Boreal zone versus boreal forest

, http://canadaforests.nrc an.gc.ca/article/borealzonevsforest (last updated Oct. 19, 2010).

5 Through the Land Claim process, jurisdictional resp onsibility over certain lands, resources and land uses has been transferred to various First Nations and to Aboriginal groups across the North.

6 An environmental assessment is required prior to sa le or lease of federal Crown lands under the Canadian Environmental Assessment Act, S.C. 1992, c. 37, §5. The purposes of this assessment are, among other things, to ensure that projects are considered in a careful and preca utionary manner before federal authorities take action in connection with them, in order to ensure that such proj ects do not cause significant a dverse environmental effects, and to encourage responsible authorities to take actions that promote sustainable development and thereby achieve or maintain a healthy environment and a healthy economy (§4).

2to prohibit uses that m ay impact the environm ent or protected areas (§50). The Yukon Lands Act, R.S.Y. Ch. 132, imposes criminal fines for un authorized use of public lands ($250 or three months imprisonment or both). The Yukon is one of the few places in Canada where Crown land can be obtained for agricultural purposes. 7 Regulations issued by the Yukon government regulate the sale of “agricultu ral lands,” which are designate d by the government as lands suitable for agricultural purposes. 8 To be eligible to use such lands, a Farm Development Agreement to include provisions governing proper land development and utilization is required, which are subject to environmental assessment.

There currently is limited ag riculture production in the Y ukon, Northwest Territories and Nunavut due to high costs and geographic conditions (e.g., climate, water resources, soil, etc.), and there are relatively small populations. 9 The main crops grown in these areas are for local use and are not currently used in any significant extent for biof uel production. Moreover, there are no biofuel facilities in these areas, and transp ortation of crops to biof uel facilities would difficult and expensive. The management of publ ic lands further serves to limit the amount of lands available for agricultural purposes. Thes e legal, geographic and economic restrictions make it unlikely that any “new” lands would be cleared or cultivated for purposes of growing crops for biofuel production. In addition, Canadian federal biofue ls regulations have excluded certain areas from the regulations, incl uding the Yukon, Newfoundland and Labrador, the Northwest Territories, Nunavut, and part s of Quebec due to supply challenges. be

10

2. Provincial Crown Lands

As shown in the Petition ( see Figure 1 at 17), ag ricultural lands in Canada are largely concentrated in the provinces of Alberta, Sa skatchewan and Manitoba . Behind these three provinces, Ontario and Quebec also have si gnificant areas of agricultural production. 11 In addition to the geographic conditions that would restrict the expansion of ag ricultural cropland in the areas surrounding these major agricultural la nds, each of these provinces has laws and regulations in place regarding the use of public lands that would fu rther restrict expansion of the area used for agricultural producti on, which largely occurs on pr ivate lands. These laws and regulations require approval for use of such lands and include re strictions which are based on, for example, the suitability of the land and principles of sustainable development, the size of the lots, and the length of time of use. These laws and policies promote the ongoing use of existing

7 Yukon Energy, Mines and Resources, Agriculture Land Program

, http://www.emr.gov.yk.ca/agriculture/agriculture _land.html (last updated June 3, 2011).

8 Lands Act Regulations, O.I.C. 1983/192, §§70-76 (as amended). Agricultural uses are not limited to crop production.

9 The population in the Yukon is 32,714 (as of December 2007, http://w ww.gov.yk.ca/facts/ population.html); in the Northwest Territories is 43,439 (as of July 1, 2009, http://www.gov.nt.ca/resear ch/facts/index.html); in the Nunavut is 33,413 (as of April 1, 20 11, http://www.gov.n u.ca/eia/stats/).

10 Government of Canada Renewable Fuel Regulations, http://www.gazette.gc.ca/rp-pr/p2/2010/ 2010-09-01/html/sor-dors189-eng.html

11 Based on Census of Agriculture data for 2006, these five provinces represent over 95% of the total amount of cropped land and farm area in Canada ( see generally http://www40.statcan.gc.ca/101/cst01/agrc25a-eng.htm). In addition, currently, the main crop from Canada used for biofuel production in the United States is canola ( see Petition at 11). Canola production in Canada is also larg ely concentrated in Alberta, Manitoba and Saskatchewan. Thus, the supplemental information focuses on these provinces.

3agricultural land, rather than expansion of agricultural pr oduction onto “new” la nds that had not previously been used for agricultural production.

In Alberta, the Public Lands Act, R.S.A. 2000, c. P-40, grants broad authority to classify public lands and declare what types of uses are allowed unde r different classifications. 12 The Public Lands Act governs most of the approximate ly 60 percent of Albert a that is public land.
While certain economic activities are conducted on public lands, such as forestry and grazing, industry must reclaim the land, and management requirements provide for the integrity of the
land and habitat. 13 The Act generally prohibits harm to public lands, such as by injuriously affecting watershed capacity, caus ing soil erosion, or injuring the bed or shore of a water body. Under the Public Lands Act, a fine can be levied for unauthorized use of public lands of no more than $100,000 for individuals and $1 million fo r corporations, in addition to a potential administrative penalty in an amount to be determin ed by the director. The Act also provides that the government can seize crops if a person withou t authority seeds or places a crop on public
land.

In Manitoba, the Crown Lands Act, C.C.S.M. c. C340, restricts the ability to use public lands absent approval by the government. Appr oximately 90 percent of land in Manitoba is public land. The government desi gnates agricultural crown lands , which require a lease or permit to be used. Under the Act, lands also can be designated as provi ncial parks and wildlife management areas. 14 Every person who is guilty of an offense under the Act or the regulations for which no specific penalty is provided therein is liable, on summary c onviction, to a fine not exceeding $10,000; and, in default of the payment of the fine, to imprisonment for a term not exceeding 90 days.

The Saskatchewan Provincial Lands Act, R.S.S. 1978, c. P-31, governs management of provincial land. Use of such lands is again restricted to thos e approved by the government, and the government retains authority to rem ove lands from agricultural production. 15 Moreover, if a person abandons cropland, the gove rnment may utilize that la nd, which helps ensure the designated agricultural lands remain in productive use. The Act also a llows a penalty not to exceed $5,000 and/or imprisonment up to 6 months for persons who remain on or use provincial lands after being ordered to vacate the premises.

12 Land use in Alberta was generally divided into two major land designations -- the White Area was set aside as land primarily suited for agriculture and settlement (m ostly privately owned land regulated by municipalities); and the Green Area which included forested land for forest management planning and protection of important watershed areas (mostly public lands). See Government of Alberta, Understanding Land Use in Alberta

, https://www.landuse.alberta.ca/Pla nning/WhyLandusePlanning/Understanding LandUseAlberta/Pages/default.aspx (updated June 22, 2011). Recognizing that rural and urban growth has resulted in the loss or conversion of the province’s farm and ranch lands, the Municipal Government Act, R.S.A. 2000, Chapter M-26, §639.1, encourages the protection of agricultural lands.

13 Other laws in Alberta provide for the designation of areas as protected, which impose restrictions on their

use. See, e.g., Provincial Parks Act, R.S.A. 2000, c. P-35; Wild erness Area, Ecological Reserves, Natural Areas, and Heritage Rangelands Act, R.S.A. 2000, c. W-9.

14 See also The Wildlife Act, C.C.S.M. c. W130 (wildlife management ar eas); The Ecological Reserves Act, C.C.S.M. c. E5 (ecological reserves); The Provincial Parks Act, C.C.S.M. c. P20 (provincial parks).

15 The Saskatchewan government also has authority to manage provincial pa rks and wildlife areas. See The Wildlife Habitat Protection Act, S.S. c. W-13.2; The Parks Ac t, S.S. 1986, c. P-1.1; The Ecological Reserves Act, S.S. 1979-1980, c. E-0.01.

4Crown lands make up about 87 percent of Ontario’s land mass. The Ontario Public Lands Act, R.S.O. 1990, c. P43, charges the Minist er of Natural Resources with the management of public lands and forests. By the late 1970s and early 1980s, land use planning for Crown land became a priority. 16 Largely through directives, the Minist ry manages Ontario’s Crown land in a way that balances social, economic and environm ental interests. Appr oved activities and plans commonly have conditions attached that are specif ically designed to protect and preserve the natural environment. The Public Lands Act pr ovides enforcement provisions to address abuses under the Act. Under the statute, the Minister may require the preparation of land use plans and can designate lands as restricted areas. In the event of violati ons, the Act provides for a penalty not to exceed $10,000 and an additional fine not more than $1,000 for each day of violation. Any person who unlawfully takes possession of public lands faces an additional penalty equal to
twice the market value of the la nd, as determined by the Minister.

More than 92 percent of Quebec’s territory is Crown land. An Act Respecting the Lands in the Domain of the State, R.S.Q. c. T-8.1, provi des that the government “ex ercise, in respect of
lands in the domain of the Stat e that are under his aut hority, all the rights a nd powers inherent in the right of ownership.” Under the Act, the government engages in public land use planning and granting land rights. In addition, An Act Respecting Agricultural Lands in the Domain of the State, R.S.Q. c. T-7.1, grants the Minister of Agriculture, Fisheries and Food authority to administer public agricultural land. The Act makes it illegal to occupy such lands, or to erect structures or cut timber, without authorization. First time offenders face a fine between $125 and $1,225 for individuals and between $625 and $6,075 for legal persons. For subsequent offenses,
the fine is increased to between $250 and $2,450 for individuals and between $1,225 and $12,150 for legal persons.

Although we focus on certain provinces, each of the other provinces (which collectively only contain approximately five percent of the to tal agricultural lands in Canada) have similar laws giving the government authority to manage land use on public lands and generally requiring
authorization to use Crown lands. 17 Newfoundland and Labrador and British Columbia both are comprised of over 90 percent Crown lands, whic h includes a substantia l amount of forested

areas. 18 Again, land restrictions limit the amount of agricultural lands available in these provinces. Although the Maritime provinces of New Brunswick, Nova Scotia and Prince Edward Island have a majority of land in private hands, including forested land, 19 lands used for crops is limited based on suitabi lity for agricultural use ( e.g. , soil conditions, lo cation near water resources). Moreover, agricultu ral lands have generally declin ed in these provinces, and the main crops in these areas are potatoes, vegetabl es, or crops used for livestock, not for biofuel production.

16 See Ontario Ministry of Natural Resources, History of Crown Land Management

, http://www.mnr.gov.on.ca/en/Business/CrownLand/2ColumnS ubPage/STEL02_176759.html (last modified June 5, 2009).

17 See Land Act, R.S.B.C. 1996, c. 245 (British Columbia); Lands Act, S.N. L. 1991, c. 36 (Newfoundland and Labrador); Lands Protection Act, R.S.P.E.I. 1988, c. L-5 (Prince Edwards Island); Crown Lands Act, R.S. c. 114 (Nova Scotia); Crown Lands & Forest Act, c. C-38.1 (New Brunswick).

18 See infra n.23.

19 It should be noted that, in 2005, Ducks Unlimited Canada recognized that the “Maritime agricultural producers are among Canada’s leaders in conservation farming.” Ducks Unlimited Canada, Maritime provinces leaders in conservation farming (Oct. 12, 2005), http://www.ducks.ca/province/ns/news/2005/oct12/index.html.

5Thus, government regulation of public lands rest ricts the ability of private persons to use those lands. To the extent there is any agri cultural use of these la nds, which includes grazing and crop production, such use is generally restri cted to areas approved by the government and subject to management plans. These restric tions and policies limit the lands available for agricultural use and promote the us e of existing agricultural lands. As further described below, government policies are in place to promote sust ainable development and proper utilization of resources, which helps ensure that existing, su itable agricultural la nds are maintained and sustainably used for the long term.

B. Laws and Policies Regarding Management of Forestland Restrict the Ability to Convert Forested Lands to Cropland.

Canadian forestry is a shared domain. Over 90% of Canada’s forests are under public control (federal, provincial or territorial) and use of such la nd is governed by the appropriate authority through a number of polic ies such as public land regul ation. Approximately 48% of Canada’s forest area is protecte d by some degree of legislation such as integrated land-use planning or defined management areas such as certified forests.

To manage this resource, Canada became th e first country to adopt a national forest strategy in the 1980s. The most recent -- A Vision for Canada’s Forests: 2008 and Beyond 20

-- provides for inclusion of climate change consid erations in all aspects of the sustainable management. More than 50 governments and non-governmental organizations committed to work together on solutions facing Canadian forests. Canada also has been an active participant
in multilateral and bilateral international forest ry initiatives, affirming its commitment to sustainable forest management in 1992 at th e United Nations Conference on Environment and Development with the adoption of the Forest Principles. Canada is also a signatory to the Convention on Biological Diversity, the Convent ion on International Trade in Endangered Species, and the United Nations Framework Conve ntion on Climate Change. These are legally binding instruments affecting forest policy in Canada.

The main laws and regulations at the federal and provincial levels li mit the use of forest resources on public lands, and promot e sustainable management of forest resources. The Forestry Act, R.S.C., 1985, c. F-30, provides the authority to regulate forest resources on Crown lands. Timber Regulations, 1993, SOR/94-118, prohi bit the cutting down of trees without a permit. Before a forest company can harvest t imber on Crown land in Canada, it must have an approved forest management plan, which describes the forest unit where the company will operate, sets objectives for th e unit’s conditions in the futu re, and outlines the harvesting,

20 Available at http://www.ccfm.org/pdf/Vision_EN.pdf

. The prior strategies issued by Canada are A Forest Sector Strategy for Canada: Discussion Paper, 1981–1987; A National Forest Sector Strategy for Canada (1987– 1992); National Forest Strategy (1992–1998) – Sustainable Forests: A Canadian Commitment; National Forest Strategy (1998–2003) – Sustainable Forests: A Canadian Commitment; National Forest Strategy (2003-2008) – The
Canadian Commitment.

6renewal and other activities to be carried out. 21 The plan, which is approved at the provincial or territorial level, also addresses how the operato r will manage forest values other than timber. 22

Each province and territory has a monitori ng and compliance regime with respect to forest management. 23 The Alberta Forests Act, R.S.A. 2000, c. F-22, grants the Lieutenant Governor in Council broad authority to regulate forest lands and manage all facets of the timber industry. Under the Act it is prohibited to cut, damage, or destroy any forest growth on forest land except as authorized. Cr own timber is disposed of pursuant to Forest Management Agreements (FMA), timber quotas, or timber permits. FMAs are long-term contractual agreements between the province and a timber company and function as the main method of authorizing high-volume timber harvesting. FMAs ar e designed to “provide a yield consistent with sustainable forest manageme nt principles and practices.” Timber quotas and timber permits are for smaller-scale operations. The penalty fo r violating the Act is a fine not to exceed $100,000 for individuals, and $1 million for corporati ons. An administrative penalty may also
be assessed.

Approximately 57 percent of Manitoba’s pr ovincial landscape is dominated by forests, about 94 percent of which are pr ovincial Crown land. The Man itoba Forest Act, C.C.S.M. c. F150, is Manitoba’s general management scheme for all matters related to forestry. It grants authority for the government to designate any land as a provincial forest, which serve as a source of sustainable timber supply. 24 All Crown lands within provinc ial forests are withdrawn from use unless specifically authorized by a forest ma nagement license which is based on the concept of “providing timber on a sustained yield basis. ” The Act also generally prohibits any logging activity on Crown lands without au thorization. The Forestry Br anch manages provincial Crown forests by setting forest harvest levels, monitoring forest mana gement activities, and ensuring forests are regenerated. If timber is cut in violati on of the Act, a penalty is assessed equal to four times the dues and charges that would have b een payable if the timber had been cut with authorization. In addition, a first-time offender can face a fine of not more than $50,000, six months imprisonment, or both for individuals and $250,000 for corporatio ns. For a repeat offender the penalty is increased to not mo re than $100,000 for individuals and/or 1 year imprisonment, or $500,000 for corporations. Lastl y, an additional fine can be assessed in the amount equal to any amount of other unjust enrichment.

21 Natural Resources Canada, Sustainable Forest Management - Four Stages of Preparing a Forest Management Plan , http://Canadaforests.nrcan.gc.ca/article/planning stages (last modified May 10, 2011).

22 Canada has also established a Model Forest Progr am, which is an initiative to increase information to ensure the diversity and sustainability of forests. See generally Natural Resources Canada, Sustainable Forest Management - Model Forests , http://Canadaforests.nrcan.gc.ca/article/modelf orests (last modified Aug. 31, 2010). The Model Forests get their funding primarily from the federal government, and the program has developed tools directly applicable to forest protection, such as maple sugarbush management, sustainable forestry certification for small woodlots, shelterbelt and riverside tree planting, fo rest mapping, biodiversity data collection, urban tree preservation and schoolyard naturalization.

23 As noted above, we have focused on major Provincial laws in Alberta, Saskatchewan, Manitoba, Ontario and Quebec. See also, e.g., Forest & Range Practices Act, S.B.C. 2002 , c. 69 (British Columbia); Forest Act, R.S.B.C. 1996, c. 157 (British Columbia); Forestry Act, R.S.N.L. 1990, c. F-23 (N ewfoundland and Labrador); Forest Management Act, R.S.P.E.I. 1988, c. F-14 (Prince Edwards Island); Forests Act, R.S. c. 179 (Nova Scotia); Crown Lands & Forest Act, c. C-38.1 (New Brunswick).

24 Much of the province’s unallo cated forest land is remote or commercially unproductive. See Manitoba, Forestry Branch , http://www.gov.mb.ca/conservation/forestry/mb-forests/crown.html.

7The Saskatchewan Forest Resources Manage ment Act, S.S. 1996, c. F-19.1, grants broad authority to regulate the timber industry. One of the purposes of the Act is “to promote the
sustainable use of forest land.” For Crown la nds designated as provinc ial forests, all timber activity is prohibited without auth orization. Forest Management Plans are also required, which are to include forest renewal provisions. Pe nalties for violations can be up to $250,000 for individuals and/or imprisonment for not more than 5 years. For corporations, the fine is not to exceed $1 million. An additional fine can be a ssessed in the amount of any unjust enrichment.

In Ontario, the Crown Forest Sustaina bility Act, 1994, S.O. 1994, c. 25, governs the development of public forests with the goal of pursuing sustainability through conserving “large, healthy, diverse and productive Crown forests a nd their associated ecological processes and biological diversity.” Commercial development of forest land requires authorization by the
Minister of Natural Resources. If timber is cut without authorization, a fi ne may be assessed of not more than $100,000. The Act also provides for ad ministrative penalties of not more than the greater of $15,000 or five times the value of the ill egally harvested forest resources. In 2011, the Ontario Forest Tenure Modernization Act, 2011, 39:2 Bill 151 (2011), was passed. It amends the Crown Forest Sustainability Act to provide fo r the establishment of local forest management corporations to hold forestry resources license s and manage Crown forests in a sustainable

manner.

Similarly, the purpose of the Quebec Forest Act, R.S.Q. c. F-4.1, is to promote sustainable forest development. The Act generall y prohibits forest activity unless authorized by a permit issued by the Minister of Natural Res ources. Permits are governed by standards which, among other things, have as their objective the pres ervation of the forest cover and the protection
of all forest resources. In a ddition, the Minister may designate forest areas as biological refuges where no forest activity may occur. Violations of permit provisions can result in fines which, depending on the type of violation, amount to up to $40,000 or $450 for each tree unlawfully cut. In March 2010, the Sustainable Forest Developm ent Act, Bill 57, was passed, which strengthens the ability of the State to manage Quebec’s public forests through ecosystem-based development, including provisions for integrated forest development plans and carrying out audits of forest practices.

As these laws illustrate, forestland in Canada is largely maintained for sustainable use and for use by future generations. Although some extraction activities may be authorized on such lands, agricultural production is generally limited by these laws and management policies.
Creation of new agricultural lands through th e clearing of forests is not expected as much of the suitable land for agricultural purposes already has been de signated and land management principles that must be implemented do notprovide for such land use conversion.

Although in most provinces the vast majority of forestland falls within Crown lands and, thus, subject to government management, Nova Scotia, New Brunswick and Prince Edward Island have a higher amount of forestland in priv ate hands. These lands are generally used for forestry purposes, and these provinces have vary ing policies regarding forest management and initiatives to promote sustainabl e use on private lands. In Nova Scotia, for example, harvest operations are also regulated thr ough the Forest Sustainability Regulations and Wildlife Habitat and Watercourses Protection Regul ations, including protection of wa tercourses and to maintain

8specific features to supp ort wildlife. 25 In any event, as noted a bove, agricultural production in these areas is limited and not expected to be used for biofuel production.

C. Sustainable Development a nd Conservation Policies

Although public lands in Canada have long b een viewed as being held for the public trust, including use by future generations, incr easingly Canada has inco rporated policies of sustainable development and conserva tion in its management of lands. 26 As such, impacts on the environment, including impacts on climate change from land use changes, are considerations in land management policies and have promoted further conservation of sensitive ecosystems. These policies further protect against clearing of such areas for agricultural purposes.

Protected areas are composed of land, fres hwater and marine areas set aside through legislation. They are created and managed by the federal, provincial and territorial governments. Additional protected areas are also administered by Aboriginal gove rnments. Several laws have been passed over the years to protect Canada’s land and oceans, incl uding habitat for the protection of species. 27 The first National Park was cr eated in 1885, and the Dominion Parks Branch (now Parks Canada) was established in 1911 as the first organization charged with the management of national parks. 28

In particular, the Canada National Parks Act, S.C. 2000, c. 32, provides that “the national parks of Canada are hereby dedicated to the peop le of Canada for their benefit, education and enjoyment, subject to this Act and the regulatio ns, and the parks shall be maintained and made use of so as to leave them unimpaired for the en joyment of future genera tions” (§4). At least every two years, the statute requires a report on the state of the parks and on progress made towards the establishment of new pa rks (§12(2)). The Act prohibits sale or use of public lands in a park, except as provided in the Act or its regula tions (§13). In addition, regulations prohibit the

25 State of the Forest Report 1995-2000: Nova Scotia Forests in Transition , at 20-21, 25-26 (2008), available

at http://www.gov.ns.ca/natr/forestry/reports/ State-Of-Forest-Report-April-2008.pdf.

26 For example, in passing the Canadian Environmental Protection Act 1999 , S.C. 1999, c. 33 (CEPA 1999), Canada recognized the importance of an ecosystem approach to the protection of the environment and identified conservation of natural resources and sustainable development as a guiding principle for administrative duties of government. In 2008, the Canadian Parliament passed the Federal Sustainable Development Act, S.C. 2008, c. 33, which requires Environment Canada to develop an overarching Federal Sustainable Development Strategy, including legislated federal sustainable development goals and targets and an implementation strategy for meeting each target. Departments’ and agenci es’ sustainable development strategies will be required to have plans and objectives that comply with the new Strategy. Provincial governments ha ve similar statutes. See, e.g., The Sustainable Development Act, C.C.S.M. c. S270 (Manitoba).

27 See, e.g., Species at Risk Act, S.C. 2002, c. 29 (prohibits destruction of critical habitat on public lands); Migratory Birds Convention Act, 1994 (S .C. 1994, c. 22) (migratory bird sanc tuaries). In 1990 , Manitoba became the first jurisdiction in Canada to commit to the Worl d Wildlife Fund Canada’s Endangered Spaces Campaign, leading to Manitoba’s Protected Areas Initiative (http://www .gov.mb.ca/conservation/pai/). Approximately 9.9 % of Manitoba’s lands are protected. See Manitoba, Manitoba’s Network of Protected Areas

, http://www.gov.mb.ca/conservation/pai/mb-network/index.html.

28 For a history of Protected Areas in Canada, see Natural Resources Canada, The Atlas of Canada: Protected Areas Through Time

, http://atlas.nrcan.gc.ca/site/english/maps/environment/pro tectedarea/protectedareasthroughtime/1 (last modified Mar. 5, 2009); see also Natural Resources Canada, The Atlas of Canada: Protected Areas

, http://atlas.nrcan.gc.ca/auth/english/maps/environment/prot ectedarea/protectedareasbyjurisdiction/1 (last modified Mar. 5, 2009).

9rem oval or destruction of any flora or natural objects in a Park excep t in accordance with a permit. See National Parks General Regulations, SOR/78-213, §10. Violations of this prohibition or of regulations resu lts in criminal fines and possibl e imprisonment. The penalties for individuals may be up to $1,000,000 for the first offense and up to $2,000,000 for the second offense; and corporations, which are not a small re venue corporation, are subj ect to a fine of not less than $500,000 and not more than $6,000,000 for the first offense and a fine of not less than $1,000,000 and not more than $12,000,000 for the second offense (§24). 29 In 2009, Canada passed the Environmental Violations Administra tive Monetary Penalties Act, S.C. 2009, c. 14, s. 126, to establish administrative enforcement procedures for the Canada National Parks Act, among other environmental laws. The amount of penalties authorized under the Act are not more than $5,000, in the case of an individual, and $25,000, in the case of any other person or a ship or a vessel. These administrative pena lties may serve as additional enforcement.

In 1992, there was an agreement to increase the protection of endangered species, which led to a significant increase in protected areas. In addition, each jurisdiction signed a “Statement of Commitment to Complete Canada’s Networks of Protected Areas,” and in 1995 Canada issued its Biodiversity Strategy, conf irming a commitment to establis h a network of protected areas representing each of Canada’s ecological regions. 30 Much of this increased focus on protection of ecosystems stems from Canada’s internationa l commitments. Canada is a signatory to a
number of international treaties that impact land use in Cana da such as the Ramsar Convention
on Wetlands and the United Nations Conve ntion on Biological Biodiversity (CBD). 31 The CBD, for example, is a legally binding international treaty which comm its parties to the sustainable management of biological diversity. Since th e ratification of the CBD in 1992, Canada has introduced the Canadian Biodiversity Strategy which sets priorities within various jurisdictions
and at the national level. Canada’s participation in the CBD has led to increased coordination and expansion of Canada’s protecte d areas at both the federal and pr ovincial level. Virtually all provincial and territorial government s have integrated biodiversity into government initiatives, using a variety of policies, strategies , legislation and vol untary approaches.

Grassland losses to settlement, including agri cultural production, occurred largely before the 1930s. To address erosion issues occurring as a result of these losses, the Prairie Farm Rehabilitation Administration (PFRA) was estab lished in 1935 (the PFRA became part of Agriculture and Agri-Food Canada’s Agri-E nvironment Services Branch in 2009). The Community Pasture Program is the PFRA’s larg est and longest-runni ng contribution to soil conservation on the prairies, a nd has contributed to the pr otection of grassland areas. 32

29 The fines under the National Parks Act were increas ed to these amounts in December 2010 based on the Environmental Enforcement Act, which was passed to strengthen enforcement of environmental statutes.

30 Natural Resources Canada, Canada’s Forests: Biodiversity

, http://canadaforests.nrcan.g c.ca/article/conservation.

31 The Federal Policy on Wetland Conservation was approved in 1991. The policy has raised the profile of wetlands in federal decision-making. By 1999, the Governments of Canada, Alberta, Saskatchewan, Manitoba and Ontario have wetland policies in place, while other provin ces use the federal policy or utilize other measures for wetland protection. See North American Wetlands Conservation Counc il (Canada), Wetlands and Government: Policy and Legislation for Wetland Conservation in Canada, Issues Paper No. 1999-1, published in partnership with Ducks Unlimited Canada and Environment Canada (1999), available at http://www.wetlandscanada.org/1999- 1%20Wetlands%20and%20Government.pdf.

32 Agriculture and Agri-Food Canada, Community Pasture Program , http://www4.agr.gc.ca/AAFCAAC/display-afficher.do?id=1298388156452&lang=eng (Mar. 10, 2011).

10Community pastures were created to protect native gr asslands and provide food for cattle. The

program has returned more than 145,000 hectares of poor-quality cultivated lands to grass cover. It currently encompasses in excess of 900,000 hect ares of productive ra ngeland. The summer grazing of livestock is used as a tool in the management of the marginal rangelands comprising the pastures. Many of these areas were establ ished in Saskatchewan, and the Saskatchewan government also started a provinc ial community pasture program. 33 Canada has also initiated federal, provincial and international initi atives for the protection of grasslands. 34

Increasingly, protected areas are being used for the prot ection of various ecosystems, including native grasslands. In 2011, the Wo rld Wildlife Fund (WWF) International awarded
Parks Canada with their Gift to the Earth aw ard, which “recognizes Park s Canada’s outstanding conservation achievements, including the recent dram atic growth of Canada’s system of national parks and national marine conservation areas.” 35 Within national parks, effort is directed at maintaining ecosystems in as natural a state as possible. For example, the Grasslands National Park of Canada, located in southwestern Sask atchewan, was establishe d in 1988 with FederalProvincial agreement to conserve, protect and pres ent a portion of the Prairie Grasslands Natural Region within a proposed park area. 36 It is Canada’s first national park established to represent the mixed-grass prairie. The lands acquired underthe Agreement include lands taken out of crop production, and Parks Canada continues to manage the Park, considering the impacts of crop production on neighboring lands, potential climate ch ange issues, and prot ection of wildlife. Opportunities remain for additional lands to be acquired under the terms of the FederalProvincial park establishment agreement.

From the 1970s to the 1990s, numerous protected areas were established by the provincial and territorial governments as well. 37 All of Canada’s ten pr ovinces have legislation that enables the designation of pr otected areas, including provinci al parks, ecological reserves, wilderness areas, and fish and wildlife sanctuaries. 38 These laws include protection of lands already under Crown ownership, but also the purchase of private lands. Use of these lands have

33 For example, the Saskatchewan Pastures Progra m (SPP) offers supplemental grazing to promote environmental and agricultural sustainability of marginal Cr own lands through good range land planning and forage management, see http://www.agriculture.gov.sk.ca/pastures.

34 See, e.g., Council on Environmental Cooperation, Grasslands: Toward a North American Conservation Strategy at xxii (2003), http://www.cec.org/Storage/50/4273_Grasslands.pdf.

35 WWF Canada, Parks Canada celebrates 100 years of world-class conservation and further protects historic grasslands (May 19, 2011), http://wwf.ca/newsroom/?9381/Parks-Canada-celebrates-100-years-of-worldclass-conservation-and-further-protects-historic-grasslands.

36 See Parks Canada, Grasslands National Park: State of the Park Report 2007, at 1 (2007), available at http://www.pc.gc.ca/eng/docs/bib-lib/docs5hi.aspx.

37 See Natural Resources Canada, The Atlas of Canada: Protected Areas Through Time

, http://atlas.nrcan.gc.ca/site/english/maps/environment/pro tectedarea/protectedareasthroughtime/1 (last modified Mar. 5, 2009).

38 See, supra n.13-15; see also Parks Act, R.S.Q. c. P-9 (Quebec); An Act Respecting the Conservation and Development of Wildlife, R.S.Q. c. C- 61.1; Natural Heritage Conservation Act, R.S.Q. c. C-61.01 (Quebec); Park Act, R.S.B.C. 1996 c. 344 (British Columbia); Ecological Reserve Act, R.S.B.C. 1996 c. 103 (British Columbia); Provincial Parks Act, R.S.N.L. 1990, C. P-32 (Newfoundland and Labrador); Wilderness & Ecological Reserves Act, R.S.N.L. 1990, c. W-9 (Newfoundland and Labrador); Wilderness Areas Protection Act, 1998 c. 27 (Nova Scotia); Provincial Parks Act, R.S. c. 367 (Nova Scotia); Parks Act, c. P-2.1 (New Brunswick); Protected Natural Areas Act, c. P-19.01 (New Brunswic k); Provincial Parks & Conservation Reserves Act 2006, S.O. 2006, c.12 (Ontario); Greenbelt Act 2005, S.O. 2005, c. 1 (Ontario).

11various restrictions on uses. Examples of prot ected areas that include native grasslands are Saskatchewan Landing Provincial Park in southw estern Saskatchewan; Prairie Coulees - South, Ecological Reserve in southeaste rn Alberta; Kennedy Coulee Ecol ogical Reserve in southeastern Alberta; Matador Grasslands Provincial Park in southwestern Saskatchewan; South Okanagan Grasslands Protected Area in British Columbia; and Lac du Bois Grasslands Protected Area in
British Columbia.

In addition, an increasing number of privat e lands are being cons erved, and there are a variety of economic and non-economic conservation and stewardship tools and approaches that are increasingly being used in Canada. For exam ple, provinces have enacted legislation enabling
the creation of conservati on covenants on private land. 39 In addition, both the federal and provincial governments offer fiscal incentives for donation of land for conservation purposes. For example, Canada’s Ecological Gifts Program offers significant tax benefits to landowners who donate land or a partial interest in land to a qualified recipient w ho will ensure that the land’s biodiversity and environmental heritage ar e conserved in perpetuity. The program was authorized by the Income Tax Act of Canada and the Taxation Act in Quebec, and is administered by Environment Canada. Over 140,500 hectares of wildlife habitat have been protected through this program. 40

These conservation measures not only restrictthe ability of agricultural lands to extend into these areas, but also repres ent the general goals of government to take measures to further maintain ecosystems in their natural state and rest ore other lands to their na tural state. It also increases public education regarding the importan ce of the various ecosystems in Canada and the potential impacts of land use change. Maintain ing these ecosystems against the pressures of urban development further promot e better utilization of existing la nds, rather than clearing new lands. This is consistent with the Petition, whic h, for example, outlines the substantial amount of summer fallow that may be available to meet any increased demand and the continued improvements in yield.

II. FEDERAL AND PROVINCIAL GOVERNMENT POLICIES PROMOTE
SUSTAINABLE AGRICULTURAL PRACTICE S, WHICH PROVIDE INCENTIVES
TO CONSERVE SENSITIVE ECOSYSTEMS AND BETTER UT ILIZE EXISTING
CROPLAND.

Canada has implemented a number of initia tives to promote sustainable agriculture practices. This includes efforts to increase c onservation on agricultural lands, which also leads
to better utilization of exis ting cropland. These practices fu rther support the findings in the

39 See, e.g., Alberta Land Stewardship Act, S.A. 2009, c. A-26.8, Div. 2 (Alberta); Conservation Easements Act, S.S. 1996, c. C-27.01 (Saskatchewan); The Conservation Agreements Act, C.C.S.M. c. C173 (Manitoba); Natural Areas Protection Act, R.S.P.E.I. 1988, c. N-2 (Pri nce Edwards Island); Conservation Easements Act, 2001, c. 28 (Nova Scotia); Conservation Easements Act, c. C-16.3 (New Brunswick); Conservation Land Act, R.S.O. 1990, c. C.28 (Ontario).

40 See Environment Canada, Ecological Gifts Program , http://www.ec.gc.ca/pdeegp/default.asp?lang=En&n=FCD2A728-1 (last modified July 5, 2011); see also Conservation Property Tax Exemption Act (Nova Scotia); Ontario Ministry of Natural Resources, Conservation Land Tax Incentive Program

, http://www.mnr.gov.on.ca/en/Business/CLTIP/STEL01_129881.html (last modified June 1, 2011)

.

12Petition that any increased need for crops as a result of biofuel producti on can be m et on existing
lands.

The Agricultural Policy Framework (A PF) (2003-2008) was a five-year federalprovincial-territorial ag reement developed in collaboration wi th the provinces and territories. 41 The APF’s environmental goals were to reduce agricultural risks and provide benefits to Canada’s water resources, soils, air and biodive rsity. Environmental programs and policies of
the Framework contributed to efforts to ensure the sustainable use and conservation of habitat in agricultural areas. Building upon these initiatives, Canada has now established the Growing Forward Policy Framework (2008-2013). 42

Since 2003 Canada has supported environmen tal farm planning (EFP) programs, through
which farmers enhance their environmental mana gement, assess the agri-environmental risks and benefits on their farm, and create an Action Plan to address risk(s). Canada has provided costshare incentive funding to farmers for adopting be neficial management practices, once an EFP has been developed. It is estimated that as of 2009 approximately a thir d of Canadian farmers have developed an EFP. The Agri-Environmen tal Risk Assessment initiatives will build upon the EFP program.

Another initiative under th e 2003-2008 Framework was Greencover Canada, a five-year initiative to help farmers increase perennial cover on farmland. Although the program ended on March 31, 2009, it helped producers improve thei r grassland-management practices, protect water quality, reduce greenhouse-gas emissions, and e nhance biodiversity and wildlife habitat. The program supported the conversion of environm entally sensitive land to perennial cover and encouraged shelterbelts, i.e., the planting of trees on farmla nd. Greencover Canada built on the Permanent Cover Program, which was establishe d in 1989, in which land marginal for annual cultivation and cereal pr oduction was converted to long-term forages.

Another program, the Prairie Shelterbelt Pr ogram, which is overseen by Agriculture and Agri-Food Canada (AAFC), provi des technical services and tree and shrub seedlings for establishment of shelterbelts and other agrofo restry, conservation and reclamation projects on agricultural and eligible lands in Manitoba, Saskatchewan, Alberta and in the Peace River region of British Columbia. Tree and shrub seedlings ar e provided to eligible landowners at no charge as an incentive to adopt bene ficial management practices a nd environmental stewardship.

As outlined in the Petition (at 10-11), total agricultural lands have been stable in Canada,
and neither the United States’ renewable fuel stan dard nor Canada’s renewable fuels regulations are expected to bring new land into production in Canada. Rath er, increased production in the existing agricultural land base and increased productiv ity gains are expected to make up the

41 See generally Agriculture and Agri-Food Canada, Overview of the Agricultural Policy Framework

, http://www4.agr.gc.ca/AAFC-A AC/display-afficher.do?id=1183142019494&lang=eng (last modified June 29, 2007); see also, e.g., Manitoba, Agricultural Sustainability Initiative

, http://www.gov.mb.ca/ag riculture/growingforward/gf_pro grams/aaa19s13.html; Manitoba, Agri-Extension Environment Program , http://www.gov.mb.ca/agri culture/growingforward/gb _programs/aaa19s14.html.

42 See generally Agriculture and Agri-Food Canada, Growing Forward Agricultural Policy Framework

, http://www4.agr.gc.ca/AAFC-A AC/display-afficher.do?id=1200339470715&lang=eng (last modified July 25, 2011).

13difference. Better m anagement practices and conservation of these lands, while providing environmental benefits, also improves the util ization of existing croplands. For example, agronomic benefits of shelterbelts include reduced soil erosion by wind, increased moisture for crop growth (e.g., through snow trapping and re duced moisture loss through evaporation), potential for increased crop yields, and reduced wind damage to crops. 43

III. LAND USE PATTERNS EVIDENCE THE EF FICACY OF THE CANADIAN LAWS
AND POLICIES AND THEIR ENFORCEMENT.

Much of the restrictions on expansion of agricultural lands has been due to geographic conditions in Canada, but also th e fact that national and provinci al laws and policies regarding public land use and forest management provide a dditional restrictions on land use conversion. As outlined above, public and forest lands are largely managed by the federal, provincial and territorial governments. Any agricultural lands within these areas are designated, and land use management requirements ensure that they are suit able as agricultural lands and that sustainable development and environmental conservation issu es are considered (including climate change impacts). Thus, agricultural la nds have largely been limited to private lands, which make up only 11 percent of the land base in Canada. Th ese laws generally have criminal penalties associated with violations, and, in 2009, Canada passed a law increasing the applicable penalties and providing for administrative pe nalties to improve enforcement. 44 Evidence of the efficacy of the laws and policies in place in Canada that w ould tend to restrict expansion of agricultural lands and the clearing of new lands, particularly forestland and other sensitive ecosystems, is that land use in Canada has remained relatively stable for decades, particularly since the 1990s when many of the above-listed international obligations and national/pro vincial strategies were first implemented or strengthened ( see Petition at 20, Appendix 1, Figure 2 and Figure 3).

Regarding laws and policies against deforest ation, Crown forested lands and forest cover generally in Canada has remained largely cons tant with minimal land use change. Forest conversion due to agriculture expansion has be en reduced since the introduction of these policies. Less than 1% of Canadian forests ar e harvested annually. In addition, Canada uses certification systems as tools to demonstrate that forestry practices and forest products meet sustainability criteria. The certification progr ams used include: (a) Canadian Standards Association’s Sustainable Forest Management Standard; (b) the Forest Stewardship Council Standards, and (c) the Sustainable Forestry In itiative. As of December 2009, Canada had 142.8 million hectares of certified forests, which is the largest area of third-party independently certified forest in the world. According to th e Forest Products Associ ation of Canada, this

43 See Agriculture and Agri-Food Canada, The Effects of Shelterbelts on Cropping and Tillage Practices

, http://www4.agr.gc.ca/ AAFC-AAC/display-afficher.do?id=1199732592259&lang=eng (last modified May 18, 2011); Agriculture and Agri-Food Canada, Increasing Crop Yield with Shelterbelts , http://www4.agr.gc.ca/AAFCAAC/display-afficher.do?id=1192546880508&lang=eng (last modified Feb. 11, 2011).

44 See supra n.29. The Environmental Enforcement Act was passed largely at the request of Environment Canada based on findings that the current fine structure in many of Canada’s environmental laws is out of date, and to provide stronger deterrents for environmental offenses, largely with respect to corporate offenders. See Legislative Summary of Bill C-16: Envir onmental Enforcement Act-ls636e (2009), available at http://www.parl.gc.ca/About/Parliamen t/LegislativeSummaries/Bills_ls.asp? lang=E&ls=c16&Parl=40&Ses=2&sour ce=library_prb. Enforcement efforts are being stepped up, including increasing budgets for agencies for
enforcement actions. Id.

1415 amount increased to over 151 million hectares by the end of 2010. 45 In 2011, the Canadian forest industry and nine leading environmenta l groups (e.g., Greenpeace) signed the Canadian Boreal Forest Agreement (CBFA). The CBFA, whic h applies to 76 million hectares or 2/3 of all certified forests in Canada, is a historic agreemen t that protects a signifi cant portion of Canada’s boreal forest while certifying sustainable forestry products.

Regarding policies for increased sustainable ag riculture, there is substantial evidence that these policies are being e ffective. Due to an increase in c onservation practices such as seasonal wetlands, riparian buffer lands, and grassed waterways, it is estimated that agricultural lands held in conservation have increased since 2001 ( see Petition at 19, Appendix 1, Table 4). In addition, over the past 30 years a concerted effort ha s been made toward continuous cropping which, coupled with conservation or zero tillage pr actices, has converted more acres away from unproductive summer fallow and into sustainable production, consequently decreasing the need for new cropland.

Finally, Canada currently has approx imately 8,500 protected areas, representing approximately 9.9% of its land base - almost one-fifth more than it had in 2000 and almost double what existed in 1990. In addition, Canada plans to expand these areas to 17% of the land
base. More than 31 million hectares of forest and other wooded land in Canada are currently within these protected areas. Within that 31 million hectares, more than 23.5 million hectares (75%) of Canada’s protected forest and other wooded land are consideredstrictly protected—an
increase of 78% since 1990. 46

The stable land base and increased focus on ma intaining ecosystems in their natural state provide additional evidence that the legal and other constraints on land use will restrict the ability to expand agricultural lands to “new” areas.

IV. CONCLUSION

The foregoing provides key examples of the na tional and provincial laws and policies to support the Petition for an aggregate compliance approach for Canada. These include policies that promote sustainable agricultural practices; protection and management of public lands; and sustainable development and protect ion of forests. Based on lega l restrictions on use of public lands, long held national policie s concerning land management and sustainability, increased promotion of conservation measures, pressure s on agricultural lands from development, geographic limitations, and economic considerati ons, farmers in Canada continue to pursue sustainable agriculture practi ces and increased yields to meet demand. The Petition, as supplemented by the above, provides sufficient in formation to support an aggregate compliance approach for Canada. Moreover, the evidence befo re EPA is that increased biofuel production in
the United States and in Canada will not have an adverse impact on land use, and the record establishes that an aggregate compliance approa ch for crops and crop residue from Canada is
more than warranted.

45 Certification Status - Canada and the globe: Statistics, http://www.certificationcanada.org/english/status_intentions/status.php; see also Attachments on Certification of
Forests.

46 See Attachments [(maps of protected areas)].