West Coast Enviornmental Law
Research Foundation
NewsletterWest Coast Enviornmental Law
Research Foundation
NewsletterCORE, the B.C. Commission on Resources and the Environment, has been busy. It is active on three fronts: provincial, regional and local. The government hopes CORE will put an end to "valley-to-valley" conflicts over land use.
Designing a province-wide strategy on land use is CORE's final goal. To this end, CORE published a draft land use charter for British Columbia in August of this year. CORE is also reviewing the current land use policies of all government departments, the first time this information has been collected! Goals from other places on issues such as urban containment, wetlands conservation and coastal management are being collected. CORE will produce a comprehensive set of goals and policies for land use in B.C., after consulting with a large group of interested stakeholders, likely in the Spring.
The most prominent CORE activities right now are the three regional processes, which will attempt to resolve what CORE staff refer to as the "whether to" questions: whether to log, whether to preserve, or whether to maintain the status quo. The three regions are Vancouver Island, the Cariboo/Chilcotin and the Kootenays. Results from these three areas will provide fodder for the meta-level of planning required for the land use strategy for the entire province.
CORE gathers representatives from various sectors with a stake in land use disputes to meet at a negotiating table to work out consensus decisions on how to use land in their regions. One person is supposed to represent each sector in the shared decision making process. Many sectors have formed steering groups to give the chosen representative input from diverse parts of the sector. The "table" as a whole designs the negotiating process. Results from each process will be reported to Cabinet, which can then act on the recommendations or not.
Vancouver Island is the farthest along of the regional processes. On the Island, 12 sectors have been identified: recreation, forest industry manufacturers and managers, conservation, forest employment, forest industry independents, provincial/federal government, aboriginal government, local government, fisheries, tourism, mining, and youth. The Island's conservation steering group is made up of people from six groups. One spokesperson has not yet been chosen. The first meeting of the table took place on November 27th and November 28th in Parksville. By the end of January 1993, the process design process phase should be completed. Negotiations will then take place. By August 1993, Stephen Owen, CORE's Commissioner, hopes to make recommendations to Cabinet on the results of the Vancouver Island negotiations.
The first meeting on designing the process was held in 108 Mile House on December 5 and 6. The next meeting is scheduled for January 8 and 9, 1993.
The first meeting of the parties will be held in Creston on January 23 and 24.
The third level of CORE activities focuses on five pilot projects. These include the Anahim Lake Roundtable, Slocan Valley Process, Lake Cowichan Community Resources Board, Howe Sound Round Table and the Todd Inlet Process. Each of the pilot projects addresses, to use the Commission's lingo, the "how to" decisions. Once a community has decided whether to allow urban development, logging, or other activities it must decide how to make these decisions. Each of the five pilot projects is expected to provide valuable information about how shared decision making works.
This province-wide experiment provides "a window of opportunity" for polarized groups to resolve their differences. CORE is trying to make its process as transparent and inclusive as possible. Ultimately it is up to citizens of this province to make sure the government follows through with any recommendations CORE makes.
While there is a lot of support for this innovative negotiation, environmentalists are still concerned about several issues. It is imperative that interim protection of threatened areas be included in the process. If industry can "talk and log", environmentalists see no reason to participate. Another important issue is the "level playing field". CORE has discouraged sectors from hiring lawyers to represent them, but both the provincial/federal government and the forests manufacturers sectors in the Vancouver Island process are represented by highly paid lawyers. This issue must be addressed. For more information see the article on CORE funding on the next page.
CORE is committed to funding the shared decision making processes to ensure that no structural or financial barriers prevent balanced representation. Stephen Owen has long been an advocate for participant funding to ensure equity in representation.
Since a province-wide government participant funding strategy has not yet been adopted, CORE has been forced to prepare its' own interim policy on participant funding. The amount of funding has disappointed many environmentalists.
The Commission is committed to funding the administrative costs relating to assessment, orientation and convening of parties as well as facilitation, data collection and expert analysis. Sectors are expected to cover the cost of ensuring effective representation of their interests. If a sector does not have sufficient resources to effectively represent its' interests, it will be eligible for participant assistance from the government. All assistance is given in response to specific requests based on need.
The participant assistance policy reimburses actual expenses. CORE will pay for travel expenses up to BCGEU rates. Remuneration to compensate for forgone income for representatives at up to $175.00 per day will be available where individuals would experience hardship and there is a clear inability of the sector to assist. Sectors can choose whether to distribute the money to a sector spokesperson "at the table" or among the spokesperson and the steering group members.
Criteria for funding requests established by the Commission include: need; a demonstration of efficient and effective use of assistance; demonstrated commitment; the willingness to unify like interests within a sector; and, financial accountability.
A notable omission from the participant assistance policy is money for coordination of the groups, research or other activities required "away from the table" and expert assistance. WCELA has pressed CORE to make money available for these other important activities.
WCELA initially urged environmental groups applying for the Environmental Dispute Resolution Fund (EDRF) for CORE processes to make their requests directly to CORE. WCELA believes that the primary responsibility for funding this crucial process rests with government, particularly a government that has long been an advocate of effective public participation. We continue to urge the government to make more money available.
However, since it is clear that CORE's funding will be insufficient and that time is short, the EDRF will now provide secondary funding where the applicant has already used its best efforts to obtain sufficient funding from CORE and other sources. Because of WCELA's mandate and the source of our EDRF from the Law Foundation of B.C., half of the funds that WCELA can make available to environmental participants will be for hiring a private lawyer on a reduced fee basis. Lawyers can provide legal advice on land use law and policy in British Columbia, including advice on issues that may arise such as tenure reform, compensation for expropriation, and comparisons with laws from other places that have dealt with these issues. Lawyers can also provide negotiation strategy advice. Negotiation has long been one of the skills used by lawyers to resolve conflicts between their clients and others.
A limited amount of EDRF money is available to the steering groups for sectors with primarily environmental goals. Our fund is limited as well: the more sectors that are funded, the less that will be available to each individual sector. An application form and criteria for funding will be available by January 4, 1992.
For more information, please contact Linda Nowlan at WCELA.
The multistakeholder committee developing recommendations for regulations under the new Canadian Environmental Assessment Act took several key steps forward at a meeting in Ottawa on Oct. 27 & 28.
After months of negotiations, the committee approved five criteria for determining which provisions of federal statutes and regulations should be put on the "law list." Provisions on the law list trigger environmental assessment when they are used by the federal government to allow a project to proceed (such as approval under the Navigable Waters Protection Act.) (Assessment will also be triggered if a project has a federal proponent, uses federal land or gets federal money.)
Four Triggers For Assessment Under CEAA:
1. Federal Proponent;
2. Federal Money;
3. Federal Land;
4. "Law List"
The government had originally proposed some 180 statutory provisions for the law list, but environmentalists' proposals brought the number to 972. The law list subcommittee must now examine each proposed addition to the list and bring recommendations back to the next committee meeting in December.
The committee also made decisions on about one third of the proposed items on the "comprehensive study" list (CSL) -- a list of types of projects which, IF assessment is triggered, must by given more thorough review than would occur in a routine screening. Projects on the CSL also require public notice and an opportunity to comment on the assessment. In addition, the minister of the environment -- rather than the minister of the responsible authority -- decides whether the project should go to a panel or mediation following the comprehensive study.
In the defence area, for example, the committee decided to recommend that comprehensive study apply to the decommissioning of military facilities or designated military areas, the testing of weapons or defence systems, and low-level military flying.
There are two types of projects covered by the new Act. Physical activities ("undertakings") that ARE "in relation to a physical work" are assessed automatically if a trigger occurs. But physical activities NOT in relation to a physical work are assessed only if they are on the inclusion list (and a trigger occurs). The distinction between the two types of projects has been -- and will likely continue to be -- the subject of much debate.
While examining the CSL the Committee also decided that various activities "not relating to a physical work" should be on the "inclusion" list, meaning that they will be assessed if a trigger occurs. High profile proposed additions to the inclusion list include the porting of ships carrying nuclear (or "unspecified") weapons, and the movement or testing of nuclear powered ships. If this proposal is accepted, and a trigger occurs, these activities would receive either screening or, if they are also on the CSL, a comprehensive study.
"Project" =
(a) any proposed construction, operation, modification, decommissioning, abandonment or other undertaking in relation to a physical work or
(b) any proposed physical activity not relating to a physical work, listed on the inclusion list
Environmentalists at the meeting urged the government to devote more resources to the development of "public registries" of environmental assessment information, required by the Act in order to foster public participation. The current proposal by the Federal Environmental Assessment Review Office (FEARO) calls for the creation of a central, computerized index of `bare bones' information about all federal environmental assessments and the location of the documents associated with each assessment. But WCELA is concerned that unless federal agencies quickly set up proper information systems the registries will not ensure "convenient public access" to the documents.
The Act has been passed by Parliament, but it will not be proclaimed in force until four regulations (law list, comprehensive study, inclusion and exclusion) are approved and the public registries are established. The current schedule calls for publication of draft regulations in late February, followed by 60 days for public comment, and proclamation of the Act by June 1, 1993.
The committee includes members from industry, environmental groups and law centres, aboriginal organizations, provincial governments and FEARO. The committee makes recommendations to the federal Minister of Environment. Final decisions on the content will be made by cabinet.
Environmental input into the committee is coordinated by the Environmental Assessment Caucus (contact Richard Goulay, phone 613-236-7379). For B.C. information contact Bill Andrews of WCELA (phone 604-684-7378). The next issue of the WCELRF Newsletter will review the December meeting.
More and more conservation efforts are going into the protection of private, rather than publicly owned, land. While the law about private property is currently not designed with conservation in mind, some possibilities exist.
West Coast Environmental Law Research Foundation, with funding from the Real Estate Foundation of BC, is preparing a manual of currently available legal tools for the preservation of private property, ranging from outright purchase to leases to covenants, along with a discussion of when you would want to choose which tool. The report is scheduled for release in May 1993.
We want to include a resource list of organizations which are currently involved in protecting private land, so that people will know who to call for shared experiences.
Let people know what you are doing to protect privately owned land! Send a brief description of your organization, its aims, what kinds of private land you are trying to protect, and what legal tools you have used -- successfully or otherwise -- to West Coast Environmental Law Research Foundation, attention: barbara findlay. Include a contact phone number; barbara will be in touch with you. We are also interested in black & white photos of land that has been protected, or that your group is working on protecting, to include in our report.
We are pleased to announce that the popular Using Conservation Covenants to Preserve Private Land in British Columbia, the sister volume to Here Today, Here Tomorrow, has been reprinted and is now available. Copies may be obtained from our office for $10 plus $2 for postage. We are grateful to the Pacific Estuary Conservation Program for partial funding of this reprint.
The next step toward new environmental assessment legislation in B.C. is the upcoming release of a "white paper," according to environment minister John Cashore.
The legislation was to have been introduced following a report by MLA Dale Lovick on a 'round-the-province consultation tour he completed in May. But many people told Lovick -- and he recommended -- that any new provincial environmental assessment legislation should apply to a broad range of projects and activities. His report mentions forestry, urban development, oil and gas exploration, placer mining, aquaculture, agriculture and major highway development. This sparked concerns from the government agencies responsible for these areas, and the legislative proposal was sent back for review by an interministerial committee.
To request a copy of the white paper when it is released, contact the B.C. Ministry of Environment (phone 604-387-5202).
WCELRF Newsletter, copyright 1992, is published by the West Coast Environmental Law Research Foundation. This issue was produced by Bill Andrews, Morgan Ashbridge, Benita Bellrichard, Ann Hillyer, Kelly Lamorie, Catherine Ludgate, Linda Nowlan and Denice Regnier. Subscription information is on page 3. The cartoons on pages 1 and 2 of the original are copyright of Don Monet. WCELRF does research and education and maintains an environmental law library. The West Coast Environmental Law Association provides legal representation and promotes law reform. The mission of WCELRF and WCELA is to provide legal services to protect the environment and to foster public participation in environmental decision-making. We are grateful to the Law Foundation of British Columbia for core funding of the West Coast Environmental Law Association and West Coast Environmental Law Research Foundation. Donations to WCELRF are tax creditable.
WCELRF, 1001 - 207 West Hastings, Vancouver, BC, V6B 1H7, Canada.
Phone (604) 684-7378; fax (604) 684-1312.