West Coast Environmental Law Research Foundation Newsletter

Is The CORE Process Fair?

In August, West Coast Environmental Law Association sponsored a workshop for the conservation sectors participating in CORE to share their knowledge and experience, and develop common strategies for effective participation in CORE. The sectors shared a number of concerns about the fairness of the CORE process. Given the recent failure of the Vancouver Island regional table to reach consensus, we offer this summary of the workshop's key concerns about the CORE process:

1. The Availability of Information and Time Deadlines:

The most serious problem expressed was the inadequacy of the time left in the CORE process to deal with substantive as opposed to process issues. Having spent three-quarters of the original 18 month mandate discussing process, the tables were expected to reach agreement on the real, substantive issues in a fraction of that time. Not only did the sectors need better technical information on substantive issues; they weren't being given sufficient time to properly analyze and formulate positions on complex issues like environmental indicators and protected areas scenarios.

This situation raises an important question about the fairness of the CORE process. The principles of natural justice and procedural fairness provide a clear guide for judging the fairness of an administrative tribunal process, but no such principles have yet evolved for evaluating consensus decision making. Meaningful participation requires that participants be given adequate time to digest and respond to the substantive issues that arise as part of the planning process. Otherwise, the process becomes one of co-optation rather than direct democracy.

2. The Relationship Between the Local, Regional and Provincial Levels of CORE:

Conservation representatives at all levels of CORE were uncertain as to the relationship between the local and regional plans, and the proposed provincial land use strategy. Workshop participants could only speculate as to how the provincial strategy goals will be integrated with the local and regional plans, given that the latter are scheduled for completion long before the provincial strategy. Can the local and regional plans be reopened at a later date on the basis that they are inconsistent with the provincial goals? It is not surprising that people who have devoted themselves for more than a year to developing a local or regional plan are experiencing a sense of humour failure at the prospect that these plans may be subject to changes beyond their control. Alternatively, participants in the provincial strategy process questioned devoting time to developing land use goals with little or no application to land use decision making at the local and regional level. To continue with the process in the expectation that the local and regional plans will independently arrive at a product that is consistent with the future land use goals is more an act of faith than an exercise in planning.

3. The Relationship Between CORE and other Processes Affecting Land Use:

There is a sense among the conservation groups that the hard work that is being done through CORE may be rendered redundant by parallel land use processes currently in progress, namely, the Local Resource Management Plans (LRMPs), the Protected Areas Strategy (PAS), and review of the Forest Practices Code. The CORE tables can still make recommendations to Cabinet different from those arrived at through these other processes, but the decision of Cabinet to conduct a range of competing processes brings into question the commitment of Cabinet to abide by any one of them. Many of the conservation participants wonder are we in the right place? Is participation in CORE the most effective use of our limited time and resources? Or should we be preparing for business as usual and lobbying the Government directly?

4. The Approach to Protected Areas -- Ecosystem Representation or 12%:

The conservation groups were united in their opposition to the use of a percentage to determine how much land in the Province is dedicated to protected areas. From an ecosystem perspective, the use of a percentage is patently illogical. There needs to be a holistic approach to capture wildlife habitat. As far as the conservation sectors were concerned, the 12% approach bandied about in other processes has no application to the CORE process.

Message to Stephen Owen

These concerns were presented to Stephen Owen in a letter prepared by West Coast, including the following demands:

1. More time for the regional tables to deal with substantive issues before the integrity of the process is completely sacrificed to expediency;

2. Adequate information for dealing with substantive issues, available in enough time to be used effectively;

3. Better coordination between the levels of CORE, and with other land use processes, such as the LRMPs and the PAS, and

4. Evaluation of protected areas on an ecologically sound basis, including GAP Analysis.

Stephen Owen has told us that he is consulting with his staff regarding these concerns, but actions speak louder than words. If steps are not taken to address the inadequacy of the CORE processes, a failure to reach consensus may be a self-fulfilling prophecy at all of the regional tables.

Report on the Trans-boundary Agenda Conference on Wetlands:

On September 24-25, 1993, the Fraser for Life Communications Society and the Washington Wetlands Network sponsored a Wetlands Conference in White Rock, B.C. The Conference provided environmental groups on both sides of the border with an opportunity to exchange information and learn from each others' experiences in wetlands protection. The Conference culminated in workshops that focused on the design and implementation of a wetlands strategy for B.C. What follows is a summary of the discussions that came out of the legislation workshop.

Developing A Wetlands Strategy

The first step in developing a wetlands strategy is to conduct a provincial wetlands inventory, and evaluate the gaps and deficiencies in existing wetlands protection. It will also be necessary to classify wetland resources and set priorities, so that limited resources are targeted at preserving wetlands of high ecological significance first.

Roles and Responsibilities

The workshop members agreed to assign the responsibilities to each level of government as follows:

The federal government should develop a set of guiding principles that establish the core values that must be achieved by provincial wetland protection schemes.

The province must develop a designation scheme based on the inventory study, in consultation with other levels of government and the public. It must also develop a set of mandatory goals, in the nature of the Oregon planning goals. The utility of establishing uniform standards for the province is that it removes the incentive for local governments to engage in a "race to the bottom" by competing for development funds through offering lax implementation of wetlands proection standards.

Municipalities should be required to submit their community plans to the province to ensure consistency with the province-wide goals. The utility of the goals, compared to the incremental approach taken in Washington State, is that it will establish a uniform standard for the province, and prevent implementation by local governments from becoming a "race to the bottom" as they compete for development funds by whittling away at wetland protection standards.

While provincial land use goals will limit the traditional independence of local government, the latter should be given the flexibility and resources to decide how they will achieve these goals within their community. It will be necessary to persuade municipalities of the value to them of having an even playing field.

Regulatory Tools

The workshop members identified a number of tools and procedural requirements that should become features of the wetland regulatory process:

(a) Wetlands regulation should be integrated with the land use permitting process to avoid imposing a regulatory maze on the land owner/developer;

(b) Clear deadlines for processing permits should be established to preempt complaints by developers about uncertainty;

(c) The wetlands designation scheme must be simple, easy to understand, and clearly state what you can and what you cannot do in each designated area (along the lines of the colour coded map developed by the Department of Fisheries for the Fraser Basin);

(d) Tax and other financial incentives should be made available to private land owners to provide an incentive for preserving wetlands, and to developers to comply with wetlands protection standards; and

(e) Municipalities should be encouraged to use their regulatory powers in creative ways to enhance wetlands preservation, e.g. cluster housing, development transfer rights, and conservation covenants.

Enforcement

The workshop participants made several suggestions about enforcement features that should be made part of any legislative initiative:

(a) A civil suit mechanism to allow enforcement by private citizens;

(b) Administrative penalties; and

(c) A statutory form of the public trust doctrine that would apply to wetland resources.

Legislation

The workshop participants agreed that the choice between pursuing stand alone legislation or inclusion under existing or proposed legislation, like the Water Act, the Commission on Resources and Environment (CORE) provincial land use strategy, or the Protected Areas Strategy (PAS) had to be based on political realities. It is the provincial government that has primary jurisdiction and must play the lead role in legislating a wetlands protection scheme. However, it is unlikely that the province will add separate wetlands legislation to its agenda in the near future, in addition to revision of the Water Act, PAS and CORE. In the short term, it may be advisable to focus on: (1) developing a wetlands strategy that is comprehensive in substance and yet offers flexibility at the implementation stage, (2) cultivating political and bureaucratic support for a wetlands protection strategy, and (3) assisting government by showing how wetlands protection dovetails and may be implemented along with other government law reform.

Conclusion

In general, the proposals that came out of the legislation workshop favored a wetlands protection system modeled after the Oregon approach, based on state-wide policy standards, rather than the Washington approach, which requires case-by-case determination. A major obstacle that might arise in B.C. is resistance from local governments to interference with their traditional control over local land use. To successfully implement the Oregon approach in B.C. will require strong political commitment on the part of the provincial government.

Legal Protection of Wetlands: Lessons from Ontario and Alberta

As stewards of 24% of the world's remaining wetlands, Canadians have a special obligation to ensure that the alarming rate of destruction of wetlands is halted. Indeed, Canada committed itself to this agenda by signing the 1992 Convention on Biological Diversity. But the gap between words and actions is enormous. Wetlands in B.C. have almost no legal protection. At the provincial level, the Ministry of Environment is in the process of developing an informal policy on wetlands, but nothing has been adopted by Cabinet. At the federal level, the only legally enforced regulation in place is the Department of Fisheries and Oceans' "no net loss of wetland functions" guideline used to protect fish habitat. Even within this limited mandate, implementation of the policy has been unsatisfactory. Clearly this situation cannot be allowed to continue.

Net Loss of Wetland Functions

Several jurisdictions in Canada and the U.S. use the "no net loss" standard as a basis for wetlands policy. To put the B.C. situation in context, we will briefly review the policies developed in two provinces -- Alberta and Ontario -- to see how they measure up to a key concept of wetlands preservation: "no net loss".

Ontario's Legal Protection of Wetlands

In May of 1992, the Ontario Government adopted the Wetlands Policy Statement, and required municipalities to incorporate the document into their planning principles. The Ontario policy has two significant goals: (1) to ensure that wetlands are identified, and adequately protected through the land use planning process and (2) to achieve no loss of Provincially Significant Wetlands. The second goal, to achieve no loss of Provincially Significant Wetlands, goes beyond the commonly accepted standard of "no net loss" of wetlands. Ontario recognizes that significant wetlands should be left intact. Wetlands have been seriously depleted in many regions to the point where the real goal of many groups is a net gain in wetlands through restoration. To this end, development is restricted on land adjacent to Provincial Significant Wetlands, and is only permitted if it does not result in:

(a) loss of wetland functions;

(b) subsequent demand or future development which will negatively impact on existing wetland functions;

(c) conflict with existing site-specific wetland management practices; and,

(d) loss of contiguous wetland area.

To show that the development will not have any of these undesired side effects, the proponent of any development must prepare an environmental impact statement.

Several other Ontario statutes affect wetland protection, including: the Conservation Authorities Act, which requires permits for certain water related activities, the Lakes and Rivers Improvement Act, which regulates the approval of dams, the Public Lands Act, which requires a permit for filling land, the Ontario Water Resources Act , which prohibits water pollution and the taking of water without a permit, and the Endangered Species Act which prohibits the destruction and interference with wildlife habitat. Unfortunately, the Act relies on convictions for enforcement, and does not permit stop work orders to halt development. Agriculture is still a competing force. For example, the Drainage Act assists farmers to drain their land.

The Canadian Environmental Law Association supports the Wetlands Policy Statement as a marked improvement over previous policies, while still advocating a wetlands-specific statute to provide comprehensive long term protection for all Ontario wetlands.

Alberta's Legal Protection of Wetlands

The policy for wetlands management in Alberta is currently under review. The government has produced an Interim Policy for wetlands management in the settled areas of the province, and a draft policy for managing peat lands and Non-Settled Area Wetlands. Neither of these policies contemplates major changes in the existing legislation governing wetlands. Historically, many Alberta laws have encouraged drainage of wetlands to allow for agricultural and urban development.

Alberta's current protection scheme varies significantly from the Ontario policy. Neither policy mentions no net loss of wetlands. The overall goal for wetlands in both the settled and non-settled areas is to sustain the social, economic and environmental benefits that functioning wetlands provide, now and in the future, but there is no specific performance standard by which to determine whether this goal is being achieved; and there is no specific statutory mechanism to ensure that wetland conservation is considered in municipal planning decisions, as in Ontario.

No single agency has responsibility for managing wetlands in Alberta. More than 40 statutes directly or indirectly affect wetlands, and these statutes are administered by at least 14 agencies. The primary vehicles for wetlands protection are: the Water Resources Act, which prohibits diversion or use of water without a license or permit issued under the Act, including conservation licenses; the Department of the Environment Act, which allows for the establishment of water conservation areas; and the Wildlife Act, which prohibits interference with the habitat of endangered species. As in Ontario, traditional land preservation techniques, such as park creation, that are potentially useful for wetlands protection are in practice used only for more remote wilderness protection.

Some of the defects with the current and proposed policies in Alberta include:

• no comprehensive goal of no net loss of wetlands;
• no statutory basis for wetland protection since the policies do not have to be implemented by administrators;
• fragmented administration of wetlands among so many agencies and under such a wide variety of statutes;
• administrators' reluctance to deny drainage applications if the project is technically sound, due in part to no explicit regulatory requirement to consider potential effects of the drainage project on wetland values; and
• unjustified deference to private property rights, despite the fact that landowners likely have either limited or no property rights allowing them to drain their land at wilLI>

Lessons for B.C.

There are several lessons B.C. can learn from an examination of the situation in Ontario and Alberta. First, B.C. needs a specific policy. Developing a written policy will raise the profile of wetlands protection and require all levels of government to ensure that wetlands are not forgotten. Second, the policy should be based on a classification system that identifies all provincial wetlands and ranks them according to their ecological significance. Third, anchoring the policy in a specific law requiring local governments to address wetlands protection in their planning processes is likely to achieve a higher degree of protection than Alberta's non-statutorily based policy. Finally, the policy should provide a statutory goal of "no net loss of wetland functions". Creating a specific law and policy in B.C. would give the public additional necessary tools to help preserve wetlands.

Conference on Private Conservancy: January 13, 1994, in Edmonton

Through private conservancy, private land is set aside forever for conservation purposes. The Environmental Law Centre (Alberta) is holding a one-day conference, which is an opportunity to find out more about private conservancy, including current legal requirements, implications, and advantages and limitations of private conservancy. The conference will be of interest to lawyers, representatives of NGOs, land-use planners, and government representatives. Call the ELC at (403) 482-4891 to register; conference cost is $75 before December 15, $85 after that date.