West Coast Environmental Law
Research Foundation
NewsletterWest Coast Environmental Law
Research Foundation
NewsletterOn September 15 the province announced its decision to shelve the majority of the Environmental Bill of Rights provisions in the upcoming British Columbia Environmental Protection Act (BCEPA). BCEPA, under development for some time, is still in draft form and is scheduled to be introduced during the 1995 legislative session. It will replace the existing Waste Management Act, as well as other environmental acts. BCEPA as a whole is intended to move the emphasis of environmental protection from controlling pollution after it is created to preventing pollution from occurring in the first place.
The announcement to delay the Environmental Bill of Rights provisions of BCEPA signals a significant step backwards in the development of the type of provincial environmental legislation needed for modern society. The proposed Environmental Bill of Rights contained a number of innovative provisions aimed at improving the public's role in environmental protection. These provisions included the right of every resident of BC to a healthy environment, together with the duty of the provincial government to conserve and protect the environment as trustee (the public trust doctrine), and the right of the public to bring a civil action against a party who has caused an adverse effect on the environment, unless that party was authorized to do so by a permit or regulation (the civil cause of action). Specifically, the Environmental Bill of Rights provisions that were dropped, at least temporarily, are: anti trust doctrine; the civil cause of action and some related provisions; transboundary pollution rights; and whistleblower protection.
Two other provisions, one giving the public the right to apply for an investigation of an environmental violation and the other setting up a mechanism for mediation of certain environmental disputes, have been saved by being moved to other parts of BCEPA.
West Coast Environmental Law Association Staff Counsel Ann Hillyer has been participating, with a number of other environmental organizations, in the consultation processes connected with BCEPA. In light of the announcement to shelve the Environmental Bill of Rights provisions of BCEPA, WCELA is pressing the province to do the following:
Now is the time to let Environment Minister Moe Sihota and Premier Mike Harcourt hear our concerns about the Environmental Bill of Rights and BCEPA as a whole. They need to know that the BC public wants strong environmental protection, including effective measures for the public to participate in protecting the environment.
WCELA has made a number of other recommendations for strengthening BCEPA prior to its enactment. For a complete copy of our brief, call us at (604) 684-7378.
-- Ann Hillyer
Public interest environmental law groups from across the country have pointed out the weaknesses in the federal government's Draft Canadian Biodiversity Strategy, produced this summer as required by article 6(a) of the Convention on Biological Diversity. The coordinated response from seven environmental law groups, including WCELA, was spearheaded by the Canadian Institute for Environmental Law and Policy. The response criticizes the government's plans for implementing the Biodiversity Convention.
Loss of biodiversity continues to be one of the most urgent environmental problems of our time. Noted biologist E.O. Wilson has said that failing to stop the accelerating rate of species extinction is the one sin our children will not be able to forgive us. In response to the grave threat posed by loss of habitat and extinction of species throughout the world, the Convention on Biological Diversity was signed at the Rio conference in June 1992. Canada was proud to be the first signatory of the convention and ratified it quickly in December 1992. The Convention came into force in December 1993.
While recognizing the sovereign right of countries to exploit their own resources pursuant to their own environmental policies, the Convention nonetheless imposes wide ranging obligations upon its signatories. Each of the contracting parties must develop a national strategy for conservation and sustainable use of biological diversity. The Convention requires countries to identify and monitor activities which are likely to have significant adverse impacts on conservation and sustainable use. All of the contracting parties are also required to:
Of particular note is the requirement of article 8(k) to "develop or maintain necessary legislation and/or other regulatory provisions for the protection of threatened species and populations."
This summer the federal government released a Draft Canadian Biodiversity Strategy. The Strategy discusses the problem of biodiversity, and outlines how the government is already complying with the Convention or plans to comply in the future. For example, the discussion on protected areas lists Canada's ten world heritage sites, six biosphere reserves and thirty Ramsar Sites (wetlands critical to the survival of wildlife). As an example of the fulfillment of the obligation to integrate biodiversity into land use planning, the Strategy cites the CORE process in BC.
While the government is to be commended for its quick action in signing and ratifying the Convention, and producing this Strategy, the serious deficiencies in the Strategy pointed out by the response from the environmental law groups must be addressed. The main problem is that the recommendations in the Strategy are too general and do little to give a concrete sense of what must be done to meet Canada's responsibilities under the Convention. The Strategy does not talk about any new legislation required to protect threatened species, despite the obligations required in article 8(k) of the Convention; the House of Commons Standing Committee on the Environment recommendation that Canada take immediate steps to develop an integrated legislative approach to the protection of endangered species; and, the recommendation from the Law and Policy Working Group about federal endangered species legislation.
Other problems with the Strategy include a failure to recognize Canada's previous destructive patterns of exploitation of natural resources, and major deficiencies in our legal regime for biodiversity conservation.
There is also a lack of discussion about how the Strategy will be implemented. The environmental law groups urge the federal government not to shy away from its leadership role in implementing the Strategy. Recommendations for a detailed action plan include organizing a series of workshops to research and develop a legal agenda concerning biodiversity; determining baseline standards for existing or proposed policy frameworks and legal programs; developing a means of ongoing communication for biodiversity conservation planning policy and law in Canada; and most importantly, including a statement of detailed federal, provincial and territorial processes, contacts, and dates for the implementation phase of the Strategy.
For a copy of the Draft Canadian Biodiversity Strategy please contact the Biodiversity Convention Office in Ottawa at fax (819) 953-1765, phone (819) 953-4374. For a copy of the response from the environmental law groups to the Strategy, please contact West Coast at (604) 684-7378.
-- Linda Nowlan
Will federal environmental assessment be held hostage to provincial political demands? That question will likely be answered — one way or the other — within the next few weeks, perhaps even by the time you read this.
Proclamation of the Canadian Environmental Assessment Act (CEAA) is what is at stake. It is now well over two years since the Canadian Environmental Assessment Act (CEAA) was given Royal assent (on June 23, 1992), after being passed by the House of Commons and the Senate of Canada. Yet, the Act is still not in force because the federal cabinet has not "proclaimed" it.
Why? For the first year or two after Royal assent, proclamation was delayed while regulations were being finalized. But the regulations were "Gazetted" a year ago, so although regulations could always be fine tuned forever, it is now abundantly clear that the 'Quebec factor' is the reason for the current delay. The government was afraid proclamation of the Act would hurt Liberal chances in the recent Quebec provincial election. (This is a truly Canadian irony: the federal statute now claimed to affront Quebec was introduced into Parliament by — none other than — Lucien Bouchard, then Minister of the Environment, now head of the Bloc Québecois.)
It was in Senate hearings in 1992 that the province of Quebec first attempted to drag federal environmental assessment legislation into the constitutional debate, attacking the Bill as an infringement on Quebec's rights. The Senate committee, which included eminent Quebec legal scholar Senator Gérald Beaudoin, rejected that claim. The committee report noted that, "Even the Quebec Minister of the Environment conceded that, in objective terms, the regime proposed under the bill was a good one."
Accordingly, the Senate passed the bill, and the new Act was given Royal Assent in June 1992. After five years of consultations, discussion papers, public meetings, private meetings, workshops, briefs, multi-sector negotiations, drafts, Parliamentary hearings, amendments, more hearings, and more consultations, it looked as if federal environmental assessment legislation had finally arrived.
However, to date, the Province of Quebec has been able to achieve in the private backrooms of Ottawa politics what it was unable to achieve in the public arena of Parliament — blocking federal EA legislation. Despite repeated Liberal promises to proclaim the Act, the Act is still not in force.
Now that the Quebec election is over, the moment of truth has arrived. Will the federal government's sacrifice of environmental objectives to appease Quebec's provincial demands turn out to have been a short-term political tactic? Or, will environmental appeasement solidify into a long-term strategy, hobbling federal environmental action throughout all the forthcoming stages of Quebec politics: pre-referendum, referendum, post-referendum, etc.?
The multi-sector Regulatory Advisory Committee (RAC) developing the CEAA regulations, in which WCELA has been actively participating, meets in Ottawa on October 4 and 5. Before or during that meeting, the federal government must announce unambigous plans for proclaiming the Act. The Prime Minister's stated policy during the Quebec election campaign was to keep federal issues out of Quebec politics. The time has come for him to demonstrate that this also means keeping Quebec provincial politics out of federal issues. -- William J Andrews
Forest Renewal BC was established by the province earlier this year to plan and implement a regionally equitable program of expenditures in order to "renew the forest economy of BC, enhance the productive capacity and environmental value of forest lands, create jobs, provide training for forest workers and strengthen communities." The province estimates that Forest Renewal BC will have about $2 billion from increased stumpage and royalty rates to invest in the first five years of operation. FRBC provides the opportunity and the mechanism for making the transition to more environmentally sustainable forestry and sustainable communities.
Forest Renewal BC, a Crown corporation, had an interim board of directors appointed this summer to get FRBC up and running over the next few months. WCELA Staff Counsel Ann Hillyer was appointed to the interim board and will chair the Environment Committee.
In addition to the board, the legislation creating FRBC provides that five committees be set up to address the following issues:
Getting FRBC up and running requires the board to address a number of policy and operational issues. Some of the issues the board is working on initially include:
If you have comments or concerns about these issues or about FRBC generally, feel free to contact Ann Hillyer at WCELA at 684-7378. For general information about FRBC, contact the Forest Renewal BC office at (604) 387-2500.
An article in the August 12th issue of the WCELRF Newsletter, explained recent amendments to the Land Title Act, creating "conservation covenants" which may be held by non-government organizations.
The conservation covenants policy has recently been approved by the Ministry of Environment, Lands and Parks (MOELP). The policy outlines the procedure for receiving a designation or assignment from MOELP enabling the party designated to hold conservation covenants under section 215(1.2)(c) or 215(7)(b) of the Land Title Act.
A party may apply for a general or an individual designation. General designations allow registered non-profit corporations or societies to enter into conservation covenants without requiring designation for each covenant. Individual designations are applied for in relation to specific sites. Applications may also be made to have an existing covenant assigned to a person or non-government agency.
General designations will be restricted to non-profit corporations or societies which can demonstrate that the nature of their organization is such that it is in the public interest for the agency to be permitted to enter into conservation covenants on an ongoing basis. Evidence of this may include the articles of incorporation or a policy statement formally approved by the members of a society, together with information as to the length of time a corporation or society has been engaged in conservation activities.
General designation orders may contain terms and conditions deemed to be appropriate in a particular case. General designations will also contain a condition that requires the designated corporation or society to obtain the consent of the Provincial Agricultural Land Commission for any covenant which is to be registered against the title to land which lies within an agricultural land reserve. Should a proposed covenant be rejected by the Agricultural Land Commission, the applicant may forward the proposed covenant, together with the reasons given by the Agricultural Land Commission to the Surveyor General for review.
Should the Surveyor General be of the opinion that the covenant should be approved over the objections of the Agricultural Land Commission, it is understood that the Surveyor General will forward the application (including the reasons of the Agricultural Land Commission for withholding consent) to the minister for discussion and determination with the Minister of Agriculture, Fisheries and Food.
Where a designation or assignment is recommended, the order shall be prepared by the Surveyor General for approval by or on behalf of the minister.
Where it comes to the attention of the Surveyor General that a designated corporation or society has failed to meet the terms and conditions of its designation, the Surveyor General shall take appropriate action, which may include a review of the designation.
The policy implies that individual designations will be used for persons or corporations which are not of a non-profit nature. This may mean that a non-profit local conservation organization (i.e., an organization which only addresses local as opposed to provincial issues) may obtain a general designation.
Applications for individual designation will require a description of the lands over which the covenant is proposed to be registered. Terms and conditions may be imposed as deemed appropriate.
The policy provides that where the Agricultural Land Commission objects to a proposed covenant, the Surveyor General should consult with conservation managers and government to provide a balanced perspective in adjudicating the request.
An individual or organization applying for designation or for the assignment of an existing covenant must apply in writing to the Surveyor General and provide the following information:
1. Whether the application is made on behalf of a person, a corporation or a society. Where the applicant is a corporation or society, the date of incorporation, incorporation or registration number etc., must be provided.
2. A description of the business of the applicant as it relates to conservation covenants.
3. Detailed reasons for requesting designation or assignment.
4. A description of the nature of the covenant(s) which the applicant wishes to hold.
5. The legal description of the land to be subject to the covenant if the application is not for a general designation.
6. Whether any lands which might be affected by a conservation covenant in favour of the designated organization lie within the Agricultural Land Reserve.
West Coast Environmental Law Research Foundation (WCELRF) has received support from the Real Estate Foundation, the Environmental Partners Fund and the Vancouver Foundation (and in kind contributions from a variety of conservation groups) to identify six properties which may be suitable for conservation covenants; to assist conservation organizations in applying for and obtaining designations to hold the covenants; and to have the covenants drafted and registered. WCELRF is currently in the process of preparing to have the first of six covenants put in place.
Contact Bill Andrews at WCELRF (684-7378) to obtain information about covenants and the designation process.
WCELRF, 1001 - 207 West Hastings, Vancouver, B.C., V6B 1H7, Canada. Phone (604) 684-7378; fax (604) 684-1312.
WCELRF Newsletter (ISSN #0715-4275), copyright 1994, is published by the West Coast Environmental Law Research Foundation. This issue was produced by Bill Andrews, Morgan Ashbridge, John Gibb-Carsley, Chris Heald, Ann Hillyer, Patricia Houlihan, Catherine Ludgate, Linda Nowlan, Denice Regnier, and Kim Stanton. Subscriptions are $20/year. West Coast Environmental Law Research Foundation does research and education and maintains an environmental law library. West Coast Environmental Law Association provides legal representation and promotes law reform. The mission of West Coast Environmental Law Research Foundation and West Coast Environmental Law Association 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 West Coast Environmental Law Association and West Coast Environmental Law Research Foundation. Donations to West Coast Environmental Law Research Foundation are tax creditable.