Vol 18:7 Feb 3, 1995
February 2, 1995
Hon. Michael Harcourt
Premier of British Columbia
Parliament Buildings
Victoria, BC
Dear Sir:
We heartily applaud your courageous decision to reject Alcan's Kemano Completion Project. For more than ten years we have assisted the Rivers Defense Coalition and other environmental groups in their persistent legal struggles to obtain a full public inquiry into this misguided megaproject. We note that the focus of these legal battles was not whether the project should go ahead but whether it should be given a thorough, public study. Thus, your decision to refer the project to the B.C. Utilities Commission was the key breakthrough. In that respect, it is also to the government's credit that the recently enacted B.C. Environmental Assessment Act should ensure that no major project in B.C. will ever again escape proper environmental scrutiny.
Obviously, the primary downfall of the Kemano Completion project was the damage it would have done to water levels, fish and fish habitat in the Fraser River system. We commend your commitment to the environmental integrity of the Fraser system, which you aptly referred to as "the heart and soul of our province." In addition, we strongly endorse your efforts to ensure construction of the cold water release facilities necessary to counteract the drastic reduction in the flow of the Nechako River caused by Alcan's existing power generation operations.
For many people, the most surprising revelation concerning the Kemano Completion project is the fact that it would actually have been an uneconomic way of generating power. Your rejection of the project bolsters our belief that conservation of energy is cheaper, creates more jobs and is easier on the environment than energy megaprojects.
Congratulations on a sound decision for the people and environment of B.C.
Yours truly,
WEST COAST ENVIRONMENTAL LAW ASSOCIATION
William J. Andrews, Barrister & Solicitor
Executive Director
The Environmental Dispute Resolution Fund (EDRF) is a highly successful program that began in 1989. The Fund provides grants to citizens to pay for the cost of their participation in alternative dispute resolution processes, appearances before administrative tribunals (such as the Environmental Appeal Board and environmental assessment panels), or legal services aimed at examining, settling or pursuing environmental litigation.
The last few months have been busy for the EDRF. Grants were earmarked for the following organizations:
Slocan Valley Watershed Alliance - Memphis Creek Slide: In May of 1990, massive mudslides occurred on Memphis Creek and adjacent creeks resulting from clearcut logging on unstable slopes. Logging in the sensitive areas had been approved by the government. Following an admission of liability filed by the Province in July 1994, this lawsuit was settled out of court and damages paid to affected residents of the area.
Casino Waterworks District Residents: More than a year after the trial, a decision favouring the Casino Residents was handed down recently. Individual awards were earmarked for each of the Residents involved, although the defendant's counter-claim for trespass was upheld.
Residents of 26 Avenue (Vernon): The Residents received a favourable decision on appeal to the Deputy Director of Waste Management of two air emissions permits. In particular, the Deputy Director's recommendation that the Residents participate in determining whether the permit amendments have resulted in a clean environment is of precedential value. The Order has now been appealed by the fiberglass industries involved. The Ministry of Environment, Lands and Parks has advised that the outcome of the appeal could affect the regulation of the entire fiberglass and plastics manufacturing industry. Apparently, other permits have been put on hold pending the outcome of this appeal. The drafting of regulations affecting the industry is also likely to be affected.
If you would like information about how the Fund can assist you or your organization to resolve an environmental dispute, please contact Patricia Houlihan, EDRF Liaison Lawyer at (604) 685-3163.
In July 1994, British Columbia enacted Bill 28 — legislation to allow landowners to grant a conservation covenant to a non-governmental organization (NGO). A conservation covenant is a voluntary, written agreement between a landowner and a conservation organization in which the owner of the land promises to protect the land in specified ways. The conservation organization holds the covenant and can enforce it, if necessary, against the owner. The covenant is filed in the Land Title Office. It lasts forever, and binds future owners of the land, not just the current landowner. It can cover all, or just a portion, of the landowner's property.
West Coast Environmental Law Research Foundation is now working with a number of B.C. conservation organizations to draft and file half a dozen NGO conservation covenants in selected areas of B.C. Later, WCELRF will prepare an educational booklet on how to negotiate and draft these covenants. Landowners or conservation organizations aware of possible sites are encouraged to contact Catherine Ludgate at WCELRF (604-685-3190). Sites will be selected where the landowner is committed to stewardship of the land, the land has particular ecological significance, and a conservation organization is willing to hold the covenant. As these will be the first covenants filed under the new legislation, the sites chosen will be non-controversial and representative of diverse ecosystems.
NGO conservation covenants will be useful in a wide variety of situations: a buffer zone adjoining a park or other protected area, agricultural land to be used for farming without damaging important waterfowl habitat, private forest land to be constrained to ecologically sustainable forestry, a buffer zone to protect riparian habitat from logging on private land, a rails-to-trails or other linear conservation project requiring flexible protection short of outright ownership, or land which is habitat for an endangered or threatened species, etc.
The conservation covenant itself sets out the powers and obligations of the group holding the covenant to monitor compliance with the covenant. For example, the covenant could specify that the conservation organization is entitled to enter the property for inspections, and must inspect at least once a year.
Conservation covenants are not intended to be changed except in unusual circumstances. However, the landowner and the organization holding the covenant can modify the covenant if they both agree. Or, the organization holding the covenant can, if it chooses, discharge the covenant. Alternatively, someone with a legal interest in the land can apply to the Court to have the covenant varied or discharged in certain limited circumstances.
Bill 28 requires that a conservation organization be designated by the provincial government before it is allowed to hold a conservation covenant. Please contact WCELRF for more information.
Conventionally, people look to government to protect environmentally important areas by creating a park or ecological reserve. Although parks and reserves are still vitally important, most of them are located in the 95% of British Columbia that is owned by the Crown (publicly owned). Unfortunately, much of the most ecologically valuable land in British Columbia is in estuaries and valley bottoms that are mostly privately owned. Government is increasingly unable to afford to buy this land, and government control doesn't necessarily ensure conservation of the land in the long term. In addition, certain conservation objectives can be achieved most cheaply and practically by limiting use of the land without eliminating all use of the land. As a result, private landowners and conservation groups are turning to voluntary stewardship and to an array of legal tools tailored to safeguard specific land forever.
WCELRF gratefully acknowledges project funding for the NGO Conservation Covenant Project from The Real Estate Foundation of British Columbia, the Vancouver Foundation, and the Environmental Partners Fund. Legal services are generously donated by Lidstone, Young, Anderson, Barristers & Solicitors.
After an exhaustive three year study, the U.S. Environmental Protection Agency released its draft reassessment of dioxin compounds in September 1994. The reassessment concludes that dioxin is much more toxic than previously believed. The reassessment had been prompted by the chemical and pulp and paper industries which had believed that more research would allay the public's fears about this class of chemicals and lead to looser regulations. Obviously, this tactic backfired.
The EPA study concludes that dioxins are probable human carcinogens. Also, the study outlines strong evidence of the effect of dioxins on reproduction and development. Fetuses are particularly affected by dioxin, since it can cross the placenta barrier. Effects have been observed from a single dose administered at one particular time during pregnancy. Prenatal dioxin exposure may affect learning behavior, the developing reproductive system and the developing immune system. The report finds that a single dose of dioxin at the wrong time has the potential to prevent the immune system from developing properly in an unborn child, with lifelong consequences. One member of the EPA scientific reassessment team says there is no threshold level for immunotoxic response to dioxin, so that any amount of exposure may do some damage.
The report consists of six volumes and is divided into two series: Health Assessment Document for 2,3,7,8-TCDD and Related Compounds ("Health Assessment") and Estimating Exposure to Dioxin-Like Compounds ("Exposure"), US EPA, Office of Research and Development, June 1994, Review Draft. Copies may be obtained by contacting the US General Accounting Office at (202) 512-6000.
WCELRF, 1001 - 207 West Hastings, Vancouver, B.C., V6B 1H7, Canada. Phone (604) 684-7378; fax (604) 684-1312; email wcelrf@unixg.ubc.ca. Printed on 100% recycled paper (not secondarily bleached or de-inked).
WCELRF Newsletter (ISSN #0715-4275), copyright 1995, is published by the West Coast Environmental Law Research Foundation. This issue was produced by Bill Andrews, Morgan Ashbridge, Chris Heald, Ann Hillyer, Patricia Houlihan, Matt Jackson, Catherine Ludgate, Linda Nowlan, Denice Regnier, and Kim Stanton. Subscription information is above. 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.