WCELA, with the support of the Outdoor Recreation Council (ORC), has begun work on a campaign to have the BC Occupiers Liability Act amended in the legislature's Spring 1997 session. The Act imposes financial liability on landowners for injuries suffered by persons on the land.
The problem with the Act is that owners of private land in British Columbia are reluctant to allow public access to even a portion of their land for recreational purposes, because they have a legitimate fear that they may be held financially liable under the Occupiers Liability Act for injuries suffered by a member of the public while on their property.
The exact degree of legal liability is a matter of debate. Some say liability has increased in the last two decades; others say the liability rules are less onerous than some landowners fear. It is clear, though, that there is uncertainty, that landowners' fear is real, and that this fear is inhibiting some landowners from agreeing to allow recreational access. Insurance is not a solution to the problem, because insurance in relation to recreational access is expensive and difficult to obtain.
The uncertainty often makes it difficult for outdoor recreationists to obtain permission to cross private property in order to obtain access to Crown land beyond. Similarly, where conservation groups are attempting to arrange conservation covenants to protect public access to a trail or to a viewpoint or wildlife viewing spot, the landowners' potential liability under the Occupiers Liability Act is a formidable hurdle.
In the province of Ontario, which has an Occupiers Liability Act similar to BC's, this problem was solved by a simple amendment: a landowner is not liable for injury suffered by a member of the public present on the land for non-commercial recreational purposes unless the landowner deliberately caused the injury. Prince Edward Island passed the same type of amendment. The Ontario and PEI initiatives appear to have been successful in improving access to private lands. Law reform using the Ontario and PEI approaches is attractive to government, because it improves outdoor recreation opportunities at no cost to the taxpayer.
WCELA and ORC have a long history of promoting recreational access to land in BC. The Outdoor Recreation Council of BC is a non-profit organization dedicated to providing a voice for British Columbia outdoor recreationists. The Council is an umbrella organization of 42 provincial outdoor recreation and conservation organizations. In 1984, WCELA and ORC co-published a book on legal issues called Recreation Access in British Columbia. In 1990, ORC updated the book with Recreation Access Discussion Papers. At that time, ORC and now-WCELA director Wally Braul made extensive recommendations regarding changes that would benefit both landowners and recreationists.
ORC executive director Norma Wilson said, "Presentations made in Victoria were well received, but these amendments never seemed to make it to the top of the legislative agenda." She added, "In 1994, the Law Reform Commission of BC reviewed ORC's work on this topic during its project on recreational injuries, and made virtually the same recommendations as the Council."
WCELA's intention now is to mount a concerted campaign that will give the politicians (hopefully on both sides of the Legislature) some political credit for making the amendment. WCELA recently made a request to the Mountain Equipment Co-op for financial and moral support for the campaign, with support from ORC.
If you are interested in supporting the campaign, please contact Bill Andrews at 6012510 or bandrews@wcel.org.
There is an astounding irony in the Vancouver Sun's fascinating front page story that pipelines in the North are threatened by the permafrost receding northward and getting thinner because of rising average temperatures this century.
It is the burning of the oil from these pipelines that is causing the global warming that is causing the rise in average temperatures that is causing the threat to these pipelines! This permafrost-pipeline story superbly illustrates our society's addiction to fossil fuels. Our ability to burn more fossil fuel is imperiled by our burning of too much fossil fuel.
- Bill Andrews
West Coast Environmental Law is pleased to announce the Conservation Covenants Education and Outreach Project, a project funded by the Real Estate Foundation of British Columbia, to continue our work on conservation covenants.
The specific objective of the project is to develop and hold educational workshops about the use of conservation covenants to protect private land in BC. The workshops will inform citizens about
Possible locations for these workshops will be meetings and other events of conservation groups throughout the province. Organizations hosting the workshops will be asked to contribute in some way to the cost of the workshop.
Voluntary stewardship of private land is an essential component of a balanced approach to land use planning. Amendments to the Land Title Act in 1994 permit conservation covenants, designed to protect a variety of ecological features of land, to be held by any person designated by the Minister of Environment, Lands and Parks. This law reform was supported by research done by WCELRF, also with funding from the Real Estate Foundation. Now that the law has changed, non-government organizations are beginning to receive designation and some covenants have been registered. West Coast is keenly interested in continuing to provide legal information about conservation covenants to citizens and to promote more extensive use of this tool.
If your organization is interested in having West Coast hold a workshop in your area, as part of a meeting or other event or, as a stand-alone event, please contact staff counsel Ann Hillyer at 383-3272 or ahillyer@vvv.com.
Congratulations to Joan Sawicki, long-time West Coast supporter, on her successful re-election as MLA for Burnaby-Willingdon. Joan has been appointed Parliamentary Secretary to the Minister of Environment, Lands and Parks. We expect to have lots of contact with Joan over the next few years. |
This is an abstract of staff counsel Ann Hillyer's keynote address at a workshop on Environmental Requirements for Industrial Permitting, hosted this May by the Organization for Economic Co-operation and Development in Paris, France. For a copy of the full paper, please call the WCELA office.
Today's environmental imperatives are propelling us into an era where we must rethink our approach to environmental protection. We are challenged to examine what protecting the environment means and to rigorously scrutinize the tools we use to ensure that protection. The need to achieve the greatest possible environmental benefits from environmental protection measures, such as the industrial permitting process, has never been greater.
In the words of the World Business Council for Sustainable Development,
"developed countries will have to cut their use of energy and other raw materials - and their impact on the environment - more than ten times over in little more than a generation, if the needs of the world's growing population are to be met without destroying the planet."
Perhaps this stark conclusion would be less surprising if it had come from a deep ecology group. But today it is clear that addressing our grave environmental problems has become a priority for every quarter of society. We are even beginning to see that solving environmental problems can unearth significant economic opportunities.
For some time we have known that pollution prevention is a powerful concept which, when properly implemented, can dramatically shift the way we use resources and significantly limit our impact on the environment. To translate this opportunity into reality involves finding ways to transform permit system mechanisms to achieve pollution prevention more quickly and effectively.
There are several themes essential to this transformation:
The pulp mill effluent regulations in effect in British Columbia illustrate these themes well. These regulations have contributed substantially to moving the industry from being a heavily polluting industry to one achieving significant improvements in environmental performance.
Draft procedures for panel hearings under the Canadian Environmental Assessment Act are now available for public comment. The procedures were developed by a subcommittee of the multistakeholder Regulatory Advisory Committee (RAC) under the Act. The subcommittee included Bill Andrews of WCELA and Lloyd Greenspoon of the Environmental Assessment Caucus of the Canadian Environmental Network.
The subcommittee's objective is to produce procedures that are consistent, timely, predictable, efficient and effective, and that can be conducted in a manner that is open and accessible to the public. The subcommittee welcomes comments on the draft procedures by August 16. For a copy, contact Jim Clarke, of the Canadian Environmental Assessment Agency (the Agency), at 819-994-1469, fax: 819-997-1469, e-mail: clarkej@fox.nstn.ca. A copy is also available on the Agency's Internet site at http://www.ceaa.gc.ca.
The procedures really have to be read as a whole to be fully understood, but here are some highlights:
Participant funding is encouraged at the early stages of the panel review, instead of waiting until after key decisions, such as the scope of the review, have been taken. The participant funding program for the review of a particular project must be announced within five days after the project is referred for assessment.
Panels will hold two types of hearings: "community hearings" as well as more-formal "general/technical hearings."
At the general/technical hearings, participants will be able to ask questions directly to the presenter, unlike the rule often followed in the old Environmental Assessment Review Panel (EARP) hearings that questions had to be submitted in writing to the chair who then read then them to the presenter.
At community hearings, members of the public can also ask questions directly to the presenter, but in a more informal manner.
The chairperson must refuse to allow questions that are "abusive or excessively confrontational." This was the solution to the concerns of some people that "cross-examination" (e.g., hostile questioning) not be allowed.
Groups are entitled to be represented by a lawyer, or anyone else, if they so choose. Provisions are made for issues to be sent to mediation, an innovative feature of the new Act.
Minimum notice of stages in the hearings process have been lengthened compared to the customary EARP procedures. But, unlike EARP, there is a maximum length of time within which the Environmental Assessment must be completed (13 months, not including the time the proponent takes to prepare Environmental Assessment information), unless an extension is granted by the Agency.
The hearings are broken into two phases. The first is "information assessment," during which the adequacy of the environmental assessment information is examined. The second, after the proponent fills any information gaps, is the environmental assessment hearings.
It has not yet been decided whether the draft procedures will be finalized in the form of a non-binding guideline, binding regulations, or a combination of the two. The subcommittee's current thinking is to enshrine certain time periods and notice periods in a regulation, with the balance of the procedures set out in a guideline.
For more information, please contact Bill Andrews, at 601-2510 or bandrews@wcel.org.
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