New Conservation Powers for Local Governments

On June 12, 1997, Bill 26, the Local Governments Statutes Amendment Act, 1997, stood at first reading in the Legislature. If enacted, it will give British Columbia's local governments important new environmental protection powers over private land.

Powers in the Municipal Act relating to land use planning and control of land development will more clearly encompass environmental protection objectives. It will be possible for official community plans (OCP) — which guide zoning bylaws — to include policies relating to the "preservation, protection, restoration and enhancement of the natural environment, its ecosystems and biological diversity." At the regulatory level, OCP development permit area designations will be possible for the purpose of protecting the "natural environment, its ecosystems and biological diversity."

The latter change is important because the Municipal Act prohibits alteration or development of land within a development permit area unless a development permit has been obtained. The new development permit powers will enable local governments to require owners to preserve, protect, restore or enhance specified natural features or areas; to dedicate a specified natural water course; to construct works to protect watercourses or other natural features; to plant vegetation or trees to protect or restore fish habitat or riparian areas; and to leave specified areas of land free of development. Local governments will be empowered to repair environmental damage — and to do so using security required to be provided by the owner at the time of permit issuance — where an owner has contravened a condition in a development permit in a way that has damaged the natural environment.

Another noteworthy change will be the new power to require developers to provide information on anticipated impacts of a proposed development or activities. This can include information about the impact on transportation patterns and the natural environment of the area affected. (These powers would not apply to projects that are subject to the Environmental Assessment Act.)

For the first time in British Columbia, local governments will be able to pass bylaws requiring landowners who construct paved areas or roof areas to manage and provide for ongoing disposal of surface run-off and stormwater. These measures can also include limits on the maximum percentage of a parcel that can be covered by impermeable material. Measures of this kind can be important water quality tools and can help prevent habitat degradation due to erosion.

Voluntary donation of conservation covenants will be encouraged by new property tax exemption powers under the Municipal Act. It will be possible for local governments to exempt from property taxes any portion of "riparian land" that is subject to a conservation covenant granted to that local government. These year-to-year exemptions can be extended for as much as ten years with electoral assent. A potentially powerful incentive for landowners to comply with conservation covenants will also be introduced, in the form of property tax recapture if the conservation covenant is breached. There will be restrictions on the recapture provisions, but if they are in place a landowner who has breached a conservation covenant will have to repay all exempted property taxes, plus interest.

Although these new measures are not as comprehensive or powerful as some might have wished to see, they do represent important new powers for protection of fish habitat and protection of privately owned land within their boundaries.

David Loukidelis, WCEL Board Member
Lidstone, Young, Anderson

New Fish Protection Act Released — Still Needs Improvement

Bill 25, the new Fish Protection Act, has been released with some improvements to the status quo, particularly the creation of a new legal tool called a streamflow protection licence. However, the Bill needs improvement in several key areas.

Streamflow protection licence

If passed, Bill 25 will fill one of the most visible gaps in the provincial legal framework to protect fish habitat — the lack of a legal tool to protect instream flows of water. This is an important feature of the Bill. Fish and wildlife groups and conservationists have been advocating the creation of these instream flow licences for years. Fish require water as a prime element of their habitat, yet the primary purpose of the BC Water Act is to divide up rights to water between residential, agricultural and industrial users.

Bill 25 provides that a licence for a streamflow protection purpose must be approved by the Lieutenant Governor in Council (Cabinet). It may only be issued to an organization that has a "community based interest in the stream for which the licence will be issued". This is to discourage urban environmentalists from taking out water licences all over the province in remote areas. A licence may be issued to an organization even if it would not otherwise be eligible as a licensee under the Water Act. And once a group has a licence, it will have the right to appeal other water licencing decisions on the same river, a right unavailable to the general public.

The Bill also includes positive features such as:

• a prohibition on new dams on a named list of protected rivers including the Tatshenshini, Nass, Skeena and Stikine, with the power to list additional rivers by regulation (s.4);

• the power to designate sensitive streams and prepare recovery plans for these streams (ss.6 and 7);and

• the power to designate water management areas and prepare water management plans for these areas (s.22.1 of the Water Act).

Limited Public Participation Rights

Gaps still remain. Consideration of the needs of fish and fish habitat when making decisions under the Water Act will still be discretionary, rather than mandatory. Recent experience of a lack of implementation of key provisions of the Forest Practices Code has made the public wary of discretionary powers. Requiring managers to give express consideration to the amount of water that must be left in a stream or wetland in order to maintain its ecological health would be a positive amendment that could be made to this Bill. Now, for example, if  BC Hydro applies for a new water licence, a water manager has the discretion whether or not to consider the needs of fish when making the decision. And generally members of the public cannot appeal this licence decision. The Fish Protection Act should both make consideration of the impact of licensing decisions on fish mandatory as well as change the restricted appeal rights under the Water Act, to improve the public's right to participate in water use decisions.

Riparian Standards

A major concern is found in s.12 of the Fish Protection Act, which gives the government the power to establish "policy directives" for riparian area protection, rather than adopting a law applicable throughout the province requiring "green strips," or riparian zones, to be retained along the banks of rivers and streams in urban areas.

Streams in urban areas have been repeatedly identified as the most endangered waterways in the province. Urban streams are being diverted into culverts, buried underground, and stripped of streamside vegetation. The lack of standardized requirements for riparian leave areas plays a large part in this continued deterioration. Some municipalities have enacted strong bylaws to protect riparian areas, and vigorously enforce the bylaws, but fish don't respect municipal boundaries.

Rapid unrestricted urban growth is accelerating the current deterioration of fish habitat and reducing fish populations. It is difficult to see what value a policy directive will have over the existing unenforceable guidelines. The joint federal-provincial guidelines that have been used for the past five years (the Land Development Guidelines for the Protection of Aquatic Habitat) already specify minimum riparian setbacks for development in or adjacent to waters containing fish or fish habitat of at least 15 metres for residential and low-density areas and 30 metres for commercial and high-density areas. But these guidelines are often ignored by developers and municipal councils.

When important issues of health, safety and environmental protection arise, the province has a duty to act, even if this means adopting more regulations. The province requires local municipalities to provide leave areas in and around floodplains. For health reasons, the province requires minimum setback areas for the location of wells and other drinking water sources. Minimum buffer zones are required for pesticide application near schools and residential areas. And the Forest Practices Code requires the creation of riparian reserve and management zones for approximately 85% of the provincial land base subject to the Code. Protection for fish habitat in the province's settled areas should also be legally binding.

New Protection for Endangered Fish?

The Fish Protection Act will give the government the power to designate fish, aquatic invertebrates and aquatic plants as endangered and threatened species. In theory this is a positive development, especially considering that a recent survey of the status of anadromous salmon stocks from streams in BC and the Yukon found that 140 salmon runs were extinct and an other 624 were at high risk of extinction. In practice, this change will not make a difference in improved fish protection unless these species are actually designated under the Wildlife Act.

There are 26 endangered and threatened freshwater fish species in the province. Two examples are the Nooksack Dace and the Salish Sucker, both of which are threatened by habitat loss from urban development. No fish species have been formally listed by regulation as threatened, because fish were previously not included in the types of wildlife that could be listed. The Fish Protection Act has now remedied this defect.

But the BC Wildlife Act has rarely been used to designate species as endangered. Since 1980, only four species have been designated: the burrowing owl, the white pelican, the sea otter and the Vancouver Island marmot. Considering that only these four species have ever been listed by regulation as endangered, and that by the province's own calculations, there are 68 species of vertebrate animals and 224 vascular plant species that are threatened and endangered in the province, it is easy to conclude that adding fish, aquatic invertebrates and aquatic plants to the class of species that may be protected will not change the status quo.

If these new changes that the Fish Protection Act makes to the Wildlife Act are going to make a difference, the government must also make a commitment to immediately designate fish, plant and invertebrate species that are threatened and endangered, and protect the habitat for these species through the creation of Critical Wildlife Management Areas.

Improved legal protection for fish in the province is important. Much of the new Fish Protection Act will improve the health of fish, but to achieve the maximum possible benefit from the new law, fish needs must be considered in licencing decisions, the public should have the right to appeal water licensing decisions, provincial riparian protection standards should be developed, and endangered and threatened fish and aquatic species and their habitat should be protected by law, not just on paper.

For more information or to obtain a copy of our full brief on the Bill, please contact West Coast Environmental Law Association at (604) 684-7378 or
1 800 330-WCEL.

A First Aid Campaign for Pesticide Bylaws

Looking for a venue for action on pesticides? CPR! the Campaign for Pesticide Reduction! may be for you. The goal of this network is to provide materials and support for community groups (new or existing) who want to put pressure on their local governments to enact bylaws respecting pesticide use. The CPR! Steering Committee includes members from the Canadian Labour Congress, the World Wildlife Fund, Citizens for Alternatives to Pesticides, Sierra Club and the Toronto Environmental Alliance. A `how-to' kit and time-line are available, for a fee, to the organizer of a local group that is committed to the campaign. Those interested can contact the CPR! through Angela Rickman at (613) 241-4611, by fax at (613) 241-2292, or via email at sierra@web.net.

Greenhouse Gas Debate Shifts to Cost of Emission Reductions

As the deadline approaches for negotiation of binding international commitments on greenhouse gas emissions, the debate is shifting from the science of climate change to the cost of emission reductions. While many environmentalists and economists believe that there are many ways to reduce greenhouse gas emissions by taking measures that are worth doing for other reasons, fossil fuel industries and large energy consuming businesses are engaged in an effort to convince federal and provincial politicians that reducing greenhouse gas emissions will damage Canada's economic wellbeing.

Misleading projections

Imperial Oil predicts that a 10% reduction target would lead to Canada's economy shrinking by 4% below what it would otherwise be in 2030 (Canada's GDP would still be 80% higher than in 1990). The same model applied to the US predicts that the American economy would shrink by 3% below what it would otherwise be.

These projections contradict earlier analysis by the Royal Society of Canada. The Royal Society concluded that it would be feasible to reduce greenhouse gas emissions to 20% below 1990 levels by 2010, through measures which, not counting the benefits to society of mitigating climate change, have net benefits to society. In the US, the American Council for an Energy Efficient Economy suggests that measures worth doing for reasons unrelated to climate change could yield 25% cuts from US 1988 levels by 2005, with 70% cuts possible by 2030.

Why the big differences?

Modelling the economic impacts of reducing greenhouse gases requires economists to make a number of assumptions and use these assumptions in different ways. The choices determine the results. Policy makers need to be aware of the assumptions made.

The first assumption is the biggest. All macroeconomic models (including the Charles River Model used by Imperial Oil) assume that all emission reductions have a cost — "there is no free lunch." Not surprisingly, this suggests that the more significant the emission reductions the more significant the cost. According to the macroeconomic modellers, if there were opportunities to improve energy efficiency and save money as a result, they would have been undertaken. To the extent macroeconomic modellers recognize that individuals and businesses do not always act perfectly efficiently or with perfect knowledge, they assume there is nothing the government can do about it. They assume that the cost of correcting the problem is greater than the benefit.

Don't assume too much

The assumption that the economy is perfectly efficient is belied by experience. For instance, American energy efficiency standards for refrigerators lowered energy use by as much as 60% and their total costs, including administrative overhead, are estimated as being under half the cost of energy saved. The cost of fridges has dropped since the standards came into effect. Improved fuel efficiency standards for cars have been estimated to add $6 billion to the price of cars over a 12 year period; but, the present value of the gasoline savings would be over $10 billion. Measures ranging from incentives to buy energy efficient products, energy efficiency standards and programs to retrofit homes and businesses have a proven ability to reduce emissions at no net costs.

Other big assumptions include the relationship between technological development and energy prices and regulation. The Imperial Oil study assumes that the rate of technological development is barely affected by government policy or price. While quantification of the relationship between these variables is impossible, experience shows the ability of regulation to force technological development.

Regulation works

When government mandated the phase-out of CFCs because they damage the stratospheric ozone layer, scientists ini tially said phase-out was impossible. However, when government proceeded with regulation, new technologies were discovered that both improved product quality and reduced operating costs.

Macroeconomic modelling can also be based on extremely pessimistic assumptions regarding the cost of alternate renewable technologies. For instance, unless alternate assumptions are fed into the computer, the Charles River Model used by Imperial Oil assumes that the cost of renewable energy is six times the world oil price.

Energy efficiency works

Macroeconomic models also ignore the ecological and economic impacts of climate change and the social, environmental and economic benefits of improving energy efficiency or reducing reliance on fossil fuels. Shifts to energy efficiency and alternate energies are often worthwhile endeavours for a host of reasons, such as improving local air pollution, decreasing pollution from oil production, or reducing road traffic through neighbourhoods. Macroeconomic models equate GDP with societal good, but these societal goods are not reflected in GDP (indeed, GDP goes up with hospital visits due to pollution-caused asthma, increased traffic policing and spending on oil spill clean ups).

In contrast to macroeconomic modelling used by Imperial Oil, many other analyses use what is known as bottom up analysis. Bottom up analysis looks at different technological opportunities to save energy and reduce greenhouse gas emissions. These improvements are then added up to yield an overall estimate. Like macroeconomic analysis, bottom up analyses have their weaknesses. They may sometimes be overly optimistic about the potential for rapid shifts in technology or the likely success of policy interventions, but they underline the weaknesses of macroeconomic models.

Finding the middle ground

While estimating the cost of reducing emissions is difficult, there is some middle ground between the bottom up and macroeconomic models. Recently a number of leading American and Canadian economists including two Nobel Laureates signed a statement concluding that

[e]conomic studies have found that there are many potential policies to reduce greenhouse-gas emissions for which the total benefits outweigh the total costs. For the United States and Canada, sound economic analysis shows that there are policy options that would slow climate change without harming North American living standards, and these measures may in fact improve productivity in the longer run.¹

As Canada and other countries negotiate international protocols they need to be wary of economic fear-mongering by those opposed to reduced reliance on fossil fuels. Any uncertainty regarding the economic costs and/or benefits of reducing emissions is outweighed by the cost of doing too little.

¹ Kenneth Arrow, John McCallum, Robert Solow in Economists' Statement on Climate Change

Chris Rolfe

Bill 14 Proposes Changes to BC's Environmental Laws

The provincial government has recently issued proposed additions and updates to several BC environmental statutes, set out in Bill 14, the Environment, Lands and Parks Statutes Amendment Act, 1997. As at this reporting, the Bill is still in second reading. Some of the proposed additions could be significant, including:

1. Pest management

Amendments to the Pesticide Control Act would see the addition of "integrated pest management," a decision-making process to suppress pests that includes, among other elements:

• ecosystem planning to prevent organisms from becoming pests;

• monitoring pests and beneficial organisms, and environmental conditions;

• using injury thresholds in making treatment decision;

• reducing pest levels using a combination of biological, cultural, mechanical, and chemical controls; and,

• evaluating the effectiveness of treatments.

This type of pest management system would be incorporated into a "pest management plan" which could be used in place of a permit as a guide and as an enforcement tool for pesticide use.

What remains unclear is whether there would be a role for public input into such a plan.

2. Cost recovery for spill clean-up

This would fall under the Waste Management Act, where amendments would add to the existing spill reporting provisions contained in section 12. Under the proposed s.12.1, where an officer considers that a spill, or the threat of a spill, may pose a hazard to health or the environment, the government has the power to assess, monitor, clean up "or otherwise address the perceived hazard or threat." Most importantly, if the source of the spill were identified, the government could send its reasonable clean-up bill to those who had "possession, charge or control" of the substance in the spill.

The introduction of cost-of-spill recovery and pest management provisions are seen by some as an attempt to incorporate into existing British Columbia laws provisions that were proposed for a BC Environmental Protection Act.

3. Appeal procedure

The amendments also declare the Environmental Appeal Board to be the tribunal for appeals from the above statutes (this is now effected by regulation), as well as for the Water Act and the Wildlife Act.

An important amendment proposed for the Environment Management Act would allow for a winning party before the Board to apply for and collect its costs against the unsuccessful party.

West Coast, and others, will be watching with interest to see whether these new sections are put into practice and given force by the government.

All of the amendments refer to the new section numbers, which came into force with the Revised Statutes of British Columbia 1996 on April 21, 1997.

We're counting on you! West Coast relies on your support to continue our important work. Together, we are a strong and active voice for environmental protection in BC. And now there are two new ways to make it easier for you to give us that support, and they're both tax-creditable. Starting in July, we will be able to accept your memberships and donations on your VISA card. You'll also be able to purchase West Coast publications by credit card. Call our office for details. And we're pleased to announce our new West Coast Protector's program of monthly donations. Each month, you can make a small automatic donation of $10 or $25 to our work. This type of regular support will contribute to our ongoing campaigns such as the protection of endangered species in BC. If you would like to be a charter member of our West Coast Protector's program, call us! We're counting on you!

West Coast Environmental Law Announces New Executive Director

The Board of Directors and staff of West Coast Environmental Law are pleased to announce that Steven Shrybman has been hired to be our Executive Director.

Steven Shrybman has practiced environmental law since being called to the Ontario Bar in 1981. For most of that time he worked as Counsel to the Canadian Environmental Law Association in Toronto where he carried on an active practice of litigation, law reform and community legal education work. Steven has written extensively on a variety of legal subjects, and his articles on international trade and the environment have been translated into several languages and published in the United States, Europe and Asia.

From 1991 to 1993 Steven served as a Senior Policy Advisor in the Cabinet Office of the Provincial Government of Ontario. He was a founding member and served as the first Chair of the Toronto Workers Health and Safety Legal Clinic and has served as a Director on the Boards of several environment and development organizations. He is also a member of the International Forum on Globalization, an international alliance of activists, writers and scholars.

He will be joining the organization in the summer, and will be present at WCEL's AGM at 6:00 pm on June 24 at SFU Harbour Centre. Please come join us to welcome Steven to BC!

Two New Faces at West Coast

We would like to welcome two summer students, Tim Martiniuk and Sara Wong, to our offices.

Tim, a law student at UBC, is helping West Coast lawyers with legal research, while Sara, a master's student in public administration at SFU, is helping WCEL lawyer Chris Rolfe with research on transportation governance models. We are delighted to have them both here.

Public Participation in South America

In May, EDRF Liaison Lawyer Pat Houlihan attended the InterAmerican Bar Association Conference in Rio de Janero, Brazil. Pat was invited to the conference, as part of a Canadian Bar Association panel, to present a paper on the role of the public in environmental decision-making in Canada.

During the conference it became obvious that there is a need for increased awareness of the importance of public participation in South American decision- making processes. The role of the public in environmental decision-making in Brazil and other South American countries is minimal. It seems that the concept of public involvement is not recognised in many of these countries. The push for a right to be involved has been hampered by the fact that in many countries, people still remember friends and family losing their lives as a result of protesting activities which the government supported. This memory makes it very difficult to garner public support for any cause.

The conference was a useful venue for advocating a stronger public role in environmental issues. Some of the corporate and government lawyers in attendance commented that the concept of public involvement is one which needs more attention in South America. All of the lawyers at West Coast work with NGO lawyers in South American countries on a regular basis exchanging ideas to promote environmental protection through law reform and public participation. We hope to continue work to improve this link in an effort to assist in protection of the global environment.