1. Gathering Information About Wetlands

Citizens can and should take the initiative in wetland protection. You and your neighbourhood organization can begin a prevention program by monitoring and documenting the unique features of your wetland. You can also track land use planning and development activities in your area and in the watershed. Should development be proposed, you should be prepared to get involved in the early stages ... This will help to avoid emergencies that occur due to lack of citizen input. Your objective should always be to promote a win/win solution.

— Wetland Protection Guide, Seattle
Audubon Society, 1995

Who Owns the Wetland?

The very first step that must be taken if you are interested in protecting a wetland is to determine whether the wetland is privately or publicly owned.¹ There will be different restrictions on what you can do based on the ownership of the land. In general, your options are more restricted if you are not the owner of the wetland, and if the owner is not interested in legal protection. Your opportunities to improve the legal protection of a wetland are increased if you are dealing with a cooperative landowner. If the wetland is publicly owned, you have a range of options to increase legal protection. Which option you choose to use will depend on a number of factors:

• municipal zoning of the wetland and the opportunity to change that zoning;
• whether the wetland contains fish habitat;
• the presence or absence of wildlife on the wetland; and,
• whether any human activities such as filling, logging or polluting are threatening the wetland.

In British Columbia, most land is publicly owned, including wetlands. Of the six per cent of the province that is characterized as wetlands, "a significant but as yet undetermined portion of that is located on private lands."²

One survey that analyzed the ownership of the wetlands in the Fraser lowlands area found 13.3 per cent of the total were privately owned. Different levels of government in this area owned the remaining 86.7 per cent of the wetlands, divided as follows:

• 76.9 per cent owned by the Provincial Crown,
• 4.6 per cent owned by municipal or regional governments,
• 2.6 per cent owned by the federal Crown, and
• 2.6 per cent located on First Nations reserve land.³

To determine the ownership of a wetland that you are concerned about, you could first ask the people who live on or use the land. You can also determine land ownership by contacting your Land Title Office, which has local offices around the province. This office maintains a record, by property, of all the estates and charges on the title of that piece of property. By searching the title of a piece of property at the Land Title Office, you can determine who owns that land, as well as what restrictions are registered on the title of that particular piece of land. These restrictions could take the form of an easement, a restrictive covenant or a lease, for example.⁴ The Land Title system is based on the Land Title Act, a BC statute.

You will need the legal description of the land, which can be found on the tax notice for the land or through a title search company. These methods will help you find out if an individual or company owns the land. To find out about land owned by the Crown, contact your local Crown Land Office.

Government Involvement with the Wetland

Other relevant provincial government departments that may provide valuable information about wetlands in BC include:

• the Crown Land Office, a department of the BC Ministry of Environment, Lands & Parks,
• the Ministry of Municipal Affairs,
• the Ministry of Transportation and Highways,
• the Ministry of Agriculture, Fisheries and Food, and
• the Ministry of Health.

Federal agencies that may provide information about wetland protection include:

• the Department of Fisheries and Oceans (DFO),
• Environment Canada, and
• the Canadian Wildlife Service.

Your local municipal or regional district government is another source of information about land ownership and zoning restrictions. Potential offices to approach include:

• the Planning Department,
• the Engineering and Public Works Department,
• the Parks and Recreation Department,
• the Environment Department, and
• the Building Department.⁵

Biological Information About the Wetland

You may be interested in learning more about the biology of your wetland. For information about conducting an initial wetland assessment, a survey of wetland plants, and a wetland bird survey, consult the publication The Wetlandkeepers Handbook — A Practical Guide to Wetland Care, BC Wildlife Federation, 1996. Local naturalist groups can also give you biological information about a wetland site. Contact your local group or the Federation of BC Naturalists for more information. Ducks Unlimited Canada, a national organization devoted to wetland protection, is another source of information.

Who Manages the Wetland?

Finding out who owns the wetland is a good starting point. Finding out who manages the wetland is also important. The two are not always the same. For example, a provincial agency may manage a wetland owned by a group like the Nature Trust of BC. And different federal Harbour Commissions manage provincially owned land.

A wetland may be managed by a government agency, a nongovernmental organization or a private landowner. In the Fraser lowland area (for which the best information is available), the major management authority is the BC Ministry of Environment, Lands and Parks (MELP). As of 1992, the Lands branch of MELP managed 25,897 hectares out of a total of 37,156 hectares of wetlands in the area. The Environment branch of MELP had the second largest management responsibility with 3,872 hectares. Other large managers include the Canadian Wildlife Service (2,733 ha.), the Greater Vancouver Regional District (1,380 ha.), and First Nations (1,074 ha.). Thirty-four other agencies manage wetlands in the region.

Finding out who is responsible for management can help you to learn how secure your wetland is, since the management agencies' policies and legal powers to protect land vary.

How Secure is the Wetland?

Is the wetland you are interested in at risk? While draining and dyking for agricultural purposes may no longer pose as great a threat as it once did, the dramatic population growth and development pressure in BC today puts wetlands at risk from residential and industrial development, urban sprawl, road building, culverting, pollution, logging, and mining. How safe your wetland is depends on the legal designation of the wetland, if any; the zoning and planning policies of your municipality; and/or, the management priorities of the manager or owner.

The highest degree of protection for a wetland will occur by designation under a law. Some laws prohibit all uses of a wetland. Protected areas laws, such as the Park Act and the Ecological Reserve Act in BC, usually mean that resource extraction is prohibited. A full discussion of protected areas laws is beyond the scope of this report. See, Morrison and Turner, "Protected Areas in BC" in Biodiversity in British Columbia — Our Changing Environment, Canadian Wildlife Service and Environment Canada, 1994. But even parks are managed both for conservation and for recreation. Cypress Provincial Park on the North Shore of Vancouver contains some valuable wetland areas which are threatened by expansion of the commercial ski area in the park. A Migratory Bird Sanctuary or Wildlife Management Area are other examples of designations available under protected area statutes that give high protection to wetlands. Zoning or planning designations such as Park or Open Space made by a local government can also protect wetlands.

Other laws can restrict an activity which may harm a wetland, such as the provincial Waste Management Act, which prohibits pollution without a permit. Still other laws are designed in part to protect resources such as fish (the federal Fisheries Acts), wildlife (the federal and provincial Wildlife Acts), and forests (the provincial Forest Practices Code of BC Act). And yet another set of laws can help private landowners protect a wetland or other land through the use of a conservation covenant (the provincial Land Title Act). All these laws are discussed in more detail in this Guide.

A classification system to determine the protection level of wetlands in the Fraser Lowlands area was devised by the authors of a Canadian Wildlife Service report, reprinted here with permission as Figure B, below. Sites were classified as high, medium or low protection. The majority of the sites had a medium level of protection (68.8 per cent), 12.8 per cent of the sites fell into the high protection category and 15.8 per cent in the low protection category. The authors caution that "it should be remembered that these remaining wetlands represent only about one quarter of the original extent of wetlands in this ecologically valuable area." (Ward et al., p. 25)

Figure B — Selected Land Use Designations/Mechanisms Providing Relative Degrees of Protection for Wetlands in British Columbia (not strictly ranked).

The information that follows in this Guide about legal tools that are available to protect wetlands in BC should help you learn how to make your wetland more secure and reduce the risks it faces.

Privately Owned Wetlands

A member of the public has more limited rights in relation to a wetland that is privately owned than on one that is publicly owned. No matter who owns the wetland, the most common way to influence whether or not it is protected is through the land use planning process conducted by your local municipal or regional district planning office. This may involve influencing the zoning, trying to have the wetland designated under the Municipal Act as an environmentally sensitive area, attempting to have the wetland designated as a park, or imposing restrictions on a developer's ability to proceed with development if the municipal council does allow a subdivision to occur. Or you may choose to lobby the government to acquire privately owned land to achieve the highest degree of protection.⁶

It is important to remember that some laws limit a landowner's right to do whatever he or she wants with a parcel of land. For example, the federal Fisheries Act applies to all fish habitat and prevents destruction of, or damage to, fish habitat even on private land. If you suspect that damage to fish habitat is occurring on a privately owned wetland, you may wish to contact the local DFO office to investigate this breach of law. Other laws also restrict a private wetlandowner's rights. The next section of this Guide provides more details on federal, provincial and municipal laws related to wetlands.

Other areas of law are also relevant for protection of privately owned wetlands. The section of this report titled "Options for Protecting Privately Owned Wetlands" discusses a set of legal tools applicable only to privately owned land. In addition, two other areas of law are relevant for private land: trespass and nuisance. Both are discussed below.

Trespass

One practical obstacle to protecting a privately owned wetland is that no one may trespass on privately owned land. Trespass means the unauthorized entry on to someone else's land. In BC, under the Trespass Act, if land is fenced or posted with signs prohibiting trespassing at the access points to the property, a person coming on to the land is deemed to be a trespasser unless that person can show that he or she had the consent of the owner, lessee or occupier.⁷

So, in order to visit a particular privately owned wetland, or do anything in relation to that wetland, you must obtain the consent of the landowner before entering onto the property.

Nuisance — Rights Available to Neighbours

If you own land next to a privately owned wetland, you may have legal rights in addition to those that can be exercised by other members of the public. Landowners are not entitled to use their land in ways detrimental to their neighbours' use of their own land. An owner or occupier of land may be able to sue for nuisance against someone who does something that adversely affects the landowner's land. Nuisance can sometimes provide a legal avenue for the environmental protection of private land, for example, if the land is being polluted by a neighbouring owner. Nuisance law covers a wide range of activities, such as noise, vibrations, noxious odours, and interference with riparian rights. To succeed in an action for nuisance, the occupier of the land must show that he or she has suffered actual and substantial harm. A lawyer's advice is necessary to determine whether a particular use of land may be a nuisance, and ultimately it will be up to a Court to determine if it is.⁸

Publicly Owned Wetlands

If you determine that the wetland you are interested in is publicly owned, you may freely visit the area, subject to any restrictions imposed by any government agency. For example, a wetland in a park may only be open to the public during certain hours.

As with privately owned land, you can try to affect the uses of the publicly owned wetland through changes in zoning, having input into an official community plan, or lobbying to have legislation passed which will prevent or minimize damage to the land. The last section of this Guide describes some legislative reforms which would improve wetland protection.

If you want to use the law to protect wetlands, you should first determine what laws are applicable in a particular case by reading the sections in this Guide on federal, provincial and municipal law. Then, you should investigate whether the laws are being followed. If you suspect that the laws are being violated, you should ask for help from government enforcement agencies. There are a number of laws that may be applicable to any particular situation. You may want to consult a lawyer to determine what legal options are available.⁹

Government Jurisdiction Over Wetlands

Many laws have the potential to protect wetlands. Some laws control certain activities such as land development or pollution emissions. Other laws restrict the use of land or water. For example, a water licence limits the amount of water that can be removed from a wetland or other water body. Designating land as a protected area prohibits resource extraction and development.

Different levels of government have different powers to make laws which have an impact on wetlands.¹⁰ The three levels of government (federal, provincial and municipal) have the power to enact laws over different subject areas.

The federal government has the authority under the Constitution to make laws regarding fisheries. The federal Fisheries Act is an important tool for protecting wetlands. The Constitution also gives the federal government the power to make laws related to peace, order and good government and criminal law.¹¹ The federal government also has jurisdiction over land it owns. The federal government plays a role in wetlands protection through its own policy on wetland conservation which applies to federal lands¹² and through activities such as cosponsoring public education materials, with the North American Wetlands Conservation Council, and participating in intergovernmental programs which acquire wetlands like the Pacific Coast Joint Venture.

Most environmental laws are provincial. The provincial government has jurisdiction to make environmental laws based on its authority to control natural resources, property in the province, sale and management of public lands, and all matters of a local nature.¹³ The Waste Management Act, Water Act, and Environmental Assessment Act are examples of provincial environmental laws. There is no specific provincial wetlands protection law, although the province is preparing a written policy to guide government decision makers on wetland issues.

Currently, the province has an informal unwritten and unpublished policy of "no net loss" of wetlands.¹⁴ This policy is not enforceable in a court. It is little known and rarely applied. The policy means that if a development destroys part or all of a wetland, the developer must compensate for this loss by rehabilitating a damaged wetland elsewhere or creating a new wetland. The "no net loss" policy is used in approvals of development in the Fraser River Estuary by the Fraser River Estuary Management Program. It is also used by the BC Ministry of the Environment, Lands & Parks when responding to development proposals on Crown land through the Crown land referral system. The federal DFO also uses this standard when considering proposed developments which could harm fish habitat. There are many problems with compensation. The preferable approach is to avoid destruction of existing wetlands in the first place.

Municipal governments also have wide powers to regulate wetlands through land use and zoning decisions, and bylaws about a number of subjects. Municipalities and other forms of local or regional government have no direct constitutional powers. They have only the powers that are delegated to them by other levels of government. The Municipal Act is the law which regulates what municipalities can do in BC. Wetland protection can be substantially enhanced through municipal action. For example, the District of North Vancouver has an Environmental Protection and Preservation Bylaw which includes a section on "Aquatic Areas" that has been successfully used to protect wetlands and riparian areas. This Bylaw is reproduced in the Appendix of this Guide.