2. Legal Tools for Protecting Wetlands

Federal Policies and Laws Related to Wetlands

The most explicit statement of the federal government's position on wetlands is the Federal Policy on Wetlands Conservation. This policy, issued in 1991, recognizes that wetlands are among Canada's most threatened ecosystems and commits the government to "no net loss" of wetlands.

Since this is a policy, rather than a law, it is not legally enforceable in a court. However, the policy may be used as evidence in a court or administrative tribunal case. In the case of Re Kelly, the Ontario Municipal Board refused to allow a landowner to sever a piece of his land for development because it would harm a wetland. The federal policy was cited by the Board as proof of the government's commitment to protecting wetlands.¹⁵

Fisheries Act

Many wetlands are habitat for fish. The federal Fisheries Act is an important tool for wetland protection because it contains several provisions which protect wetland fish habitat.

Section 35(1) relates to habitat protection. Although this law generally prohibits alteration of fish habitat, it allows the Department of Fisheries and Oceans (DFO) to authorize certain projects to go ahead even if they will damage fish habitat. In this case, DFO provides an authorization for a project to proceed, and requires habitat compensation to achieve the government's policy goal of "no net loss of fish habitat." DFO has a written Policy for the Management of Fish Habitat with the long-term policy objective of achieving an overall net gain of the productive capacity of fish habitats. Using the no net loss principle, the Department of Fisheries and Oceans "will strive to balance unavoidable habitat losses with habitat replacement on a project-by-project basis so that further reductions to Canada's fisheries resources due to habit loss or damage may be prevented." Section 35(1) prohibits the harmful alteration, disruption or destruction of fish habitat.

Section 36(3) is a general anti-pollution section. Even though provincial law also contains many anti-pollution provisions, it is often the federal Fisheries Act which is used to prosecute offences of polluting rivers or streams where the discharge is deleterious to fish.

Section 36(3) prohibits the deposit of a deleterious substance in any water frequented by fish ("deleterious" generally has been interpreted to mean harmful or toxic).

Section 37 gives the Department of Fisheries and Oceans the power to require plans and specifications to assess a project that results or is likely to result in either of the interferences with fish or fish habitat contained in Sections 35 and 36. If a plan and/or specification is required, the Minister may require modifications to the plans or restrict or close the work or undertaking.

The importance of the Fisheries Act is highlighted by the number of charges laid under the Act in the last two years (1994-1995) in BC — approximately 92. Most charges are related to stream or river protection. Most charges are laid after warnings have been given.

Enforcement of the Fisheries Act

Officials from the provincial Ministry of the Environment or Ministry of Forests, and from federal departments such as DFO, Environment Canada, the Coast Guard and Transport Canada investigate potential offences under the Fisheries Act. Crown prosecutors then decide whether or not to lay charges, and commence a prosecution. This decision is made after assessing two criteria: (i) a reasonable prospect of a conviction; and, (ii) the public interest requires that the prosecution proceeds. The Attorney General of Canada may request a Court to issue an injunction under Section 41(4) to stop the work or undertaking that violates the Fisheries Act, even if a prosecution has been instituted. This is an important procedure which can be used to prevent imminent damage or destruction of a wetland.

If damage has occurred, a prosecution for violating the Act may be started. The DFO will provide technical evidence to the Department of Justice, the federal government department responsible for prosecution. Where a conviction results, possible penalties are fines, imprisonment or orders for restorative action. The largest fine ever levied against a Canadian company for breach of an environmental statute was the result of a Fisheries Act prosecution against Tioxide Co. for depositing deleterious substances in water frequented by fish. Tioxide Co. was ordered to pay $4 million: $1 million in fines, and $3 million for projects to protect fish and fish habitat.

There have been many court cases involving destruction of fish habitat in BC. The Fisheries Act is a powerful tool for wetlands protection when properly enforced.

Limitations of the Fisheries Act

But the Fisheries Act is not the only legal tool for protecting wetlands in BC, despite its power to protect fish, and the wetland habitat they depend on. It is limited to protecting fish habitat, so does not apply in the case of a wetland without fish. There are other limitations as well, described below.

Who gets charged?

Enforcement of the Fisheries Act is limited by lack of resources, and also by political concerns. As Dovetail Consulting has noted: "Prosecutions are generally pursued where there have been approvals granted, where warnings have occurred, and/or cases where the proponent should be familiar with requirements and the proponent still commits an offence."¹⁶ The Crown must consider the financial and practical aspects of proceeding with a prosecution, such as the likelihood of obtaining a conviction and the public interest. The Crown considers the factors of: the sufficiency of the evidence, the competence of the witnesses, the nature of the offence (intentional neglect, accident), the actual/potential environmental impact, the cause of the incidence (one time vs. repetitive), the circumstances leading to the violation (ignores warning), permits, due diligence of the offender, past record of the offender, and efforts to report promptly and clean up.¹⁷

Private prosecutions

Private citizens may initiate prosecutions under the Fisheries Act. However, the province has the authority to intervene in the prosecution to take it over and either continue it or cancel it (called a "stay of proceedings"). This is an obvious constraint on nongovernmental organization (NGO) involvement. The Georgia Strait Alliance has been frustrated in its attempts to prosecute the Greater Vancouver Regional District for alleged violations of the Fisheries Act and the provincial Waste Management Act due to pollution from sewage. The provincial government took over the action after the private prosecution was laid out, then proceeded to adjourn the case fourteen times, and finally entered a stay of proceedings.

Reactive Law

DFO reviews hundreds of proposals each year which have the potential to harm fish habitat and often imposes terms and conditions on these proposals to eliminate or minimize any potential harm. But another limitation of the Fisheries Act is that prosecutions usually occur after damage has occurred. It is rare for the Minister of Fisheries and Oceans to issue a stop work order prohibiting any damage from occurring, even though that provision is available in the Act (s. 37(2)(b)). Though everyone agrees that "an ounce of prevention is worth a pound of cure" and that restoration work is expensive, complicated and time consuming, it is still rare to have charges laid before there is proof of damage.

WHAT YOU CAN DO

If you suspect that wetland fish habitat is being altered or destroyed, contact the Department of Fisheries and Oceans and ask them to investigate.

Private citizens can also initiate prosecutions under the Act, and will receive one half of any fine that is imposed if a conviction is obtained. For more information about private prosecutions, contact the West Coast Environmental Law Association or Sierra Legal Defence Fund in Vancouver.¹⁸

WHO TO CONTACT

Destruction of fish habitat

Observe, Record and Report — DFO 24 hour line Vancouver 1 800 465-4336.

MELP Hotline, Victoria (freshwater species) 1 800 663-9453.

Department of Environment (federal) 24 hour line, North Vancouver 1 604 666-6100.

Canadian Environmental Assessment Act

Many new projects or developments are proposed for wetland areas. Environmental assessment laws are crucial for ensuring that the full environmental effects of these proposals are considered before government agencies grant approvals which may result in wetland loss or destruction. The federal law provides for the environmental effects of a project to be assessed, as far as possible, before a project has been granted approval and before irrevocable decisions have been made. Depending on the outcome of an environmental assessment, a project may not be approved, or may be modified to minimize any environmental impacts.

There are both federal and provincial environmental assessment laws. The federal law will generally apply whenever federal departments and agencies propose a project, provide funding or land for a project or exercise a regulatory duty (such as issuing a licence, permit or approval) that allows a project to go ahead.

Wetlands are specifically mentioned in regulations made under the Act.¹⁹ A wetland is defined as "a swamp, marsh, bog, fen or other land that is covered by water during at least three consecutive months of the year." The term "water body" includes "wetland." There are a number of references to projects or activities which may have an impact on water bodies in the regulations, and which may therefore require a federal environmental assessment. For example, if a Fisheries Act authorization is required for a project or activity that will harm fish habitat by draining or altering the water levels of a water body, then a federal environmental assessment will usually be conducted.

If the Canadian Environmental Assessment Act does apply, then the relevant government agency (the "Responsible Authority") proceeds with an assessment of the likely environmental effects of the project. For example, the initial steps of an environmental assessment of a project with fisheries impacts may be conducted by the Department of Fisheries and Oceans. Projects with significant environmental impacts require full public review conducted by an independent panel or mediator.

Different projects will require different types of assessment. The possibilities are as follows:

First Nations Land

The Canadian Environmental Assessment Act also applies to "a project to be carried out in whole or in part on a reserve that is set apart for the use and benefit of a band and that is subject to the Indian Act." Section 10 of the Act requires a Band Council to conduct an assessment of the environmental effects of the project before receiving financial assistance from the federal government to enable a project to be carried out in whole or in part on a reserve. The assessment is to be done in accordance with regulations. These regulations have not yet been finalized.

Crown Corporations

The Act does not currently apply to Crown Corporations. For example, the Vancouver Port Corporation is not considered to be a Responsible Authority under the Act, and follows only its own internal environmental assessment procedures when embarking on a new project, such as expansion of the container facility at Roberts Bank. Regulations about the applicability of the Act to Crown Corporations are being developed.

International Adverse Environmental Effects

The Canadian Environmental Assessment Act allows the Minister of the Environment to refer a project to a public process in order to determine the nature of the environmental effects outside the jurisdiction in which the project is carried out. The Minister may make this decision on the basis of advice supplied to him or her by his or her own government or the government of a foreign state that claims significant adverse environmental effects under their jurisdiction.

Discretion of Government

The Minister of the Environment or the Minister of the Responsible Authority has the discretion to decide whether or not a project will be referred to a public hearing in many cases. There is no statutory appeal from a discretionary decision of this nature, although judicial review may be available. Public involvement is a key objective of the environmental assessment process established by the Act, and the federal authority responsible for each project has been directed to make an effort to understand the range of public concerns. To influence discretionary decisions that may be made by the Minister of the Environment, it is crucial to provide informed public input on the likely adverse environmental effects of a project at the earliest opportunity. The greater the degree of public concern, the better the likelihood that a public and independent environmental assessment hearing will be ordered.

If a proposed project, such as construction of a building on federal land, has the potential to harm wetlands, and the Act applies, you may want to find out if an environmental assessment will be performed. You can request that an assessment be performed. You may also decide to become involved in the environmental assessment process. There are a number of opportunities for public participation.

The Act requires information and documents relating to an environmental assessment to be made public through a Public Registry, local libraries, the local office of an environmental assessment panel, and the Canadian Environmental Assessment Agency headquarters. The Index is also available on the Internet at http://www.ceaa.gc.ca.

For more information on federal environmental assessment, see A Citizen's Guide to the Canadian Environmental Assessment Process, Canadian Environmental Assessment Agency, 1994, available at the local public library, and at the library of West Coast Environmental Law Research Foundation.

Other Federal Laws

The Canada Wildlife Act gives the federal government the power to create and administer National Wildlife Areas (NWAs) such as the Alaksen NWA in the Fraser Estuary. (This NWA is also designated as the only Ramsar site in BC pursuant to the Convention on the Conservation of Wetlands of International Importance, commonly known as the Ramsar Convention.) NWAs are established for research, conservation, and interpretation in respect of migrating birds and other wildlife. Similarly, pursuant to the Migratory Birds Convention Act, the government may establish Migratory Bird Sanctuaries, which may be located in wetland areas. The Act restricts hunting of these birds, disturbance of their nests and harmful alteration of their habitat.

The proposed new federal Oceans Act calls for the development of a national strategy for "management of estuarine coastal and marine ecosystems in waters that form part of Canada" as well as the preparation of integrated management plans for marine and estuarine areas. The Navigable Waters Protection Act which requires federal permits for activities which take place on navigable waters under federal jurisdiction and, the Canada Shipping Act which prohibits ship-source pollution, also may be used for wetland protection.

We now turn to the provincial laws which apply to protection of wetlands. No single provincial law protects wetlands. The most important provincial laws for wetlands protection are:

A description of each of these Acts follows. The Municipal Act is another crucial provincial law since it controls what municipalities can do with their land, and also sets out the environmental protection powers available to municipalities. The Municipal Act will be discussed in the section on municipal law below.

The Water Act regulates the use of fresh water in the province. This Act may be relevant for wetland protection if there is a proposal to withdraw water from a wetland or carry on activities in or around a stream, for example.

The Water Management Branch provides approvals which authorize all changes to natural watercourses, and licences for the diversion, storage and use of water. The provincial Crown owns the water, subject to licences or permits issued or approvals given under the Act.

Is a licence, permit or approval under the Act involved?

Different procedures apply, and there are different requirements under the Water Act depending whether a licence, permit or approval is required.

A licence allows a holder to divert and use a specified quantity of water for a specified time; store water; construct works for the diversion of water; alter or improve a stream or channel; and construct fences, screens or guards across streams for the purpose of conserving fish or wildlife. A licence may be acquired by certain types of people, including landowners and municipalities. A licence is issued by the Comptroller of Water Rights or a Regional Water Manager. It is the current policy of the Ministry of Environment, Lands and Parks to consider fish and habitat requirements before issuing new water licences. But this has not always been the case in the past, and since there are roughly 40,000 water licences in the province, some wetlands may be negatively affected by existing licences.

The Ministry can refuse to issue, or can put conditions on, a new water licence if issuing the licence would significantly impact on uses of water. For example, a "fish clause" may be included in the water licence to protect fish and fish habitat.

A permit is required for flooding Crown land or for the construction, maintenance, or operation on the land of works authorized by a licence or approval.

Approvals are given for "changes in and about a stream" which includes any modification to the nature of a stream, including the land, vegetation, natural environment, or flow of water within a stream or any activity or construction within the stream channel that has or may have an impact on the stream.²⁰The Comptroller of Water Rights or Regional Water Manager (or an engineer, in the case of changes in and about a stream) may place conditions on the approvals. Generally, standard conditions on approvals will reflect the concerns of the Water Management Branch for water quality implications, downstream flooding, and potential effects on the works of downstream licensees, and habitat and ecosystem concerns from provincial and federal fisheries and wildlife agencies. ²¹

Regulations under section 7 of the Act further define the standards for protection of water quality and habitat that apply to changes in and about a stream.²²The regulations define "habitat" and require people who are making changes in and about a stream to follow any terms and conditions that a habitat officer of the Ministry of Environment, Lands and Parks may impose to protect habitat. These may include restrictions on the times of year that changes may be made, minimum instream flow requirements, restoration requirements and directions to obtain approvals from DFO.

The regulations include a provision on protection of water quality which places limits on sediment deposition, disturbance of natural materials, and prohibits exceeding ambient (background) water quality standards set by the provincial Ministry of Environment, Lands and Parks. This is an important development since the Water Act has historically not been used to regulate water quality. Since it is an offence to not comply with a licence, or an approval or the regulations, under the Water Act these additional standards should ensure greater legal protection of wetlands. The penalties for committing an offence under the Act are a maximum penalty of $200,000 or $200,000 for each day that the violation continues or imprisonment for up to twelve months.²³

However, as the following case study of the East Kootenay Environmental Society's intervention in a wetland threatening development in Lake Windermere demonstrates, the deficiencies in the Water Act, and the procedural flaws in the Environmental Appeal Board powers, do not always provide adequate legal protection for wetlands.

Case Study — The Water Act and Wetlands
Protection

The East Kootenay Environmental Society and Lake Windermere Resorts Ltd.

Windermere Lake lies in eastern British Columbia near the town of Invermere. In 1990, a parcel of land bordering the lake was sold by the Province to a development company, Lake Windermere Resorts Ltd. ("the developer"). Environmentalists were concerned that approval of the developer's proposal to construct a four-season lakefront resort could potentially damage the ecologically sensitive wetland. When the developer began filling some of its land without a permit, a local environmental group, the East Kootenay Environmental Society ("EKES") tried to protect the wetland. The difficulties the group had in achieving its goals illustrate some problems with the current law. After a series of appeals to officials in the Water Management Branch, the Environmental Appeal Board, and the courts, EKES was denied permission even to make its arguments about why the wetland should not be filled.

Background

The importance of the Windermere wetlands has long been recognized. Before the Province sold it to the developer, it had been part of the Columbia Valley Wetlands Reserve, established by Order in Council. The area's ecological sensitivity is reflected by two restrictive covenants on the legal title of the wetlands, which limited the types of development that would be allowed. These covenants required development plans to be prepared before any activities could be undertaken to improve the lands, and contained provisions preventing development immediately adjacent to the natural boundaries of the lake and nearby river in recognition of the potential for flooding.

The case began when the developer started to fill in the wetlands, ostensibly for surveying and preparatory purposes. The developer had not obtained an approval under the Water Act before it started filling. EKES asked the Regional Water Manager to intervene, due to its concern that the filling would have negative environmental impacts. In addition to changing the very character of the lands, filling also had the potential to cause other harmful environmental effects such as producing methane gas from the decay of covered organic materials.

Initial Attempts to Stop Filling

EKES first tried to get the Regional Water Manager to exercise his authority under section 7 of the Water Act to require the developer to obtain an approval before proceeding with filling.

The Water Management Branch initially refused to take action because it said the lands in question were not regulated by the Water Act. Then the Branch changed its position about the applicability of the Water Act. But instead of stopping the filling because the developer lacked an approval, it chose to issue an approval. The decision of the Regional Water Manager to issue the approval was made without public notice, without any opportunity for public participation and without any environmental assessment. EKES attempted to appeal this decision to grant approval, but the Deputy Comptroller of Water Rights refused to consider the matter until the issue of whether the group had the right to bring an appeal (the issue of standing) was resolved.

This brought the issue of standing to the forefront.

Standing

Not everyone has a right to bring a legal action in every situation. An individual (or group) may seem to have a legitimate interest in a particular matter, but may still be denied the right to take part in legal proceedings because they lack standing. Normally a party will have standing only if it has a legally recognized right or interest that may be directly affected by a decision. (Often in environmental issues this boils down to property rights, but not always.) An interest simply to see that the law is observed is not usually a legal interest.

Currently, public interest standing may be granted only when certain conditions must be met. First, there must be a serious issue in question and the issue must be one that can be resolved by a court. Second, the party wishing standing must be able to demonstrate that it has a genuine interest in the matter and that it will fully argue the matter. Finally, there must be no other reasonable and effective means by which the issue can be brought before the court.

Environmental Appeal Board Hearings

The Deputy Comptroller initially advised EKES that its standing to appeal was unclear. EKES decided not to make submissions on this issue to the Comptroller, and instead went directly to the Environmental Appeal Board ("EAB") to appeal the Deputy Comptroller's decision. EKES asked the EAB to issue a stay of the Manager's approval (which would have the effect of making it illegal for the developer to continue with filling until the matter was resolved).

The stay was granted but the developer continued filling the land in preparation for construction. The developer chose to ignore the stay because it had decided to challenge the authority of the EAB to issue such an order. EKES then sought an injunction in BC Supreme Court against the developer, trying to halt the filling. The court dismissed the injunction application on the basis that it lacked jurisdiction.

EKES then asked the Environmental Appeal Board if it would enforce its own order. This time, the EAB itself initiated a court proceeding, and was granted an interim injunction to enforce the stay pending a hearing of the matter.

Eventually a hearing was held by the EAB. The Water Management Branch argued that EKES lacked standing to bring an appeal and that the EAB lacked the authority to issue a stay. The EAB found that the wetland had already been filled so the subject matter of the environmental group's concern had largely disappeared. The EAB did, however, affirm the jurisdiction of the Board to issue stays and also found that EKES did have standing to appeal the approval.

The developer then went to the BC Supreme Court for judicial review of the Board's decision asking for a finding that the EAB lacked the jurisdiction to issue a stay. This application was dismissed by the Court which said the matter had become academic as the EAB had vacated (taken away) its own order to stop the filling. A charge of contempt of court against the developer for disobeying the EAB's stay order was dismissed at the same time, for the same reasons.

The Decision of the Deputy Comptroller and Court Actions

Since the EAB had confirmed EKES' standing to appeal the approval, EKES then went back to the Water Management Branch, to try once again to appeal the initial approval of the developer's application to fill the wetland. In December 1995, the Deputy Comptroller office released its decision regarding the Regional Water Manager's approval allowing Lake Windermere Resort Ltd. to fill in the wetlands, an approval which had been granted more than a year before.

The Comptroller's decision covered two general issues: first, whether EKES had standing to appeal under the Water Act; and, second, whether the Water Manager was right in deciding to grant approval to fill the lands in question.

On the first point, the Deputy Comptroller found that EKES lacked any statutory or common law right to appeal the Water Manager's decision. He decided that the EAB's decision to grant standing to EKES was no longer valid, because the EAB had vacated its own order. This is a disappointing decision, given the time, effort and energy expended by EKES to protect the wetland. The interpretation of the appeal rights in the Water Act seems unduly narrow. The common law rules related to public interest standing were given little consideration. And the Comptroller paid scant attention to the EAB's previous decision on standing.

The second part of the Comptroller's decision, regarding the substantive issues, found that the Water Manager was right in deciding to grant approval to fill the wetlands.

This case demonstrates the inadequacy of the current law to either (a) provide a rational forum for a dispute about a wetland to be reviewed and resolved or (b) actually to prevent damage to the wetland. Not only was the East Kootenay Environmental Society unable to prevent or reverse the filling of the wetlands, but the Comptroller's decision may well make it more difficult for other environmental groups to challenge approvals made under the Water Act.

If the Water Act was amended to more closely resemble other environmental legislation which explicitly states that any affected person can appeal, some of the problems experienced by the East Kootenay Environmental Society could be avoided in the future.

WHAT YOU CAN DO

To find out whether the Water Act can be used to protect the wetland you are concerned with, take these steps:

Find out if a licence, permit or approval under the Water Act is needed for any activity taking place on the wetland. You can ask the local representative of the Water Branch of the Ministry of Environment, Lands & Parks, and/or the landowner. You may also want to consult a lawyer to see if one of these documents is required.
If any of these documents is required, ask if it has been issued. If it has, get a copy. It may be possible to appeal the document. Be alert for time limits on your right to appeal. If it has not yet been issued, you may have an opportunity to participate in the application process, and prevent the permit from being issued or have terms and conditions imposed which better protect the wetland.
If you do not agree with a decision made by the Regional Water Manager or Comptroller of Water Rights, you may be able to appeal the decision. Your appeal rights are limited. The relevant provisions of the Water Act differ from other environmental laws in granting only certain narrow classes of people the right to appeal. Only riparian owners, licensees and applicants for a licence are allowed to object to applications for licences. Section 38 of the Act, which addresses rights of appeal, does not specify who may appeal but refers only to a "person." This is in contrast to the provisions, for example, of the Pesticide Control Act which allow "any interested person" to appeal an order under the Act.
The Water Act provides for appeal of an order of a Regional Water Manager to be made to the Water Branch Comptroller, then to the Environmental Appeal Board, and finally to the Lieutenant Governor in Council (Cabinet). The appeal must be started within 30 days of the order.
Where a permit has existed for more than 30 days, there may be the possibility of suspension or cancellation of rights or permits. Section 18 of the Water Act requires the permit holder to use reasonable care to avoid damaging land, works, trees or other property. Where this requirement has not been met, the permit may be cancelled and compensation for damages may be required.

WHO TO CONTACT

Water Quality

Permitted discharge MELP Environmental Protection, Surrey 1 800 665-7027; 1 604&nbsp582-5274.

Pollution

DOE Environmental protection (24 hour line), North Vancouver 1 604 666-6100.

Salmon/marine fish habitat

DFO Habitat and Enhancement, New Westminster 1 604 666-6479.

Wildlife Act

The Wildlife Act offers some legal protection for wildlife species that may reside in a wetland. Wetlands are home to many species including fish, birds, plants, amphibians, mammals and others. The Wildlife Act is the chief provincial law for wildlife and endangered species protection.

Each year, under this authority, MELP purchases land for wildlife protection, often with other agencies, such as the Canadian Wildlife Service, a municipality, or a nongovernmental organization such as the Nature Trust of BC, Nature Conservancy of Canada or Ducks Unlimited Canada.

The Wildlife Act gives the Minister the authority to designate land under his or her control as a Wildlife Management Area (WMA). The province currently has designated twelve WMAs, but these amount to only 0.021 per cent of the province's area.²⁵ Most WMAs have a land use management plan. No use that contravenes the Wildlife Act will be permitted in a WMA, unless a permit has first been obtained allowing that use. Permits can be obtained by applying to the Regional Fish and Wildlife Manager. Permits will be granted where the proposed land use is compatible with the values being protected in the management plans. Where there is no management plan, the permit must still be compatible with the land values of the area protected.

These powers have been used to protect wildlife residing in wetlands, primarily migratory birds. For example, the South Arm Marshes WMA protects several small islands in the mouth of the Fraser Estuary which are valuable habitat for Canada's largest assemblage of migratory birds.²⁶

Wetlands are also acquired by the province through the Habitat Conservation Fund. The HCF is funded primarily through surcharges on angling, hunting, trapping and guiding licences as well as through donations and bequests. Over 1,200 projects across BC have been funded by the HCF since 1981 at a cost of approximately $21 million.

An example of a wetland area acquired partially with funds from the HCF is the Delkatla Wildlife Sanctuary in Masset, Haida Gwaii (the Queen Charlotte Islands). The sanctuary provides important migratory habitat for sandhill cranes, dusky Canada geese, white fronted geese and tundra swans as well as wintering habitat for trumpeter swans, American widgeon, mallard and northern pintail. In addition to buying the land to ensure it protected the bird habitat, it was also necessary to restore tidal flows to Delkatla Inlet by replacing a 33 metre section of causeway with a bridge to allow the natural tidal flow to return to the mud flats. The causeway had blocked the tidal flow and the marsh was becoming freshwater. The project cost of approximately $1 million was shared between the federal and provincial governments, the village of Masset, the community, and nongovernmental organizations such as Ducks Unlimited Canada.

Another example involving the Habitat Conservation Fund and a nongovernmental organization is the acquisition of a critical salt marsh on Pender Island. The Pender Island Conservancy Association raised $250,000 to purchase the Medicine Beach wetlands which contain many rare and unusual plants.

Protection for Endangered Species

Under the current BC Wildlife Act, endangered species receive very limited legal protection.

Endangered or threatened species are defined in the Wildlife Act as "animals which have been designated as such." An animal is defined as a "mammal, reptile, amphibian or bird." Therefore, plants, invertebrates, and fish are not included in the definition.

This means that some species which have been scientifically identified as threatened are not eligible for any of the possible protection measures provided by the Act. For example, though plants are not counted under the definition used in the BC Wildlife Act, they are included on the Red and Blue Lists of endangered and threatened species prepared by the Conservation Data Centre, a branch of MELP.²⁷ Currently, 634 plants are designated as rare in BC;²⁸124 of those are considered threatened or endangered.

Another limitation of the endangered species portion of the Act is that it is discretionary, rather than mandatory. Section 6 of the Wildlife Act says the Lieutenant Governor in Council may designate a species as endangered or threatened. And section 7 also uses the discretionary word may to refer to the power to designate land as habitat for endangered or threatened species.

The current Wildlife Act has rarely been used to designate species. Since 1980, only four species have been designated: the Vancouver Island marmot, the sea otter, the burrowing owl, and the American white pelican. These species were all designated in 1980 and remain the only species to have received legal designation in the province.

The situation with respect to the use of the current law's habitat protection powers is even worse. The power to designate land as a critical wildlife area (habitat for a threatened or endangered species) has only been used once, for the Vancouver Island marmot. The infrequency with which the law is used to protect habitat is one of the most troubling aspects of species protection in the province. Habitat loss is the single most important factor affecting species loss in BC.²⁹

Case Study — Boundary Bay Wildlife Management Area

Boundary Bay is a vital international link for more than a million shorebirds and waterfowl on the Pacific Flyway and also provides an overwintering site for thousands of ducks. Canada's highest concentration and diversity of overwintering raptors is found in the rich alluvial farmland adjacent to Boundary Bay. The area has been threatened by many different types of development.

In January 1991, a BC Supreme Court judge quashed municipal approval of a controversial golf course project on prime wildlife habitat in Delta. The court quoted the BC Ministry of Environment:

"The site of the proposed golf course involves one of the more important habitat areas for raptors (hawks, eagles and owls) in Boundary Bay and the Lower Mainland region. Accordingly, the Ministry of Environment considers the site to be critically important to sustaining a viable population of raptors in the Boundary Bay area. Such habitats have become exceedingly scarce over recent years."

The court accepted arguments by the Boundary Bay Conservation Committee that Delta Council's approval of Boundary Shores Golf Course Ltd.'s 72nd Street proposal was invalid because Council considered pertinent information supporting the proposal after the conclusion of legally-required public hearings — and didn't give opponents of the development a chance to respond to the information. The court held that the municipality's obligation to hold a public hearing under the Municipal Act was breached by its receipt of "powerfully persuasive materials" following the conclusion of a public hearing without giving opponents of the rezoning an opportunity to respond.

The decision was the climax of a long struggle by the Committee against what the court referred to as "an unprecedented number of golf course development proposals" faced by the city of Delta. These proposals were among the 130 golf courses proposed following the BC government's 1988 decision to allow construction of golf courses without the approval of the Agricultural Land Commission on agricultural land protected under the Agricultural Land Commission Act.

After the 72nd Street proposal had been approved by Delta Council, in November 1990 Delta voters elected a new Council which imposed a moratorium on new golf course proposals.

The Boundary Bay Conservation Committee finally was successful in persuading the provincial government to designate Boundary Bay as a WMA after years of effort. In October 1994, the provincial government established a Public Advisory Committee (PAC) to represent some 28 public interest groups and municipalities from around the Bay. The Committee has met monthly since that time, even though the Wildlife Management Area was not officially declared until June 1995. A final plan for the WMA has still not been established, with much of the time being spent in polarised arguments between hunters and representatives of environmental groups. The major concern of the environmental group representatives on the PAC has been the lack of dedicated staff time on the part of MELP to follow-up on decisions made by the PAC. For example, a major issue involves the use of certain parts of the foreshore for helicopters — mostly for hovering just a few metres above the ground. It took more than a year for MELP to begin to take action on this problem, and the problem has still not been resolved. However, some restrictions, such as the use of the area by any wheeled vehicles such as motorcycles and dune buggies, have been established. Enforcement of restrictions is also a concern because of a lack of MELP or DFO enforcement officers.

WHAT YOU CAN DO

Find out what species inhabit the wetland concerned by contacting your local government, the Ministry of the Environment Lands and Parks, and naturalist and environmental groups in the area. You may also consult the Wetlandkeepers publication of the BC Wildlife Federation for more information on wildlife identification. You may want to contact Ducks Unlimited Canada, the Nature Trust of BC, the Nature Conservancy of Canada, or the Federation of BC Naturalists to see if they can assist with efforts to protect the wetland.

If the wetland concerned is in a Wildlife Management Area, check the management plan and try to find out whether all the activities in the area are authorized by the plan. Find out if any permits are in effect which authorize uses you may be concerned about.

If the wetland is not in a WMA, ask MELP to establish a WMA, and/or use the MELP powers to acquire the land.

If endangered species reside in the wetland, ask for the species to be designated under the Act and also ask for protection of the species' critical habitat.

WHO TO CONTACT

Wildlife and Endangered Species protection

MELP Environmental Protection, 1 800 665-7027.

Canadian Wildlife Service (for migratory birds or wildlife on federal lands) 1 604 666-0143.

Pollution affecting salmon marine species and migratory birds

DOE Wildlife Enforcement, Delta, 1 604 946-8643, 1 604 666-0143.

Many wetlands are owned by the provincial Crown. The Land Act regulates the disposition of Crown land in the province. There a number of different types of dispositions of Crown lands: the Minister may sell, lease, grant an easement or right-of-way over, or grant a licence to occupy Crown land. Regional offices allocate and manage Crown land by identifying land needs, and reserving or transferring lands for specific purposes.

The Land Act gives the government a great deal of discretion in disposing of these publicly owned lands. A referral process is used to determine whether any other government agency has concerns about the proposed disposition of the lands. Any developments on Crown land are reviewed by the Ministry of Environment, Lands and Parks as part of the Crown land referral process. The referral process has been described as the "front line" in terms of wetland conservation in BC. "It lets land managers monitor developments which might impact wetlands, and enables them to recommend modifications to development plans, or to recommend that development not take place on critical wetland habitats."³⁰

However, even though Crown land dispositions are subject to this referral process, the ultimate decision rests with the Lands branch. So, even if a wildlife biologist employed by MELP objects to a proposed development on Crown lands, or objects to a proposed disposition which may negatively affect a wetland for example, if the Lands branch office approves it, the disposition or development can proceed.

If you are concerned about possible harmful environmental effects of a development proposed on Crown land, you should contact your local Ministry of Environment office to register your concerns. You may want to ask if they are participating in the Crown land referral process for the wetland in question, and if they will communicate your concerns during that process.

If you are concerned about a wetland on Crown land that is being sold or otherwise disposed of, you should contact your local BC Lands office. You should obtain the relevant documents and ask to participate. Public participation in Crown land decision making is limited. Although any person may object to an application for Crown land, the Minister has the discretion to decide whether or not to order a hearing. After the hearing, the Minister may make any order "as he may consider just." Any person affected by the order may appeal the decision to the Supreme Court but only on a question of law. A lawyer's advice is essential if you are considering taking this step.

The BC Waste Management Act is the central anti-pollution law in the province. This Act may be important for wetlands protection, since pollution may be entering a wetland either pursuant to a Waste Management Act authorization, or without an authorization. It is important to know the requirements of the Act to ensure that the law is being followed.

The Act contains a general prohibition against introducing waste into the environment, subject to a number of exceptions for activities done under a permit or other form of authorization, or exemptions from the application of the Act. A permit or other authorization may contain requirements for environmental protection, such as posting security to repair any environmental damage that occurs, or monitoring the waste to ensure that pollution does not exceed certain parameters. The Act also requires local governments to prepare municipal waste management plans.

"Waste" under the Waste Management Act includes air contaminants, litter, effluent, refuse, biomedical waste and special waste (hazardous waste, toxic substances designated by Cabinet). Effluent is broadly defined.

There are sections of the Waste Management Act which create automatic offences for certain waste introduced into the environment. For example, section 6 makes it an automatic offence to throw down, drop or deposit litter, and section 7 makes it an automatic offence to discharge waste from a recreational vehicle.

An important provision in the Act allows a Manager to make an Order to abate (reduce or eliminate) pollution. Section 22 provides that "where a Manager is satisfied on reasonable grounds that a substance is causing pollution, he may order a number of persons, including (1) the person with possession, charge or control of the substance, (2) the person who caused or authorized the pollution, or (3) the person who owns or occupies the land on which the substance is or was located, to do a number of things directed at abating pollution."

Even after permits or approvals to dispose of waste have been granted, MELP has the power to suspend or cancel them. Section 23 contains a long list of situations in which this power may be exercised. The list includes suspension or cancellation where the permit or approval is not in the public interest, where the permit or approval conflicts with or is replaced by an approved waste management plan, or where the permit holder fails to comply with requirements in the permit, or the Act.

Section 26 provides for appeals of decisions of the manager by anyone aggrieved by a decision.

Finally, section 34 sets out the offences and penalties involved in not complying with a permit or approval. Any non-compliance with permits should be brought to the attention of the manager, who should notify the proper authorities to initiate prosecutions. This may act as further deterrent to destroying the wetland.

Other parts of the Act that may be relevant for wetlands protection include requirements to immediately report the spill or escape of polluting substances. The Act gives wide enforcement powers to environmental protection officers who can enter onto land and investigate works or activities that may be causing pollution or that are used for storage, handling, treatment, destruction or disposal of waste.

Find out if waste is entering the wetland. Then determine whether the waste is being emitted under a permit. Permit applicants must fulfil certain requirements when they apply for a permit or approval. The public notification regulation sets out the requirements for public notice and opportunities for the public to comment on the permit application.

If you have reason to believe that pollution is harming a wetland, you may ask the Ministry of the Environment to issue a pollution abatement order or a pollution prevention order. Pollution prevention orders are particularly important since they can address potential pollution before any damage is caused.

If you are not satisfied with the decision made by the Ministry about a specific permit, you may appeal the decision to issue the permit or amend the permit to the Environmental Appeal Board (EAB). Any person who is aggrieved by a decision has the right to bring an appeal to the District Director or Director of Waste Management and then to the EAB. The office of the EAB is in Victoria. For more information, you can contact the EAB directly at 1 250 387-3464. You may also want to contact West Coast Environmental Law Association for more information about how to bring an EAB appeal.

You may also want to become involved in the development of your local municipal waste management plan. Before MELP approves a waste management plan, public consultation respecting all aspects of the development, amendment and final content of a waste management plan is required. Once approved, permits or approvals granted must not conflict with the waste management plan.

Since many projects and developments are proposed for wetland sites, laws that examine their potential environmental effects before approvals are granted are very important for wetland protection. The BC Environmental Assessment Act is a new law, similar to the federal environmental assessment law, but applicable to projects under provincial jurisdiction. It applies to major project proposals in a variety of areas. The Act, which came into force on June 30, 1995, will help to ensure new operations are designed to prevent damage in the first place. This may involve refusing permission to construct projects on wetlands.

One of the innovative features of the new Act is a project registry that provides notice and information to the public throughout the review process. The Project Registry will contain a wealth of important information, including:

In addition, it provides for the transition of projects currently being reviewed under existing processes to the new environmental assessment process. Each project will be placed in the new process at a point which gives credit for progress already achieved in existing review processes.

Although wetland protection is not explicitly mentioned in the Act, examining the environmental impacts, including the cumulative impacts of a proposed project, will necessarily include the effects on any wetlands in the area. The list of reviewable projects set by regulation is extensive, and this new Act should lead to greater protection of wetlands in British Columbia.

The types of projects that are subject to environmental assessment by the provincial government are listed in the Environmental Assessment Reviewable Projects Regulation. These projects include:

All of these projects will be subject to an environmental assessment review if they meet the size thresholds listed in the regulations. Even if a project does not fall within the thresholds established by the reviewable projects regulation, under section 4 of the Environmental Assessment Act the Minister of the Environment has the power to designate a project to be subject to an environmental assessment if the Minister is satisfied that the project has or may have a significant adverse effect and that the designation is in the public interest.

Certain types of projects will normally not be subject to environmental assessment since they are not listed in the Reviewable Projects Regulation. These include residential subdivisions and forest practices. However, in special cases, the Minister may exercise his or her discretion under section 4 of the Act and order a project to be reviewed. This is what has been done with the Bamberton project on Vancouver Island, a large residential development in an ecologically sensitive area.

Forest Practices Code

Wetlands in forests are vulnerable to damage from logging and other forest practices. Since the majority of land in the province is forested land which is owned by the provincial Crown and managed by the Ministry of Forests, forest laws play a key role in wetland protection.

The Forest Practices Code of British Columbia Act is the law which provides the most protection for wetlands on forested land. The area logged today in Canada is twice what it was in 1960 and forest wetlands are increasingly at risk as a result. The impact of logging on wetland health can be substantial, but wetlands can be protected by the retention of adequate "green strips" around their edges. An important legal tool which provides this protection is the new Forest Practices Code of British Columbia Act, which includes wetland and riparian setbacks.

The area of land along the edge of a wetland or other defined water body that must be free from logging varies according to the class of stream or wetland involved. The Code establishes Riparian Management Areas (RMAs) which include both a reserve zone and a management zone. Timber harvesting is prohibited in reserve zones, except in special circumstances with the approval of MELP. The Operational Planning Regulations, Part 10, made pursuant to the Forest Practices Code of BC Act contain the water body classifications and setback restrictions for RMAs. Figure C, below, illustrates the setbacks which will apply in wetland RMAs.

Riparian Class	Riparian Reserve Zone (M)	Riparian Management Zone	Riparian Management Area
W1	10	40	50
W2	10	20	30
W3	0	30	30
W4	0	30	30
W5	10	40	50

Figure C — Riparian Protection Zones. Forest Practices Code of British Columbia Act. Operational Planning Regulation, April 1995, V5.75.

The reserve zones are established for the categories of larger fish streams or streams in community watersheds but not on the narrower fish streams or on non-fishbearing streams, areas where there is also a need for biodiversity protection. The reserve zones are likely too narrow for effective biodiversity conservation and do not protect small wetland areas such as bogs, fens and marshes.³¹

Other restrictions in RMAs include:

road construction is generally prohibited;
wildlife trees must be retained to the greatest possible extent; and,
an approved Range Use Plan is required for any livestock use in the area.

A series of Guidebooks are available and are intended to provide assistance to those preparing operational plans. The recommendations in the Guidebooks are not mandatory. However, once a recommended practice is included in a plan, prescription or contract, it becomes legally enforceable.

The three Guidebooks of most relevance for wetland protection on forest land in BC are: Biodiversity Guidebook, September 1995; Riparian Management Area Guidebook, December 1995; and, Managing Identified Wildlife Guidebook, not yet released. Together, these three Guidebooks are intended to address the majority of biodiversity concerns (including wetland protection) on forested land in the province.

The objectives for riparian management areas set out in the Riparian Management Area Guidebook include the following:

to minimize or prevent impacts of forest and range uses on stream channel dynamics, aquatic ecosystems, and water quality of all streams, lakes and wetlands; and,
to minimize or prevent impacts of forest and range uses on the diversity, productivity of wildlife and sustainability of wildlife habitat and vegetation adjacent to streams, lakes, and wetlands with reserve zones, or where high wildlife values are present.

The Code also creates the Forest Practices Board, which has the power to receive public complaints about enforcement of the Code, to carry out audit and inspection functions to determine compliance with planning and operational requirements and to take part in appeals to the Forest Appeals Commission.³²

WHAT YOU CAN DO

Contact the local Ministry of Environment, Lands and Parks or Ministry of Forests office to ask for help with wetlands in forested areas under Crown control.

If you are not satisfied with the response from these Ministries, you may wish to request an investigation or lodge a complaint with the Forest Practices Board. The headquarters of the Board are in Victoria.

WHO TO CONTACT

Wetlands in Forests

Local MELP or MOF office — see blue pages in phone book.

Forest Practices Board

Toll free 1 800 994-5899.

The strongest degree of legal protection for a wetland comes from designation as a park, ecological reserve, or other protected area. If you are interested in protection of a particular wetland, you should find out whether the wetland has been recommended for protection as a park, ecological reserve or other protected area. The province has embarked on an ambitious Protected Areas Strategy (PAS), with the goal of doubling BC's protected area space to twelve per cent of the province's land mass by 2001. Regional protected area teams (RPATs) have been working to identify candidate areas for inclusion as protected areas. In the Lower Mainland, the RPAT recently recommended a number of wetlands for protection.

You may want to lobby government to preserve the wetland you are concerned with as a park. You should contact the parks employees at the provincial and municipal local levels in your area to find out the procedures for creating a new park.

Wetlands may be protected by a management plan made under the authority of the Environment Management Act. Under this Act, the Minister of Environment, Lands and Parks is given broad powers, including the power to prepare environmental management plans for specific areas for:

Management plans made under section 2 are binding only when the Minister has made a declaration under section 4 of the Act, and the Lieutenant Governor in Council has requested preparation of a management plan and subsequently accepted or modified the plan.

One example of how an environmental management plan made pursuant to this Act can be used to protect wetlands is the Cowichan Estuary Plan which was approved by Order in Council. The Plan provides that no licence, permit or power under an enactment can be issued or exercised in the Cowichan Estuary without the written approval of the Minister of Environment, Lands and Parks "to the effect that the issuance or exercise will have no detrimental environmental impact ... and is in conformity with the plan." More information on the Cowichan Estuary Plan can be obtained from the Nanaimo regional office of the Ministry of Environment, Lands and Parks.

Although environmental protection is usually thought of as the responsibility of the federal and provincial governments, municipalities and regional districts also play a very important role in protecting wetlands, because they control land use and development. It is at the local level that most wetlands protection decisions are made. Decisions about planning, zoning, park and land acquisition, bylaws, and environmentally sensitive areas all have a major impact on wetland protection.

The Municipal Act contains many tools that could be used to protect wetlands. Other laws enforced at the municipal level include the Local Services Act and its Subdivision Regulation, which sets minimum standards for onsite sewage servicing; the septic standards set by the Health Act; and, the goals for growth management set out in the Growth Strategies Act. If a municipality has environmental protection as a priority, there is no lack of legal tools at its disposal.

The available municipal legal tools have been extensively canvassed in recent publications, such as Environmental Stewardship in the Municipal Act — A Synopsis of Local Governments' Powers (DFO, 1996) and the forthcoming Dovetail Consulting publication prepared for DFO titled Assessment of Mechanisms for Protecting Riparian and Aquatic Resources in Urban Areas. The Guide to Stewardship Bylaws, part of DFO's Stewardship series, is also available as a working draft and will be published in the fall of 1996.

The Municipal Act gives municipalities a number of different powers which can be used to achieve environmental objectives, such as protecting wetlands. Some examples are:

The Vancouver Charter gives the City of Vancouver similar powers similar to those set out in the Municipal Act. The City of Vancouver is not subject to the Municipal Act.

An Official Community Plan may be an effective tool for wetlands protection because the Plan can designate wetlands as areas which should be protected.

The Act requires all bylaws enacted or works undertaken by a council or board to be consistent with the OCP.

An OCP can protect local ecosystems by the use of Density Bonus Zones, Comprehensive Development Areas and Development Permit Areas.

Density Bonus Zones allow developers to increase density on all or part of the site in exchange for provision of an amenity.

Comprehensive Development Areas enable local governments to negotiate complex multi-use sites and to develop customized zoning regulations.

Development Permit Areas may be designated in areas for protection of the natural environment.

OCPs are periodically amended by the local government. There are opportunities for public involvement in the preparation and amendment of the plans.

Local government may, by bylaw, create zones. Zoning regulates the development of property in a city, town or rural area. The zones are usually set out in both the OCP (if there is one) and a zoning bylaw. Zoning bylaws can regulate the density, siting, size and use of land, buildings and structures, and the location of uses on the land and within buildings.

Section 963(3) of the Municipal Act sets out how regulations may vary between and within the zones. Section 963(4) gives the municipality the power to prohibit any use or uses of land in a zone.

A first step in municipal protection is to identify wetlands in the OCP. Section 945(4) of the Municipal Act allows a municipality to designate areas in its community plan to protect the natural environment, and once an OCP identifies an environmentally sensitive area (ESA), a development permit must be obtained before land in that area can be altered in any way unless the OCP specifies otherwise.

A number of municipalities have designated ESAs in their community plans. In the Lower Fraser Valley, ESAs have been identified in community plans by the municipalities of Anmore, Burnaby, Chilliwack, Delta, Langley Township, Maple Ridge, Mission, North Vancouver District, Port Coquitlam, Port Moody, Richmond, Surrey, and West Vancouver. Most of the other municipalities in the region have also partially identified this type of habitat or have started the process.³⁴

Identification of ESAs such as wetlands should be followed by the development of regulations or policies to protect these areas. A number of methods have been adopted by local governments.

The municipalities in the Lower Fraser Valley were surveyed in 1995 about the measures they had adopted to protect aquatic habitat. Many of the municipalities which had identified their wetlands scored a lot lower on actual protection of these wetlands — less than half of the governments had established regulatory guidelines and measures that could be implemented.

Bylaws can be used to protect wetlands. Municipalities have the power (under the Municipal Act) to make bylaws on many subjects, including:

There has been increasing interest in municipal environmental protection powers in recent years. One pioneer municipality is the District of North Vancouver. It adopted a comprehensive Environmental Protection and Preservation Bylaw in 1990. The bylaw incorporates the Land Development Guidelines discussed below, which gives the municipality a powerful tool to ensure developers protect streams and wetlands during the construction process. The bylaw is divided into four sections: soils, trees, aquatic areas, and sloping terrain. The bylaw requires developers to obtain an environment permit which incorporates the Land Development Guidelines. The permit requirement is important since it both educates developers about the need for the Land Development Guidelines and makes enforcement of the bylaw easier since violating the permit is an automatic infraction. This bylaw is reproduced as an appendix to this report.

Stewardship Bylaws

The surge of interest in municipal environmental protection powers has prompted many municipalities to consider adopting more comprehensive stewardship bylaws. A new publication from the federal and provincial governments illustrates how the land use regulation powers available to local governments can be used as part of a stewardship implementation strategy. This publication provides sample wording and detailed information for those involved directly in local government bylaw drafting and in the land management process. The publication, A Guide to Stewardship Bylaws, provides sample wording for:

general clauses, enabling provisions,
general definitions and references,
tree management bylaws,
soil removal and deposition bylaws,
water course protection bylaws,
zoning bylaws, development permits, and
subdivision and servicing standards bylaws.

Since local conditions vary, it is important for a municipal government to draft a bylaw that accounts for the degree of development already present; the natural features and ecological sensitivity of the area; the specific activities that are affecting the stream; and, the resources required to enforce the bylaw.

Land Development Guidelines for Protection of Aquatic Habitat

The Land Development Guidelines for the Protection of Aquatic Habitat were produced in May 1992 by the Habitat Management Division of the Department of Fisheries and Oceans and the Integrated Management Branch of the Ministry of Environment, Lands and Parks. The Guidelines apply to development in or adjacent to waters containing fish or fish habitat.

The Guidelines apply primarily to salmon, trout and char, but are applicable to all fish species that may be affected by developments in or adjacent to their waters. Out-of-stream habitat features such as wetlands are included. The goal of the Guidelines is to "ensure that the quantity and quality of fish habitat are preserved and maintained at the productive level that existed prior to land development activities." Thus, land development projects are subject to the following guideline objectives:

leave strip protection and provision (prohibiting any disturbance within a specified distance from the edges of a creek for example);
erosion and sediment control and site development practice;
storm water management;
instream work controls;
fish passage and culverts maintenance; and,
prevention of deleterious substance discharges.

The Land Development Guidelines may be of use in deciding whether there has been a breach of the standard of care required of developers in a prosecution for alteration or destruction of fish habitat under the Fisheries Act. The Guidelines also help the Minister of Fisheries and Oceans decide whether development should be allowed, if there is the possibility of a net loss of wetlands that are under federal jurisdiction.

The Land Development Guidelines have no legal force unless they are incorporated directly into a bylaw. Some municipalities in BC have incorporated these guidelines directly into their bylaws. This is an important tool for wetlands protection, as it limits what type of development can occur near riparian and aquatic habitat. An approving officer for the municipality may refuse to give planning permission for a new development if the Guidelines have not been followed, and can enforce the bylaw through ticketing or other enforcement methods if it is breached or violated. This is the approach used by the District of North Vancouver with its Environmental Protection and Preservation Bylaw.

Case Study — Municipal Action: Norman vs.
the City of Port Moody

A recent case involved the victory of a private citizen concerned that his municipality had not adequately protected some wetlands in Port Moody. He successfully represented himself in a judicial review application in the BC Supreme Court to have the bylaw that purported to regulate the wetland quashed.

The municipal council of Port Moody prepared a bylaw for a land use policy for a 381 acre area on the north shore of Burrard Inlet. While preparing this plan, the city had commissioned an environmental assessment of the area which included two different wetlands, both noted as "high sensitivity areas." One of the wetlands was about 6.7 acres and the other was 1.6 acres. The assessment also said that there were "potential risks associated with developing in and adjacent to the wetlands." The planning staff in Port Moody decided that only the larger of the two wetlands was to be protected from development. In the bylaw that the city prepared, the larger wetland was noted on the land use plan for the area, but the smaller wetland was excluded.

David Norman petitioned the City to set aside this bylaw.

The Court granted the judicial review application and ordered the bylaw to be set aside. The judge agreed with Mr. Norman's argument that the city had not fully disclosed all the information it had about the wetlands. The Court found that the City had a duty to ensure that all citizens of Port Moody could inform themselves of the basic questions at issue in the debate over the bylaw, but that the City had failed this duty. It had not disclosed all its information regarding the wetlands included in the land use policy set by the bylaw. The Court found that the City's disclosure of information left a mistaken impression that it was protecting all of the wetlands area, when in fact this was not the case.

This decision is an important victory for wetlands protection. It is also important for its comments on the importance of environmental protection and allowing public participation in those issues. The judge stated:

It is specious to contend that while Courts should concern themselves with private property rights, they must ignore citizens' legitimate concerns about property that is collectively owned by a community. Public hearings that involve a reflection on environmental issues involve special procedural considerations. Given that a land use decision with a significant impact on the environment affects all the members of the community, it is incumbent upon an elected Council to attempt to disclose as much information as possible to allow citizens to voice their opinions. It is a first step to commission an environmental assessment. Council must also ensure that the vital information in the assessment is properly disseminated at the public meeting.

After the court case, the city held additional public meetings. Many members of the citizens' group opposed to development of the wetland attended these meetings. Considerable media attention was also devoted to the issue. The city decided to appeal the court decision and not to proceed with the bylaw, pending the appeal. No appeal decision has been made as of October 1996.

Habitat acquisition and management

Directly acquiring a wetland may be the best way to protect it. Land can be acquired by a municipality in a variety of ways — for example, by purchase, expropriation, or dedication of certain areas. Part 12 of the Municipal Act concerns acquisition and disposal of property. Section 533 of the Act gives a municipality the power, by bylaw, to dedicate for public purpose real property owned by the municipality.

Some of the greatest opportunities to acquire land occur during the process of subdivision. Where land is being subdivided, section 992 of the Municipal Act requires the landowner to provide, without compensation, park land of an amount and in a location acceptable to the local government or pay to the local government an amount equalling the market value of the land that may be required for park land purposes. Section 992(4) provides that not more than five per cent of the land being proposed for subdivision will be required to be dedicated as park land. Some local governments have made great use of the five per cent park land dedication. Other governments have asked for cash in lieu of the five per cent land requirement. There are other methods a local government can use to acquire wetlands, such as encouraging private landowners to donate ecologically valuable land. Proposals have been made for changes to the Municipal Act to expand the possibilities for park or wetland acquisition even further, by increasing the maximum percentage of land dedication during subdivision, for example.³⁶

Growth Management

Many wetlands are destroyed by rapid uncontrolled urban development. A new provincial law, the Growth Strategies Statutes Amendment Act, part of the Municipal Act, is designed to manage growth more sustainably. It provides Regional Districts with the authority to adopt regional growth strategies and provides mechanisms for coordination between municipalities and Regional Districts on issues that cross municipal boundaries.

The purpose of a regional growth strategy is: "to promote settlement that is socially, economically and environmentally healthy and that makes sufficient use of public facilities and services, land and other resources." A strategy is to "work towards" objectives such as protecting environmentally sensitive areas and protecting the quality and quantity of ground and surface water.³⁷ Official community plans and rural land use bylaws are also directed to "work towards" these and other objectives.

This Act is considerably weaker than similar legislation in Washington state, which has been used extensively by environmental advocates to protect wetlands. In Washington, counties must identify sensitive areas and protect them by ordinance. The BC legislation is almost entirely voluntary — the provincial Cabinet may require an area to prepare a regional growth strategy, but otherwise a regional district is free to decide whether or not it wants to adopt such a strategy.

WHAT YOU CAN DO

The planning department of your local government office has a wealth of information which will be useful for wetland protection. There, you can review the Official Community Plans and zoning bylaws to determine the zoning for the wetland you are concerned about. You may want to see if your local government has identified and/or protected all the environmentally sensitive areas under its jurisdiction.

You can check to see whether there are any environmental protection bylaws, and if not, you may want to ask your municipal council to consider adopting this type of bylaw.

If you are interested in the development of a particular piece of property, you could check to see if all necessary permits have been obtained. For example, in Vancouver, these are some of the permits that are required before starting any new development:

development permit,
building permit,
excavation permit,
temporary crossing permit,
sewer connection permit, and
access approvals.

You can find out whether your local government is involved in preparing a regional growth strategy, and ask what avenues are available for public involvement in the development of the strategy. You can also lobby for stronger measures to require local governments to identify and protect wetlands.

If you have reason to believe that a bylaw is being violated, you should contact the local government employees responsible for enforcement.

WHO TO CONTACT

Municipal planning departments

For more information about what measures your local government may have taken to protect wetlands and other aquatic habitat, and more information about Environmentally Sensitive Areas and Development Permit Areas, a good starting point is the municipal office. See phone numbers in blue pages of phone book.

Consult the publications:

A Guide to Stewardship Bylaws;
Land Protection Guidelines for the Protection of Aquatic Habitat; and,
Stream Stewardship.

If you live in the Lower Mainland area, you may also want to review a recent publication from the Department of Fisheries and Oceans: Protection of Aquatic and Riparian Habitat by Local Governments — An Inventory of Measures Adopted in the Lower Fraser Valley, 1995.

In addition to the wide array of legal tools used by each individual level of government, there are a number of cooperative multijurisdictional programs for wetland protection. Citizens should know about these programs, since some programs provide opportunities for public involvement.

Pacific Coast Joint Venture

The Pacific Coast Joint Venture (PCJV) is the implementation arm of the North American Waterfowl Management Plan, an effort by the Canadian, American and Mexican governments to restore declining populations of waterfowl through habitat identification and acquisition. The Pacific Coast Joint Venture encompasses wetlands and other habitats on the Pacific Coast, and includes many government agencies as well as nongovernmental organizations. As of 1995, the PCJV had secured over 1,000 hectares of important waterfowl habitat at a cost of $130 million. An example of an important Joint Venture undertaken by this program is the Englishman River Estuary established near Parksville in 1992. It is now designated by the provincial government as a Wildlife Management Area.

Fraser Basin Management Program

The Fraser Basin Management Program was established in 1992 for a five-year period to advance the environmental, economic and social sustainability of the Fraser River Basin. The program has a nineteen-member Board with representatives from government, First Nations, business, labour, NGOs and other groups throughout the Basin. One of the purposes of the Program was to bring the various levels of government together to coordinate their efforts and resolve institutional problems related to multijurisdictional issues like wetland protection. It produces an annual report card on the state of the Fraser. Its 1995 report, Assessing Progress Towards Sustainability in the Fraser Basin, noted the disappearance of wetlands in the section on containment of urban growth and sprawl.

Pacific Estuary Conservation Program

The Pacific Estuary Conservation Program (PECP) acquires, reserves and enhances wetland habitat on the BC Coast. The groups involved in this program are Wildlife Habitat Canada, the BC Ministry of Environment, Lands and Parks, the Nature Trust of BC, Ducks Unlimited Canada, the federal Department of Fisheries and Oceans, and the Canadian Wildlife Service. PECP was instrumental in negotiating the park acquisition of Widgeon Marsh Regional Park Preserve, near Pitt Lake. The headquarters of this program are in West Vancouver, BC.

Interior Wetlands Program

The Interior Wetlands Program, established in 1992, is a partnership between Environment Canada and the province of British Columbia. The program's goal is to encourage landowners and resource managers to incorporate wildlife habitat concerns, land use practices and management plans. The program picks demonstration projects to improve and conserve water and wildlife resources. One example for wildlife is modified watering facilities to provide water and salt away from a wetland or riparian area, to reduce stress on the wetland area. Other examples are fencing for livestock management, planned grazing systems, herd management, and hay production planning.

Estuary Programs

Fraser River Estuary Management Program

The Fraser River Estuary Management Program (FREMP) is a cooperative effort between federal, provincial and municipal governments. It aims to coordinate planning and decision-making in the Fraser Estuary. The main office of FREMP is in New Westminster, BC. FREMP was authorized by a provincial Order in Council. An environmental impact assessment is required for any development or improvement of land in designated areas, or approval of a subdivision. Since FREMP has no enforcement powers, it is still up to the other levels of government to enforce any terms or conditions imposed by the Project Review Process.

Any project that has the potential to affect the environment in the FREMP area will be reviewed by the Environment Review Committee. FREMP has also prepared Area Designations to assist with decisionmaking. Shorelines have been colour-coded red, yellow, or green (or stop, pause, go). In red-coded shoreline areas, development may occur provided that mitigation is applied to avoid impacts on habitat features of the area. FREMP recognizes that dyking, dredging, draining and filling have resulted in an estimated 70 per cent loss of tidal wetlands in the estuary. The Area Designations and Project Review Process were designed to halt these losses. There are some concerns that tidal wetlands continue to be lost due to the reliance on mitigation measures, which are not always successful. The 1994 BC/Washington Marine Science Panel Report rated loss of shoreline habitat as the highest priority environmental problem facing the region.

Other Estuary Programs

There are two other estuary management plans in the province. The Squamish Estuary Management Plan has no formal legal basis. It was set up to prepare recommendations on zoning in the estuary, and to ensure that valuable fish and wildlife habitat was preserved. The Cowichan Estuary Management Plan was established under the Environment Management Act. No licence, permit or power under an enactment can be issued or exercised in the Cowichan Estuary without the written approval of the Minister of the Environment.

Public participation is encouraged in FREMP and other estuary management programs. For example, information about projects is available from the FREMP office. The public can provide written comments on projects, and can also request a review of any recommendations made by the FREMP Environment Review Committee.

You may also want to monitor the progress of these estuary management plans towards meeting their objectives. The plans are periodically revised, and public comments are solicited on how well the plans are working. There may also be opportunities to participate on public advisory committees established by these plans.

2. Legal Tools for Protecting Wetlands

Federal Policies and Laws Related to Wetlands

Fisheries Act

Enforcement of the Fisheries Act

Limitations of the Fisheries Act

Canadian Environmental Assessment Act

First Nations Land

Crown Corporations

International Adverse Environmental Effects

Discretion of Government

Other Federal Laws

Wildlife Act

Protection for Endangered Species

Case Study — Boundary Bay Wildlife Management Area

Stewardship Bylaws

Growth Management

Pacific Coast Joint Venture

Fraser Basin Management Program

Pacific Estuary Conservation Program

Interior Wetlands Program

Estuary Programs

Fraser River Estuary Management Program

Other Estuary Programs

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