West Coast Environmental Law
Research Foundation Workshop

SFU Harbour Centre, Vancouver, Friday, June 14, 1996

Small Group Discussions

Working Together

Participants

Kristan Boudreau, SFU Resource Management

Don Chamberlain, Comox Valley Project Watershed Society

Geoff Chislett, MELP, Habitat Protection Branch

Fin Donnelly, Rivershed Society

Carole Edwards, Burke Mountain Naturalists

Fern Hietkamp, Fraser River Action Plan

Steve Litke, Fraser Basin Management Program

Howard Paish

Robert Phillips, Land for Nature

Lance Sundquist, MELP

Points Raised in Discussion

What mechanisms do we need to embody in legislation?

- What can we use? Will it be effective?

- What is a good approach? Force it? Carrot and stick? Some other way?

Some are not big fans of legislation. We have got to develop partnerships between NGOs to develop solutions.

- Funding could be legislated to organizations "willing to step up to the plate".

- There is a need for guidelines.

- Maybe owners could match federal and provincial money.

- On the legislative side we don't want to force — just encourage partnerships.

"Partnerships" is a buzzword but it is a secondary thing. Something must be put in to get something out.

- Government wants others to put in money but not to hand over regulatory power etc.

- Not sure given financial realities that we should only look at funding. Do need some stick to encourage self-sufficiency.

- Seed money could be provided for fish.

- Community streams require a lot more.

Lance deals quite a bit with legislation and is familiar with enforcement struggles over who does what. There is a common goal but not all agree how to do it.

- Some kind of mediation process can be useful to get away from the courts.

- Has been working on case involving a small stream for 3 years.

- Eventually a $15,000 penalty was given but wasn't complied with.

- "We're taking him back to court but what has been accomplished".

- A lot of urban problems are neighbourhood disputes (a one foot higher fence.changing flow of stream).

- It is often ineffective to go to court — legislation is not designed to deal with neighbourhood problems.

- A similar situation exists regarding pesticides in urban areas.

- Money could be spent in other ways.

Partnerships cannot be legislated — people cannot be made to come together.

- If dealing with resources at the local level, local government is the key.

- Even with limited experience one can see that it is necessary to bring gifts to the partnership (and provide expertise).

- Government isn't good at this — just tells people what to do.

- There is a need for some administrative instrument describing who does what and how to make sure they deliver.

- Could take limited liability model from business.

- Comox-Strathcona may not be a perfect model but it is worth looking at.

- Must consider whether the senior governments (provincial/federal) here will relinquish some control — otherwise they are just downloading without giving any authority, which won't work.

Question. What gifts to developers?

Responses:

- Time: if we do this right and use local government as a single window, development takes less time. That is a big gift.

- That's part of it but we are talking to the converted today. There is a need for the developers and the guy in the back hoe to get the message. Once they understand that they are part of the solution we can go forward.

- In models Geoff is aware of developers say "give us a single window and cut the time and we will give you anything for environmental protection".

Legislation is the design. There is a need to do it at a higher level not just in little chunks.

- Building inspectors must take some responsibility, e.g. for saying that trucks are doing the right thing.

- `Drop dead' clause — need safeguards.

If person is sitting on pricey property and paying interest, may be preference to pay $300,000 to do the right thing and look good rather than pay $500,000 to fight them.

- At the risk of sounding like UDI — affordable housing is an important consumer good.

- If listen to real estate need — if threw in $5000 to take care of salmon, etc. — cost gets shifted to the consumer. Howard is aware that this type of shifting goes on in Whistler.

- Can't forget the consumer. Why is it that developer develops? Wouldn't unless was need for product.

Re: watershed process in Comox. Is concern about being able to approach table and get some resolution. Don is hoping for more partnerships and that they can be part of that "first open window" for information. Process is not working now since not all players are at meetings.

MELP has tried to bring tools/gifts. One of these was the Stream Stewardship pamphlet.

- Can bring these but need more — to provide people with real examples where developers made money (preferably lots) with good environmental actions.

- They don't want to get "blown off" — there is a need to introduce into an environment where government doesn't have to sell. This is where you come in.

- Really need help in marketing it.

It is a gift to do one on one citizenship stuff. People want to be appointed to advisory board on legislative proposals. Hard to think of where we have really put to the test what we already have.

- Three municipalities couldn't get volunteers to fill environmental panels.

- Don't want to beat down developers — first offer help.

- We accuse councilors of not seeing things our way — but they largely hear from UDI in a cozy environment, where for us it is combatitive.

There is a fledgling group in Coquitlam on urban forestry who has met with Pales and Rees. Trying to do something with trees.

- Although city is not involved per se (wants us to do the work), does help with photocopying etc.

- Don't want anymore Coquitlam plateaus.

There is still a need for examples. Government funds manuals/publications — we need demonstrations.

Dilemma is where government funds will come from? Citizen is the same person you are taking money from. Main concern should be getting the job done effectively.

- If local groups have flexibility that government lacks then lets do it that way — government can be on our boards.

- Government doesn't make submissions to the Vancouver Foundation etc.

- We have to show this innovation, alternative funding sources etc.

Would not necessarily have to be government. The Comox Valley Project Watershed Society have just raised 1/4 million from a bunch of sources.

Question — you want to take something from business — have an entity.

- What could it be? With what support?

It is possible to look at what works in business.

It is critical that to make it work, people must come together voluntarily, but in new forms, to bring things — to loan personnel, bring money...

- Need to focus attention on common interest, not just to act as individuals.

Have become so used to "Big Brother government" -"I will do it for you, you just pay" — until last decade, both sides were happy — until things went wrong.

- Big brother can't be big brother and not give little brother stuff while downloading.

There needs to be more user pay. E.g. greenways as "free goods" — knowledge of wildlife/nice view — these have to be paid for.

- They have to be plugged in. Much of this driven by fisheries now but this isn't cost effective and DFO will soon recognize this.

- Others are riding on the backs of salmon — must cough up their share.

Bringing attention to these issues is important.

With regard to free goods... when the developer is saying deer have no cost — will say "it costs me opportunities foregone" — the government cannot keep paying for opportunities foregone.

Governments fighting one another is a major holdback. Politicians and bureaucrats are a problem.

Question to Geoff (MELP). What do you think of locals taking initiative with tools?

Response: It depends on what you need. Just the publications...no.

- Just as long as you've gone to a workshop and present credibly.

- More difficult with management/allocation/enforcement since these are more highly skilled.

Using this (Community Greenways) as an example is not great — rather see people being educated about Community Greenways and going to local government.

- Can't buy community — can buy water testers.

- Don't need second rate technicians.

Fish habitat protection case in Clayoquot, dealing with environmental groups. Why this stream and not others?

- They weren't there when we (MELP) were at trial three months ago.

- It is rare during a trial to see anyone there — is there apathy?

No argument that we need a different model — need a stick but then hopefully not use it.

- How do we bring others into wanting to protect land etc.

- If we can bring people to the table then we will have something that works over time.

But how do you get those who don't want to come to the table to come to the table at all?!

Response: Developers want some certainty — some will never come but then you don't just want to talk to the converted.

Re: Howard's Streamkeeper's concern — everything helps. They are talking about making a greenway but only because someone got wet and involved.

- It is part of education.

As long as we don't get carried away.

If a small land developer can't afford $650/day for a biologist, but can get a $150 streamkeeper...

- Technical expertise from retired and locals etc.

- Governments have got to be more trusting that other levels of government have interests. Mistrust is killing us.

- The province should have signed on to "no net loss" -what can the feds think?

Where leadership is typically from top down, partnerships are from the other direction.

That's where the commitment has to be.

Without knocking the value of getting wet, there is still a need for others to follow through.

Devolution/gifts are good but to hold those responsible accountable — no organization will forgo its mandate and walk away.

- Separate levels of legislation make that difficult.

- This is where WCELA has to help out.

For example if we want money next year to do a review.

Without writing new acts, how do we do stuff right now without waiting longer?

There is a need for a summary with a clear explanation of income tax implications. Even if people have studied it a bit, still want to see a legal opinion set it down.

- This would be of use to groups like those here today.

- There is a lot of confusion regarding taxes.

Doesn't work in many situations. It is easier to say "to hell with the environment" and get more money from two more lots.

Other Ideas on working together from Discussion: "Who needs to do what to improve legal tools for the protection of urban streams?"

We need to tap into how we market homes to internalize the costs of stream protection and to realize the cost of going after all the things we want.

Could be difficult to do. Would it have to be done through regulation?

Enforcement is not the answer — we need action before it gets to court — to be more proactive.

Citizens pay for the jockeying between three levels of government. Want cost efficiency. Senior government is beginning to realize this. Partnership reality must be acknowledged.

- Means working with different levels of government.

- Relinquishment of power/control, not just downloading which is what has been happening.

- Need power and resources to make it work.

- It is a huge win for developers if only have to deal with a single window re: government approvals.

- Can start from the bottom up with Memoranda of Understanding.

- Partnerships will never work if legislated. Need people who realize they will get something out of it.

- Maybe it is the real estate community that needs to be convinced.

- But will this occur without regulation?

Soil erosion which occurs after builders clear lots and the market goes could be improved with hydroseeding.

Memorandum of Understanding

Intergovernmental Partnership Agreement for the Protection of Environmentally Sensitive Areas

Between: The Regional District of Comox-Strathcona
4795 Headquarters Road, Courtenay, BC, V9N 5N5
(hereinafter called the "Regional District")

And: The Regional Director
Ministry of Environment, Lands and Parks
Nanaimo, BC
(hereinafter called "MoELP")

And: The Executive Director
Habitat and Enhancement Branch, Pacific Region
Department of Fisheries and Oceans
Vancouver, BC
(hereinafter called "DFO")

1. Purpose

1. The purpose of this Agreement is to improve the existing system of reviewing development proposals for environmental conservation. The signatories agree that the present system is too costly, can no longer be supported at the current levels, and does not provide an acceptable level of service to local government or to the protection of environmentally sensitive areas.

2. This Agreement is a statement of intent on the part of the signatories to develop and implement a new process (the "Process") for the examination of development proposals.

3. The signatories should concur that the future Process may include a public cooperative problem-solving mechanism.

4. The new Process should:

a) increase trust among the signatories;

b) replace existing agency-by-agency referral approach;

c) achieve the benefits of collaboration;

d) boost the effective use of resources;

e) result in sharing information and technical support;

f) develop a resource database;

g) use applicable agreed-upon guidelines, criteria and standards (as developed);

h) include a dispute-resolution mechanism to address any unresolved conflicts;

i) use existing legislation; and,

j) result in no increased costs to any signatory.

5. The signatories also understand the risks involved in developing this changed procedure. This risk will minimize by treating this Agreement as a short-term, geographically limited pilot, with appropriate, built-in termination provisions.

6. The focus of this new Process will be the protection of aquatic and fish habitats. It is also accepted that should the pilot work to the satisfaction of all signatories, the scope of this Agreement may be expanded to include other environmental resources.

2. Term

This Agreement will run for two (2) years from the date of signing. Any signatory may opt out of this Agreement by providing six (6) weeks notice. This Agreement may be renewed upon consensus of the signatories.

3. Liability

1. Nothing in this Agreement alters the legislatively-mandated roles, responsibilities and duties of the signatories.

2. In agreeing to become an aquatic habitat reviewer of land development applications, the Regional District, as part of this new Process, assumes no liability or responsibility in addition to that normally assumed through the application process.

4. Signatories

1. The signatories of this Agreement will be the following:

Regional District of Comox-Strathcona;

Regional Director, Ministry of Environment, Lands and Parks; and,

Regional Director, Habitat and Enhancement Branch, Pacific Region, Department of Fisheries and Oceans.

2. This Agreement is not limited to the above signatories but may eventually include other agencies and local governments, as agreed to by the original signatories. 5. Process Framework

1. Identification of Environmentally Sensitive Areas (ESAs)

1. DFO and MoELP will provide the Regional District with a biophysical information database, and identify on it as accurately as possible their zones of concern, including ESAs. This information will be tailored as much as possible for use by the Regional District.

2. The information will be reviewed for accuracy by the appropriate staff and committees of the signatories, and may be forwarded, with the consent of all the signatories, to individuals or nongovernmental organizations who are believed to have information or knowledge to contribute. To the greatest extent possible, the information will be verified on the ground.

3. The Regional District will use the information base in the land-use planning and decision-making forum.

4. The Regional District agrees to update the cadastral portion of the Regional District information database using a procedure supported by all parties and to work with DFO and MoELP to transfer any new fisheries sensitive data into the resource information database (FISS). (This contribution is valued at $15,000 per year). The information database may be expanded to include additional information and ESA data received from other agencies when othe parties are added to this Agreement.

5. If a development contains land which appears to have the qualities of an ESA, but which has not been classified on the information base, the Regional District will refer the proposal to other signatories for consideration and possible reclassification.

6. Development Proposal Reviews

1. The signatories will develop agreed-upon guidelines, standards and criteria (Guidelines) regarding ESAs for use by the Regional District when reviewing development proposals.

2. Once developed, these Guidelines will provide a reliable and acceptable mechanism to be applied by the Regional District in making decisions regarding the approval, modification, or rejection of proposals on the basis of their impact on fish and fish habitat.

Though the Guidelines are considered minimum average requirements, the Regional District (in concert with DFO and/or MoELP technical advisors) may approve minor variations in special cases, such as where increased protection of fish or fish habitat may be achieved, where strict application of the Guidelines is impractical and a minor variance will neither damage nor destroy existing fish habitat or where positive conservation and land development goals may be achieved.

3. In the following instances, the signatories agree to meet on a frequent basis to make a group decision:

a) where no Guidelines yet exist;

b) where fish impacts of any proposal are thought to be potential severe;

c) in drainages or parts thereof which DFO and MoELP have identified as particularly valuable or sensitive; or,

d) where substantive variances to the existing Guidelines are requested by the proponent.

4. DFO and MoELP agree to contribute the necessary support to provide Regional District staff and the public with their expertise in habitat protection as it pertains to development issues and to assist in the success of this new "Process". The level of this support will vary, greater in the beginning, decreasing with experience, but it is anticipated that this will require, on average, a shared technical and advisory presence for not less than two half-days per week.

5. While reviewing proposals, the signatories may require from the proponent, additional information to assist them in reaching a decision on the development.

6. All land development proposals which may significantly impact upon sensitive aquatic habitats will be referred to an appropriate public arena for comment and input prior to the group decision-making procedure as described in Section 6.3. This does not replace any existing public information and hearing requirements as prescribed in the Municipal Act for the development and adoption of land use bylaws.

7. The signatories agree to forward any unresolved issues to a joint decision-making, dispute-resolution committee comprised of their appropriate managers. The decisions of this Committee will be communicated to the signatories who will ensure that they are made a matter of public record.

8. Every two months, the signatories, or their designates, will meet to review all development proposals actioned during that time to:

a) determine how well the new "Process" is serving the interests of the parties;

b) to assist the Regional District in improving their application of the Guidelines;

c) to determine how the Guidelines will be applied to projects as described in Section 6.3; and,

d) resolve outstanding issues of concern to any signatory.

9. Decisions regarding development proposals made in Sections 6.3 and 6.8 will be a matter of public record. They will be regularly reviewed and evaluated in a public forum, to be agreed upon by the signatories, designed to receive comments and suggestions for procedural improvement.

10. The signatories will develop monitoring plans to verify compliance and effectiveness of the habitat protection components of approved development proposals.

11. While the signatories cannot fetter separate enforcement actions, they may collaborate in and coordinate any agreed upon enforcement actions.

7. Financial

1. The Regional District agreed to provide public access to, and space for review of, their land-use information, including maps. This contribution is valued at $4,500.

2. The ESA identification provided by DFO/MoELP/DOE for new procedures is valued at $84,000.

8. Signatories

Regional Director
Habitat & Enforcement Branch
Department of Fisheries and Oceans

Regional Director
Ministry of Environment, Lands and Parks

Chairperson
Regional District of Comox-Strathcona

Secretary
Regional District of Comox-Strathcona

Municipal Act

Participants

Melody Farrell, DFO

Larry Fast, Musqueam Band

Erik Karlsen, Ministry of Municipal Affairs

Mel Kotyk, District of North Vancouver

Neil McCreedy, City of Vancouver

Brian Tutty, DFO

Points Raised in Discussion

Changes to Municipal Act.

- Enabling impact studies.

- Definitions — refer to Toby's comments.

- Consultation required — MELP and municipalities.

- Will the province move to strengthen the Municipal Act?

Heritage program never intended to do everything.

Re: Enabling/ Requiring.

- When requiring local government do something, imperative to be explicit. Has seen local government made mockery of requiring legislation.

- E.g. First Ministers requirement of constitutional discussion.

Is lack of explicit legislation why local governments aren't doing anything?

Why doesn't it work? Why not make Municipal Act say MUST develop an Official Community Plan (OCP). It says it SHALL contain references.

- Environmental provisions not mandatory in OCP?

Couldn't proceed in N. Vancouver without enabling provisions of OCP. Two elections ago half of council elected on an environmental platform.

- Burnaby got an environmental OCP from Joan Sawicki.

- Growth Strategies Act will force OCPs that are environmental.

Legislation of Forest Practices Code and Ontario watersheds legislation.

Language like `shall' and `may' is ultimately left to the interpretation of the courts.

There is the problem of crossing political boundaries. Need clear authority from DFO and MOE about what can be done and boundaries.

Are you asking for power of the Minister to spell out guidelines? Awkward to specify things from above, but also to Cabinet or Minister to specify guidelines.

If requiring local governments to do OCP etc., must be standardized. Could be standard to region, not province.

- What is definition of "fouling" in Municipal Act? Mel has one understanding, what do others understand?

Perhaps leave to discretion of Minister. Would it be advantageous to change `fouling' to deleterious? Then could draw on case law on deleterious. Would involve consequential amendments to the Fisheries Act.

Feds have jurisdiction over deleterious. If provinces switches to deleterious, may not have jurisdiction. May be ultra vires if the definition is t0o close.

- E.g. dangerous (feds) vs. reckless (prov.) driving.

- Take credit (N. Vancouver) for ingenuity in working with fouling.

That was the point of the N. Vancouver bylaws. Want to develop legislation that is buttressing to each to each other. Process is ticketing , then prosecution, and the federal Fisheries Act is the hammer at the end of the process. Let's build in proactive legislation that buttresses federal, provincial and municipal authority.

Lets get this kind of thinking into WCELA's paper on this. Now we're talking about explicit layering of federal, provincial and municipal legislation.

Anxious to think we could threshold enforcement problem. How can we orchestrate enforcement? Need to mesh enforcement tools. Is it a municipal, federal or provincial first act? The current strategy of all three starting off in directions is wrong — could be coordination.

At McKay Creek — backfill of creek and planting of pansies by individual. Needed to call DFO, but that was too slow. N. Vancouver instead acted with a nuisance bylaw.

- Has worked other way where time is not a as pressing. Enforcement component varies with urgency.

Relationships and partnerships need to be developed to react in a reasonable effective fashion. Hears concern about too many officers, but... without — will there be fish?

Ticketing at local level (N. Van) seems to work. Return to idea of required comprehensive OCPs with environmental tone. Can't protect fish with 25 different governments doing different things based on current political will.

Feds and provinces can buy significant areas. Are riparian areas of significance that no one has asked about.

Urban riparian protection legislation to be asked for.

What is riparian? All edge.

On forest lands one is required, allowed to grow trees. Can grow crops on agricultural land. What is the public and private use allowed on riparian land?

- Municipal `legislation' by definition, is regulatory, not resource management. It is explicit — municipalities can't manage fish. Exception is Galiano case, where succeeded to manage fish.

Development permits to protect natural environment? How to define?

Need minimal level of performance to preserve and protect. But needs to be more black and white.

N. Van says anything within 30 metres requires a permit.

Can't protect animals (wild). Can protect trees. If include fish and wildlife, are in conflict with other legislation at other levels. But even trees weren't previously covered by municipalities. Fouling may be the area to include all else under.

N. Vancouver council was willing to try even with the uncertainty about liability. Had been hoping for a legal challenge, but there hasn't been one. Thinks overall we are gaining ground municipality by municipality.

Vancouver doesn't use "fouling" — uses `injuring'. Also can regulate sewage and disposal of waste as relates to health, but not environment. Can protect people not fish.

What legal tools are there to take private land?

Zoning and rezoning — involves requests for restoration of creeks, streams etc. Still Creek, Hastings Creek are now of interest. China Creek will never come back — too far gone. Brewery Creek also too far gone. Better off rehabilitating creeks with potential and forgetting China and Brewery.

- Tatlow, Jericho, Spanish Banks, we can put some money towards greatly improving.

- Vancouver needs to identify which should be worked on.

Municipal Act should require identification of creeks.

Need to focus attention on settled lands.

Municipal Act law requires identification and mapping of future schools, why not of creeks and salmon?

This could be put in the OCP, but do what with that.

Pollution and flows are a problem.

Would like to see watershed conservation councils to protect streams, like Ontario.

Let's see what federal and provincial governments work out on salmon — may be model for Watershed Conservation Councils.

If salmon talks fail, lets hope this doesn't stop the urban streams discussion. Identifying is a very important first step.

Concerned that fish take too much time for mapping, but thinks perhaps getting communities involved through greenways — e.g. Campbell River OCP stewardship based around greenways.

- Developer can make more money by stewarding than mowing. Many voices emerging for urban stream protection.

How do we regulate effectively impervious surfaces? How? Well it can be done. Start with less impervious surfaces. Also need to get into storm water management — have rainwater go back to ground instead of impervious surfaces. 7-12% of pervious surface is required for remediation. Say can only alter hydrology by 12%.

Other Ideas about the Municipal Act from Discussion: "Who needs to do what to improve legal tools for the protection of urban streams?"

There is a need to clarify definitions, e.g., "fouling" in the Municipal Act, as compared to "deleterious" in Fisheries Act.

There may be a role for layering between different levels of government to fill gaps. Matching up definitions will help.

- Could use municipalities to deal with smaller issues and the Fisheries Act to buttress where the Municipal Act breaks down.

Could establish thresholds of decision-making, a protocol for enforcement. Using the bottom levels where possible, when should Fisheries Act prosecution be used, when would ticketing be effective? Thresholds could be part of enabling legislation which would require this when municipalities aren't interested.

Water courses could be identified in the Municipal Act — would increase awareness that this is a resource.

Perhaps water issues would be best attached somewhere other than Municipal Act.

Discussion of prescriptions; set backs. Riparian reserves, shoreline reserves should be in regulations under Municipal or other act. Numbers could be set so that are uniform and not discretionary (minimum standards based on ecological criteria). May need to set criteria but could vary by region (biogeographical factors). Some difference of opinion on this point.

Another element of standard setting is the need to back it up with some kind of appeal process that allows for particular concerns. In the municipal context there are currently appeals; development variance permits and the board of variance which deals with issues of hardship. There is lots of case law on this.

Provincial Water Act

Participants

Andrew Bales, Land for Nature

Karen Beckenbach, Burke Mountain Naturalists

Randy Christensen, Sierra Legal Defence Fund

Chris Hilliar, DFO

Anita Mathur

Stefan Ochman, BC Environmental Network

Craig Orr, Steelhead Society

Richard Paisley, UBC Westwater Research Centre

Toby Vigod, MELP

Points Raised in Discussion

Question to Toby Vigod. In terms of strengthening the instream flows proposal — who needs to be convinced?

Comments:

- There may be a new minister next week.

- Previously was legislation drafted.

- In the past lobbying has taken a kind of shot-gun approach.

- There is a need to focus on certain key amendments.

- Fish is number one — instream flows are something that can be pushed.

- Keep ground water issues alive.

- Sustainability Charter — can focus on what government has clearly committed itself to.

- Will be two immediate initiatives for cleaner air and water.

- Move from a "must consider" to a "require" to consider instream flow.

- Re: existing licences: the government won't touch compensation issues — need to look for other ways to approach (facing the `equal protection for agriculture' counter-lobby).

- Getting legislation in will provide a framework — then bring in regulations etc.

- Focused input is most helpful.

How to go beyond a river by river approach?

- Important to document violations.

- Re: BC Hydro. They are a major player. Although legislation was circulated, BC Hydro doesn't feel that they were consulted.

Impervious surfaces — getting flows back involves design questions — can't pave over...

Comes back to strategies and polices and to non-point sources, role of municipalities.

"Stewardship of the Water" — is really an umbrella strategy under which fall other Acts.

What about defining instream uses as beneficial uses, as some US jurisdictions do? Important because can issue water licences for beneficial uses, which would then have an established priority date (first in time, first in right).

Also potential for a "public trust" notion.

There is a document that has been produced with suggested language changes to legislation. Would be helpful to get this out in a couple of succinct fact sheets which could be reproduced.

Push for conservation council for DFO.

- Miniature version at Deldon Lake.

- US funding — to act as watchdog.

- Has a public awareness value.

What about reporting non-compliance with water permits in a manner similar to the non-compliance reports re: Waste Management permits?

- Watchdog group could highlight which are trouble spots to focus since there are thousands of water permits.

- Would serve an evaluation and audit function.

- Those who are giving water back should be publicized as well.

Heritage River legislation has been something less than desired.

- Given issues related to fish and water, in terms of designating legislative priorities, this may not be at the top of the pile.

- Toby thinks that we are going to get something on fish and air.

Fisheries Renewal BC — part of a broader strategy, part corporation, part legislative strengthening.

Riparian aspect?

- Can push for regulations under Forest Practices Code for private land.

- How do we deal with these matters without running into compensation issues?

- Interesting to note that setbacks for single family dwellings are less than other types of buildings.

Currently available legal materials are not accessible — people have to jump through hoops to use.

At the same time it is difficult for lawyers to give cite specific examples.

- Are also liability issues for lawyers for bad advice.

Land Title office could have person dealing with these issues.

What about demonstration projects?

Likely to see legislation in spring 1997 — government will take key concepts to stakeholders.

Re: multi-jurisdictional problem. There is a useful role for watershed councils to bring stakeholders together.

- Need money and professional facilitators.

- There is an issue re how to enable/facilitate the functioning of such bodies.

Examples: Oyster River Watershed Management Committee/Salmon River Watershed Council.

Is there a role for Forest Renewal or Fisheries Renewal here?

Currently have two ministers with jurisdiction. Who is in charge of salmon?

- Environmental side vs commercial, aquaculture side.

- Two were together at one point then split off.

- Don't necessarily want ministerial organization which separates out habitat and water.

Re: Fisheries Renewal. Based on forestry model.

- Delivery mechanism for projects.

- But money is an issue. Fishers don't have a lot.

Re: Fisheries Trust. Federal treaty negotiation office is doing some research into whether something like the Nisga'a trust could be duplicated in other areas to benefit both aboriginal and non-aboriginal groups.

Re: enforcement: Are there creative things that could be done to enhance? Lawyers could be offered bounties to prosecute.

- May be increased role for ADR.

Burke Mountain Naturalists concerned about areas which they thought had been protected and the continued existence of discretion to undermine this.

- Though 15 metre buffer strips were protected on land when sold to farmer, the farmer wants to drain fields into Pitt River.

There may be a role for a watershed committee here to have input into such decisions and hopefully improve them.

- May also be possibility of appealing if a permit is involved.

At a municipal level, publicity and local grass roots education can pressure municipality to carry through.

- May be a role for ticketing, like traffic tickets.

- Municipalities are ready for input from province if the information is there.

Other Ideas about the provincial Water Act from Discussion: "Who needs to do what to improve legal tools for the protection of urban streams?"

A holistic rewriting of the Act is required, not just a section here and there. There have not been substantial changes since the turn of the century.

Seems to be consensus that instream flows are a clear priority — were not first in governments "Stewardship" document.

Consultation occurred around the "Stewardship of the Water" initiative. It has languished. Maybe government should go back to the process and restart it. Much of what has been said today came out in that consultation. There is a certain amount of fatigue that comes from being part of participatory processes — amount to "political mush".

Government can't even measure water volumes anymore. There is no longer record keeping on all rivers. With budget cuts Environment Canada has left the field. Water managers have no money. There are no water gages in major treaty rivers.

How do we effectively deal with effective impervious surfaces. Maximum of 12% before there is irreversible hydrological damage. In Washington there is a disincentive to create impervious surfaces because there is a tax based on the area covered. Question. Do municipalities ever keep figures on this?

There is a "Holistic Instream Flow" package produced by Westwater which contains language which could be incorporated in legislation. Written in non-threatening way. It is on WCELA's web site. There is also a package on Wild and Scenic Rivers.

It could be useful for lobbying to distill some key points from this and circulate to a number of groups.

Wild Salmon Coalition has retained a lawyer to draft changes to proposed legislation (Karen Wristen — Sierra Legal Defence Fund).

Nonpoint pollution was raised in water group — talked about possible tax on impervious surfaces.

There are Watershed Councils which operate around BC. Question whether there is any role for FRBC here. According to Ann Hillyer there are some possible fits.

Re: groundwater. Is a Farm Protection Act (from Agriculture, Fish and Food) re: farm waste and leaching into aquifers (Code of Practice). Most advanced in Fraser Valley.

From a legislative standpoint, there is a need to talk about the Mines Act. Mines and mine waste threaten four of the top ten endangered rivers. E.g. Coquitlam River — Jack Cewe — 99 year lease coming up for renewal, likely to be rubber stamped.

Re: Fisheries Renewal BC — Open to input, suggestions, could advance as law reform + policy package (umbrella for some of these instruments). Contact ministers.

Public Involvement

Participants

Otto Langer, DFO biologist

Linda Millard, Galiano Conservancy Association

Victoria Otton, Burke Mountain Naturalists

Rebecca Simpson, SFU Student

Rick Simpson, Pacific Streamkeepers

Andrea Smailes, City of Coquitlam

Keith Urchuk, Project Coordinator, Simms Creek Assessment

Carl Yong, DFO (habitat enforcement)

Mai Yasue, Centennial Student

Points Raised in Discussion

Discussed Mai's research paper on the Coquitlam River.

Discussed Strategic Lawsuits Against Public Participation (SLAPPs) — MacMillan Bloedel v. Galiano Conservancy, Bourque v. Richmond (15 years ago).

From public involvement point of view — they have left out the Mines Act, they polluted the Coquitlam River. Extensively discussed Westmine Resources with legal changes.

- Need sincere government desire to get the public involved, to enforce and look at rewards and recognition for participation in processes as well as compensation for expenses or an honorarium.

- People should be protected if acting responsibly.

Guardians under Fisheries Act — any credible group not just out to get their neighbour — give them guardian status.

- Government wants people involved but seen as a bit threatening to fisheries workers. Otto is pushing for it.

Lots of native band members are guardians and they know the area well.

Have consensus about what kind of changes should be made.

- Need to educate, motivate and empower the public to push for changes.

There are lots of good laws, it is enforcement that is needed.

There is a lack of will for enforcement.

The city breaches the Waste Management Act but don't change because say that the taxpayers won't tolerate.

(Julia Gardner) How can public involvement make changes — WCELA wants to hear about legal aspects, e.g. re: guardians and public input, legal basis, SLAPPs.

As a long time streamkeeper/wilderness watch Keith has put legal input into Island Highway to DFO and literally had to take someone from DFO to show that didn't know — stretched too thin.

- Took awhile for me to be seen as credible, to do so had to do a 40 page report (doing their job for them) to give them ammunition to do something.

Nanaimo federal and provincial offices are fairly anti-enforcement.

Getting information out is important. Keith circulated report to people in the town.

Officers and judges need to be better informed. A workshop for judges like occurred in Alberta is needed. Keith is pushing for it.

- We need to be recognized and not thought of as some nutcase after putting people in cells, as a threat.

As government downsizes there should be money available for what you did and you should be able to submit invoices.

There is a concern that research done by NGOs won't get used. Also regarding the accountability of highly paid consultants. Very few are doing their jobs — riparian — planting.

Paisley study re: certification of professionals.

Some people have no degrees and know more than others — would like to see follow-up on monitoring what these people have done — they aren't thinking about what they are doing.

Not necessarily degrees just [professional] and certified.

Fisheries ecology course at Centennial — the OCP in Port Moody omitted wetlands — the students did a study and their study identified more species of plants and animals correctly.

The people should be certified and if they aren't doing their job should be disbarred like doctors and lawyers.

City gets report, shows public and public accepts.

I am saying accountability — make them fix it.

Private citizens have roadblocks to legal action — how do we get them down.

First need is money.

How do we get money — a government fund?

Maybe give Sierra Legal Defence Fund or WCELA money out of general revenue.

Could be a problem to get money. But re: accountability — the Trust Keith sits on — it is a large property — it allowed encroachment on research forest in exchange for planting and didn't pay for 3 years. They had to show it was working and a certain amount of planting survival — follow-up is key.

Re: watershed restoration, urban stream stewardship — government searched for people with experience at watershed restoration — came up with very few people successful in watershed restoration.

- There is a problem re: Hydro, monitoring.

On one hand we are talking about if city cares — they can refuse to pay but if don't care it is up to citizens, and in large part it has been NGOs pushing.

- In US there is a legal requirement to include public in watershed planning. Dilemma for me since there is a risk that that will serve to coopt those people. Will the process go the way the public wants?

Need transparent process, let public see permits, how well being enforced etc.

- Island Highway — the province didn't do job — to avoid assessment the government broke project down into $20,000 blocks so money value wouldn't trigger the assessment — government purposely excluded the public and avoided the BC Environmental Assessment Act.

Review, Recall, Impeachment of local officials — use Port Moody's council model.

I think we need something proactive. On the Trust we have a lot of user groups — needed to get consensus — e.g. drawn-out process.

At this point processes aren't transparent and there is no legal requirement that they be.

It's the public that has to keep the process honest, not the law.

Citizens can do things, and we have gone to courses on what they can do, including sampling, so we should do it all across.

- get to Attorney General and stop from doing stay of proceedings — that's what province keeps doing.

- Victoria and federal fisheries need policy on encouraging and deciding when they'll allow public prosecutions.

Keith has had to tell government people that he is on their side — working for them.

Question. Do people see you as a threat?

[They are] overwhelmed by what is happening in the department, which affects morale etc. and didn't know how to take it — was frustrating at first but now have confidence.

The average person doesn't know what to do, or even what the issues are.

Re: hatchery — are lots of articles etc. — always in the City paper. This influences the public and maybe legal aspects. People then learn about the issues and have some point of reference.

- Best place government can get involved is through the schools.

- Centennial has a fisheries class — a few years ago didn't have. Kids who are strongly affected tell their parents and others and info spreads quickly.

Also salmonids in the classroom teaches a lot.

In school in Alberta learn about farming industry etc., but why aren't we learning about things like that here?

I think it's starting to do that now. I'd like to teach kids to play in streams and trail.

I think it shows all different levels at which information has to get out. Schools, environmental groups etc. If we get all together and do networking then we'd be more effective.

Contractors from the big city thought they were dealing with hicks in Campbell River were surprised. Look at it from all perspectives.

The priority is citizen awareness. When talk about loss of fish they are only talking about overfishing, not habitat.

Everyone's fingerpointing.

Other Ideas about public involvement from Discussion: "Who needs to do what to improve legal tools for the protection of urban streams?"

How far can public get involved? Wilderness Watch, BC Wildlife Federation.

- Credibility issues. Authorities need to respect citizens. DFO, MELP officers need to use what's there.

- Citizens doing enforcement should get some kind of reward.

- Accreditation?

- Some things have been done with First Nations and river guarding — need to push this further.

Legislation should provide for involvement to greater extent.

Question about SLAPPs. There are a number of jurisdictions in the US with anti-SLAPP legislation which guarantees a right to public participation and contains provisions for early identification, dismissal and cost awards. There was a BC private members bill in 1994 (Public Participation Act) which died on the floor. The Coalition for Public Participation on based on Vancouver Island has been lobbying for legislation and has produced a draft Act.

SLAPPs are actions generally brought by a developer or company against individuals or groups that speak out against it, in order to intimidate them.

Authorities need education, like the judges workshop in Alberta, but so do everyday people. If you ask anyone if they want dead fish... but we don't know how to deal with the issues.

Islands Highway as an example. What are the consequences of the government not following permits? How can the citizens appeal?

Need for more transparent process, ability to appeal, recall, impeach (accountability).

Staying of private prosecutions is a serious concern.

What about directing penalties from fines back to NGOs etc., into saving stream habitant. May be a role for cost awards. There is a lack of consistency re: creative orders — lawyers debate possible agreement — negotiable. There is the private informant provisions under Fisheries Act.

Example of creative suggestions for judges — reducing fine but giving order to cooperate with local society to restore and to pay for this.

Things have to start happening before you get to the courts — too expensive, too long.

There is a need to educate students in urban environments.

Population growth goals are important.

Need for education to raise awareness amongst newcomers to BC.

Private Land Conservation

Participants

Julie Alcott, Courtenay

Emma Child, Land for Nature

Ann Hillyer, West Coast Environmental Law

Warren Ludford, Courtenay

Marielou Verge, SFU

Points Raised in Discussion

Lack of enforcement is currently the main reason for failure of covenants.

need enforcement from the beginning, because it becomes more difficult to do so over time with years of non-enforcement.

It was suggested that if many different government agencies held section 215 covenants (rather than just MELP) the enforcement efforts would be spread out more and therefore more manageable.

Jointly-held covenants, between a municipality and a conservation organization, may be more successful because it would share the costs and enforcement activities.

There is a problem with old covenants that were not written well and therefore not a very strong protection tool; to rectify this, new agreements would have to be struck with agreement by both parties which would be unlikely in most cases.

Need good monitoring of covenanted land and recognition of early warning signals so that problems are addressed before they develop too far.

NGO needs to work with the landowner to ensure that the covenant agreement is not breached in the first place.

Need to include a remedy in the writing of a covenant agreement, ie., responsibilities and actions that will be taken if it is broken.

Problem is that governments are often making decisions based on incomplete information; need to identify streams and define fish habitat before development and other works are allowed.

Good example of strong municipal bylaws to protect stream habitat is Deep Bay (near Bowser on Vancouver Island).

Need public awareness of covenants, as many landowners or residents of land do not know they have a covenant, or if they do, they do not understand what it means and why they are being "restricted".

Education of professionals of the real estate trade would be an efficient way to increase awareness and understanding of covenants; this could be done through the Land Title Office, real estate boards, and other professional associations.

Income Tax Act changes provide tax incentives, although not entirely clear yet; there is apparently a good circular available on this topic.

Need changes in the Assessment Act (to have a separate assessment category for environment).

Need to target the BC Assessment Authority, to confirm how assessment would change with a covenant, this is all unclear right now, tax value vs market value, etc.

Other Ideas about private land conservation from Discussion: "Who needs to do what to improve legal tools for the protection of urban streams?"

Group talked a lot about the need to enforce covenants. Fact that NGOs hold them will aid in monitoring.

Could special cost rules provide an incentive to lawyers to take on these cases?

Landowner agrees to do nothing, conservation group agrees to monitor etc. Need to ask who the covenant is being enforced against.

Change needed to BC Assessment Act — give landowner a break with property tax.

Lack of awareness of covenant is a problem. Real estate agents hide the fact that there is one on the title, even if lawyer discloses at last minute. Should be a legal obligation to disclose.

There is a homeowners grant, why not a streamowners grant?

Confusion about what is a bona fide charitable donation vs action carried out under coercion of guidelines, regulations etc. Why not send information about tax breaks with returns?