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Burns Bog, Strathcona Park cases ask: who benefits from BC’s protected areas?

July 9, 2012

Two legal cases are underway, funded by West Coast Environmental Law, that may answer the question: who benefits from BC’s protected areas?  The government?  The Queen of Canada? Or the public?

Many Canadian lawyers would probably say that it’s up to the government, formally on behalf of the Queen, to decide.  But I suspect that most Canadians would feel that those parks and other protected areas are really for the public’s benefit and for future generations.  What do you think?  Voting in the poll at the bottom of this Environmental Law Alert will remain open until August 12, 2012. 

The concept that some lands – such as parks and other protected areas – must be managed by the government for the benefit of the public is known as the “public trust doctrine.”  The doctrine has been a major feature of U.S. environmental law, but has rarely even been raised in Canadian environmental cases.  That’s despite some support for the doctrine in Canadian law, including the Supreme Court of Canada’s comments, in 2004, that “public rights in the environment” raise the possibility of “the Crown’s potential liability for inactivity in the face of threats to the environment [and] the existence or non-existence of enforceable fiduciary duties owed to the public by the Crown in that regard…”

Burns Bog v. the South Fraser Perimeter Road

The first case, Burns Bog Conservation Society v. Canada, will be argued in the Federal Court in Vancouver this Thursday (July 12th, 2012) and is about the duty of the federal and provincial governments to protect the internationally significant Burns Bog from the impacts of the controversial South Fraser Perimeter Road.

The Conservation Society’s lawyer, Jay Straith, will be arguing that when four levels of government agreed to use tax-payer dollars to purchase Burns Bog to protect it, they took on a legal duty to protect those lands.  The Conservation Society’s Statement of Claim explains:

The Defendants … owed the Plaintiff and the Canadian Public a trust and/or fiduciary and/or legal relationship with respect to the protection of the ecological balance of Burns Bog.  … The Plaintiff further states that there is a public and/or equitable or environment trust created by operation of Canadian environmental law and the Burns Bog Agreements and the resulting conservation covenant registered against the Burns Bog lands so that the ecological significance of Burns Bog must be protected for future generations.  

The South Fraser Perimeter Road, which is being built by the BC government, does not go through the protected area purchased in 2004, but it goes sufficiently close to cross the “lagg” or transition zone of the protected bog – meaning that the highway’s construction is likely to disrupt the hydrology of this internationally recognized bog area. 

Can governments promise to protect land for all time, and then turn around and take actions that undermine the integrity of that land?  Did the Crown, in purchasing the Bog for its protection, undertake to protect it?  We’re about to find out.
If you’re in Vancouver on Thursday, you might head down to the Federal Court to support the Burns Bog Conservation Society and the bog.  You can also support the Conservation Society’s court case here (we’re only footing part of the bill). 

Commercial Use of Strathcona Park

Strathcona Park, on Vancouver Island, is BC’s oldest provincial park (it was established in 1911).  The BC Ministry of Environment has recently accepted a proposal by Clayoquot Wilderness Resorts to build and operate horse-trails in a part of the park reserved for wilderness protection.  The proposal was initially rejected by the government due to concerns about the impacts of the trails, but was approved after the Resort offered to pay for the costs of the road. 

The Friends of Strathcona Park are challenging this approval, arguing that putting commercial interests ahead of the park’s wilderness objectives is contrary to the government’s “public trust” obligations.  As Kel Kelly of the Friends puts it:

Whether the local issue is the creeping privatization of B.C.’s parks, the sale of BC Rail, the diminishment of health care services, the abdication of environmental assessments, the pressure to construct oil pipelines without consultation, or unprecedented permission for new mining projects, almost every British Columbian can relate directly to a feeling of loss of control over their “commons”. 

We have entered a new era, where the partnership between governments and private interests is so strong that it is rapidly eroding places, natural wonders and ideas that hold a powerful place in the hearts of most British Columbians. Things we have long held as sacred and public are being stolen from under our feet.  We have no alternative but to challenge these thefts of public assets, both on the ground and in the courts. That is what this case is about.

You can learn more about the Friends and their legal challenge on their website.

It’s about time

The only court case in Canada to raise the public trust doctrine in the context of a park* (unsuccessfully) was a lower Ontario court decision many years ago (Green v. Ontario, decided in 1972, the year I was born).  It is amazing to me that it has taken so long to bring public trust issues back before the courts, and I am gratified that West Coast Environmental Law can play a role in bringing these cases. 

Both cases face formidable challenges, but hopefully they will be a start in establishing in law what Canadians take for granted – that parks and protected areas are there to endure for nature, for the public and for future generations, and do not exist at the whim of politicians. 

Good luck to the Burns Bog Conservation Society on Thursday, and to the Friends of Strathcona Park as their case moves forward, and to the lawyers who are arguing these cases.

By Andrew Gage, Staff Lawyer

Note: The public trust doctrine has not generally had to grapple with the important question of unceded Aboriginal Title and other constitutionally guaranteed Aboriginal Rights.  This issue isn't examined in this post.  

* - The public trust doctrine and similar legal concepts have been raised successfully in the context of public squares, highways, public beaches, navigable rivers and other public lands. 

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Let us know what you think.  Check all that apply.