In December 2012 the Environmental Law Centre at the University of Victoria published a collection of environmental law reform proposals, with contributions from a variety of leading environmental lawyers, which included a number essays from West Coast Environmental Law. We will be reprinting the contributions of West Coast staff lawyers over the coming weeks. The following is the first in that series: Land Use Planning for Nature, Climate and Communities by our Executive Director and Senior Counsel, Jessica Clogg.
Land Use Planning for Nature, Climate and Communities
Beginning 20 years ago, community members, stakeholders and government representatives sat down around planning tables across the province and worked out strategic land use plans that cover most of BC. Addressing large regional or sub-regional areas, each plan determined lands to be added to our protected areas system, along with resource management zones and objectives for the vast areas outside of protected areas. As an additional layer, the province’s Biodiversity Strategy also provided for landscape-level planning for priority biodiversity values. The provincial government claimed:
The province of British Columbia is one of the only jurisdictions in the world that has applied this type of planning in such a systematic way in an effort to balance social, economic and environmental values.
Twenty years on, it is possible to look at the outcomes from these planning initiatives and take stock. How well are they serving us in managing the cumulative environmental impacts of a range of resource activities, combined with climate change? Will they sustain our environment, communities and economy in the 21st century? Lessons have been learned that can help us improve our laws and policies to support resilient communities and ecosystems.
Scientific review of BC’s environment suggests we have reason to be concerned. A recent, comprehensive, science-based assessment of the province’s natural environment concluded: “The cumulative impacts of human activities in British Columbia are increasing and are resulting in the loss of ecosystem resilience,” and “Ecosystem degradation from forestry, oil and gas development, and transportation and utility corridors has seriously impacted British Columbia’s biodiversity.”
The imperative of climate change has brought the question of cumulative impacts to a head: “Climate change is already significantly impacting healthy ecosystems in British Columbia, and will likely cause more dire consequences for fragmented or degraded ecosystems.”
Given the dedicated efforts of so many British Columbians to strategic land use planning across the province, how can this be?
First of all, significant parts of the province have still not undergone land use planning – including the Lower Mainland, Sunshine Coast and Merritt areas. Second, the provincial government has cut its support for land use planning and instituted an operations-focused agency to “get the development permits out.” But there are also fundamental problems with laws and policies that govern planning, and with the legal tools used to implement plans. In a recently released report, ForestEthicsSolutions for the first time mapped environmental designations—the on-the-ground legacy of BC’s strategic planning efforts—for the whole province. In a companion report, West Coast Environmental Law analyzed the resource management direction these legal tools provide. We have discovered an array of legal and policy barriers that undermine the ability of existing management direction to achieve resilience in our ecological systems and for human communities. These include the following issues:
- For close to a decade it was provincial policy to design land use planning processes as “multi-stakeholder” negotiations without proper government-to-government engagement with First Nations. This meant both lost opportunities to benefit from Indigenous knowledge about the land and water, and uncertainty about the constitutionality of planning outcomes like the establishment of new protected areas;
- Provincial policy limited how much of the land base could be set aside from development in many planning processes. These limits were political, subjective – and, in many cases, they limited the extent to which planning outcomes reflected best available science and Indigenous knowledge; All but the most recent strategic land use plans failed to consider climate change in identifying management objectives – either in terms of its impacts or with respect to forest carbon management (vast stores of carbon present in forests are released into the atmosphere as greenhouse gases after logging);
- Land designations and management objectives flowing from strategic land use plans do not apply to all resource industries. In particular, mining is excluded, and there is no legal linkage between land use plans and environmental assessment. For those resource sectors to which land use plan designations and objectives do apply, BC’s laws contain a number of exemptions and loopholes that permit their effectiveness to be compromised;
- Even when land use plan objectives do apply, there is generally no legally enabled mechanism for coordinating decision making between resource agencies and between provincial and First Nations governments to ensure that the cumulative impacts of past, present and reasonably foreseeable future activities do not exceed limits established in land use plans or otherwise compromise important values; and
- Planned monitoring and updating of land use plans has rarely, if ever, occurred. There are now a handful of government-to-government agreements between First Nations and the Crown that have pioneered more comprehensive and science/Indigenous knowledge-based land use planning – for example, in the territories of the Coastal First Nations, the Gitanyow and the Taku River Tlingit. These innovative agreements are being implemented together with new approaches to collaborative decision making and economic benefit sharing, and there is much to learn from them. However, many of the barriers identified above continue to present challenges to the effective implementation of these plans.
For example, some areas of the province are simultaneously dealing with proposals for mining, forestry, hydroelectric, oil and gas development, as well as related roads, power-lines and other infrastructure. While each form of development may be subject to regulatory approvals and, in some cases, project-specific environmental assessment, there is currently no provincial legal mechanism that requires proactive, coordinated assessment of cumulative impacts at a geographic scale beyond the footprint of an individual project – and, perhaps more importantly, no legal requirement to integrate the outcomes into decision making.
Updating our strategic land use plans can contribute to this goal, while potentially opening up new economic opportunities for rural, First Nations communities. Our research suggests a number of foundational elements that could inform such a process:
Reinstate a land use planning mandate within the provincial government. This could be a distinct, neutral agency with dedicated planning expertise.
Carry out land use planning for areas of the province where it has not taken place in a manner that is consistent with the other recommendations here.
Build on existing plans. In recent hearings conducted by a special legislative committee around the province, British Columbians from all walks of life spoke out resoundingly to affirm that areas currently reserved from logging to protect water, wildlife and other values should remain in place and not be re-opened. If anything, the committee was told, we should be doing more, not less, to sustain our natural life support systems in the face of climate change.
Begin from best available scientific and Indigenous knowledge about what it will take to sustain the ecological and societal values we care about, taking climate change into account. Invest in mapping projects to support land use decision making – to identify both areas with high conservation values for species/biodiversity and those with high potential to store carbon in natural ecosystems over the long term.
Conduct broad-scale, proactive, regional cumulative effects assessment to inform planning efforts that focus on valued components of ecological and human well-being. What impacts have already happened historically? Where do we stand today? What are a range of future scenarios that could achieve maximum mutually reinforcing benefits? Regional initiatives also need to be connected to provincial level strategies regarding nature and climate change.
Ensure future land use decision making is inclusive, participatory and just. Social choice decisions about land use should be made in a manner that is inclusive and participatory, while recognizing the distinct and constitutionally protected role of First Nations as decision makers in their territories. New institutions, independent from existing line ministries or the Environmental Assessment Office will likely be required.
Fully integrate the outcomes from regional cumulative effects assessment and land use planning into our land management system. To be effective, land use designations and management objectives established should apply to all resource industries and all government decisions about land and water. Our laws will require updating to ensure this occurs.
Implement and sustain monitoring programs and practice adaptive management. We need to know if management objectives are being met and if these are effective over time at achieving our goals. Our legal frameworks need to include triggers for action if we learn that they are not.
The situation is urgent. The cumulative effects of human activities and climate change are already beginning to put our natural life support systems, and the communities that depend on them, under stress. We must act now to give ecosystems, species and ultimately ourselves a fighting chance.
The good news is that improved management and protection of our natural environment will favour new economic opportunities and job growth potential – linked to conservation, ecosystem restoration, and climate adaptation initiatives. These are key elements of the so-called “clean economy” in our region that is anticipated to generate employment gains and revenues of $2.3 trillion by 2020.
By Jessica Clogg, Executive Director and Senior Counsel
For more information, see:
Provincial Land Use Planning: Which Way from Here? Forest Practices Board. (2008)
Taking Nature’s Pulse: The Status of Biodiversity in British Columbia. Biodiversity BC. (2008)
A New Climate for Conservation: Nature, Carbon and Climate Change in British Columbia. West Coast Environmental Law. (2010)
The West Coast Clean Economy Study, Opportunities for Investment & Accelerated Job Creation. GLOBE Advisors and the Center for Climate Strategies. (2012)