Comments On The Proposed Amendments To The Squamish Estuary Management Plan
by Lawrence Alexander Articled Student
WEST COAST ENVIRONMENTAL LAW ASSOCIATION December 2, 1991
SUMMARY OF RECOMMENDATIONS

      1. ENVIRONMENTAL IMPACT. We recommend that the Coordinating Committee conduct environmental impact studies for each of the proposed re-designated areas, and make these studies available for public comment and review.

      2. ALTERNATIVES. We recommend that the Coordinating Committee undertake a comprehensive study of alternative sites for the back-up port facility intended under the Amended Plan for Site "A", and for the track and road service necessary for that back-up port facility intended under the Amended Plan for Site "H".

      3. COMPENSATION/MITIGATION. The Coordinating Committee should undertake careful study of the effectiveness and reliability of any proposed compensation/mitigation measures proposed, and include representatives from non-governmental groups in the design, implementation and monitoring of such measures.

      4. COVENANTS AND EASEMENTS. Covenants and Easements granted under the Amended Plan must: (a) ensure that B.C. Rail is legally obligated to maintain all important habitat values, and (b) ensure adequate access to the lands in question.

      5. PUBLIC PARTICIPATION. The Coordinating Committee should be re-constituted to include representation from non-governmental organizations and the Squamish Nation. A working group composed of representatives from all interests on the Committee should be struck to consider in detail the proposed amendments to SEMP, the potential environmental impacts of each proposal, and any alternative sites for development. The information bank should be updated and maintained.

      6. FORMAL STRUCTURE. The Coordinating Committee should study the advantages and disadvantages of continuing to operate under a plan with no formal legal genesis, and should, if warranted, request that the plan be established by Order in Council.

      7. BASIN MANAGEMENT. A management plan should be developed for the entire Howe Sound Basin and the SEMP should be incorporated into that plan.

PART I: INTRODUCTION
WCELA

Since 1974 the West Coast Environmental Law Association ("WCELA") has provided legal services to members of the public who are concerned about threats to the environment. WCELA and the West Coast Environmental Law Research Foundation provide legal representation, promote law reform, conduct education and research, and maintain a library of environmental legal materials. We submit these comments in support of the Squamish Estuary Conservation Society (the "Conservation Society").
SEMP

The Squamish Estuary Management Plan ("SEMP"), formalized in September of 1982, was developed to provide a decision-making framework which could be used to guide land and water use in the Squamish Estuary. [(1) -- 1. . Report of the Planning Committee on a Proposed Squamish Estuary Management Plan, Volume One: The Plan (Ministry of Fisheries and Oceans (Can.) & Ministry of Environment (B.C.), 1982) p. i.]

A proposal to amend SEMP has now been tabled ("the Amended Plan"), and the Squamish Estuary Coordinating Committee (the "Coordinating Committee") is seeking the input of interested members of the public. WCELA on behalf of the Conservation Society, welcomes this opportunity to comment on the Amended Plan. [(2) -- 2. . The author greatly appreciates the assistance of Calvin Sandborn, Ann Hillyer, Bill Andrews, Denice Regnier, Morgan Ashbridge, Catherine Ludgate, Patrick Roy, Jim Wisnia, Kevin Bell, Stephen Partington, Don Trethewey, David Mahony, David Loukidelis, Don Lidstone, Dick Channing, Murray Mollard and Bruce Morgan.]
Concerns about the Proposed Plan and about the Process

SEMP represents a significant commitment to the preservation and rehabilitation of an extremely important ecological resource, and is the result of the considerable efforts made by many people. The Amended Plan is also a reflection of many months of effort on the part of government agencies and the major landowner in the estuary, B.C. Rail.

B.C. Rail not only is the major estuarine landowner, but is also one of the major economic forces in the community of Squamish. B.C. Rail necessarily plays an important role in the realization of one of SEMP's long-term goals: "providing for the long-term trade, development and energy requirements of the community and province". [(3) -- 3. . Report of the Planning Committee on a Proposed Squamish Estuary Management Plan, Volume One: The Plan (Ministry of Fisheries and Oceans (Can.) & Ministry of Environment (B.C.), 1982), Preface, p. xvi.] To a large extent, the Amended Plan appears to be a compromise reached within the Coordinating Committee between the various government agencies and B.C. Rail - the plan is an effort to balance the ecological integrity of the estuary with the economic growth requirements of B.C. Rail.

However, concerns have arisen regarding the "balance" struck by the Coordinating Committee. There are specific substantive concerns about particular changes to or re-designations within the SEMP. But perhaps more fundamentally, we have concerns about the process that has been used by the Coordinating Committee to consult with the public.

In Part II we set out some concerns about the background work that has gone into the Amended Plan. It is disquieting that this plan is presented in the apparent absence of: (a) empirical evidence concerning potential environmental effects, and (b) serious study of alternative sites. This discussion will be conducted in the context of two of the most controversial Amended Plan proposals, Site A and Site H.

In Part III we will examine the proposed use of restrictive covenants for the purpose of habitat conservation. In Part IV we will examine the public consultation process used by the Coordinating Committee in the creation of the Amended Plan. Finally, in Part V, we will set out some concerns about the relatively "informal" structure of SEMP's estuarine management system, and in particular consider some of the consequences of this informality.
PART II: IMPACT ASSESSMENT AND ALTERNATIVES

There are too many unanswered questions to draw conclusions with any degree of certainty, but the net effect of the area re-designations in the Amended Plan, considered in isolation from the proposed mitigation/compensation package, appears to be an overall "net loss" of habitat value. The mere existence of a compensation/mitigation package confirms this.

This fate for the estuary appears to have been conceded, even though there has been no comprehensive empirical study of the potential environmental consequences of such re-designations and no comprehensive and systematic review of alternative development sites. The compensation/mitigation package designed to redress this issue also appears to be unsupported by research, and thus provides no assurances that it will be able to serve this purpose.
Environmental Impact

The Coordinating Committee has not been able to point to any issue-oriented research to support the proposed re-designations. This absence is conspicuous. The SEMP plan itself appears to require detailed analysis of environmental implications in this context. [(4) -- 4. . See Report of the Planning Committee on a Proposed Squamish Estuary Management Plan, Volume One: The Plan (Ministry of Fisheries and Oceans (Can.) & Ministry of Environment (B.C.), 1982) p. 27, where in the context of proposals for area designation it says: "If the objectives of the plan have not been accommodated, or only partly accommodated in the proposal, or if adherance to the elements fo the Management Plan will not ensure sufficient environmental protection, a more detailed analysis of the environmental implications of the project will be required...". SEMP also appears to require economic feasibility studies and benefit/cost studies where in the in this context of planning assessment areas it says at p. 53: "All proposals for development or conservation activities will be subject to the Environmental Impact Assessment process and those economic feasibility and benefit/cost analyses required by the Coordinating Committee".]

Furthermore, there are some indications within the government approving agencies that concerns exist about the environmental impact of particular sites. In its written submissions, the Conservation Society refer to a report of the Coordinating Committee's Technical Advisory Committee which recommended that all estuary west of the spur line remain designated as Conservation. [(5) -- 5. . Squamish Estuary Conservation Society's Response to the Squamish Estuary Coordinating Committee's Proposed Amendments to the Squamish Estuary Plan, Nov. 22, 1991, p. 1.]

Don Trethewey, a former Canadian Wildlife Service Habitat Management Biologist, has been actively involved in the study of the estuary and has some serious concerns about the Amended Plan. Mr. Trethewey is particularly concerned about the apparent lack of up-to-date research data on the estuary, and about the encroachment onto high value fish and wildlife habitat which the re-designations of sites "A", "B" and "H" represent. [(6) -- 6. . Don Trethewey, personal communication with L. Alexander November 18, 1991.]

These concerns are shared by several non-governmental organizations. It is the Conservation Society's opinion that the Amended Plan "unduly compromises the integrity of the ecological unit". [(7) -- 7. . Squamish Estuary Conservation Society's Response to the Squamish Estuary Coordinating Committee's Proposed Amendments to the Squamish Estuary Plan, Nov. 22, 1991, p. 1.]

Stephen Partington of the Federation of B.C. Naturalists has stated that the Amended Plan "fails to identify and to fully conserve two unique and critical habitats" which he describes as the "High Meadows located and Site E" and the "Old Growth Sitka Spruce Forest located at Site "A" [(8) -- 8. . Stephen Partington, address to the Squamish Estuary Coordinating Committee, November 18, 1991.]. In Mr. Partington's view:

Both the High Meadow and the Old Growth Spruce Forest are unique in that they are found nowhere else in the Lower Mainland, and critical in that they are integral parts of the Squamish River Estuarine Ecosystem. [(9) -- 9. . Steven Partington, address to the Squamish Estuary Coordinating Committee, November 18, 1991.]

Speaking for the Vancouver Natural History Society, Kevin M. Bell argues that "[a] large area of productive wildlife habitat (mature sitka spruce forest and estuarine meadow - site "A" and site "H") is to be destroyed with no like habitat being provided to replace it." [(10) -- 10. . Kevin Bell, address to the Squamish Estuary Coordinating Committee, November 18, 1991.]
Recommendation

1. ENVIRONMENTAL IMPACT. We recommend that the Coordinating Committee conduct environmental impact studies for each of the proposed re-designated areas, and make these studies available for public comment and review.
Consideration of Alternatives

As stated previously, the Amended Plan appears to represent a bargain struck between approving agencies on the Coordinating Committee and B.C. Rail which is intended to balance the competing interests of estuary and development. Site "A" and Site "H" appear to be the components of this bargain which reflect the most ecological "compromise".

However, while the making these particular compromises may ultimately be necessary to promote the twin purposes the SEMP, they appear in the Amended Plan without the support of any documents showing consideration of alternative development sites within or outside the boundaries of the SEMP.

Alternative sites for the port back-up facility intended under the Amended Plan for Site "A" have been suggested by members of the public. Two such ideas are the Squamish Industrial Park east of the B.C. Rail Main yards and west of Queens Way, and the B.C. Rail property formerly used by CanOxy for a chlorine plant. [(11) -- 11. . Squamish Estuary Conservation Society's Response to the Squamish Estuary Coordinating Committee's Proposed Amendments to the Squamish Estuary Plan, Nov. 22, 1991, p. 3.] It appears that there has not been significant investigation of non-estuary or "upland" sites for this facility.

Considering the fact that estuarine habitat is so rare and biologically critical, it is astounding that a systematic review of non-estuarine habitat has not been performed. The State of New Jersey has recognized the importance of not developing wetlands if alternative sites exist. In fact, New Jersey has "recently outlawed the development of any freshwater wetland if there is a practical alternative to the proposed development". [(12) -- 12. . C. Sandborn, "Wetlands Protection", in Law Reform for Sustainable Development in British Columbia (Vancouver: Canadian Bar Association B.C. Branch, 1990), p. 232 referring to "New Jersey's Freshwater Wetlands Protection Act", Lloyd Tubman, Current Municipal Problems, 15 [1988/89] 259 at p. 260.]

The relocation of the port back-up facility from Site "A" may also eliminate or reduce the environmental impact associated with the proposed Site "H". Site "H" appears intended to accommodate the increased track and road access necessary to service a back-up port facility at Site "A".
Recommendation

2. ALTERNATIVES. We recommend that the Coordinating Committee undertake a comprehensive study of alternative sites for the back-up port facility intended under the Amended Plan for Site "A", and for the track and road service necessary for that back-up port facility intended under the Amended Plan for Site "H".
Compensation/Mitigation

B.C. Rail appears to be very sincere in their commitment to provide the compensation/mitigation measures set out in the Amended Plan. But, as stated above, in the absence of supporting documentation which considers both the environmental impact of the proposed re-designations and any alternative sites for development, there still exists a possibility of over-all net loss in habitat value associated with the Amended Plan.

If, however, after careful study there are no feasible alternatives, and if the trade and development benefits of the Amended Plan are judged to outweigh the very significant habitat losses, clearly the discussion would shift focus to the design of a compensation/mitigation package which will address any losses in habitat value.

The Coordinating Committee has stated that, with respect to addressing any losses in habitat, they are guided by a policy of "no net loss". [(13) -- 13. . Dennis Deans, comment to participants at SECC Open House, November 14, 1991, Senior's Lounge, Squamish Civic Centre.] The only Coordinating Committee member, however, who has a formal mandate to ensure such a result is the Department of Fisheries and Oceans (DFO). [(14) -- 14. . DFO policy is to "not allow damage to fish habitat except, in certain cases, where "no net loss of productive capacity" of fish habitat can be achieved" [W. Andews and J. Higham, Protecting the B.C. Environment: A Catalogue of Project Review Processes (Vancouver: Environment Canada, 1986) p. 13].] This will present a problem whenever there is a conflict between the compensation of fish habitat and the compensation of wildlife or plant habitat in a particular area. Potentially DFO will, by virtue of its formal mandate, carry significantly more weight on the Coordinating Committee with respect to compensation. The result may be a decision not necessarily in the best interests of the estuary.

There is some indication that this conflict is already operating. In their written submissions, the Conservation Society wonder, in the context of the habitat channel proposed as compensation for Site "H", whether there is "sufficient justification for reducing wildlife habitat in order to enhance fisheries habitat". [(15) -- 15. . Squamish Estuary Conservation Society's Response to the Squamish Estuary Coordinating Committee's Proposed Amendments to the Squamish Estuary Plan, Nov. 22, 1991, p. 4.]

There are also serious concerns with respect to the effectiveness and reliability of any compensation/mitigation measures proposed. [(16) -- 16. . See R.E. Frenkel and J.C. Morlan, "Can We Restore Our Salt Marshes? Lessons from the Salmon River, Oregon", 118 Northwest Environmental Journal 7:119-135, 1991.] These are issues that can be addressed through thorough impact assessment study and public consultation.
Recommendation

3. COMPENSATION/MITIGATION. The Coordinating Committee should undertake careful study of the effectiveness and reliability of any proposed compensation/mitigation measures proposed, and include representatives from non-governmental groups in the design, implementation and monitoring of such measures.
PART III: RESTRICTIVE COVENANTS (CONSERVATION EASEMENTS)

One of the features of the Amended Plan is the proposed use for conservation purposes of a legal device known as a restrictive covenant. Under the Amended Plan, B.C. Rail is to maintain title to certain lands designated as Conservation, but in order to ensure that fish and wildlife habitat values are maintained on this land, B.C. Rail would presumably agree to allow the Provincial Crown, the Regional District or the Municipality to hold as a charge against their title a covenant restricting the uses to which that land can be put.

Ensuring the maintenance of fish and wildlife values on land owned by B.C. Rail will involve two distinct legal concepts: "obligation" and "access". The former might involve a promise, perhaps by both parties, to either refrain from conduct such as digging or chopping, or to require certain conduct, such as clean-up of a stream or the building of a walkway. The latter might involve providing for the Crown or the public to enter onto the B.C. Rail property for various purposes including enforcement, research, remediation or recreation.

If the sole purpose of the agreement is to charge against the B.C. Rail property obligations, positive or negative, with respect to the maintenance of habitat values, then a restrictive covenant is the appropriate legal instrument. If, however, access is an important part of the maintenance program, a legal instrument known as an "easement" or "right of way" [(17) -- 17. . Section 214 of the Land Title Act, R.S.B.C., c. 219 may be useful for this purpose.] may be required. If obligations are intended to apply to all areas within the conservation area, but access is desired to only part of the land within that area, the two instruments could be used in conjunction with one another.

Given the serendipitous fact that the Provincial Crown and B.C. Rail are adjacent land owners, both statutory and common law covenants and easements are available for conservation efforts within SEMP.
Restrictive Covenants

Recent amendments to section 215 of the Land Title Act [(18) -- 18. . Land Title Act, R.S.B.C., c. 219.] have enabled the use of restrictive covenants for habitat conservation purposes. A covenant may now provide that land be protected, preserved, conserved or kept in its natural state in accordance with the covenant. [(19) -- 19. . Bill 4, Property Purchase Tax Amendment Act, 1991, s. 16 (In Force July 31, 1991 amending s. 215 of the Land Title Act, R.S.B.C., c. 219. ]

One major problem which has still not been addressed by amendment is that a section 215 covenant can only be held or owned by the Provincial Crown, a Crown corporation, a municipality or a regional district. Thus, private conservation initiatives such as Ducks Unlimited and others are prevented from using one potentially very effective means of conserving habitat.
Limitations of Covenants and Easements

Bearing in mind the limitations of restrictive covenants referred to above with respect to access and ownership, the following are three major areas of concern with respect to the use for conservation purposes of both restrictive covenants and easements:
1. They are difficult to acquire.

Both the Crown and B.C. Rail must enter into the covenant of their own free will if it is to be enforceable. Since B.C. Rail appears to be sincerely committed to compensating for lost habitat, should it be necessary at all, this does not present a serious problem.
2. They are difficult to draft.

All elements of the covenant including jurisdiction, character of land and resources, productive uses, conservation objectives, and financial terms must be drafted in clear, unambiguous language in order for the covenant or easement to be effective. [(20) -- 20. . T.S. Barrett, "Model Conservation Easement and Commentary" in J. Diehl and T.S. Barrett Conservation Easement Handbook: Managing Land Conservation and Historical Preservation Easement Programs (San Fransisco: Trust for Public Lands, 1988), p. 147.] In the U.S., over 1.7 million acres of wetland and other habitat is now protected through the use of conservation easements, [(21) -- 21. . D. Loukedelis, "Habitat Preservation Through Conservation Easements", in Law Reform for Sustainable Development in British Columbia (Vancouver: Canadian Bar Association B.C. Branch, 1990) p. 108.] and as a result, the American experience can provide a wealth of drafting information. [(22) -- 22. . See for example T.S. Barrett, "Model Conservation Easement and Commentary" in J. Diehl and T.S. Barrett Conservation Easement Handbook: Managing Land Conservation adn Historical Preservation Easement Programs (San Fransisco: Trust for Public Lands, 1988), p. 147.]
3. They are difficult to enforce.

In order to enforce a restrictive covenant or easement, the most the holder of the covenant or easement can do is to seek an injunction to prevent an activity which is in violation of the agreement from continuing. Applications for injunctions, however, can be expensive, and often are not successful.

One way to address this problem is to include a liquidated damages clause in the agreement. That is, include a provision which sets out a certain sum of money to be paid out if the agreement is violated.

Another obstacle to enforcement is that only the holder of the covenant or easement can seek such enforcement. Hence, if there is public concern but the Crown, municipality or regional district who holds the charge is not willing to enforce it, a court will not consider the issue.
Recommendation

4. COVENANTS AND EASEMENTS. Covenants and Easements granted under the Amended Plan must: (a) ensure that B.C. Rail is legally obligated to maintain all important habitat values, and (b) ensure adequate access to the lands in question.
PART IV: PUBLIC CONSULTATION
Public Consultation and the Amended Plan

The public participation process used thus far by the Coordinating Committee stands in contrast to the growing trend towards expanded public participation in environmental decision-making. There is no public representation on the Coordinating Committee. Public interest groups have not been involved in the development of the Amended Plan. A three year gap in the SEMP information bank [(23) -- 23. . See Squamish Estuary Conservation Society's Response to the Squamish Estuary Coordinating Committee's Proposed Amendments to the Squamish Estuary Plan, Nov. 22, 1991, p. 5.] and the brevity of the Amended Plan has inhibited public access to information. Public response to the Amended Plan was solicited but hastily organized.
The Growing Trend

The World Commission on Environment and Development (the Brundtland Commission) strongly emphasized the importance of public consultation:

[T]he pursuit of sustainable development requires .. a political system that secures effective citizen participation in decision making. [(24) -- 24. . World Commission on Environment and Development, Our Common Future (Oxford: Oxford University Press, 1987) p. 65.]

The reasons offered in support of this proposition have included [(25) -- 25. . The following four arguments are taken from C. Sandborn, W. Andrews and B. Wylynko, Preventing Toxic Pollution: Toward a British Columbia Strategy (Vancouver: West Coast Environmental Law Research Foundation, 1991) p. 139.]:

1. Citizens have a democratic right to participate in decision-making affecting our common environment. They are simply not satisfied that regulators and business have done an adequate job of protecting the environment in the past

2. Members of the public have many constructive ideas and practical knowledge to contribute toward solving environmental problems.

3. Social justice demands that if certain citizens are asked to bear the risks and costs of measures for the benefit of society as a whole, then they should have a full opportunity to participate in the decision-making.

4. Administrative fairness necessitates that if the business is to be consulted on regulatory changes then others who consider themselves affected should be consulted as well.

In the context of wetlands and habitat management, the concept of meaningful public participation in decision-making has been strongly endorsed. The Fraser River Estuary Study Council concluded that "[p]ublic involvement should afford people the opportunity to understand and influence each stage of the planning process" [emphasis added]. [(26) -- 26. . C. Harvey, Fraser River Estuary Study - Phase II: Results of Public Involvement (Surrey: Fraser River Estuary Study Council, 1982) p. 48.]

An international wetlands forum which brought together planners, conservation groups, government agencies and businesses recommended "[t]he public should be involved early and effectively in decisions affecting local wetlands". [(27) -- 27. . Sustaining Wetlands Forum, International Challenge for the 90s Sustaining Wetlands (Ottawa: Sustaining Wetlands Forum, 1990) p. 15. The forum included representatives from the Canadian Institute of Planners, Canadian Wildlife Service, Environment Canada, Ducks Unlimited, International Association of Fish And Wildlife Agencies, National Fish and Wildlife Foundation (U.S.A.), National Round Table on the Environment and the Economy, National Wildlife Federation (U.S.A.), Nissan Canada, Royal Bank of Canada, Sustainable Development Canada, and Wildlife Habitat Canada.]

In the United States, a national wetlands policy forum concluded that:

In undertaking [planning for wetlands protection and management] the responsible agencies should ensure that the planning process is public and includes a balanced representation of different interests concerned about the protection and management of the wetlands covered." [(28) -- 28. . Final Report fo the National Wetlands Policy Forum, Protecting America's Wetlands: An Action Agenda, (Washington, D.C.: Conservation Foundation, 1988) p. 20.]

A meaningful public process includes participation in the design of the process itself. P.S. Elder, a law professor with the Faculty of Environmental Design at the University of Calgary in a paper entitled "Estuary Protection in British Columbia" states:

Effective estuary management requires involvement of affected agencies and interest groups in the preparation of both plan and management structure. [(29) -- 29. . P.S. Elder, "Estuary Protection in British Columbia", International Journal of Estuarine and Coastal Law, Vol. 4, No. 2, 1989, p. 117 at 140.]

Another important component of the decision-making process is public access to information. A recent Westwater Research Centre study of the Fraser River Basin suggests that "[r]eaching agreement in the Management Program will depend on the information that is available to stakeholders to use in making decisions..." [(30) -- 30. . Dorsey, H. & Griggs, J., eds, Water in Sustainable Development: Exploring Our Common Future in the Fraser River Basin, vol. II (Vancouver: Westwater Research Centre, 1991) p. 280.]

Although it does not provide for public participation on the Coordinating Committee, the SEMP appears to provide some authority for the implementation of a meaningful public participation process in the design of plan amendments. [(31) -- 31. . Report of the Planning Committee on a Proposed Squamish Estuary Management Plan, Volume One: The Plan (Ministry of Fisheries and Oceans (Can.) & Ministry of Environment (B.C.), 1982) p. 26 reads, in the context of amending the management plan: "The Implementation Coordinator will coordinate the collection of information required to refine the Management Plan. The Coordinating Committee may identify work groups to analyse specific concerns within the estuary to enable decisions on revisions to be based on reliable information".] But clearly, much more public involvement is needed.
The FREMP Experience and other Precedents

The Fraser River Estuary Management Plan ("FREMP") has undergone some recent evaluation. And although FREMP is considered to be "one of the most intensive and progressive efforts to develop decision-making processes" [(32) -- 32. . Dorsey, H. & Griggs, J., eds, Water in Sustainable Development: Exploring Our Common Future in the Fraser River Basin, vol. II (Vancouver: Westwater Research Centre, 1991) p. 275.], the authors of a recent study conclude that there must be greater emphasis on consensual decision-making [(33) -- 33. . Dorsey, H. & Griggs, J., eds, Water in Sustainable Development: Exploring Our Common Future in the Fraser River Basin, vol. II (Vancouver: Westwater Research Centre, 1991) p. 275.] and that stakeholders must be involved in a more meaningful way. [(34) -- 34. . Dorsey, H. & Griggs, J., eds, Water in Sustainable Development: Exploring Our Common Future in the Fraser River Basin, vol. II (Vancouver: Westwater Research Centre, 1991) p. 278.]

Official public involvement programs have been uneven and frequently limited to consultation processes that are unproductive and often frustrating for most participants [(35) -- 35. . Dorsey, H. & Griggs, J., eds, Water in Sustainable Development: Exploring Our Common Future in the Fraser River Basin, vol. II (Vancouver: Westwater Research Centre, 1991) p. 275.]

While the FREMP has been highly successful in involving key governmental organisations, it has so far been much less successful in finding ways to involve the variety of non-governmental organisations in the working groups. [(36) -- 36. . Dorsey, H. & Griggs, J., eds, Water in Sustainable Development: Exploring Our Common Future in the Fraser River Basin, vol. II (Vancouver: Westwater Research Centre, 1991) p. 278.]

The authors conclude:

The ultimate success of [a] Management Program will depend on finding new and more productive ways to involve the diversity of stakeholders. [(37) -- 37. . Dorsey, H. & Griggs, J., eds, Water in Sustainable Development: Exploring Our Common Future in the Fraser River Basin, vol. II (Vancouver: Westwater Research Centre, 1991) p. 279-80.]

One example of a successful coordinating committee system with representation from non-governmental stakeholders is the current Pacific Coast Joint Venture (the "PCJV"). The PCJV is a plan formally adopted by the governments of Canada and the United States for the conservation of our internationally shared waterfowl resources. The membership of the steering committee includes representatives from a number of non-government organization "with whom close consultation for advice and cooperation is necessary for the success of the program". [(38) -- 38. . Memorandum of Understanding, Pacific Coast Joint Venture, British Columbia Implementation Committee, June 14, 1991.]
Appropriate Public Involvement

There is a real concern that the inclusion of a public participation component in the decision-making process will cause adverse media attention, take too much staff time, and delay decision-making. [(39) -- 39. . C. Sandborn, W. Andrews and B. Wylynko, Preventing Toxic Pollution: Toward a British Columbia Strategy (Vancouver: West Coast Environmental Law Research Foundation, 1991) p. 140-1.]

It is important to understand that public involvement in planning "will not by itself, create harmonious relationships and provide a means to avoid conflict". [(40) -- 40. . C. Harvey, Fraser River Estuary Study - Phase II: Results of Public Involvement (Surrey: Fraser River Estuary Study Council, 1982) p. 47.]

The key, then, is to:

... design a practical system to ensure that people who want to participate in centralized decision-making processes have an opportunity to do so, while at the same time ensuring that the process is quick and efficient. [(41) -- 41. .C. Sandborn, W. Andrews and B. Wylynko, Preventing Toxic Pollution: Toward a British Columbia Strategy (Vancouver: West Coast Environmental Law Research Foundation, 1991) p. 141.]
Recommendation

5. PUBLIC PARTICIPATION. The Coordinating Committee should be re-constituted to include representation from non-governmental organizations and the Squamish Nation. A working group composed of representatives from all interests on the Committee should be struck to consider in detail the proposed amendments to SEMP, the potential environmental impacts of each proposal, and any alternative sites for development. The information bank should be updated and maintained.
PART V: MANAGEMENT PLANS
Form

Among estuary management plans, SEMP is unique in that it is founded solely on "inter-agency cooperation and existing resources". [(42) -- 42. . P.S. Elder personal communication with G.K. Lambertson in P.S. Elder, "Estuary Protection in British Columbia", International Journal of Estuarine and Coastal Law, Vol. 4, No. 2, 1989, 117 at 125.]

In contrast, the Cowichan Estuary Plan has been approved by Order in Council [(43) -- 43. . Province of British Columbia, Order of the Lieutenant Governor in Council No. 1652, Approved and Ordered Sept. 12, 1986.], citing both the Environment Management Act [(44) -- 44. . R.S.B.C., c. 110.5, s. 4(9).] and the Environmental Land Use Act [(45) -- 45. . R.S.B.C., c. 110, s. 6.] as authority. As a result 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 "to the effect that the issuance or exercise will have no significant detrimental environmental impact .. and is in conformity with the plan". [(46) -- 46. . Province of British Columbia, Order of the Lieutenant Governor in Council No. 1652, Approved and Ordered Sept. 12, 1986, s. 2.]

Although there is no Order in Council to ground FREMP's existence, there is a signed agreement between the federal Department of Fisheries and Oceans, the provincial Ministry of Environment and the Fraser River and North Fraser Harbour Commissions which lays the groundrules. [(47) -- 47. . P.S. Elder, "Estuary Protection in British Columbia", International Journal of Estuarine and Coastal Law, Vol. 4, No. 2, 1989, 117 at 121.] In addition, there does exist an Order in Council in the context of impact assessment which prohibits any development or improvement of land in designated areas and which forbids the approval of a subdivision, issuance of a Crown lease, or issuance of a building, development, pollution control or sewage-disposal permit, until and environmental assessment is prepared and approved. [(48) -- 48. . P.S. Elder, "Estuary Protection in British Columbia", International Journal of Estuarine and Coastal Law, Vol. 4, No. 2, 1989, 117 at 131-2.]

SEMP, in effect, is at the bottom of a hierarchy of formal legal genesis. There is no funding mechanism and no formal office created to facilitate the coordination of the plan. [(49) -- 49. . Bruce Morgan, Ministry of Environment, personal communication with L. Alexander, November 14, 1991.] And while one benefit of this condition may appear to be increased flexibility there are at least two consequences which are cause some concern. A complete discussion of these issues is beyond the scope of this endeavor, but they are briefly mentioned here in order to encourage further study and discussion.

First, given the informality of the plan, "the zoning designations are not binding on the approving agencies" [(50) -- 50. . P.S. Elder, "Estuary Protection in British Columbia", International Journal of Estuarine and Coastal Law, Vol. 4, No. 2, 1989, 117 at 136.]. Hence conservation measures set out in the plan are not necessarily protected.

Second, and perhaps paradoxically, with the zoning designations having no formal legal recognition the Coordinating Committee may have less authority than they think:

If they act as if bound by them, they are probably declining jurisdiction and could be challenged in court. [(51) -- 51. . P.S. Elder, "Estuary Protection in British Columbia", International Journal of Estuarine and Coastal Law, Vol. 4, No. 2, 1989, 117 at 136.]
Recommendation

6. FORMAL STRUCTURE. The Coordinating Committee should study the advantages and disadvantages of continuing to operate under a plan with no formal legal genesis, and should, if warranted, request that the plan be established by Order in Council.
Basin Management

Another lesson of the FREMP process has been the importance of placing the Fraser River Estuary within its larger ecological context: that of the Fraser River Basin.

The FREMP experience strongly suggests that the objective should be to develop a management program for the Basin ... [(52) -- 52. . Dorsey, H. & Griggs, J., eds, Water in Sustainable Development: Exploring Our Common Future in the Fraser River Basin, vol. II (Vancouver: Westwater Research Centre, 1991) p. 277.]

Ultimately, the coordination required for sustainable development in the Squamish area will depend on the creation of a management plan which incorporates the entire Howe Sound Basin.
Recommendation

7. BASIN MANAGEMENT. A management plan should be developed for the entire Howe Sound Basin and the SEMP should be incorporated into that plan.
PART VI: CONCLUSION

This amendment process represents an important opportunity to set a precedent for future estuarine management decisions - an opportunity to change the paradigm. Developers naturally look to the least expensive option for development. But, the chosen option can no longer involve the destruction of scarce ecological resources.

This is a realization that is now being expressed within the business community. Peter Vivian, Vice-President of the Business Council on National Issues has stated:

If we are to meet the challenges ahead for wetland conservation, there will have to be great reliance on the ability of private sector organisations to take the initiative, to define the environmental agenda, and to raise the necessary money to get on with the job. And we must start today. We must pay more than lip service to the environment; we must do more than study problems only to produce lengthy recommendations that go unread because they are politically or economically unrealistic. We must change established patterns of thought and lifestyle. It will not be easy. [(53) -- 53. . Peter Vivian, Vice-President, Business Council on National Issues, in Sustaining Wetlands Forum, International Challenge for the 90s Sustaining Wetlands (Ottawa: Sustaining Wetlands Forum, 1990) p. 12.]

As conservative a figure as he is, President Bush has announced a goal of "no net loss" of U.S. wetlands. [(54) -- 54. . C. Sandborn, "Wetlands Protection", in Law Reform for Sustainable Development in British Columbia (Vancouver: Canadian Bar Association B.C. Branch, 1990), p. 231.] We are beginning to realize the importance of conserving what little is left of North America's wetlands.

Across North America, wetlands have been drained or filled, cultivated by farmers, converted by property developers, and used as dumps and landfill sites. More than half of the original wetlands of the United States have now disappeared. California has lost 91% of its original wetlands acreage. In Southern Ontario, only one quarter of the original wetlands remain. In British Columbia, approximately 75% of the Fraser River Delta wetlands have already been lost, as have approximately 70% of the wetlands in the Victoria region. Since 1880 wildlife have lost 99.9% of the seasonal wet meadow habitat and 84.6% of the bog habitat once available to them in the Fraser River Delta. This constitutes loss a rare resource - coastal wetlands made up only 2.3% of B.C.'s 27,000 km of coast line. [(55) -- 55. . C. Sandborn, "Wetlands Protection", in Law Reform for Sustainable Development in British Columbia (Vancouver: Canadian Bar Association B.C. Branch, 1990), p. 231.]

In the current process we have an opportunity to do things differently. We can ensure that Squamish wetlands, forests and meadows are not developed if alternative sites are available. We can ensure that any encroachment is subject to adequate environmental assessment and to adequate compensation/mitigation. We can ensure that covenants and easements protect habitat values. And we can establish a public process that ensures such decisions are made in a democratic manner.

End of Comments On The Proposed Amendments To The Squamish Estuary Management Plan