After two years of campaigning by the Gulf Islands Alliance, Islands Trust Council has agreed to take a serious look at acknowledging the Public Trust Doctrine in its Policy Statement. The doctrine “describes the ideal relationship between citizens and leaders, a refreshing way for the Trust to understand its work. It is the legal foundation of public governance.”

Following is GIA’s presentation to Council at its quarterly meeting on Gabriola Island, March 11, 2015:

The Gulf Islands Alliance (GIA) joins Islands Trust in declaring that, long term, the greatest threat to the Trust mandate is climate change. We’re asking that the Public Trust Doctrine be acknowledged in your Policy Statement to provide the framework and motivation to apply the best solutions to climate change.

Your strategic plan once said climate change threats include an increased strain on social and economic systems, rising sea levels and storm surges causing saltwater intrusion of aquifers, infrastructure damage, and loss of biodiversity, habitat and cultural and historic sites. These are just first symptoms of what US Secretary of State John Kerry says is “perhaps the world’s most fearsome weapon of mass destruction.” Climate change can only be subdued when we all join in on a world-wide response of equal or greater strength.

Carbon emissions have risen 60 per cent since 1990 and continue to increase 2.2 percent annually instead of decelerating by a needed 6 percent. Fourteen of the 15 warmest years have occurred this century.

An increase above 2 degrees in average world temperatures is considered dangerous; we’re on pace for 4 degrees. Greenland’s ice is melting five times faster than 20 years ago. Along with melt, thermal expansion contributes to rising seas. Other climate outcomes are more extreme weather events, drought, food and water shortages, species extinctions, and damage to social and economic structures, causing mass migrations and territorial wars.

These consequences are nature’s response to our abuses, reminding us that human and environmental health march in lockstep, that nature doesn’t always like being “balanced” against contrary human interests, and that the truth about climate change rests in science, not public opinion.

Because we see hints, not the worst of our future, many of us look away. ‘Not my business.’ ‘Heard these warnings for years and nothing’s happened.’ ‘I won’t be around if and when it happens.’ These attitudes don’t vanquish climate change. When do we jump off the track of an oncoming train? The world’s in denial, mired by cheap power and consumption. Zoom. Zoom. Will our grandchildren forgive us?

We treasure good relationships, with other people, our community, our world. Relationships thrive on trust and die for lack of it. The word ‘trust’ is everywhere, Trust Act, trustee, trust council, local trust committee, trust area.

The Public Trust Doctrine describes the ideal relationship between citizens and leaders, a refreshing way for you to understand your work. It is the legal foundation of public governance. The trust idea is widely considered the most innovative contribution of the English legal system. The public trust guarantees that every person has unrestricted access to gifts of nature such as clean air and water needed to sustain a healthy life. It says governments, as trustees, have a moral and legal duty to safeguard these gifts. The doctrine is the basis of current lawsuits that allege U.S. state and federal governments have failed to make honest attempts to help restore atmospheric carbon dioxide to 350 parts per million, the threshold to climate catastrophe. It’s now at 396. U’Vic’s Environmental Law Clinic says, “Courts are increasingly imposing liability on trustees for environmental degradation of trust property… The general public may also be considered the beneficiary, where the government is deemed to occupy the role of trustee.”

Testing the public trust in court is not GIA’s goal. Adopting it won’t restrict Island Trust actions; but it will add symbolic and moral weight to your vital advocacy work. The Trust Act invites you to advocate ways to better preserve and protect the trust area.

GIA shares the David Suzuki Foundation’s Blue Dot national campaign goal of acknowledging people’s right to a healthy environment. You don’t have to choose between us, we reinforce each other. Choose both.

But if there were no distinctions in our approaches, we wouldn’t be here, except to support Blue Dot. Or they might be here just for us. A quick look at these distinctions:

First, we note that Port Moody Council quickly endorsed Blue Dot over objections by its mayor who wanted first to study its costs and diversion of staff time. GIA’s request doesn’t involve new responsibilities or deadlines for you. Among local governments, we regard the Trust already as Canada’s most environmentally progressive … in your own words, “the only government in Canada and, perhaps, the world, with a legislated mandate to preserve and protect a special area”.

Second, Blue Dot is petitioning governments for recognition of a right that the Public Trust Doctrine says already exists, a human and natural right not contingent upon laws, customs, or beliefs of any particular culture or government, and therefore universal and inalienable. And more, it insists on the highest standard of that right, a healthy environment that sustains life now and for future generations. (In fairness, this summary is overly-simplified because of time restrictions.)

Third. Blue Dot is rather soft on climate change, possibly a deliberate decision not to turn off potential supporters who are persuaded that engaging climate change threatens their jobs and our economy. The Public Trust Doctrine’s resurgence is owed to climate change. It’s a legal impetus to design and enforce solutions to climate change, to restore the atmosphere to its rightful owners, the public. Patience is no virtue here. Our greatest opponent is time itself. Next are the absurd arguments that climate change can be defeated while we grow our fossil fuel industries and that the end-use of the energy we export somehow doesn’t make us more complicit. Aggressive containment of climate change will also help a myriad of related environmental issues.

Both GIA and Blue Dot welcome anyone, in the courts and legislatures, who delivers on recognition of our right to a healthy environment. Amending our constitution won’t be a cakewalk especially in this election year. We note that the NDP’s pending private member’s bill to establish an environmental bill of rights borrows language from the Public Trust Doctrine. It asks that the Government “as trustee of Canada’s environment … preserve it in accordance with the public trust for the benefit of present and future generations.”

Climate change forces us to re-examine ideas of survival and justice on this shared planet. The Doctrine answers the essential question — whose job is it to preserve Earth as a liveable planet, for us, for vulnerable folks in poor countries, and for our children and future generations that have no ability to intervene right now?

Founded in 2006, GIA is a non-profit group of islanders dedicated to the letter and spirit of the preserve and protect mandate of the Islands Trust Act.

GIA showed up at Islands Trust’s new council meeting in Victoria on December 5, 2014 to welcome and share a bit of old and new-fashioned wisdom with trustees at the start of their 4-year term.

I am here for the Gulf Islands Alliance. Call us GIA. On your third day — suffering information overload? — you already have enough to think about. So we’re not here to complain or ask for anything. We just want to congratulate you on your election and celebrate with you the 40th anniversary of the Trust and the amazing opportunity you have to do good things over the next four years.
When you stack up the Gulf Islands’ beauty, serenity, and security against a world festering in wars and other turmoil, we surely live in a most remarkable place.

And GIA, a non-profit, grassroots group, wants to help keep it that way. For nine years we’ve been vocal — with letters, deputations, islands tours and public gatherings — about growth, tourism, marine and forestry issues, bylaw enforcement, and other Trust governance policies and practices. Next year we plan to offer ideas for your strategic plan, such ideas on ways to reconcile with First Nations claims and cope with industrial waste, acidification and rising sea levels of the Salish Sea.

GIA lives to support the Trust Act’s goal. A few years ago we commissioned a legal opinion from a prominent environmental lawyer on the meaning and force of the Act. He concluded its purpose, to protect the islands’ natural environment, above all other considerations, is strong and has proven to be enforceable in court.

After an election campaign focusing on ways to best serve your constituents, new trustees now may be feeling overwhelmed by the bigger picture. From being a politician in pursuit of votes, here you learn you’re truly a trustee, with a duty of care for a special place, on behalf of your island residents and all BC people. Political thinking rarely goes beyond the next election. But trustees must consider this generation, and even the generations that follow. Native wisdom calls for us to be good ancestors. Given that life is fleeting, we’re more like visitors or tenants than owners on this earth. We shouldn’t be trashing the place. GIA sees you as a kind of strata council, held to the highest standard because this is luxury accommodation.

GIA has a few on-the-job tips for you. (We confess to shamelessly borrowing a few apt clichés):

1. This is your show. You represent your islands. You were elected. People like us, your constituents, your staff and other bureaucrats can plead and instruct, but you make decisions. Make sure they are yours. You may screw up now and again. When you run after a rainbow you sometimes get wet.

2. The best way to stay dry is to dig like a dog for the bone of truth, no matter how deep it’s buried. The road to good decisions is paved with facts. Measure ideas on their merit, not popularity. Today’s mighty oak is just yesterday’s nut that held its ground.

3. Listen well. Larry King said he never learned a damned thing when he was talking.

4. (This is especially for your chair and executive committee.) Know what business you’re in. Don’t come to work not sure if you’re making widgets or what-nots. Keep the Trust Act and Policy Statement at your bedside. You’re protecting one of the most beautiful places on earth. You’re captain of ship; it can’t move forward if it’s going sideways. Keep bureaucrats and politicians at arms length. Public service isn’t about private gain. Be real. Better to be the lonely rider who dismounts from his dying horse than the dashing officer who promotes his dead horse to a supervisory position.

5. Speak up — shout — for the Trust. You have a great story and great idea to talk about. It’s no accident the Trust is misunderstood and most criticized in places especially where it lacks a champion. Make the most of your role as advocate to other levels of government. Your past chair Sheila was a strong Trust advocate, about ferries and oil tankers, to name two. The new Trust should do even more.

To conclude: The media of all sorts is a-buzz with alarming research and opinions about mankind using up natural resources and polluting the earth faster than can be sustained. One response has been a wave of constitutional changes in about 150 countries guaranteeing the right of citizens to live in a healthy environment. Many have resulted in significant improvements of environmental care. The Suzuki Foundation and the NDP want to enshrine this right in Canada’s Charter of Rights and Freedoms. With a mandate and practices that are a model for the world, Islands Trust should consider joining Vancouver, Richmond and other local governments in endorsing this initiative.

But we don’t want that confused — albeit it’s related — with GIA’s ongoing plea to Trust Council to adopt the Public Trust Doctrine into your Policy Statement. Simply, the doctrine says every person has the right to breathe fresh, unpolluted air. It’s not about values or amenities, it’s about a necessity.

Rarely used in Canadian courts, the Public Trust Doctrine is more relevant than ever, as a response to greenhouse gas emissions and climate change, because it says:

— air and water and other life-sustaining provisions of nature belong equally to all of us and shall not be damaged or removed for any reason. Beyond any discretionary power of governments to remove, this is an inalienable human right.

— and two, all publicly elected officials and their government agencies are trustees of these precious necessities and are duty bound to preserve and protect them. As administrators of the public trust, they don’t have the power to abdicate their role as trustee in favour of private parties.

How does this apply to you? Unchecked, climate change is the biggest threat to the Trust’s preserve and protect mandate. It could put you out of a job. Confronting climate change is both a local issue and global issue. Your voice counts. Don’t wait for the other guy; he or she may be waiting for you to act first. And you have loads of support — an energized, enlightened population that will be delighted and motivated by your example.

By the way, 2014 is the hottest year on record.

(Delivered by Dave Steen, GIA Chair)

*****

Footnote: In deputations and letters to Islands Trust over the past two years, GIA has pressed Council to amend its Policy Statement to embrace the Public Trust Doctrine (See GIA’s submissions in our ‘older news’ pages.) We are inspired by lawyer Mary Christina Wood whose work and book Nature’s Trust have aided the launch of numerous lawsuits, on behalf of children, against US states and the federal government for failing to take necessary measures needed to halt catastrophic climate change. She was interviewed by Bill Moyers on PBS TV in early January, 2015. Her message and mission herald an exciting change in combating climate change and saving democracy.

This is an abbreviated version of GIA representative Graham Brazier’s presentation to Islands Trust Council at their quarterly meeting in March, 2014, on Hornby Island.

Throughout its forty-year existence, jurisdictional tussles have been a way of life for the Islands Trust. If it wasn’t one provincial ministry or another it was likely some arm of the federal government claiming higher standing in the jurisdictional pecking order.  Nevertheless, late last year, Islands Trust Chief Administrative Officer, Linda Adams, acknowledged she was ‘surprised’ by a declaration that the K’omoks First Nation intends to assert its aboriginal right to practise aquaculture in an area where it has been prohibited by duly passed by-laws of the Denman Island Local Trust Committee. While it is self-evident that this claim is of a profoundly different order than the Trust has faced in the past and we at the Gulf Islands Alliance agree that reconciliation of the gross injustices inflicted on the aboriginal people of the province must be among the highest of priorities of our provincial and federal governments, we nevertheless encourage the Islands Trust to take all measures consistent with its mandate to advance its case on behalf of the preservation and protection of the natural environment of the islands in the Trust Area.

We believe that the Treaty Process, which has been under way without any involvement of the Islands Trust since 1992, offers the best forum for the assessment and evaluation of what may be competing interests within the Trust Area.  Furthermore, we believe the Trust is bound by its legislated mandate to insure that its interests are fully considered as this process moves toward a settlement with the numerous First Nations of the Salish Sea. In this connection it is important to note that the Ministry of Aboriginal Relations and Reconciliation “recognizes that communities must be consulted and informed if treaties are to be successful”.We, at the Gulf Islands Alliance, urge the Trust, as representatives of the communities of the islands, seek active involvement in this process or, at the very least, obtain assurances from provincial negotiators that community interests will be vigorously represented throughout the process. Furthermore, in our view it is also essential that these interests be fully represented when, as was the case of the K’omoks First Nation, Interim Measures Agreements involving aquaculture were negotiated following the acceptance of an Agreement-In-Principle; also without the participation of the Trust.  

In the meantime, we feel it may be instructive to ask how the ‘surprise’ element, which was evident in the recent announcement, might be minimized in the future. The answer, of course, is that relations between First Nations of the region and the Islands Trust need to attain some measure of formality.  As the Islands Trust enters its fortieth year of existence inside a geographic area where thirty First Nations groups have had longstanding interests it is noteworthy and disappointing to observe that formal protocol agreements exist between the Trust and only two of those nations. Clearly, a 7% success rate suggests there is work to be done.

As recently as 2010, local governments in the Comox Valley (including the Comox Valley Regional District, the City of Courtenay, the Town of Comox and the Village of Cumberland) signed a protocol agreement with the K’omoks First Nation that established “a positive government to government relationship”.  We are bewildered to note that the Islands Trust was not among the signators of this agreement.  

Consider further that since 2009, groups able to speak authoritatively about First Nations interests in the Trust Area have appeared before Trust Council twice (once in 2012 and once in March of 2014) while, over the same period of time, groups representing San Juan County in Washington State with no direct relevance to Islands Trust issues, have made six formal appearances at Trust Council. No offense to the folks from San Juan, but this seems incongruous to us at the Gulf Islands Alliance. 

While it’s encouraging to note that the current Islands Trust Strategic Plan states that strengthening relations with First Nations is a goal of the present term of Trust Council, the agenda for the meetings on Hornby Island at the beginning of March for this year are the only substantive evidence that energy is being directed toward this critically important goal. In this connection, it seems that recently Trust Council took a step backward when it chose not to fund a “First Nations Engagement Strategy” advanced by staff. We urge you to reconsider this decision.

As it seems to us at the Gulf Islands Alliance, engagement with First Nations appears to either slip through the cracks or get relegated to a back burner, we believe it may be worthwhile to consider some administrative or structural changes to insure that progress is made on this front.  To begin with, it seems evident that an annual up-date on treaty negotiations with an opportunity for dialogue would fill a useful information gap at one of Trust Council’s quarterly meetings.

Perhaps, more importantly, it may  be worthwhile to consider creating a standing First Nations Relations Committee on a par with the Local Planning Committee, the Programs Committee and the Finance Committee with its own staff person with an archive and library of material relating the forty year history of relations between First Nations and the Islands Trust.   Such an adjustment in addition to a commitment to continue the archiving of Islands Trust documents would enable individual Trustees to conduct independent research and keep up-to-date on First Nations issues without any commitment of time on the part of staff.

In closing, we would like to remind you that, as First Nations have demonstrated over the course of the last 160 years, if a strategy is to be successful, “perseverance” must be its cornerstone.

Islands Trust is looking out to sea.

For its first four decades the Trust has been preoccupied with land use, but in recent months it has turned increasing attention to marine matters, a move strongly promoted by the Gulf Islands Alliance.

Troubles with the shellfish industry dominated discussion at Trust Council’s town-hall session in Victoria in early December. Other sea-change challenges are the prospect of tanker traffic oil spills in Georgia Strait, possible polluted run-off into Baynes Sound from the proposed Raven Coal Mine, ongoing struggles to save seashore ecology against near shore and shoreline developments, and, in the longer term, preparing for rising sea levels and other climate-change threats.

Shelley McKeachie of the Association of Denman Island Marine Stewards got Council’s full attention when she said the environmental damage and lack of government control over the shellfish industry, so far confined to the Baynes Sound, could spread to all the southern GulfIslands with the introduction of geoduck (gooey duck) aquaculture.

Council followed by instructing the Trust’s executive committee to “study and make recommendations to Council regarding the costs and resources necessary to create an advocacy campaign for the marine and coastal protection of the Salish Sea, and that all related advocacy issues such as aquaculture, oil tanker traffic, coal transport and climate change be included in this examination.”

Council is checking to see if it can afford the finances and staff resources to take part in the National Energy Board hearings into the expansion of Kinder Morgan’s Trans Mountain Pipeline to Vancouver. If approved, there will be large increase in tanker traffic oil spill risk. Council wants the Canadian Environmental Assessment Agency to have Port Metro Vancouver study how increased marine traffic from Roberts Bank Terminal 2 would impact the ecosystems, species, and communities of the Salish Sea. 

The struggle to protect Trust Area waters and ecology has intensified in recent years as the federal government has promoted energy industry expansion. When Scott Vaughan, Canada’s commissioner of the environment and sustainable development, retired early in 2013 he said “environmental protection is failing to keep pace with economic development.” He lamented the absence of sea life protections. As we’ve seen in the Trust Area, setting up the promised national network of marine protected areas, free of heavy economic activity, has been painfully slow in Canada.

Vaughan‘s complaint about “jurisdictional confusion” applies both to monitoring and control of energy companies and fisheries. He noted that government-imposed liability limits for oil spills are outdated and ridiculously low. The cost of the 2010 Gulf of Mexico spill was $40 billion.

To attract taxpayers’ attention to the fact they would be on the hook to pay billions to clean up a marine oil spill, the Gulf Islands Alliance’s suggested that Islands Trust should ask senior governments for a ‘cost assessment of oil spills that includes an economic evaluation of the loss of natural services’. We were turned down.

The Trust opposes ‘oil pipeline projects that lead to the expansion of oil export by barge and tanker from Canada’s west coast’, and supports a ‘long-overdue initiative to improve the BC spill prevention and response regime.’ The Trust noted that UBC fisheries economists figured a major tanker spill off BC’s northern coast $10 billion.

Of even greater concern than oil spills is what the International Programme on the State of the Ocean, an international group of marine scientists, describes expected unprecedented damage to ocean ecosystems by climate change, overfishing, and industrial pollution. In their 2013 report they said increased warming, acidification and de-oxygenation reduces the capacity of oceans to nurture resident plants and animals. Program spokesperson Professor Alex Rogers says, “The situation should be of the gravest concern to everyone since everyone will be affected by changes in the ability of the ocean to support life on Earth.”

Climate change has ignited predictions of more lethal weather events, causing damage far beyond the capacity of affected local governments to repair.  Parts of the Lower Mainland and the islands are increasingly vulnerable to violent weather and rising sea levels. A rise of 1 metre could occur in 20 years, says Coastal Cities At Risk, a group looking at ways to protect communities at high risk from climate change. A major concern is seawater seepage into ground water or the outright flooding of food production areas. Many crops won’t tolerate extra salt. Another huge challenge is to find ways to protect infrastructure and deal with private property rights and zoning to discourage development in low-lying areas.