Following is the full text of the Gulf Islands Alliance presentation to Island Trust Council on June 14, 2007. It was delivered by Alliance Chair Christine Torgrimson and concerns the Alliance’s legal opininon on the role of the Trust and Islands Trust Act.

legal opinion for Gulf Islands Alliance June 6, 2007 [PDF]

To the Islands Trust Council:

I am Christine Torgrimson, resident of Salt Spring Island and Chair of the Gulf Islands Alliance. I have come here today to tell you about an intriguing legal opinion that has far-reaching and positive implications for your Islands Trust work. The opinion was sought by the Gulf Islands Alliance, a grassroots citizens’ organization launched recently, with 150 members now from throughout the Trust area and a board of directors representing eleven Trust areas.

We are islanders actively dedicated to the protection of the BC Gulf Islands, their natural environments, rural nature, and unique cultures, for now and for future generations. We support the Islands Trust federation in achieving its legislated Object. Our primary aim is to work collaboratively with the Trust to keep our fragile island environments intact and our communities small and diverse. We also work to influence other levels of government and to educate and activate the citizens of the Trust area to further the Trust Object.

The Islands Trust Act provided the Trust with strong powers to protect the islands through land use planning and regulation. Those powers were upheld by the 1995 MacMillan Bloedel v. Galiano Island Trust Committee decision by the BC Court of Appeal, which ruled in favour of the Local Trust Committee to enact bylaws that preserve and protect the Trust area and its unique amenities and environment.

To confirm that the Gulf Islands Alliance is on solid ground with our mission as well as our view that the Trust can and must do what the Trust Act says it should do, we recently sought a legal opinion about the Trust Object from Tim Howard of Mandell Pinder Barristers & Solicitors, a highly respected Vancouver law firm. Mr. Howard has considerable experience in the field of environmental law. The question we posed to him was:

“Are a Local Trust Committee (“LTC”), the Trust Council and/or the Executive Committee (the “Trust Bodies”) created under the Islands Trust Act R.S.B.C. 1996, c. 239 as amended (the “Islands Trust Act”) required to exercise their powers consistent with the trust objects stated in s. 3 of the Islands Trust Act?”

The first paragraph of the six-page legal opinion provides a summary, which I quote in part:

“…the Islands Trust Act places a positive legal obligation on Trust Bodies to act in furtherance of the trust objects, namely the preservation and protection of the trust area. A decision by a Trust Body that was made for a purpose other than the statutory purpose stated in s. 3 would arguably fall outside the Trust Body’s statutory power….”

Our lawyer takes the position that the Trust Act created the Islands Trust and provided it with strong powers for the primary purpose of preserving and protecting these islands. Unlike other local governments such as municipalities, for example, that allow trade-offs between competing community values such as environment and an expanded tax base, this opinion states that the Trust is mandated to place the preservation and protection of the Trust area and its unique amenities and environment uppermost in its considerations.

When you have an opportunity to study the legal opinion, we hope you will draw the same comfort and encouragement from it as we do, because it fully supports your right and obligation to implement and enforce the Trust Object. We also hope it will inspire your further ideas about ways in which the Trust can effectively accomplish this.

In that regard, we have a specific suggestion today. We request that you amend the Trust Policy Manual to require all staff reports to analyze whether a proposed action by a Local Trust Committee or by Trust Council would further or hinder the Trust Object. We would like to see a thoughtful analysis in staff reports rather than the simple checklist currently recommended in the Trust Policy Manual. For example, if a new bylaw is suggested, the staff report would evaluate whether the bylaw provides effective protection for the Trust area and if not, would describe how it could do so.

Such a policy would have many benefits. It would create a more focussed and effective partnership between staff and trustees as you work together to implement the Trust Object and Policy Statement. Keeping the Object and Policy Statement foremost in the minds of Trust staff would strengthen the Trust’s corporate culture of dedication to protecting the islands. Staff reports that explain how each new bylaw or policy implements the Object would also remind the public about the Trust Policy Statement and how the Trust protects these islands. We believe that this will also strengthen public support for the Trust. Adoption of this policy will support implementation of all aspects of Trust Council’s strategic objectives, complement the current review of local planning services, and help assure that all Trust-approved projects are focussed on achieving the Trust Object.

The Islands Trust is a rare and precious model for an extraordinary place. You Trustees, and we island stewards of this Trust area, have a serious responsibility to see that this unique archipelago is indeed preserved and protected. As Islands Trust Chair Kim Benson reminded us in a recent editorial, the challenges and complexity of delivering the Trust mandate are “escalating dramatically.” The Trust area population is growing at twice the BC and Canada rate, and at about 10 times the rate of other rural areas in Canada. The pressures to cut down the trees, demand more of the fresh waters, cater to more tourists, and provide more housing are growing exponentially, even before we face the greater pressures likely engendered by the 2010 Olympics.

We must all work together to protect this national treasure we are entrusted with and fully utilize the powers of one of the most unique governments in the world—the Islands Trust. The Gulf Islands Alliance formed for exactly this reason. We are not unrealistically against all growth and development, but we are serious about promoting a strong Islands Trust that supports the “preserve and protect” Object every day in word and deed. We have sought and now present this legal opinion to help ensure the full implementation of the Trust Object. We hope you will implement our proposal for Trust Object analyses in staff reports; we look forward to working with you on other measures to preserve and protect the Trust area, and we will continue our efforts to build a strong base of islanders who support the Trust Object and act responsibly as stewards of this Trust area.

At their Annual General Meeting in Lillooet on 26 May 2007, the BC Field Ornithologists (BCFO) adopted a position on the fundamental conflict between economic growth and biodiversity conservation. The BCFO addresses the study and enjoyment of wild birds in British Columbia through research and conservation efforts to preserve birds and their habitats.

The timing of the vote was opportune as Birdlife International announced the previous week that 22% of the planet’s birds are now at increased risk of extinction. A total of 1,221 bird species are presently considered threatened with extinction and an additional 812 species are considered Near Threatened, an increase of 28 species from last year. In British Columbia, 43 avian taxa are considered extirpated, endangered, or threatened and a further 48 species are of special concern.

Dr. James Ginns, BCFO President, noted that “Our position statement is precedent setting in that the BCFO is one of the first conservation organizations in British Columbia to focus attention on the causes of biodiversity declines rather than simply focusing on the symptoms as most environmental organizations are doing today. Unless the causes of the problem are addressed, biodiversity declines are likely to continue.”

One of the causes for these declines is economic growth. The economy grows by appropriating natural capital from the economy of nature (ecosystems) and using it for the human economy. As the human economy expands it removes resources, displaces healthy ecosystems, and degrades remaining ecosystems with waste.

Thus, economic growth reduces the quality and quantity of bird habitat when it’s converted as throughput to the human economy. It’s this growth that tends to swamp any gains made through conservation and policy efforts.

Similar positions on economic growth have been sanctioned by a number of professional scientific organizations in North America including The Society for Conservation Biology, The United States Society for Ecological Economics, The Wildlife Society, and The Center for the Advancement of the Steady State Economy.

The BCFO position explains not only the fundamental conflict between economic growth and biodiversity conservation, but identifies an alternative: the steady state economy.

The population of the Gulf Islands in the Trust area grew by 10 percent from 2001 to 2006, twice the BC and Canadian rates. Now at 25,366, the largest numerical increases occurred on Gabriola, Bowen and Salt Spring islands.

Since the Trust was launched in 1974, the population on its major islands by 2006 had more than doubled.

The most recent 5-year rate of change ranged from a 2.2 percent decrease in the Lasqueti Island Local Trust Area to a 48 percent increase in the South Pender Island Local Trust Area.

According to Statistics Canada, the number of private dwellings grew by 6.5 percent during the same time.

The impact of rapid population growth on our treasured natural and social environments, in particular from part-time residents and vacationers, is a priority issue for the Gulf Islands Alliance.

The Islands Trust Council is a federation of independent local governments responsible for managing development while preserving and protecting the unique environment of the Islands Trust Area. The area covers the islands and waters between the mainland and southern Vancouver Island. It includes 13 major and more than 450 smaller islands covering 5200 square kilometres.

The new Gulf Islands Alliance supports the declaration of leaders who created the Islands Trust: “We won’t let these precious jewels slip through our fingers.”

Haunted by too many examples of beautiful places in the world that have been ruined after being discovered and exploited, Alliance members know that their task is difficult and complex.

The Alliance is monitoring the increase in ‘second’ homes and vacation rentals. Permanent residents occupy fewer than 15 percent of the houses in the Gambier Trust area. On Thetis, only 37 percent of homes are occupied by permanent residents. Across all the islands in the Trust Area only 66.5 per cent of private dwellings are occupied by residents.

“We will understand more about the reasons for these changes once the demographic data are released,” says Kim Benson, chair of Islands Trust.

“They will show the distribution of age groups on the islands. We are also looking forward to additional future releases of Census information about housing affordability, mobility, and employment.”

In a mix of what some people perceive as ineffective bylaws and enforcement, many investors buy properties for high prices and build multi-suite homes and ‘guest’ cottages and then rent them short-term, often illegally, at commercial rates. The Alliance is concerned that this will pressure communities to become vacation destinations, and hollow out our neighbourhoods. Many existing and would-be residents will be sidelined by unaffordable property values and taxes. Property values on the islands almost doubled from 2001 to 2006.

On some islands, waterfront land assessments shot up 160 percent in 2007. Some shocked residents fought back by successfully appealing to the BC Property Assessment Appeal Board.

Once the erosion of communities begins, the displacement of caring people who voluntarily look after their neighbors and neighbourhoods may be very difficult to reverse.

“We seem to be bucking the national trend towards urbanization,” Benson said. “On average, Canada’s rural areas and small towns grew by only 1 per cent between 2001 and 2006. Fewer than 20 percent of Canadians lived in small towns and rural areas in 2006.

The Islands Trust contracts with Statistics Canada to provide it with customized data for each of the Local Trust Areas and Island Municipalities in the Islands Trust Area. The data are useful for a wide range of community planning purposes. Trends can be compared to those in British Columbia and Canada as a whole by viewing the Statistics Canada report Portrait of the Canadian Population in 2006.

But the Gulf Islands Alliance is optimistic because we know that many concerned islanders are ready to work with us and in their communities to help preserve and protect our islands.

Here are the populations of Trust Area islands, as of 2006, from Statistics Canada:

Bowen Island 3,362

Denman Trust Area (TA) 1,095

Gabriola TA 4,050

Galiano TA 1,258

Gambier TA 313

Hornby TA 1,074

Lasqueti TA 359

Mayne TA 1,112

North Pender TA 1,996

Saturna TA 359

Salt Spring TA 9780

South Pender TA 236

Thetis TA 372

The Gulf Islands Alliance is concerned that the new BC/Alberta Trade, Investment and Labour Mobility Agreement (TILMA) could thwart the Islands Trust in carrying out its ‘preserve and protect’ mandate.

In a letter to the Trust, the Alliance asks the Trust to petition the province to seek an exemption from the agreement. The Alliance first raised its concern at a Trust Council meeting in December.

Here’s part of the Alliance letter:

“As we have become more familiar with the possible implications of the TILMA we have become increasingly alarmed about the possible ramifications the agreement could have for the Trust system of governance. This is particularly so as we know that the Islands Trust is not specifically listed under Section V (Exceptions).

“Rick Earle, Director of Finance for the City of Burnaby has said of this agreement:

“Although characterized as building on or furthering the Agreement on Internal Trade (AIT), TILMA is structured to be very broad and encompassing (inclusive) unless specific exclusion are provided. The AIT only covered certain specified areas. This fact alone makes the potential for challenges under the new agreement much more probable than the under the AIT.”

“The civic measures dealing with quality (quality of life, neighbourhoods, etc.) are not covered as legitimate objectives and are therefore subject to challenge under the agreement. For example, zoning to minimize industrial/residential interface issues could be challenged; there are many areas in the city where the interface is an issue, based on historical development. Any bylaw restricting new development could be challenged based on its restriction of trade and the fact that historical examples do exist where commercial enterprises are built adjacent to residential areas.”

“Regardless of the intent, the breadth of these sections provides the potential for virtually unlimited challenges to city bylaws, zoning, and practices.”

“The Trade, Investment, and Labour Mobility Agreement (TILMA) has the potential to have far reaching negative impacts on municipal objectives; therefore it is recommended that Burnaby ask the Union of B.C. Municipalities to review the agreement and consult with the provincial government and municipalities, with the intent of making required changes, exempting municipalities, or having the province withdraw from the agreement in its entirety.”

“Saskatoon’s city solicitor, tabled a report of TILMA at the Municipal Council’s Feb. 26, 2007 meeting. Her views included the following:

“Cities like Saskatoon, which have a long history of doing things first and doing things differently, will be at the greatest risk of TILMA challenges,”. “Based on the information that we have to date, it is…possible to assume that TILMA cannot be adjusted to fit cities.”

“We are writing to request that the Trust Council press the Province to exempt the Islands Trust under Section V in the Exceptions specifically outlined in the agreement. We are of the opinion that if Minister Hanson’s assurances that the ability of the Trust to meet the Trust Object will not be impaired by this agreement, then he should have no problem including the Islands Trust in this list.”

In a parallel action, the Gabriola Local Trust Committee requested Islands Trust to ask the Province for a commitment that TILMA won’t prevent the Province from signing off on local trust committee official community plans. MP Jean Crowder, Nanaimo-Cowichan noted that the BC NDP caucus has been speaking out against TILMA and “the un-democratic way it was put in place.”

It wanted a debate about it in the BC legislature “so all British Columbians could learn about this agreement and its implications. The BC Liberals voted down the motion for debate.

“Jim Flaherty, the federal Finance Minister, mentioned TILMA in the budget speech as a good model for other provinces to follow,” Crowder said. “So we expect the federal government is planning some way of extending this bad deal across the nation.”

One critic said that TILMA will allow “legal challenges to restrictions on the location and size of commercial signs, environmental set-backs for developers, zoning, building heights, pesticide bans, green space requirements, private health clinics, nursing homes, junk food in schools, air quality, tourist developments, ecological reserves, agricultural land reserves, rent controls and much more. This could get very expensive for the tax payer at a potential $5 million per challenge.”

In a letter to objectors, Colin Hansen, the BC minister responsible for the deal, replied to demands for public consultation and legislative involvement and charges that TILMA doesn’t protect the Islands Trust area, or the Agricultural Land Reserve and municipal and regional district zoning:

“While not specifically listed as exceptions, these protected areas and regulations are legitimate public and environmental objectives and not subject to the Agreement.

“This also extends to labour laws, environmental standards, human rights legislation, community drinking watersheds and forest protection lands. I must re-emphasize that the Agreement applies to trade, investment and labour mobility between provinces and does not strip away legitimate rules and regulations.

“Legislation was not required to enter into the agreement. However, implementation of specific measures related to TILMA will require amendments to existing legislation.”

He noted that the Conference Board of Canada concluded that under TILMA BC could gain an additional 78,000 new jobs and $4.8 billion in real gross domestic product.

Southern Gulf Islands

Press release, December 7, 2006
Victoria – A new group of concerned citizens from across the southern Gulf Islands has formed to support the ‘preserve and protect’ goals of the Islands Trust Act.

Announcement of the Gulf Islands Alliance launch was made at a regular meeting of the Islands Trust Council today in Victoria.
“We want to ensure the full implementation of the Islands Trust mandate to keep our fragile island ecosystems intact and our rural communities small and diverse,” said Alliance Chair, Christine Torgrimson, of Salt Spring Island.

“Our aim is to better inform ourselves and the public to support measures that counter the growing threats to our islands.”

“In the 1960s and 70s the province recognized the fragile and special nature of the islands. It wisely legislated the Islands Trust Act in 1974 to protect what it said was one of most unique and threatened environments in the world.

“Since then, the Trust area population has more than doubled. The Trust has wrestled with the forces of industry, development and tourism to try to keep the islands intact. In recent years, the province has unfortunately refused to provide the resources and legislative tools that the Trust needs to do its job thoroughly.”

Noting recent national public opinion polls placing the environment as a leading public concern, Torgrimson said “residents of the islands and beyond are receptive and ready to join us and the Trust to make sure these precious islands are not squandered.”

She pointed out that in several recent public forums, sponsored both by the Trust and by citizen groups, people from various islands discovered they share similar concerns.

“Throughout the islands, we are struggling with shortages of groundwater, illegal rental of residences for short-term vacationers, logging and tree-cutting issues, and the loss of near-shore marine life. Some islands are literally losing their residential communities as second homes and short-term vacation rentals take over their neighborhoods and housing prices escalate well beyond many islanders’ means.

“We have recognized that we can be far more effective by getting together as an inter-island force, learning from each other, finding the best solutions, and bolstering the efforts of the Trust,” Torgrimson said.

“Particularly because we live on islands, we realize that we must define and accept limits on population, tourism and use of island resources. We’re not unrealistically against all growth and development, but we will actively oppose growth that diminishes the environment and/or abuses the public good at it’s described in the Islands Trust Act.”

In recent years, various Gulf Islands have been hit hard by residential and commercial development, resource depletion and increasing tourism. These are the same issues that sparked passage of the Islands Trust Act 32 years ago. Since then provincial funding has declined to levels which now jeopardize Islands Trust ability to safeguard an ecologically rare archipelago that includes 13 major islands and more than 450 smaller islands.