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Trust must repair bylaw enforcement

On December 4, 2013 Islands Trust Council heard two individual presentations on the need to strengthen bylaw enforcement in the Trust Area. Here is the full text of a letter from Maxine Leichter, a former GIA board member, followed a post-presentation letter from Jan Slakov, a sitting GIA board member:

 Dear Trustees:

 This letter focuses on aspects of bylaw enforcement that are trust-wide, and not those under the jurisdiction of Local Trust Committees. I’m not questioning the long standing Islands Trust policy of giving priority to complaints and allowing violators time to comply; and I’m not criticizing the bylaw enforcement officers who are the least likely to be responsible for problems. This letter hopes to make some constructive suggestions.

In 2008, Trust Council commissioned a study, “Bylaw Enforcement and Litigation Management Review” by Roycroft Consulting Services. My guess is that some of the recommendations in this report have been implemented and others have not. However, from the perspective of the community, the same problems are still with us.

 When I moved to SaltSpringIsland in 2003, I looked into why bylaws to protect the environment were not being enforced. I found out that the Development Permit Area bylaws were written in ways that make them very difficult and expensive to enforce. My attempts to make them easier to enforce were not successful and my friends kept telling me that it wouldn’t help since bylaws were not enforced anyway. Time has proven them correct. However, effective bylaw language is a separate subject. This submission focuses only on enforcement of zoning bylaws, because that is more straightforward.

 Ideally, a new study would focus on actions under the control of Islands Trust since problems caused by provincial and federal policies and funding levels are out your control. A new study could:

 1) Follow-up on the previous Roycroft study to report what steps were taken and if others were not taken, why not.

 2) Focus on a list of most pressing problems agreed upon by trustees. The Roycroft study interviewed trustees who identified concerns but there was no agreed upon set of problems.

 3) Please consider inquiring about the following list of specific concerns:

 The Problem

 For the community, the most pressing problem is that when someone refuses to comply with a bylaw there does not appear to be any meaningful deterrent. In other words, if someone does not agree with the bylaws or wants to make money by ignoring them, they are free to do so. The only deterrent is a bylaw enforcement officer visiting them over and over and asking for compliance. Usually, those who violate have a compelling reason to do so. They are gaining a benefit, usually a financial benefit, while their neighbours who are following the bylaws suffer. Below, I’ve provided you with three examples, one that has been going on for 4 years and two that have been going on for seven years or more.

 Violators are free to proceed because there are so few prosecutions. We also do not hear about tickets being issued or fines collected. Prosecutions and tickets will not provide a deterrent unless the public knows about them. Below are some of the negative effects of the failure to prosecute intransient offenders:

 Effects on neighbours include noise, possible soil contamination, threats to their health and safety, reduced property values, time spent at government and neighbourhood meetings, writing letters, making phone calls, sending emails, and emotional stress. Allowing violations to continue while those who follow the laws suffer is obviously unfair.

 Effect on the Community: Un-permitted uses in environmentally sensitive areas can harm the environment causing impacts beyond the neighbourhood. The entire community loses respect and confidence in a government.

 Violations increase: Because it is known that violators are rarely prosecuted, violations proliferate.

 Below is a list of possible causes that could be investigated. They provide hypothesis to test.

 Funding issues

 1) Is inadequate funding preventing prosecution of violators? Because funds are limited, are lawyers advising the Trust staff to obtain agreements with violators rather than going through a trial? There is little value in agreements with violators who do not keep them. Does inadequate funding for prosecution result in only a minimum number or the easier cases being prosecuted leaving many others to sit for years before they are addressed?

 Legal and communication issues

 2) One case took ten months from the time the Local Trust Committee referred the case for legal action until a summons was issued and then years before there was a date for trial. Are such long delays still occurring? If so, why are Trust lawyers not acting more promptly? Is this a funding issue?

 3) The Trust’s policies allow violators to apply for a zone change or a temporary use permit (TUP) to stall enforcement. (See Bylaw Enforcement Best Practices Manual, pages 6 and 17). While a request for a TUP or zone change is being considered, which can take months, the violator doesn’t have to comply. After a zone change or TUP is turned down, if it takes a year to get to a court hearing, we have been told that the trust must allow the violator to apply for another TUP or zone change, which can again take months to process, etc. Is this correct? Can a Local Trust Committees adopt a policy to refuse consideration of a request for zone change or TUP unless the landowner is in compliance with current zoning and other regulations? If they must “consider” it, can an expedited process be adopted?

 4) Even after violations have gone on for several years, community members have been told that cases cannot be prosecuted because the judge won’t order compliance unless the violator has been given sufficient time to comply. Based on previous court decisions, how much time do judges look for? Two of the violations cited below have been pending for seven years and one for four years. We would appreciate this issue being clarified.

 5) Should the Trust hire in-house council? The money spent may provide better return than payments to outside legal firms. In-house council could do bylaw enforcement, defend the Trust when it is sued, help the trust staff draft enforceable bylaws and help bylaw enforcement staff to be more efficient and effective at gathering evidence that will support successful prosecutions.

 Setting up a law office no longer requires a law library because research materials are on the internet. On the rare occasion that a lawyer needs something further, they can get it from the law library in downtown Victoria. If the in-house lawyer needed case specific expertise, this could still be obtained from an outside source. Many local governments do this. This option should be investigated but not by one of the municipal law firms in BC because they have a conflict of interest.

 6) Why are we losing cases? The vacation rental lawsuit on SaltSpringIsland is a recent example. How was the decision made to sue the rental agent rather than the accommodation owners? Someone I know who has had legal training but does not specialize in municipal law, identified this fatal flaw in the Trust approach before the case was decided.

 How bylaws are enforced

 7) Do the bylaw enforcement officers have written procedures describing how to properly gather evidence and log their interactions with violators so that evidence will be persuasive in court? If these rules exist, can they be distributed to the public? Are bylaw enforcement officers being given the time and resources to implement them?

 8) Are bylaw enforcement officers making surprise inspections where indicated? There is little point to making appointments to observe infractions that can be hidden.

 9) Has the new bylaw dispute adjudication process been helpful on those islands where it has been implemented it. How many cases have gone to adjudication? Has this method worked with recalcitrant violators? If so, could examples be publicized?

 10) If some islands do not have problems with bylaw enforcement, can enforcement there be given lower priority? Do all islands have to be treated alike?

 Corporate Culture

 11) Is there a corporate culture at the Islands Trust that does not regard bylaw enforcement as a priority? It is expensive and one can lose cases. It involves conflict which is unpleasant. How important is bylaw enforcement to management?

 Bylaw Officer Morale: One wonders what the effect lack of prosecutions has on bylaw enforcement staff. Do they feel valued and supported? How can they feel they are being effective when violations continue for years? We owe them our 100 percent support.

 People say, “You cannot force people to comply.” Actually, it is more likely that if bylaws are enforced compliance will improve. Scientific studies have shown that a majority of research subjects will cheat and act unethically when there is no risk getting caught, and that a majority of them will change their behaviour when discovery is more likely. (See The Righteous Mind: Why Good People Are Divided by Politics and Religion, By Jonathan Haidt, Pantheon Books, New York 2012, pages 82, 83.) That is why it is important that prosecutions of recalcitrant violators not only take place, but also be publicized.

 For the Islands Trust to be successful as the unique and special form of government that it is, it needs to have the support of the communities that it serves. But lack of effective bylaw enforcement is eroding the public’s confidence in and respect for the Islands Trust. Community members who have given their personal time to provide public input on OCP revisions and new bylaws are asking me why they should bother if the rules are not enforced.

 Bylaw enforcement should be primarily about protecting the community. In addition to providing services to protect health and safety, which are beyond the mandate of the Islands Trust, bylaw enforcement is the most basic and important function of local government. It is a failure of government to fulfill its most basic role if bylaws are no more than mere guidelines or suggestions. In the sphere of local government, bylaw enforcement is the “rule of law” on which we depend for a just society. It is the foundations upon which all else stands.

 Here are three examples of long-running zoning bylaw violations:

 One: A 2 unit building was built legally. Soon after, at least 4 additional residences were added within the building. Neighbours complained. The septic system overflowed. VEHA, electrical and fire inspection services are all inadequately funded to respond. Before a CRD building inspection visit, extra appliances and furniture were hidden. Seven years have gone by. Recently our Local Trust Committee received a request for re-zoning which was turned down. CRD says they can only correct deficiencies for permitted use for 2 residences. It falls to the Islands Trust to take action against the un-permitted extra residences. After a year, the owner is allowed to apply for a temporary use permit (TUP) for more residences again and during the time it is being considered, the owner is not under responsibility to comply.

 Two: On a lot zoned for one residence, persons were observed to be living in a separate structure not allowed by the zoning. The extra structure is in a Development Permit and environmentally sensitive area. A complaint was made four years ago. The Local Trust Committee turned down a request for rezoning several years ago. The structure appears to still be occupied. The owner is free to delay enforcement by applying again for a zone change or TUP.

 Three: An industrial activity commenced in a residential area over 7 years ago. Despite this obvious violation of zoning, complaints by the neighbours of noise, dangerous vehicle access and egress, and possible environmental contamination, the activity still continues. A request for a Temporary Use Permit was turned down in February of 2008 at which time the LTC referred the case for legal action. It took 10 months before a summons was filed and another three years until the case could be heard in court. By then it was near the end of the term of the next set of trustees. I was told that the case could not go to trial because the violator had to be allowed to apply for a zone change. By the time that LTC heard that request for a zone change, it was their last meeting and they left the decision to our current LTC. Our current LTC took the request for zone change under consideration and made a decision several months later. A court date came up and rather than have a trial, the violator was allowed to apply for a TUP again. We understand that some of these delays may be the result of the decisions made by the LTC. However, some delays must be from other causes.

 Thank you for considering this very serious issue.

 Sincerely

 Maxine Leichter, SaltSpringIsland

 

__________________________________________________________________

Dear trustees and staff,

It felt good today to be able to speak to you about the bylaw enforcement issue. Thank you for your interest in all our presentations and for the welfare of this special place in general.

On the way home I thought of a bit of a story I want to share, a message I hope you will find inspiring.

 When Elizabeth May moved out here to run for the Green Party, I just knew she couldn’t win. But I admired her greatly and did my best to help.

 Of course, on election day my certitude was washed away. In Ganges I met someone who asked me where to go to vote and others who indicated in one way or another that this was the first time they were voting. To me it felt like I imagine it might have felt for Germans when the Berlin wall came down. There was this feel of a revolution.

 That event has made a huge difference in my activism. I know that we never know when this may be the time we succeed.

 When Elizabeth first moved here, she said the biggest hurdle she would need to overcome was our sense of defeatism. So many times we had tried to alert people to the need for change, to the idea that “another world is possible”. It felt like the system was rigged.

So I can understand if Trust staff, some of whom have been working for the Trust for over a decade, and some trustees, might feel quite helpless to stop industrial shellfish aquaculture or they may feel that there is nothing much more we can do to make our bylaw system and enforcement work better.

 Each of us, no matter what our position in life, has power. I was reminded of a quote (wrongly attributed to Nelson Mandela) by Marianne Williamson: “Our deepest fear is not that we are inadequate. Our deepest fear is that we are powerful beyond measure.” Mandela said, “It always seems impossible until it is done.”

Please accept the offers of the Association of Denman Island Marine Stewards, Gulf Islands Alliance, Save the Salish Sea group and other concerned citizens to work with you to rectify problems and prevent some of the outrageous plans you heard about today, such as turning the SalishSea into a carbon corridor, from going ahead.

It need not take inordinate amounts of staff time to work on these things, especially if you make full use of the eager and skilled volunteer spirit and work we have to offer.

Each of us does have power, but alone it does not amount to much. Together we can accomplish a great deal, I’m sure. 

Sincerely,

Jan Slakov, Salt Spring Island

Shellfish aquaculture worries islanders

The poorly regulated shellfish industry is the most visible example of government failure to do the right thing for Gulf Islands shorelines and marine environment.

The federal Department of Fisheries and Oceans (DFO), aided and abetted by the province, is hell-bent to exploit sea-life at the expense of the environment, Islands Trust’s mandate, and residents’ quality of life and property values.

Two rubber-boot clad locals dig for geoducks on Denman Island

Coming to a beach near you? Geoduck aquaculture has started in earnest on Denman Island. Here, in mid-June 2014, PVC pipes for the cultivation of intertidal geoducks are installed using a power auger. Despite protests by the Association of Denman Island Marine Stewards and GIA, the federal government appears determined to allow geoduck farming across the Gulf Islands.

So far, the battle site is the 90 percent of Denman Island’s western shore that’s under shellfish tenure. Company vehicles drive on the beaches. Tons of industry debris are left each year for residents to clean up. Beaches are bermed, water courses altered, and   anti-predator netting snares wild life and destroys bird habitat. After the Fraser River estuary, the Denman/Baynes Sound area is the  most important waterfowl habitat in BC and an important area for herring spawning and the growth of salmonids and other fish species.

This scene could spread to other islands if the DFO succeeds in opening BC’s coast, including the shorelines of Salt Spring, Galiano, Gabriola, and other major islands, to geoduck aquaculture. It is promoting the geoduck as “one of the most economically prosperous and environmentally sustainable fisheries on the west coast.” One company owner says geoduck aquaculture could become a billion dollar industry in the Salish Sea.

The geoduck is a saltwater clam that in rare cases measures up to 2 metres in length and 7.5 kilograms in weight. It sells for a reported $150 a pound in China, its largest market.
One feature of geoduck farming is the vertical installation of 20,000 to 40,000 PVC pipes, each about 12 centimetres in diameter and 25 centimetres long, per acre into beach sediment for predator protection for the first 18 to 24 months of a 7 to 10 year crop cycle. PVC pipe breaks down in a marine environment, releasing toxins absorbed by zooplanktons and bio-magnifying their harm as they move up the food chain. Vinyl chloride in PVC is a human carcinogen. GIA asks how the DFO can honestly reconcile its enthusiasm for the geoduck industry with its legal duty to maintain a sustainable marine ecology and protect endangered species such as orcas?

The industry has proven highly controversial in Washington’s Puget Sound — it has about a 15-year head start over BC — because of its damage to the ecology and other facets of the economy, such as tourism. Many of the more than 225 shellfish sites there converted to commercial use without shoreline permits, public comment or environmental review.

In the fall of 2013 GIA sponsored a public talking tour by the Association for Denman Island Marine Stewards  on Gabriola, Thetis, Salt Spring, Galiano, Mayne and Pender Islands. Neither GIA or ADIMS oppose the industry per se; our complaint concerns its large scale, lack of government regulation, disrespect for the marine environment, and planned expansion of geoduck aquaculture to the rest of the Gulf Islands. We’re also concerned that owners of existing tenures won’t have to apply to the DFO or notify local government or the public when they switch to geoduck. The Gulf Islands Alliance supports the Denman group’s bid to have geoduck aquaculture banned in the Islands Trust Area, similar to an existing ban on fin fish farms.

The Denman case exposes the Islands Trust’s weakness in enforcing its environmental mandate when senior governments exploit resource-based business opportunities that occur on the islands. We’ve seen it forestry, and now shellfish aquaculture. Licenses and tenures are granted contrary to existing zoning and wise environmental practice. The industry successfully thumbs its nose at the Trust which acknowledges the Denman-Baynes Sound shellfish industry is unsustainable and, in part, illegal.  The Trust Policy Statement’s vow to protect its marine areas has been muted by happenings in Baynes Sound.

A central objective of good planning, the separation of incompatible uses, has been violated on Denman. And yet Trust planners report that even if proper prohibitions were adopted by the local trust committee, “by-law enforcement of non-compliance would be difficult if not impossible given the predicted pressures from (the province) and Department of Fisheries … and the high chance of creating conflict (with them).” Denman’s local trust committee retained a consultant who mostly confirmed the planners’ position and also recommended hiring a lawyer “to address driving on the beach and beach modification in a manner that does not interfere with the constitutional jurisdiction of Canada in managing the shellfish aquaculture licenses.”

Hardly a confidence-builder for other Gulf Islanders who have taken for granted that their beaches are off limits to such intrusions.

Here’s GIA’s letter to the Department of Fisheries and Oceans

April 19, 2014
Jennifer Mollins, Senior Coordinator,
Shellfish Aquaculture Management,
Fisheries Management Branch — Pacific Region,
Fisheries and Oceans Canada

Gulf Islands Alliance response to the DFO Draft Geoduck Management Plan

Dear Ms Mollins

This is to request the DFO exclude the Islands Trust islands from its geoduck aquaculture management plan at least until there’s a full independent public review of its potential impacts on the islands’ natural and social environments.

As a priority, the review would take into account the unique nature and significance of the Islands Trust Act and the area of its jurisdiction. Unlike all traditional forms of local governments in Canada and beyond, the 40-year-old Trust was set up to ‘preserve and protect’ the remarkable natural environment of BC’s beautiful Gulf Islands. The importance of the Act’s environmental priority has been confirmed by the courts and in an expert legal opinion commissioned by the Gulf Islands Alliance.

The Trust is not alone in treasuring and trying to protect this area. Its boundaries are partially overlapped by the proposed 1,400 square kilometre Southern Strait of Georgia National Marine Conservation Area Reserve that Parks Canada says is “among the most productive marine ecosystems in the world (and) also among the finest areas globally for scuba diving, whale watching, sea kayaking and coastal cruising.” This federal agency aims to “conserve this vital marine ecosystem while allowing human uses to continue in an ecologically sustainable manner. It is also an exciting opportunity to create a legacy for future generations — a legacy of healthy, productive marine ecosystems that benefits both local residents and visitors.”

The DFO draft geoduck plan makes no mention of Islands Trust, Local Trust Committees or the Trust’s Policy Statement that urges senior governments to honour the Trust Act by protecting areas that thrive with naturally occurring shellfish populations and other marine life. The draft contains no provision to invite any affected local government to join with federal and provincial agencies in the ‘harmonized’ review process for issuing shellfish licences and tenures. The Trust already insists that finfish farms should not be permitted in its marine waters and aquaculture should only be permitted “if compatible with maintenance of ecosystems and community character.”

Compatible with maintenance of ecosystems?

The Trust describes intertidal habitats as “biodiversity hotspots … home to hundreds of marine species…that connect foodwebs from the land to the ocean abyss.” But present commercial shellfish monocultures on the western shores of Denman Island and Baynes Sound in the Trust Area are incompatible with the maintenance of beach ecosystems there. Further escalation and expansion of these unsustainable practices to other Trust islands under the proposed geoduck plan would provoke well-founded opposition by Gulf Islanders and other concerned Canadians. The DFO’s description of the geoduck as “one of the most … environmentally sustainable fisheries on the west coast” is held in some disbelief. Last fall the Gulf Islands Alliance sponsored a series of public meetings on six major Gulf Islands by the Association for Denman Island Marine Stewards who told of company vehicles driving on beaches, tons of industry debris that residents clean up each year, the disruptive berming and altering of water courses, and anti-predator netting that renders critical bird habitat unavailable to birds for feeding and can snare other wildlife. And recently some Gabriola Island residents complained that silt stirred up by the use of stingers to harvest wild geoducks is destroying “kelp, starfish, snails and jellyfish” in the Whalebone area.

Looking south, many Gulf Islanders are alarmed and demanding that the ecological damage and bitter legal citizen/industry conflicts caused by geoduck aquaculture in Washington State must not be repeated here. The Case Inlet Shoreline Association of Puget Sound says the shellfish industry and commercially-biased government regulators use out-of-context self serving pseudo science to justify injurious practices and deny obvious environmental damage. Among other wrongs, the Association says the shellfish industry causes the loss of biodiversity, the depletion of native species, the introduction and spread of alien organisms, the killing and hazing of shorebirds, the use of chemical poisons to kill native burrowing shrimp and the disruption of fish habitat. It dismisses as “false and misleading industry propaganda” claims that shellfish aquaculture provides positive ecological functions and improves water quality. It says the geoduck industry removes and destroys eelgrass, sand dollars, and starfish and further threatens endangered salmon species and bald eagles.

The Association also points out the high environmental cost of using polyvinyl chloride (PVC) tubes. They weigh in at 75 tons per acre of geoduck aquaculture. PVC pipe breaks down in a marine environment, releasing toxins absorbed by zooplanktons and bio-magnifying their harm as they move up the food chain. Vinyl chloride in PVC is a human carcinogen. While like the Denman marine stewards the US group doesn’t oppose a well-managed and regulated shellfish industry of limited scale, it does insist that the precautionary principle should be imposed until all the present unknown cumulative effects of the industry’s potential impacts are understood.

Compatible with community character?

Before intertidal geoduck aquaculture is imposed, Gulf Islanders must be afforded the same right of due process that’s applied to any proposed land use change. Separating incompatible uses is a pillar of desirable and humane planning. Because of unnecessary, deleterious effects on quality of life and property values, active industries and residences must be kept from each other’s doorstep. DFO’s list of licensing considerations, including adjacent land uses and ecological protection, offer little comfort to those who witness their unhindered violations. Allowing geoduck aquaculture in the intertidal zone directly in front of shoreline homes is an avoidable provocation. Most distressing, the draft plan allows owners of existing tenures to switch to geoduck cultivation without approval by any authority.

Being public property should not excuse senior governments from observing fair planning and zoning practices and seeking full and formal public input. There are many other legitimate, significant and competing interests evident in the Islands Trust marine areas, interests that should not be pre-empted by DFO. Important decisions such as introducing geoduck aquaculture to new areas — decisions that also have impacts on property tax revenues, tourism, recreation and other elements of the local economy — should be political and not assigned to the discretion of singularly-focused, unelected government agencies. An open review of the geoduck plan would uncover just how much islanders love their marine environment and surely lead to a better resolution. Because the multi-layers of marine area jurisdiction and the process of implementing change will be viewed by the general public as complicated and confusing and because changes to shoreline uses are more ‘in your face’ than other ‘out to sea’ fisheries initiatives, there’s a greater necessity and benefit for authorities to explain what and why the proposed change is for the public good. Or not.

The Gulf Islands Alliance is a non-profit independent grassroots group of residents from across the Gulf Islands dedicated to the letter and spirit of the preserve and protect mandate of the Islands Trust Act.

Put ferries on same footing as highways

Chagrined by contemptible ferry fare increases, the Gulf Islands Alliance says islanders want ferries put back on the same footing as highways, a part of BC’s integrated public transportation infrastructure and marine highway.

Part of GIA’s quest is “to keep our rural communities economically vibrant, resident-based, diverse and affordable.”

GIA believes ferries ownership/management must be a public policy function of elected provincial representatives, not a business run by a poorly-understood semi-public corporation. Many islanders reject the criticism that they chose to live on the islands as if they knowingly ‘gambled their futures’ on an unreliable ferry system.

The government must be committed long term to maintaining ferries with affordable fares and adequate service.

Many ideas to improve efficiencies and return the government to total accountability have been offered by ferry users in a recent round of public consultation.  Variously criticized as a public relations exercise, manipulative, and a complete waste of time and tax dollars ($700,000), the consultation increased cynicism among some islanders. It’s telling that the consultants didn’t list an increase in provincial ferry contributions as an option for public consideration. Further, lack of information about economic and other impacts of possible service and fare adjustments, and suggested options such bridge construction, particularly for Gabriola Island, and financing ferries with property and fuel taxes have been a distraction from the central question: How and when will the provincial government, as a matter of public policy, undertake sole responsibility for the secure management and sustainability of ferries?

This objective would officially commit the province to recognize ferries as the lifeline carrying almost 9 million vehicles and 20 million passengers annually to communities along BC’s 27,000 kilometres of coastline. Recognizing that a gold-plated transportation service can over-stimulate growth and tourism, with attendant impacts on fragile island environments, GIA is looking only for long-term security and fairness in ferry service. It’s a service now strained by declining ridership and prepaid fare rates that have more than doubled in the last nine years and are set to rise another 12 percent in the next two years. Public ferries must be treated as infrastructure and not continue to be unfairly associated with ‘significant losses’, ‘subsidies’ and ‘shortfalls.’ To soothe its critics, it should be widely announced that ferries receive 85 percent of operating revenues from fares, compared to public transit that gets only 35 per cent from users, the rest coming from government.

The ferries’ decade-long move towards a user-pay model is largely responsible for the unconscionable fare increases that have wrought economic distress and reduced populations on some islands. Real estate values have dropped by up to 33 percent in the last five years. While GIA supports a closer look at near-empty ferry runs and eliminating other inefficiencies, user-pay must be scrapped. GIA agrees with Ferry Advisory Committee recommendations to roll back fares by 25 per cent on smaller routes and peg future fare increases to inflation.

Can climate change be conquered?

The Public Trust Doctrine is a principle of governance that all citizens and their leaders must embrace to save the planet and its people from looming catastrophe. Its goal is simple — to see that every person has unrestricted access to the essential gifts of nature, such as fresh air and clean water, necessary for sustaining life. Since the fall of 2013, the Gulf Islands Alliance has been pressing — so far, without success — Islands Trust Council to adopt the Public Trust Doctrine into the Trust Policy Statement, its legislative bulwark. Following are GIA’s presentations to Council:

June 2014

The Gulf Islands Alliance (GIA) believes that, long term, the greatest threat to the islands and achieving the Islands Trust mandate is climate change.
In a deputation to you last December GIA requested Trust Council to incorporate the Public Trust Doctrine into your Policy Statement to guide your climate change decisions. Chair Sheila Malcolmson replied, “Trust Council did not pass a motion in response… and we look forward to hearing more from you.” This is GIA’s answer to that invitation:
Every day there is more evidence that climate change is an unfolding tragedy on a scale unprecedented in human history. GIA believes the simple but comprehensive Public Trust Doctrine — it enshrines a most fundamental human right — provides the framework and motivation to seek and apply the best solutions to climate change. By adopting the doctrine Trust Council would acknowledge that
— climate change represents a growing and significant threat to the Islands Trust mandate to preserve and protect our precious natural environment
— all people have a right to clean air and water. They are essential to life and not commodities to be sold, used and abused by the highest bidders
— all governments and individual legislators are trustees with a duty to protect and/or restore these life-sustaining necessities when they are damaged.
By embracing the Public Trust Doctrine, Islands Trust would put a pure democratic and inspired face on its climate-change action and advocacy work and advance its stature as a model of leadership and hope for all governments.
Since our first presentation to you when GIA outlined the court actions on behalf of children and future generations initiated in several US states, a new suit has been launched against six federal agencies with powers to regulate greenhouse gas emissions. It is before the US Court of Appeals for the D.C. Circuit. Proponents argue that continuing access to clean air and water is a basic human right, not subject to political discretion. Specific to the suit is the alleged failure of government to attempt to restore atmospheric carbon dioxide pollution to 350 parts per million, a recognized threshold to avoid catastrophe. This failure, particularly in resource-rich Canada, ironically speeds us faster to more severe encounters with climate consequences.
The Intergovernmental Panel on Climate Change this spring released the third of its three new reports that confirmed climate change is man-made; it already damages crops, spreads disease, acidifies the oceans; it will one day cause wars and mass migrations; and the average amount of emissions is increasing 2.2 percent annually worldwide instead of decelerating by a needed pace of 6 percent.
Last month even the Toronto Dominion Bank, who owes much of its fortune to fossil fuel industry business, noted the accelerating incidence of climate-change-related events such as floods (in Calgary and Toronto), droughts, storm surges, wildfires, landslides, and wide temperature extremes. The bank “strongly advised government leaders and corporate decision-makers … to start thinking of the long-term implications of inaction.”
GIA urges you to adopt the Public Trust Doctrine as policy. Each of us, trustees and private citizens, must do everything we can to conquer and/or cope with the consequences of climate change. To give in to notions that the problem will never visit our islands, that it’s too big, that it must be tackled only by others or that it doesn’t require immediate action equal to its global importance is morally indefensible. In his brilliant new book, Windfall, about investors already profiting from climate change (such as by buying vast tracts of farmland to profit from expected climate-based food shortages and famine), McKenzie Funk says: “Climate change is often framed as a scientific or economic or environmental issue, not often enough as an issue of human justice.”

December, 2013

The Gulf Islands Alliance asks you bring the Public Trust Doctrine into your program to fight climate change.
The Doctrine is a simple, compelling notion of justice, survival and leaving this world a livable place for our children and future generations.
It says that vital natural services, particularly clean air and water, that keep us alive also belong to us. And that governments, as trustees, have a moral and legal duty to safeguard these priceless assets.
Invoking the Doctrine — it inspired Roman Law and even the Magna Carta — has never been more important than now as we fight to reclaim our atmosphere from pollutants that will otherwise cause more and more destruction and death. Nature’s law shows no mercy; if we don’t abide by it, we will suffer its consequences. Human and environmental health march in lockstep.
Islands Trust’s unique governance system is ideally suited to embrace the Doctrine to help you preserve and protect against our greatest threat, climate change. In a recent strategic plan, you featured “the objective of minimizing the impact of climate change upon the islands (which) are particularly vulnerable to the effects of climate change.” Among threats you identified were 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 and habitat, cultural and historic sites. Many observers would call these just the start of the climate horrors to come. The long term cost of coping with climate change will make present fossil fuel profits — promoted in Ottawa and Victoria and elsewhere — look like pocket change by comparison.    We’re disappointed that when time itself is the most precious resource being squandered the Trust sometimes pushes aside its climate policy work.
We asked the UVic Environmental Law Clinic how trust law principles may apply to Islands Trust duties and powers and bolster environmental protection of the trust area. The Trust Act seemed largely consistent with the Public Trust Doctrine. The Act employs trust language. You are all trustees. Common law dictates the “standard of care and diligence required of a trustee in administering a trust is that of a man of ordinary prudence in managing his own affairs.” You oversee a trust area. You claim to be entrusted as “the only government in Canada and, perhaps, the world, with a legislated mandate to preserve and protect a special area”. The Clinic reported to us that, although it’s unclear whether Islands Trust simply appropriates trust language or it actually adopts trust law into new areas, the Act clearly imposes a duty on trustees to act in accordance with its mandate. And this may give the Trust substantive powers beyond those of other local governments. While trusts generally are for the benefit of a person, they can serve public interest purposes. The Clinic noted that “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.”
While these facts would appear to tie Islands Trust to the Public Trust Doctrine, making a legal case for it would be long and complicated. Our case is not legal or complicated; it’s about doing what’s moral. The Doctrine says government officials are trustees there solely to protect the public’s common property and restore it if and when it’s damaged. It’s everyone’s right, not a privilege that waits on legislators to grant or not. It trumps any contrary discretion claimed by a crown or state. In a groundbreaking decision last year, a Texas judge ruled the sky belongs to everyone. It’s a public trust.
Islands Trust can’t save the world against climate change. Such a catastrophic threat can only be subdued by a response of equal or greater strength. Our point is that you can’t even save the Trust Area if climate change isn’t defeated. Adopting the Doctrine, first as a refreshing, hopeful attitude — and then, say, by incorporating it in your Policy Statement or declaring your jurisdiction a ‘public trust’ area — will advance the stature and influence of Islands Trust as a model and advocate of public trust on our islands and beyond. Time has run out on old, failed solutions.
This presentation is too brief to represent the rich history and promise of the Public Trust Doctrine, one we plan to share with islanders in coming months.

GIA praises, criticizes, encourages trustees

In a presentation to Islands Trust Council on Thetis Island in March, 2013, GIA assessed the Trust’s performance and encouraged it to do even better. Here’s the full text:

GIA has kept an eye on you for seven years, criticizing and applauding. Our mission, in part, supports the goal of the Islands Trust Act, and relies, as you must, on the strength that flows from keeping the islands unified.

This presentation is a melding of diverse viewpoints of our board members. We noticed that common to many possible topics was that many of your challenges relate to the public’s lack of understanding about your role.  A recent survey blamed mostly poor communication for the fact that only 45 percent of informed Canadians trust government officials and agencies. Communicating what you do is almost as important as what you do. Great stories die if not told.

We expect that if every Trust Area resident came to fully appreciate …

One, that they live in a most beautiful, peaceful place

Two, that its governance system is specifically designed to sustain this beauty

And Three, that this system is still experimental and must constantly prove itself to keep a happy ending in sight …

Then public support for the Trust would fill to overflowing.

Before saying more about your communications, my GIA friends register two reservations.

One, governments blowing their own horn is a sore subject. Consider the federal sponsorship scandal. And party-in-power promotions disguised as tax-funded public-service commercials. But the Trust story is good enough without spin. And there’s little or no cost to tell it.  In this age all you need is imagination and some computer savvy. A small starter would be to make your website more friendly and visually reflect the resplendent place you represent.

Two, some of us think the Trust story needs some fixing first. The Trust Act was to be a bulwark against rampant development, and yet at times since its inception our population growth rate has been twice the BC and Canadian average. And we’re disappointed when less-than-robust responses are made to environmental threats that go with growth.  Committed to promoting ecological health over all incursions, we were pleased a few years ago when a legal opinion from a prominent environmental lawyer we commissioned said simply that the Trust Act’s primary purpose is to protect the islands’ natural environment. Citing court decisions, it explains profound differences between the Trust and municipal systems and between the roles of trustees and councillors. You could insist that no development proceed unless there’s a guarantee of no net environmental loss.

Here are other ways to enhance the Trust story:

While we’re sure you are being careful in response to the Salt Spring governance study, we think it’s critical to go full out to resolve or at least lighten issues there. GIA’s only action so far was to ask that the interests of the Trust and its islands be taken into account in the study. If it goes further, hopefully you will air the implications of incorporation on Salt Spring’s property taxes and the sustainability of the Trust itself.

Remove repetition and vagueness in the Policy Statement, and then, as the clear interpretation of the Trust Act, let it be your everyday guide. It’s tough defending certain policies when facing a contrary private proposal that doesn’t appear to trouble anyone, including the neighbours. But often overlooked in such cases is that local folks don’t have exclusive control, that the islands are also a treasure being preserved for all BC people, who by the way overwhelmingly don’t want them despoiled.  For this reason we asked that your oath of office acknowledge loyalty to the Act and that staff’s every action be consistent with the Act.

GIA has praised Sheila Malcolmson for speaking out on some big public issues. But you could take even bolder stands.  On the threat of seabed pollution near the Raven coal mine site and across Trust Area waters.  On marine oil spills. GIA was disappointed you rejected our idea to ask senior governments to estimate the cost of a spill. An estimate — the Gulf spill was $40 billion — would show taxpayers what they would pay for clean up and loss of property values and nature’s services. It was your chance to lead on a broad community sentiment against an unthinkable disaster. And there’s much more to say about climate change. Set aside any question about your legislated authority, there must be no jurisdictional prohibition on fighting for the planet’s survival. It’s everyone’s moral issue. The most inconvenient truth is that time is the scarcest of all the natural assets under siege from climate change.

Tony Law once told us his job is “a tough and lonely place between folks who complain we aren’t doing enough to carry out our mandate … and those who accuse us of being ‘eco-fascists’ for pursuing environmental objectives at the expense of community well-being.” GIA sympathizes, but we also say if you scratch most islanders you’ll uncover winners, people who, whether or not they credit the Trust Act, hold its values. The islands are a concentration of talented, progressive, caring, and community-minded people, here for the fresh air, clean water, stable neighbourhoods and a beauty, which like great art, is worth preserving for its own sake. There’s a pervasive enlightenment and enthusiasm to use the Trust as a research lab to shed old ways and test new ones, to leave the world a better place. The Trust Area can be a model for that. So, continue to welcome citizen ideas and participation. Keep them on your side. Make meetings convenient to attend and your positions on issues easy to grasp. Focus on beneficial outcomes more than Trust processes. Extol ‘preserve and protect’.  It’s everyone’s strong suit. The late Professor Elinor Ostrom in the U.S., a Nobel prize winner in economics, said engaging local folks is the best way to protect common ecological resources. She said, “We need to get people away from the notion that you have to have a fancy car and a huge house. We have to think through how to choose a meaningful life in which we help one another in ways that also help the earth.”

We’re not overstating your role here. Consider what the islands would be like if there had been no resistance to a 40-year urban wave. Land use control is a blunt instrument, one reason local governments affect our lives more than higher governments. Good land use fosters neighbourhood civility, not chaos. But, you know your wisest decisions can spark hostility from folks with public justice or private property rights hard-wired into their DNA. Like the story of second-hand smoke, there’s mounting awareness that certain land and resource uses can blow bad smoke, figuratively, far beyond their property lines. And we’re more empowered than ever to do something about it. Intransigent positions on economy versus environment, now deeply wounding Canadian society, are seen in microcosm on our islands. They can be reconciled, not by compromise so much as learning that what’s best for the environment is also often best for our economy.

As trustees you are privileged, representing a people and a purpose, to sort through complex options to take the best path.

30

Cutting down trees doesn’t save a forest

GIA begs Premier Clark, Islands Trust to save 3,000 acres of Gambier Island from loggers’ saws

In a letter to Premier Christy Clark and Islands Trust trustees, GIA said plans to log 20 percent of Gambier Island are contrary to the preserve and protect intent of the Islands Trust Act.

GIA appealed to Trustees and others who support the Trust mandate to plead with the BC Government not to approve the proposed logging of 3,000 acres on Gambier.

In late spring of 2014, Islands Trust Fund issued a press release detailing UBC research on the critical importance of the Islands Trust Area in the Coastal Douglas-fir zone. It said in part:

The study analyzed maps of forest biodiversity and carbon storage and concluded that protecting forests in the Islands Trust area is integral to preserving the Coastal Douglas-fir (CDF) zone….Due to its small range, the CDF zone contains some of the most rare and endangered ecosystems in B.C. The Islands Trust area makes up 25% of the CDF zone.

Previously, as part of its ongoing struggle with forestry issues on Galiano Island, GIA wrote and met with BC’s Ministry of Forests Ministry requesting a Cabinet exemption for the entire Coastal Douglas-fir zone from section 21 of the PMFL Act.   Such actions would be an appropriate response to protect and steward the remaining stands of Coastal Douglas Fir forests.

Following the March, 2011 Coastal Douglas-fir (CDF) Stewardship workshops, the Ministry has requested that local governments seek ways to regulate land use for the protection of ecological values within the CDF zone.

It is ironic that the Ministry makes this request while simultaneously preventing such action on lands regulated by Section 21 of the Private Managed Forest Land (PMFL) Act. We suggest that the Ministry has created the legitimate expectation that local land use authorities within the CDF can act to protect environmental values on PMFL parcels.

Letter sent to Ministry of Forests Letter and backgrounder Feb 2012

Read the reply to GIA: CDF Letter from Province 2012

The Kinder Morgan problem

By Chris Genovali and Misty MacDuffee

Huffington Post

Earlier this year, energy giant Kinder Morgan submitted an application to the National Energy Board (NEB). The application proposes to increase the capacity of the Trans Mountain oil pipeline that is delivering tar sands crude to the Westridge Marine Terminal in British Columbia’s Burrard Inlet. Nothing new for Kinder Morgan; two earlier applications had already increased capacity to the current 300,000 barrels per day. This and other ensuing applications propose expansions that would deliver 700,000 barrels per day to the Westridge Terminal by 2016.

While concerned British Columbians are focused on the threat of oil tankers to B.C.’s north coast posed by the Enbridge Northern Gateway project, these incremental tariff applications are an effective way for Kinder Morgan to quadruple the amount of crude oil going from Burrard Inlet through Georgia Strait, the Gulf Islands, Haro Strait and the Juan de Fuca without ever mentioning the terms “oil tanker” or “tar sands.” The implications of these expansions are enormous both globally and locally, and the Salish Sea populace will be asked to bear the immediate risks with virtually no public engagement.

According to Kinder Morgan, an estimated 288 tankers (576 transits) will leave Westridge Terminal by 2016, up from 71 tankers (142 transits) in 2010. This translates to more than one tanker per day transiting our region’s front yard. The risks posed by oil tanker and barge activity here are poorly understood. However, one does not have to look very far to get a sense of the myriad concerns.

Last year, the federal Auditor General expressed concern about risks, gaps and inadequacies in Canada’s marine oil spill response system. The audit found that current spill response capacity by Transport Canada, Environment Canada, and the Coast Guard is insufficient to respond to spills in any of Canada’s oceans. In addition to these limitations, the U.S./Canadian Transboundary Spill Planning and Response Project Workgroup found that agencies on both sides of the border are ill-prepared to deal with oil spills. The final report contained over 130 recommendations for improvement.

Yet, even with better response capabilities, most oil from marine spills is never recovered. This implies significant risk to ecosystems throughout Georgia Strait, the Fraser estuary and the Gulf Islands. These areas include wild salmon populations, migratory birds on the Pacific flyway, important shellfish beds, and the habitats of many rare, threatened or endangered marine and coastal species.

One example of this risk is the overlay of the tanker route onto large sections of the critical habitat for Canada’s endangered southern resident killer whales. The southern residents are a small population hindered by previous loss of individuals that make them vulnerable to chance circumstances. Dropping birth rates, increasing death rates or random events like disease, food shortages or oil spills can be irreversible. A similar situation existed in Prince William Sound in 1989 when the Exxon Valdez hit Bligh Reef with two populations of killer whales in the vicinity. In one population, 14 of the 36 resident whales died following the spill. Twenty years later, the pod has still not recovered. In the second population, five breeding females died. Now, with no reproducing females and only males left, this population is going extinct.

The increased presence of tankers also brings concerns of physical and acoustic disturbance to killer whales. Physical and acoustic disturbance are two of the four threats, along with food quantity and quality, identified by Canada’s killer whale scientists as reasons for their endangered status. Increased 
tanker 
activity 
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 potentially 
impact a geographically
 distinct 
cross‐border 
population 
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grey
 whales 
termed the 
Eastern 
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 Group, which are currently listed under the federal Species at Risk Act.

The impacts of increased oil tanker traffic must also be considered within the context of cumulative stresses that local ecosystems and wildlife are already under. The Georgia Basin is an ecologically fragile region under intense pressure. These pressures have already had measurable impacts on water and air quality, as well as habitat quality and habitat availability for fish, birds and mammals. Additionally, changes to ecosystem function and processes within these waters — such as shifts in marine food webs and increasing ocean stratification — are a growing concern. Chronic oiling and spills will only exacerbate the declining health of the region.

The Gulf Islands Alliance and the Georgia Strait Alliance have all written the NEB arguing that the Kinder Morgan tariff application has serious implications for the marine environment which require, at minimum, broad public consultation and a federal risk assessment of oil spills. It is our hope the NEB will subject the application to much greater scrutiny and adequately engage the public who will be assuming the risk.

Misty MacDuffee is the chair of the Gulf Islands Alliance; Chris Genovali is the Executive Director of the Raincoast Conservation Foundation