It’s generally bad news for the environment & democracy when the government rewrites laws at the request of an industry. But when it comes to provincial parks, the BC government has gone one step further, and actually has an official policy setting out how industry should go about proposing legislative amendments. It’s called the “Park Boundary Adjustment Policy” (the Policy) and it invites industry to propose “adjustments” to the Protected Areas of British Columbia Act – which creates and is intended to protect BC’s parks.
The Policy itself requires industry to conduct “research” activities related to their proposal to “adjust” park boundaries. Until last week, this type of research was probably illegal, which prompted the BC government to rush through the Park Amendment Act, 2014 (Bill 4), to explicitly authorise industrial “research” in BC parks.
British Columbians believe that the province’s Protected Areas should actually be protected. That’s why so many people are reacting with disbelief when they hear that Bill 4 and the Park Boundary Adjustment Policy opens up the province’s parks for possible future industrial activities.
How the policy undermines park protection
Until the 1990s parks and other protected areas were created by Cabinet. But in 2000 the BC Legislature enacted the Protected Areas of British Columbia Act, a key purpose of which was to ensure that lands designated as provincial parks remained protected forever. Then Environment Minister, Joan Sawicki, explained to the Legislature:
[E]stablishing parks and ecological reserves in schedules in an act in front of this Legislature provides the highest possible protection to these areas for permanent retention of their boundaries. Time and time again -- and we certainly heard it through the extensive legacy consultation that happened throughout British Columbia -- British Columbians are clear about that. They want to know that for those areas that we have put in protected status, their boundaries are secure forever. [Emphasis added]
At the time, even the then Opposition BC Liberals also supported the Bill.
Today, despite the goal of permanent protection for these parks, through this Policy the BC government will allow amendments to park boundaries including inviting industry and others who want to carry on activities that are not allowed in parks to propose changes to the park boundaries, to ask for “a boundary adjustment to allow for a development or activity not allowed by authorization under the protected area legislation.”
Let’s be clear how exceptional this is: this is government putting in place a formal policy about how people who want to carry out a specific illegal activity can apply to have the law changed. If the Policy is followed, and the government deems the illegal activity is appropriate, then the government will introduce an amendment to the Protected Areas of BC Act and change the law.
Amendments to park boundaries (whether for industrial or other purposes) are typically included in one Bill that re-draws the boundaries of several parks with no explanation, making it difficult for the public to know how and why the boundaries of a park have changed (see, for example, this recent example). Often there are some areas added to other parks, allowing the government to spin the Bill as offering a net increase to parks, thereby hiding any reductions in park size.
What the Policy requires
None of this is to suggest that the Policy mandates automatic removal of land from parks on request. Minister Polak has argued that that the lands removed since amendments to the Policy in 2004 have been negligible (although she acknowledges that 2/3 of the 12 private applications for park boundary adjustments that reached cabinet resulted in lands being removed from parks).
The Policy pays lip service to “the protection of provincial protected areas and the integrity of their associated ecological, recreational and cultural values,” but nonetheless states that:
Proposals for protected area boundary adjustments will be considered on a case by case basis where there are compelling provincial economic, environmental and social benefits that collectively exceed maintaining the existing protected area boundary and values.
Got that? As long as a proponent can convince Cabinet that the land is worth more (in terms of economic, environmental and social benefits), outside of the park than in it, then the policy seems to endorse taking the land out.
If a project isn’t rejected early on at “Stage 1”, the policy also sets out a process which requires the proponent to:
- Consider alternatives to avoid the protected area;
- Document overall economic benefits to the Province;
- Document social and environmental impacts of the proposed development;
- Identify mitigation and restoration measures (to reduce the impact of the development);
- Consult with affected First Nations;
- Consult with local communities (including Local Governments); and
- Consult with provincial and federal agencies.
The need for industrial “research” in parks
Of course, the third and fourth of the points above require information about the impact of the project on the park. And that requires “research” that occurs in the park.
And that was, until just recently, a legal problem because the Park Act placed restrictions on the government’s ability to authorize someone to take and disturb land, water, wildlife and other natural resources.
However, that apparently didn’t stop the Ministry of Environment from issuing Park Use Permits for industrial research related to possible industrial development in parks. Now the government has now recognized that these permits could be illegal, and that is apparently the reason that Bill 4 was rushed through with no public consultation. That’s not my interpretation – that’s what the Minister herself said in a moment of admirable candour:
S. Chandra Herbert: … Just to help me…. Some have asked me: "Well, how the heck can this research be going on if it's actually illegal and you need to change the law to make it legal?" … How did we get here that we're changing the law to do something the government says it's already doing but is also saying that they're not allowed to do?
Hon. M. Polak: The member has correctly identified the challenge that we are trying to confront here. … The reason we brought forward the amendment — and I would say one of the reasons that the consultation has not been aggressive or thorough on this — is that we are seeking to ensure that we have the statutory authority for things that up until now we took for granted that we did.
We've been advised that the granting of the permits as we have done likely would not stand the test of a judicial review, and therefore, we need to amend the Park Act to ensure that we can continue on with what we have been doing but with the statutory authority so that we would not be in a case where either the granting of or the denial of the application for a permit could be successfully challenged and overturned based on our lack of authority. [Emphasis added]
That is a remarkable statement.
To be clear, Bill 4 explicitly allows the Minister of Environment to authorize research that “will inform a decision of … the Legislature in relation to the boundaries of the protected area.”
British Columbians expect, and want, our parks and protected areas to be, well, protected. The Protected Areas of British Columbia Act gives legal force to that desire. But by inviting industry to apply to change the law, the Park Boundary Adjustment Policy undermines that protection.
Although the government likes to pretend that Bill 4 is about research, and not about taking land out of parks, the Bill explicitly gives legal sanction to research for the purpose of removing land from parks – research that would otherwise be illegal (and call into question the legitimacy of the Park Boundary Adjustment Policy itself). As much as the government would like to keep the two issues separate, they are inseparable.
By Andrew Gage, Staff Lawyer
Photo from BCGEU - Save BC Parks website.