“Ultimately, the goal would be to move away from the simplifying assumption that everything else remains equal, towards the notion that the ground is moving under our feet while the atmosphere is changing over our heads. --”Stewart J. Cohen and Melissa W. Waddell1
We live in the most precarious times. Climate change proceeds largely unchecked as carbon output increases and environmental impacts accumulate. The ever-shifting situation requires that we change basic assumptions about how to manage the ecosystems we inhabit. In this situation, one would hope that regulatory legal instruments might keep pace with these developments by protecting the necessary checks and balances of environmental protection.
If nothing else, two major global events in the last two years should cause any responsible person to question the limits of deregulation and its impacts on the global village. In economics, the Great Recession of 2009, was brought about by the deregulation of the American banking and financial system. Environmentally, BP’s Deepwater Horizon disaster will be a lasting monument to virtual deregulation and cozy relations between industry and the civil service, that are tantamount to self-regulation.
In British Columbia, the government has sought to re-enforce regulation by developing the concept of “professional reliance.” Development proponents, hire professionals to assess impacts and prepare professional reports which are reviewed by regulatory agencies before approval. The need for approval – in certain circumstances- has now been questioned by a recent judgement in Supreme Court of BC. This raises serious questions concerning the potential for increased environmental self-regulation in BC.
Riparian Protection: Yanke v. Salmon Arm (City)
A recent judgement concerning the Riparian Areas Regulation (RAR) in Supreme Court of British Columbia (Yanke v. Salmon Arm (City) 2010 BCSC) casts into doubt normal regulatory assumptions.
The ruling states that where there is no demonstrable potential habitat destruction (HADD) – even though development may take place within a Streamside Protection and Enhancement Area (SPEA) - municipal government does not need to obtain the approval of Fisheries and Oceans Canada, or of the Ministry of Environment:
“ In my view s. 4(2) of the RAR provisions do not mandate that non-HADD development within SPEAS must be approved by FOC or MOE.”
This is particularly interesting given that this judgement was passed, just as a very significant article was published on the importance of riparian zone protection in this month’s Canadian Journal of Fisheries and Aquatic Science, by leading freshwater biologists in British Columbia.2 The point they make comes out of concerns over FOC’s failure to adequately protect riparian habitat for endangered fish species in the last two years.3
The key to these concerns is what by now should be a truism to the public: “there is scientific consensus on the dependence of aquatic ecosystems on the integrity of their riparian areas.”3
It is not so much the judgement itself that should concern us, as the systemic problems it had to address. These problems highlight basic weaknesses in the current government regulatory oversight and powers. The legal reasoning is undoubtedly correct, however the social and professional assumptions behind it reveal fundamental weaknesses in the environmental regulatory system.
Yanke v. Salmon Arm raises problems associated with a topic I dealt with previously, namely the growing practice of inter-government agency agreements (ICA), that delegate powers and thereby dilutes the normal checks and balances.4 As Justice Meiklem notes the practice of ICA’s is at odds with the stated principle that government agencies entering in an ICA are not supposed to delegate decision-making to other parties:
“ ...the agreement cannot constitute a delegation of any parties regulatory or decision making authority, and any provision that conflicts or derogates from any Federal or Provincial Statute is without effect.”
In Yanke v. Salmon Arm the problem put to Justice Meiklem is a common one for landowners of riparian properties. It can be summarized as follows. Gregory Yanke owned a property in Salmon Arm on Shushwap lake. As a result of the city’s establishment of a conservation strip, the property was found to be at the high end of a low gradient riparian zone, and separated from the riparian buffer strip by another 30m wide building lot. Given the location of the riparian strip, the Yanke lot became too small to build on, resulting in “hardship conditions” for the owner.
In order to build a home on his property Yanke applied for a variance to allow him to site the house 15m., instead of 30 m., from the edge of the riparian zone. He hired a professional biologist to do a RAR report in order to site the house with minimal impact and to show that no damage should result from this variance. City planners approved the variance on the basis of this professional report.
However, when the application was forwarded to FOC and MoE the permit for a variance was denied. In saying that, it is important to note how it was denied. While the report was filed with the local government, FOC and MoE, MoE never acknowledged notification, thereby abdicating all responsibility to FOC.
Setting aside the legal fine points, Yanke v. Salmon Arm (City), poses a simple practical environmental problem. In Meiklem (J)’s ruling only one person was in a position to make a final determination, the Qualified Environmental Professional hired by the proponent. Once the QEP declares that this is a non-HADD situation, neither MoE nor FOC need to be consulted.
This is not a good and unbiased situation for either the professional carrying out the assessment, nor for any of the agencies responsible. No matter how well-intentioned they may be, municipal planners are not scientists, and therefore very few would be qualified to review the document. That is why the document needs to be checked and reviewed at several levels, in a system of checks and balances.
Any science worth the name does not provide absolute certainty, only faith and religion do. What is asked of the QEP is to make an assessment on a one-time basis, and usually on fairly short notice. Assessments are carried out to meet legal obligations needed to expedite a proposed development. The priority of the schedule is therefore not the environment, but the economics of the development project.
The environment, particularly as it is now undergoing accelerated modification under climate change, is constantly changing. One never has “all the potential facts” at hand, no matter how diligent one may try to be, and as clients and colleagues constantly remind me: “We don’t need a PhD thesis,” though in fact that would be preferable, if we were really serious about “sustainable development.”
In the absence of a larger timeframe within which to make determinations, it is crucial to develop a system that gathers as much information as possible before a development causes unforeseen impacts. That means that as many informed voices as possible should be brought in to review the existing RAR process for each site application.
Habitat Integrity and Health Management
In the current circumstance much of the attitude supported by government and regulatory bodies corresponds to what Cohen and Waddell refer to above as “the simplifying assumption that everything else remains equal.” By and large we manage the environment for certain values that are loosely known as “health” and “integrity,” with the expectation that everything will remain the same.
That is in fact a very uncertain question if we accept the scientific consensus that climate change is now an overriding reality. If indeed climate change is real, then we can no longer simply manage the environment for status quo. We are now required to manage for certain values and expectations. The simple, if brutal, way of putting this is that with climate change, we no longer manage “wilderness” that evolves at its own pace. We now intensively manage a vast anthropogenically modified environment in order to artificially sustain certain values we cherish.
In that framework, environmental planning plays an increasingly important role. We plan what “healthy” environments and “integrity” are going to mean, by understanding what values we, as a community, wish to preserve. In order to maintain “critical habitat,” a strict or simple application of legislation is no longer sufficient, because we may have to create or maintain habitat for species that exceeds the narrow requirements of riparian buffer strips.
However, we cannot make these decisions on hearsay, fear, or on a whim. We must make well-informed and well-considered decisions, based on quality information.
So the over-arching question here is that while municipal governments may not have to consult with FOC in circumstances in which a development does not cause a HADD, it is not always clear what circumstances would not cause a HADD. The rub in this question is that “critical habitat” is not just habitat that a species makes direct use of. Critical habitat is habitat that creates the particular biological circumstances that make the existence of a particular genetic strain of a species possible in a given location.
In British Columbia, we manage riparian zones primarily for trout and salmon species. Salmonids are sensitive to, amongst other things, bank stability, terrestrial and organic inputs, aquatic and terrestrial prey production, as well temperature and water quality. All these attributes are affected by hydrological circumstances that can be far removed from the statutory 30m riparian strip, or which require less than 30m., depending on the site-specific circumstance.
There are therefore circumstances that must be professionally identified that exceed statutory management options. To determine these we need to increase the quality of the information on which we can rely to make decisions, and we need more checks and balances, not less.
It is often very unclear what constitutes a non-HADD circumstance, particularly as we come to take into account how climate change comes to impact on local hydrological regimes. The conclusions of the scientific paper that came out independently of Yanke v. Salmon Arm bear out this point:
“...scientists tasked with defining the biological attributes and spatial distribution of critical habitat for a particular species (in biological rather than legal sense) should not base their assessments on whether habitat is protected by existing legislation or management options. While the suite of existing management tools and options available for habitat protection is an important consideration for implementing species recovery, it is irrelevant to the biological identification of critical habitat, which should be based on scientific principles and the biology of the species....”2
This means that statutory riparian criteria are a minimal guideline from which scientists need to work out the dynamic relationships with those values we want to preserve. In this discussion we are focusing on fish species because of their economic and cultural importance, however the importance of avian and mammalian species should also be taken into account. How we determine the shape of buffers should be guided by the social choices we make for our children’s future – not by the expediency of economic and political templates.
It no longer suffices to send in a glorified technician to make a gross assessment based on template metrics. A long-overdue social investment in properly trained environmental scientists is an imperative to meet the challenges we face. If we are serious in our intent to preserve sustainable environmental values, then both government and the public must be prepared to increase investment in environmental science.
Serious environmental protection must go together with strong environmental planning. That means that there is a need to increase the quality of the information used to generate environmental impact assessments, at all levels. To meet current challenges, we need the assessment process to move beyond legislated management options and reflect “PhD quality and sensitivity.”
There are no simple metrics by which to manage the changing world about us, nor does science provide the only answer to the problems forthcoming generations will inherit from us. Science merely provides the public with a fairly good understanding of the developing problems posed by climate change, and with a range of potential technical solutions. How we respond is a cultural question conditioned by the values we prioritize.5
Generally, the public wishes to leave the environment relatively intact for the benefit of generations to come. To fulfill that wish we have to create an environment capable of sustaining as many species as possible which share this planet and our collective genetic heritage. Critical to that endeavour is the gathering of detailed information about site specific species communities and their ecosystemic function. In this respect our current knowledge is demonstrably, if surprisingly, quite limited, given the simple fact that species disappear at a rate faster than we are able to identify them.
To meet the general objective we need high quality scientists – which is seemingly, not always what we get in government.6 That is, of course, basically a twofold problem of pervasive political nepotism and increasingly declining academic standards in our university system in which degrees seem to have become the cheapest cupcakes money could buy, with just about every institution now calling itself a “university.”
Setting that minor quality problem aside, as I noted at the beginning, and Justice Meiklem pointed out, the regulatory system has become captive to the thrall of “harmonization” in the form of ICA’s. This is part of a larger trend focussed on making business more expedient, at the expense of the environment. Regrettably, this harmonization is somewhat like paving – the steamroller of development moves faster because it removes checks and balances that are a necessary part of scientific controls. This is harmonization at the expense of the environment, and as such, it is an in-efficient cost.
Finally there are reasons why the ICA’s have become so prevalent in what might best be called “the deregulatory system.” The Campbell government has become notorious for the cutbacks it has imposed in the Ministry of Environment. That MoE did not provide Yanke with notification is not just a symptom of the ICA, it is a mark of the limited staff resources of MoE.
So if we are serious about environmental sustainability, we must begin by taking note of the environmental predicament which we have collectively created, and demand that our government rebuild a critical body of scientific staff at MoE.
- Stewart J. Cohen with Melissa W. Waddell (2009). Climate Change in the 21st Century. McGill-Queen’s University Press, 97.
- John S. Richardson, Eric Taylor, Dolph Schluter, Mike Pearson and Todd Hatfield. (2010). “Do riparian zones qualify as critical habitat for endangered freshwater fish? Canadian Journal of Fisheries and Aquatic Science 67:1197-1204.
- http://www.environmentaldefence.ca/pressroom/viewnews.php?id=653; http://www.ecojustice.ca/media-centre/press-releases/groups-sue-minister-for-failing-to-protect-endangered-fish
- Mike Hulme (2009). Why We Disagree About Climate Change. Cambridge.