ISLANDS TRUST ACT, WHICH PARTS OF IT WORK ?

The Gulf Islands of British Columbia have for many years been known internationally. In 1973 a proposal was put forward that was ahead of its time. The International Joint Commission proposed to make the archipelago astride the Canada / US border into an international park, with an object to preserve the original characteristics of the area including marine and land-based wildlife, archaeological and historic resources, and the maintenance of water quality standards. The proposal died. In BC populations were increasing adjacent to the islands at the same time as ferry transportation made the Southern Gulf Islands more accessible. The islands were threatened by development beyond their biophysical limits.

On Pender Island a subdivision of 1300 small lots was being marketed. A smaller one of dense development was on the drawing board for Village Bay on Mayne Island. On Galiano survey tapes had drawn attention to a 1500 small lot development in land held by MacMillan Bloedel in Tree Farm.

A band-aid 10 acre freeze on lot size was brought in under the Local Services Act as a temporary measure. Planning was remote under the Regional Districts, with no public input.
Something was required beyond a 10 acre freeze.

The year the international park was proposed and the idea failed, 1973, a Select Standing Committee made up of all four parties in the House, toured the islands and identified four main problems:
- 1) over-sized subdivisions
- 2) unregulated groundwater
- 3) a need for preservation of the rural atmosphere, and
- 4) the need for a co-ordinated approach to protection.

The Islands Trust Act, adopted in 1974, attempts to address three of these problem areas, but not unregulated groundwater.

The Committee Report appears in Hansard of September 24 1973. It reads "...our belief is that the islands are too important to the people of Canada to be left open to exploitation by real estate developers and speculators." And further "… this section of BC is dramatically affected by private and pubic activity which does not have the same impact on other parts of the Province."

Referring to "these fragile coastal units" the Committee saw a need to "bring together each group, agency, or department of Government". To do this the Committee recommended the institution of an Islands Trust.

This recommendation has been written into the Islands Trust Act in its object, in Section 3., which is "...to preserve and protect the Trust area and its unique amenities and environment for the benefit of the residents of the Trust area and of the Province generally in co-operation with municipalities, Regional Districts and the government of the Province."

SO WHICH PARTS WORK AND WHICH PARTS DON'T ?

The Act is written to rely in part on the goodwill and cooperation of government. Government can blow hot and cold. One Minister (VanderZalm) weakened the Trust, two (Curtis and Johnson) have strengthened it. One Minister (Couvelier) is remembered for the way he worked sincerely and professionally with the Trust.

The Trust protects through land-use regulation.
Some vested interests, finding the Trust in the way of their development ambitions, have lobbied Government to get rid of its protection. Some have tried to change protective bylaws, as Hugh Curtis predicted when he amended the Islands Trust Act in 1978. On Galiano trustees working diligently to do their job for a small taxed honorarium have been run off the road and spat on.

Through it all the Trust has remained sufficiently effective in its one tool for protection, land-use regulation, (and the islanders themselves have preserved some of the most beautiful places) that the Southern Gulf Islands have been placed in a Federal Park. Left out of the park but impacted by it through new pressures from international attention drawn to the Region, are Galiano and Salt Spring Islands. They need strong bylaws, and agency cooperation under the Act.

Click for whole map enlargement

It is here, in the absence of regulations that offer clear guidance on cooperation, that the Act is weak. Agencies and the Trust have Letters of Understanding. But where a statute is inconsistent with the object of the Islands Trust Act, the Islands Trust Act can be betted on to be the loser.

And yet, in the Court of Appeal, Mme Justice Southin has said "The Islands Trust Act is no mere piety." She pointed to - years ago now - a proposal for a mine on Gambier Island, in the Trust mandate area. The proposal was opposed in the Supreme Court. Justice Meridith said "if the project proceeded it would largely destroy the existing environment of Gambier Island, contrary to the adopted (Islands Trust) Act." The application under the Mining Act was refused when it came up against the Islands Trust Act.
Bureaucracy takes a different view.

In a case very like the above, an application was made to open a stone quarry with blasting in the Galiano forest, where it was not a permitted use. The trustees opposed it. The people of the island opposed it. Blasting could affect the groundwater, and has never been thought to be good for the tourist industry or a forest environment. After many months government bureaucracy operating within its own narrow statute, has still not turned the application down. To quote Ince (1976) "… the activities of Governments and other agencies are often a major source of harm. They can ignore legislation the Province itself created."

What about the need for sustainable logging on the islands, if only to protect these fragile places with finite borders from too rapid run-off of groundwater ? The islands have much high land, being peaks of an underwater mountain range.

Mr Justice Finch, of the Court of Appeal, says "… in my respective view, both goals (no logging and carefully controlled logging) are clearly within the objects expressed in the Islands Trust Act."
Subsequently, when the Denman Local Trust Committee attempted to write into a bylaw logging sustainability in the face of damaging logging practices on the island, the trial judge in a bylaw challenge had a different opinion, and the bylaw was lost. Denman endures damaging logging practices to this day.

It has been remarked that if two judges cannot agree on what the enabling legislation enables, there must be a lack of clarity.

Looking now at the foreshore, the mandate area of the Galiano Local Trust Committee extends over the ocean to include Whaler Bay, a shallow stretch of water ill-flushed by the tide. The lease of a log-dump for booming up trees for export has passed from Tree Farm to a new owner, in non-conforming zoning.
At low tide the raw logs lie on the exposed sea-bed. The ocean floor is covered in layers of fallen bark and it smells.
The lease came up for renewal.
The trustees opposed renewing the lease, so did the residents. The Department of Fisheries and Oceans reported in favour of giving the bay a chance for renewal. The Department of Highways found the access of concern.
In a bureaucratic decision the lease was renewed with an option of still further renewal.

It seems to be a growing opinion that if the Trust is to do its job it should either be given full power to do so. Or other agencies and Government should follow clearer guidelines for cooperation under Section 3 of the Islands Trust Act.
Otherwise, as Ince points out, the Province is ignoring legislation the Province itself created.