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It is a story that needs to be told. Because of misinformation that has been fed to the public, to Provincial Ministries, to newspapers and the national media, it is essential to record the facts. Those seeking the facts will read it. Margaret Griffiths October 2005 |
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| Galiano Island's forests are part of British
Columbia's coastal Douglas-fir biogeoclimatic zone, unique in Canada and rare in the world,
fast being changed forever by development.
The few forest stands around Georgia
Strait
remain within the Islands Trust mandate
area
and in isolated coastal patches. |
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| Galiano's forest has its own value. It can
also provide jobs and its landscape benefits
the tourist industry, which in turn stimulates
other commercial enterprises. On Galiano, the forest is permitted a residence
to 20 hectares on rezoning, among other
development
options. For over thirty years, the people of the island have tried to protect the forest from over-ambitious development plans. The Provincial Government has been heavily lobbied to move against land use bylaws of an island eighteen miles long and three miles at its widest, but with forest-zoned land still remaining only fifty minutes from the mainland by ferry. MacMillan Bloedel, an international forest company, gained half the island as part of a larger land deal in I960, and for many years held it in Tree Farm 19 under tax incentives for continuing forestry. In 1972 islanders made enquiries about survey tapes appearing in the Tree Farm, most prominently on Mount Galiano which has now been purchased by the people of the island for the public to enjoy. The islands were unorganized territory. It was learned that, in spite of a ten-acre development freeze under the Local Services Act, MacMillan Bloedel had plans to convert much of its Galiano land in Taxation Tree Farm into subdivisions of 1500 lots of one-half and one-third acres. A few stalwart souls, who should be forever commemorated, took action toward community self-determination. Supported and guided by the island's representative on the Capital Regional District, Jim Campbell of Saturna Island, the people of Galiano raced against time to write an Official Community Plan as a bylaw of the CRD. The Minister of Municipal Affairs signed with reluctance on prodding from Jim Campbell. A planning disaster was averted. In this first Community Plan, the forest had two designations, "Wilderness," and "Wilderness/Forest." In those days, forestry was not considered a land use but an extraction like mining, controlled by the provincial government. Forest practices are still controlled by the Provincial Government. To give the forest a use in the local bylaw, it was permitted a residence to a parcel, which would have been a District Lot of about 160 acres. So long as the land remained in Tree Farm, this provision did not apply. In 1978, the regulatory bylaws were written to permit, unaccountably, a stand-alone land use of a residence to 20 subdividable acres. The OCP was amended accordingly with a single Forest designation and with the provision that forestry "will continue" on the forest lands. Faith in the continuity of the Taxation Tree Farm was strong. And naive.
In 1987, on the advice of a committee of forestry and government interests, it was thought that a deal had been made. The Taxation Tree Farms were transferred for administration from the Ministry of Forests to the Assessment Authority as "Managed Forest." The forests would continue to enjoy tax incentive status on filing a five-year management plan with the Authority. But at any time during the life of the five-year plan, the forest could be withdrawn unilaterally from the deal and placed on the real estate market for what was termed "highest and best use." There would be no repayment of taxes for the years the land had been held in Tree Farm. Shocked local governments with Tree Farms within their borders looked to their bylaws. The question of whether forestry was now a land use, as Managed Forest, or still an extraction, was answered when MacMillan Bloedel took Galiano Island to court. In 1988 MacMillan Bloedel, taken over by mining giant Noranda, first turned their attention to Salt Spring Island. They placed a large tract of Managed Forest up for sale, and it was bought by a local real estate company. Next, they came to Galiano. The island had developed slowly and successfully into neighbourhoods bounded by working forests that were at that time being clear-cut. The islanders had begged in vain for sustainable cutting of this rare forest. If 7,800 acres were thrown after tree cutting onto the real estate market without even a public road, the island faced a speculator's dream and a planning fiasco. Galiano now came under the umbrella of the Islands Trust. In 1974 the Islands Trust Act had been enacted for the protection of some 450 islands and islets on the advice of an all-party Standing Committee. It had reported to the Legislature: "Our belief is that the islands are too important to the people of Canada to be left open to exploitation by developers and speculators." Under the Act local trust committees were to protect the islands, their only instruments being land use regulation. For all other necessary protections, the Trust must rely on the cooperation of government at various levels and the landowners themselves. In the crisis Galiano faced, bylaw amendments would have been an option for the Galiano Local Trust Committee, but negotiation with the landowner was a preference. The cooperation of government was also requested. At a round table of provincial government (two MLAs, and the Minister of Municipal Affairs represented by a local trustee who did not vote), industry (represented by MacMillan Bloedel's Properties Division), and the community (representatives elected at a public meeting), objectives for negotiation were approved. Two of these objectives were (1) for MacMillan Bloedel to enjoy development opportunities with public input, and (2) for the community to purchase forest land. A subcommittee addressed sustainable logging. MacMillan Bloedel pursued their development opportunities in partnership with Intrawest, developers of Blackcomb Mountain ski resort. Their first choice was for a world-class resort with golf courses and an airstrip at Galiano's northern tip, Dionisio Point, to connect by air with Blackcomb. Their plan apparently ran into difficulties, perhaps because of the archaeological value of the site chosen. An alternative plan seemed to draw less enthusiasm from MacMillan Bloedel, but was presented by Intrawest to an anxious community in the fall of 1989. The people were shown a map of Galiano with the Forest-zoned half of the island coloured green and yellow. The green was a park to be purchased by the Ministry of Parks to enhance the landscaped strip development of the waterfront shown in yellow. The green must be decided before the yellow proceeded. Before the concept would be further developed, a groundwater study would be done by a company from Aspen, Colorado. The Minister of Parks didn't want the green. The concept died. The Local Trust Committee waited many months, but MacMillan Bloedel at no time made a development application to the Trust. At another public meeting, hopes and energy ran high for the round table objective of community purchase of forest land. Supported publicly by their MLA, the people pursued this option and tabled a million dollars in money and pledges to show competence to be considered as purchasers. MacMillan Bloedel refused an appraisal and imposed a deadline for any sale. Negotiation was struggling. There was now a very real threat that half the island still being harvested and taxed as Managed Forest would be marketed without protections in place for watersheds, existing neighbourhoods, water recharge and other sensitive areas, traffic flow, or a completed review of the OCP to establish new policy. The Local Trust Committee drew their line in the sand and worked on bylaw amendments as a last resort.
With unanimous approval of the Advisory Planning Commission, the Local Trust Committee, gave first reading to proposed Bylaws 81-85. These would increase the minimum lot size in the forest to 20 hectares (49.4 acres). The forest would have no residential use until rezoned. Criteria were given for rezoning. MacMillan Bloedel petitioned for a Court injunction to prevent adoption of these proposed bylaws and to prevent bylaw amendment that would remove residential use from its Galiano lands at any time. No injunction was served. MacMillan Bloedel very properly issued a Disclosure Statement, giving detailed information on Bylaws 81-85. The forest was attracting interest at the listed prices and every purchaser signed "I/We have been given a copy and been offered an opportunity to read the Disclosure Statement...." No one bought forest land in ignorance. The proposed bylaws lingered on the Minister's desk, and on January 24, 1992, he signed them and put out a Press Release saying that residential use of Galiano's forest would be permitted on rezoning. Bylaws 81-85 were adopted the same day.
MacMillan Bloedel sued the members of Galiano's
Local Trust Committee personally for
fifteen
million dollars. The action in the
Supreme
Court of British Columbia included
an allegation
of conspiracy and challenged the validity
of the bylaws. I was a member of the
Local
Trust Committee at the time, and said
to
my husband, "Suppose we lose everything?"
He replied, "Then you will be
a bag-lady
and I will be a bag-gentleman, and
you will
have stood your ground for your community."
The Local Trust Committee, including the Chair who was from Hornby Island and also Chair of Trust Council, stood its ground behind its line in the sand. The pre-Trial examination for discovery was long. Mine alone was nine days. At the end, all charges including conspiracy were withdrawn. The suit for damages was dropped. Only the bylaw challenge was left. MacMillan Bloedel asked the Supreme Court for a judicial declaration, not on the merits of the bylaws, but on the validity of their intent. A judicial declaration is not an instrument to quash a bylaw. It is a learned opinion of a judge declared on the evidence brought before him at Court. This would weigh heavily if a quashing order should be sought. At trial, I was called as an adversary's witness. This was considered unusual for a member of a defendant committee entitled to its defence. My evidence before the Court was led by MacMillan Bloedel's lawyers. I was not to communicate with my counsel, the defence lawyer. In fact, I had no counsel. I was isolated from my colleagues. My husband sat in court the whole time I was on the stand. We both knew he was dying of cancer. He gave me courage. The trial judge found on the evidence brought before him a collective intent of the Local Trust Committee beyond its powers. On this, he declared the bylaws invalid. The Local Trust Committee appealed his declaration with the full support of the BC Union of Municipalities and with six interveners from non-profit public interest groups. The decision of the Appeal Court was unanimous that Bylaws 81-85 were valid from the date of adoption. Costs were awarded to the Islands Trust. While the appeal was pending, MacMillan Bloedel did not apply for an order to quash. The appeal was won and the bylaws were never quashed. However, until the appeal decision came down, it would not be possible to enforce Bylaws 81-85 with a judicial declaration against them. They were always alive. They did not die to be replaced by out-of-date laws, as the misinformation mill would have people believe. The Appeal decision removed the impediment of the judicial declaration, and the bylaws were enforced. Some provinces have legislation to deal with such an interim situation. British Columbia does not.
At a public meeting on the island, the Minister explained that she was threatened with Court action if she interfered. When the Appeal decision was made public, some forest owners had final approval of non-conforming subdivisions with no residential use until rezoned to bring them into conformity for such use. One of these forest-developments is in area one of the largest subdivisions in the Province. The exact status of non-conformity is in legal limbo. No one, it seems, had tried to do such a thing before. There is no case law. Some of those who did not obtain final approval of their subdivision applications before the Appeal decision came down in August 1995 sued the Approving Officer. To them the judge had this to say: "The bylaws were validly enacted on the day of their initial passage, January 24, 1992. The Court of Appeal's decision did not create chaos. It could not be said to be unexpected. In the results, it simply confirmed the prior expressed intention of the local government." MacMillan Bloedel appealed their case to the Supreme Court of Canada. That Court did not accept the case for hearing.
At the end of the day, the people of Galiano
Island had won the right to consider
development
of the forest zone with care, in compliance
with the Official Community Plan objective
"to preserve a forest land base."
MacMillan Bloedel held a file of acknowledged Disclosure Statements. Forestry was proven to be a land use and not an extraction. Other local governments have benefited in deciding their own destiny by using the case law of MacMillan Bloedel versus Galiano Island, as it was announced in Court. But Galiano is left with a burden of the frustrations of developers having ambitions in need of modification. An amended OCP derives from Bylaws 81-85, with the Land Use Bylaw holding out the hand of compromise in development options far beyond what was won in Court or signed for in the Disclosure Statement. Pressure on the Minister not to sign the OCP came from surprising quarters. Interest in the Galiano forest is wider than one might think. However, the development option of a residence to 20 hectares on rezoning is not thought to be unusual in a forest, especially on such a small island and in such a rare forest. The forest owners are part of the Galiano community, with input and talents to be valued. Some are rezoning for a residential use to be chosen from options in the bylaw. Some may be keeping the forest land as an investment. Some are rewriting history and may believe their own stories. Certainly, they try to persuade others to believe them. The Southern Gulf Islands have some protection in the new Gulf Islands National Park Reserve, but Galiano and Salt Spring Islands are left out. The McDade Report calls them "impact islands" that will experience new pressures from international attention on the region. Those who are impartial will recognize that Galiano needs strong bylaws. The current Land Use Bylaw is not extraordinary. It parallels the Capital Regional District's growth strategy to keep development compact and to prevent sprawl into forests and farms. Vested interests continue to lobby against it. This is Galiano's unfinished story. The past has been struggle, the present leaves a legacy, the future will be our judge. Tread carefully in this fragile place.
I have written this in thanks and tribute to those islanders who have given their time and energy through the years in support of wise planning for an island of great beauty and limited resources. Margaret Griffiths Galiano Island, B.C. |
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