The issue of wetland conservation and policy has long been an issue of controversy among interest groups and industry. When observing the number of endangered or threatened species that inhabit wetlands it is apparent that there is a pressing need to conserve them, especially when the leading cause of species loss is habitat destruction (Nowlan and Jeffries, 1996). There is currently in place a system of policies and laws which culminate to create a relatively effective means of enforcement, however, through the lack of a single Act which pertains to wetlands there continues to be inadequacies within the system. Though the federal government has released the Federal Policy on Wetland Conservation it is not admissible in court and therefore only stands as recommendations by which the government would like the public to abide.
The vastly different types of wetlands located through out B.C. create many difficulties in the creation of a single policy, however, if there was a broad based Act which was committed to the current federal policy of ?no net loss of wetlands? it would eliminate the need for overlapping laws at the three levels of government.
What Designates an Area as a Wetland
A wetland can be described in many ways, most of which provide a great deal of vagueness in the distinction between the different classifications as these areas frequently fit into more than one grouping within a very small space. There are basic traits which all wetlands share, in that they are any land which is covered in less than six meters of water at low tide (if tidal) for all or part of the year (Zoltai, 1988), this description includes freshwater wetlands such as shallow ponds, marshes, peat bogs, swamps and fens, as well as saltwater wetlands such as tidal flats, saltwater marshes, eelgrass beds, estuaries and deltas (Nowlan and Jeffries, 1996). With such a broad range of fertile lands included in this description it is no surprise that they maintain such a high level of biodiversity.
This description is however the most basic possible, in that it only allows for a general identification of wetlands, rather than classifying them by type or by the systems to which they are a part of. Nowlan and Jeffries (1996) group wetlands into five categories in accordance with their parent systems: Marine, non-estuary saltwater wetlands; Estuarine, wetlands around the mouth of a river; Lacustrine, wetlands connected to lakes; Riverine, wetlands connected to rivers; Palustrine, marshy wetlands. This method if classification is most effective when viewing wetlands from a policy perspective as it allows for them to be classified as distinctly as possible. Zoltai, in Wetlands of Canada (1988) uses over sixty very specific descriptions for the different types of wetlands in Canada, the problem with this being that the traits of wetlands may change from season to season and within small geographic areas. There is a consensus that the coastal wetlands of the Pacific are of the greatest ecological significance in the field of biodiversity; as they never freeze and are therefore able to provide year round habitat for fish and wildlife (Nowlan and Jeffries, 1996).
Significance of Wetlands
Wetlands have an anthropocentric value which has long been looked over in the development of society, in that they have traditionally been though of as barren wastelands which have no value to humans and therefore have been used as dumping grounds (Schiller and Flanagan, 1997). This ?pioneer mentality? has lead to the paradigm that wetlands are only impeding urban development and that they are indeed useless because they have no immediate or apparent cash value. The truth however, is quite the contrary.
Clean water, which is essential to all life, when extracted for consumption by cities and towns, can be attributed to wetlands (Schiller and Flanagan, 1997). Through natural breakdown and retention of toxins in effluents, wetlands are able to filter solid wastes as well as industrial wastes containing heavy metals; ensuring that they do not harm human populations or other ecosystems. In low-lying areas that are prone to flooding wetlands play a crucial role in ensuring that civilizations are not destroyed, by acting as a sponge, wetlands are able to absorb large amounts of water and slowly release it into the water table, therefore averting any ill effects that may be caused by heavy rains or spring thawing. This is a cost effective alternative to the commonly used system of dykes and levies, which is expensive and labor intensive. If managed effectively and in an integrated manner wetlands can provide many natural products such as fish, timber and fur that can add revenue and create jobs in a local economy. The preservation of wetlands near densely populated areas creates opportunities for outdoor recreation that citizens may not otherwise be exposed to, creating intrinsic social values which perpetuate the current movement towards further preservation of wilderness areas, namely wetlands (Schiller and Flanagan, 1997).
Through creating a resource which benefits everyone and everything around it, preserving wetlands helps the public to learn more about this unique and diverse ecosystem. Once it can be illustrated that wetlands provide a greater net benefit to a community than the developed land, it is much easier to convince them that they are worth preserving, this again helps to further perpetuate a paradigm that wetlands are indeed vital to all forms of life.
Federal Policies and Laws
In 1996, the Canadian government released its Federal Policy on Wetland Conservation, to which the government requested that industry and land developers adhere. This however was merely a means for the Federal government to please both industry and interest groups without actually making a commitment to propose legislation on the matter (Nowlan and Jeffries, 1996). Under this policy the government states that it would like to see a goal of ?no net loss? of wetland habitat be adopted by the private sector, similar to the ?no net loss? of fish habitat which is legislated under the Federal Fisheries Act. Though the recommendations stated within the policy are not prosecutable, they are admissible as evidence in conjunction with any section of a Federal Act that pertains to wetlands, as proof that due diligence was not provided. This makes the policy slightly more effective than if it were the lone policy tool. This policy can be seen as a small victory for interest groups that have been lobbying for legislation on wetland protection, however, there is much more to be done before the Federal government will commit to legislation on the matter (Nowlan and Jeffries, 1996).
The Federal Fisheries Act
The Federal Fisheries Act is legislation intended to protect fish habitat in order to maintain the revenue generated by the fishing industry, and therefore it does not intentionally protect wetlands, in fact there are many wetlands that are not protected by the Fisheries Act. Despite it’s lack of enforceability in some areas, the Act can be seen as the most effective policy tool in the crusade to protect wetlands, due to it’s solid legal history and the wide range of players that are active in it’s enforcement.
The sections of the Act which pertain to deleterious actions to fish habitat are 35 and 36, contained with in these sections are sparsely worded definitions of violations which would involve investigation or prosecution under section 37. Section 35 contains an encompassing statement which generally prohibits any alteration of fish habitat. However, there is also a provision in this section which allows the Department of Fisheries and Oceans to authorize projects which may be viewed as damaging to habitat on the basis of the ?no net loss? principle, in that if there is damage being done to one habitat, new habitat must be created in another area in order to compensate. The statements in section 36 cover the environmental effects which are most often generated by industry. The statements in this pertain to pollution, by prohibiting the discharge or deposit of any substance, which is toxic to fish, either directly or indirectly into an area which fish inhabit for all or part of the year; this is the section under which most prosecutions are made. The broad scope of these sections allows them to be applicable to many different situations.
The means of enforcing this legislation are outlined in section 37; this section gives the Minister in charge control over the proceedings and investigations of any violations.
Provisions are made in this section so that DFO is able to request the plans and specifications of any project which may be in violation of section 35 or 36 in order to begin an investigation. These investigations may be carried out by any number of agencies including: provincially, the Ministry of the Environment and the Ministry of Forests, and federal departments such as DFO, Environment Canada, the Coast Guard, and Transport Canada among others. Officials from any of these agencies are able to pursue investigations and from there the Crown is able to decide whether or not to prosecute, however, under the Act it is possible for any citizen or group to press charges. When charges are initiated by a private party, it is the Province’s discretion to take over or dismiss the case, making the clause somewhat futile. Under this system there are two factors which influence the Province’s decision on whether or not to lay charges under this or any other act: the prospect of a conviction and public interest. Section 41 of the Act states that the Attorney General may request an injunction to stop work if any violation of the Act occurs on a given project, this is in order to prevent any further damage from occurring while the proceedings are taking place.
Though the Fisheries Act is the most powerful policy tool that exists in the protection of wetlands, it does have positive and negative aspects to it. The main drawback to this legislation is that it only applies to wetlands that are considered fish habitat, and therefore it does not protect most bogs, swamps or fens. Also, the prosecution mechanism is flawed in that in order for a party to be charged it must be proven by the Crown that due diligence was not provided. As is inherent with almost all legislations, the Act is reactive rather than proactive, meaning that no action can be done until a violation occurs, at which point the damage has already been done (Nowlan and Jeffries, 1996).
The Canadian Environmental Assessment Act
The CEAA applies to land development when any federal department or agency proposes a project, provides funding or land for a project, or performs a regulatory duty (Nowlan and Jeffries, 1996). However, the Act does not apply to Crown corporations, as they operate under their own internal regulations when assessments are required.
When an assessment for a project is required there are four degrees of intensity provided for in the Act, which depend on scale and location, and that are implemented by the ?Responsible Authority?. Screening, which is the minimalist approach, documents the environmental effects of a project and makes suggestions based on these observations; this provides for an economical overview of impacts and provides a basis for further assessment. Class Screening, applies to an entire class of actions which may be occurring in more than one area or at a later date, this allows the findings to be archived, providing for minimal duplication amongst agencies for similar projects and actions. When a serious environmental threat is present a Comprehensive Study is performed, this type of assessment is associated with projects such as hydroelectric dams and pulp mills, these projects have a special provision under the Act that lists them and mandates that a Comprehensive Study be undertaken. A Comprehensive Study is one in which an in depth analysis is performed; this is generally needed for a prosecution under the Act to occur (Nowlan and Jeffries, 1996). In the case of a politically sensitive infraction a Mediation or Panel Review by an independent entity is carried out, this assessment is generally the most intensive in order to provide clear and concise evidence as to the scope of current and future impacts. This type of assessment may be ordered by the Minister of the Environment or by the Minister of the ?Responsible Authority? as a scapegoat to alleviate political pressure on the Government, a provision which is clearly to the governments benefit. There are other areas which are covered by the Act as well, section 10 of the Act states that before any funding is allocated to a First Nations group for a development an environmental impact assessment must first be completed.
The CEAA provides formal legislation that sets out when and where an environmental impact assessment must be performed. The Act has one provision of questionable validity in that it allows the Minister of the ?Responsible Authority? to decide on whether or not there should be a hearing to poll public concern on the issue, which means that if there is little public concern there may only be a minimal assessment done, regardless of the severity of the impacts associated with the project.
Other Federal Acts
As is becoming apparent there are numerous Acts and Laws which pertain to wetland conservation. The Canadian Wildlife Act, provides land managers with the ability to create and administrate National Wildlife Areas which are a vital tool in the steps towards the effective preservation of habitat for endangered species. The Migratory Birds Convention Act, allowed the government to create bird sanctuaries under international support, which in turn preserved wetlands for all species under the umbrella of migratory bird habitat.
The Water Act
In the regulation of bodies of freshwater the Water Act is the legislation that pertains to their use. In this, the Act regulates any activities that are around water or have to do with water withdrawal for export or otherwise. These regulations are enforced by the Water Management Branch, in that the branch must authorize all changes to natural watercourses, diversion, storage and the usage of freshwater from natural sources, through the issuance of licenses, permits and approvals. Section 7 of the Act sets out regulations for water quality and habitat preservation, as well as requiring that all parties involved in any actions which alter a water body abide by conditions placed upon these actions by Ministry of Environment or Department of Fisheries and Oceans Officers. As legislation the penalties that can be implemented under the Act are quite stringent; up to $200 000/day or 12 months in Prison maximum penalty. This allows for effective and influential prosecutions to occur.
The Wildlife Act
The Wildlife Act has a minimal effect in the conservation of wetlands, in that it is only effective when one or more of a limited number of designated endangered species is affected. Though, through provisions made in the Act there is the possibility for it to be an effective policy tool.
Section 3 of the Act allows the Ministry of Environment, Lands and Parks (MELP) to acquire and administer land as reserves or to enter into an agreement with an interest group who under guidance from MELP may administer the land. As well this section allows the Minister to designate lands under his/her control as Wildlife Management Areas, the primary function of this is to create sanctuaries for migratory birds. This protection for birds however does not encompass plants, invertebrates or fish; making it, in the absence of an endangered species act, somewhat futile. Sections 6 and 7 provide another conservation scapegoat for the government in that they use terms such as ?may? to describe the designation of endangered species, as there is no formal Act; currently there are only 4 species which are legally designated as endangered in B.C., making the Act essentially useless except at the discretion of the Minister.
With the infrequency that the Act is used to protect habitat there is very little that effective action that is taken under this act, surprising when one considers the fact that habitat loss is the single most significant factor affecting species loss (Nowlan and Jeffries, 1996).
The Waste Management Act
This Act is the main pollution control law in the province in that it contains broadly based legislation against the introduction of waste into any non-designated area without a permit. In the Act, there are numerous offences and penalties which are clearly outlined in section 34; making prosecution under the Act relatively easy. Section 6 outlines an automatic penalty for littering which may be enforced by any ?Responsible Authority?, section 7 contains an automatic offence for discharging waste from a recreational vehicle. This type of automatic offence provides laws which are aimed at stopping onetime point source pollution such as dumping and illegal black water discharge. Under sections 22 and 23 of the Act a Manager is able to pass a judgment as to whether a substance is causing pollution and on this judgment may order the parties involved to reduce or abate the pollution. When there is a competent Manager present this is an effective means of halting deleterious actions, however, section 26 allows for the appeal of any decision passed by a Manager to be proposed by any party involved. Through mandating the report of any spill or escape of deleterious substances the Act is effective in stopping pollution of wetlands.
The Provincial Environmental Assessment Act
The Provincial version of the Environmental Assessment Act was passed in 1995, making it newer and more streamlined that of the Federal government and applicable to provincial projects. The Act provides benefits which the CEAA is lacking, in that it depends more on public input and provides a registry of projects for which assessments have been completed. The Act provides for public input when: applications for projects are received, drafts of project reports are being prepared, reports are filed, when the draft terms of reference for a public hearing are prepared, and during the public hearing itself (Nowlan and Jeffries, 1996). These opportunities for involvement allow the agency performing the assessment to gauge the public interest in a particular issue, which determines the need for prosecution and remediation should an environmental threat be detected. The project registry provided by the Act provides: a list of projects currently under review, an index of all the records for each project, and all important documents and decisions that were involved in the process. This acts much like a class screening in the CEAA, but is more comprehensive, in that it allows past cases to be admissible as evidence that due diligence was not provided in prosecutions. Though wetlands are not specifically mentioned under the Act, it is implicit that wetlands are included, as the Act pertains to any project which is hazardous to the environment, making this an important piece of legislation in wetland cases.
The British Columbia Forest Practices Code
As the majority of space in B.C. is forested Crown land the Forest Practices Code provides essential protection for the wetlands that are contained within this area. By regulating the space allowances around wetlands the Code is able to provide a reasonable amount of protection for all wetlands in it’s jurisdiction, the width of this area varies with the classification of a given wetland according to it’s sensitivity. The Riparian Management Area guidebook states the objectives that the Code has as it pertains to Riparian areas; the main objectives of the riparian provisions in the Code are: to minimize or prevent impacts created by forest practices on aquatic ecosystems and to preserve any wetland wildlife habitat that is of high intrinsic value. As it is legislated that all Forest companies adhere to the Code, it is frequently used in prosecutions, though it’s enforcement is generally reactive rather than proactive.
Other Provincial Laws
The Land Act regulates the distribution of Crown land; this is can be beneficial to wetland conservation if a responsible Minister is in office. Through careful distribution of lands to groups that are environmentally responsible a great deal of damaging environmental effects can be averted. The most beneficial Provincial legislation in outright protection of wetlands is the Park Act, by designating an area as a provincial park development is thwarted and any actions that occur on that land are subject to strict regulation, which essentially eliminates the possibility of intentional habitat loss, though no legislation can foresee accidents.
Municipal Laws and Bylaws
Through the provincial Municipal Act, municipalities are given the authority to deal with wetland loss on an individual case basis by the creation of appropriate bylaws and zoning regulations. Section 945 of the Act allows local government to make a community plan which designates areas for wetland conservation. This has grand implications for the conservation of local wetlands, under this section the municipality has the power to create buffer zones around fragile wetlands, as well they may create bylaws which pertain to tree cutting, flood prevention, drainage and soil removal, among others. Section 963 allows for the creation of zoning to regulate land usage, this may be used to shift population densities away from sensitive areas.
Each of the Policies and Acts which pertain to wetlands at the three levels of government has positive and negative attributes which must be considered by Agencies when a prosecution is sought. At the Federal level the Federal Policy on Wetland Conservation can be described as a weak attempt at creating a solid legislation that pertains to wetlands. Though there is no wetland legislation currently in place, the culmination of the sections of Federal Acts which pertain to wetlands currently provide the strongest basis for pursuing prosecutions. The legislation at the provincial level is effective in providing for protection of Crown land or not located near an urban area. Due to their flexibility, provisions made by municipalities under the Municipal Act could be the most effective in conserving wetlands, in that they are able to create zoning in sensitive areas to prevent development. The downfall of Municipal bylaws is that they are not legally forceful enough to be effective against large corporations. Currently the most effective means of preserving wetlands is either to have them designated a provincial park under the Park Act or to have private ownership granted to an interest group either by land allocation or through purchasing the land. It is evident through examining the wide range of policy tools involved in the control of damage to wetlands that there needs to be a Federal legislation enacted. If there were to be a complete legislation at the federal level that pertained to wetlands, it would eliminate any vagueness that exists with the current system of using many Acts when pursuing a prosecution. As well, within a short time there could be a large registry to be used as precedence in court cases for future prosecutions. From the observations made herein it is clear that there is an imperative need for a cumulative Act on wetland conservation in order to preserve these areas for future generations.
BC Environmental Assessment Act, (1994)
BC Municipal Act, (1979)
BC Park Act, (1996)
BC Water Act, (1994)
BC Wildlife Act, (1979)
Federal Policy on Wetland Conservation, (1991)
Federal Fisheries Act, (Updated, 1999)
Nowlan, L. and B. Jeffries, 1996. Protecting British Columbia’s Wetlands: A Citizens Guide. West Coast Environmental Law Research Foundation and British Columbia Wetlands Network, Vancouver. 144 pp.
Schiller, E. and S. Flanagan. 1997. Protecting Wetlands is good business for local governments. Public Management 79: 19-26
Zoltai, S.C. 1988. Wetland Environments and Classification. pp. 1-53 In: C.D.A. Rubec (ed.) Wetlands of Canada. Polyscience, Montreal. 452 pp.