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Motorized vessels regulation in the Columbia Wetlands, British Columbia

Petition: No. 154A

Issue(s): Biological diversity, human health/environmental health, transport, and water

Petitioner(s): Wildsight

Date Received: 26 July 2005

Status: Completed

Summary: The petitioner is concerned about the risk of negative and irreversible impacts on the ecological integrity of critical wildlife habitat if the government does not establish a regulation to restrict high-horsepower motorized vessels operating in the Columbia Wetlands Wildlife Management Area. The petitioner asks Transport Canada and Environment Canada when the boating regulation will be enacted, given a provincial court of appeal decision preventing the Government of British Columbia from applying horsepower restrictions.

Federal Departments Responsible for Reply: Environment Canada, Transport Canada

Petition

Office of the Auditor General of Canada
and the Commissioner of the Environment and Sustainable Development
Attention: Petitions
240 Sparks Street
Ottawa, Ontario
K1A 0G6

Telephone: (613) 995-3708
Fax: (613) 941-8286
Email: petitions@oag-bvg.gc.ca

Dear Madam/ Sir;

On behalf of my organization, representing over 800 members and on behalf of all the many individuals, groups, government agencies and municipalities that were consulted and provided written endorsements for our properly constructed application to regulate motorized boating within the provincial protected area of the Columbia Wetlands under the Canada Shipping Act, I am submitting a petition under the Auditor General Act and enclose the petition document as an attachment.

In 2002, my organization submitted a formal application under the Canada Shipping Act as directed by the Canadian Coast Guard, following months of extensive public consultation and scientific research. We, and those with whom we consulted, acted in good faith and dutifully fulfilled the often arduous and exhaustive requirements set out by the coastguard. Three years have passed and the federal government has failed to act on our application. Because of this neglect, an environmentally and socially valuable natural asset of British Columbia and one honoured and prized by all Canadians is at risk of suffering damage. This past June, the Columbia Wetlands achieved Ramsar Status, the first site in over seven years designated by Canada, and a fitting acknowledgement of their ecological and social value.

Thank you for providing this opportunity to address the lack of action from the federal government Ministries of Transport and Environment

[Original signed by Ellen Zimmerman]

Ellen Zimmerman
Program Manager for the Columbia Wetlands
Wildsight
P.O. Box 1496
Golden, British Columbia
V0A 1H0
Ph/fax: 250-348-2225
<ellen@wildsight.ca>


The petition:

The Columbia Wetlands are one of the longest intact wetlands in North America, of critical importance to migratory birds and resident birds and wildlife, the headwaters of the transboundary Columbia River system. These 25,000 ha wetlands represent one of the few remaining intact portions of the Pacific Flyway.

In 1996, the Columbia Wetlands were designated as Wildlife Management Area (WMA, protected under the BC Wildlife Act). In 1997 the Province of BC enacted a regulation restricting all vehicle use (snowmobiles, jet boats, jet skis and ATVs) to 10 horsepower or less. This regulation was an important component of the provincial management strategy designed to protect the ecological integrity of this critical habitat for wildlife and migratory birds. Noise, intrusion, brood disruption and pollution associated with fast moving and large motored vessels causes a number of negative environmental impacts including damage to water quality and sensitive aquatic ecosystems, habitat destruction, and nest abandonment.

The regulation to restrict horsepower grew out of both the need to fulfill the mandate of the WMA to protect wildlife and their habitat and out of the public consultation processes that determined that the public held this goal higher than any other and shared an interest in a place for "quiet enjoyment" that was compatible with the primary goal of protecting wildlife. The Management plan adopted this main goal:

Principle 1: All activity that occurs in the WMA must have a neutral or positive effect on wildlife, fish and plant communities.
(Motorized boating does not meet these criteria)

In 1998, the province's jurisdiction to regulate vessels, even for environmental reasons, was challenged in the courts. The Canadian Coast Guard became involved and argued that the provincial government could not apply restrictions to waterways such as the Columbia Wetlands as this was solely the jurisdiction of the federal government. Initially, a challenge was raised in BC Provincial Court disputing that the provincial Ministry of Environment had the ability to restrict motorized vessels on the Columbia Wetlands Wildlife Management Area.

The case was decided in the province's favor at the BC Supreme Court level. The matter was appealed to the BC Court of Appeal and was heard, November 5, 2001. In January 2002, the Court of Appeal struck down the provincial 10 hp restrictions as it pertained to vessels, but left the restriction in place on land-based conveyances, like snowmobiles and ATVs. Regulation of vessels was deemed jurisdiction of the federal government.

The Court of Appeal emphasized, in their decision summary, the following:
"Nevertheless, where protection of the environment requires regulation of vessels operating in navigable waters, the Province cannot legislate. Fortunately, the existing shipping regulations do provide machinery for provincial authorities to request that the federal power be exercised." (Citation: R. v. Kupchanko Date: 20020130 2002 BCCADocket: CA026665)

The Province did not appeal to the Supreme Court of Canada, despite the urging of many in the legal community who thought the Court of Appeal decision was flawed.

While the provincial 10 hp restrictions was still in place, the Canadian Coast Guard conducted extensive public consultation during the peak boating season of 2001 with the expressed intention of determining the will of the public as to a possible boating restriction under the Canada Shipping Act. 72 percent of those who responded to the Canadian Coast Guard's public request wrote in favor of the current provincial 10 horsepower restriction or of stronger and more protective regulation.

The public support and lack of a government applicant (The provincial government was unable to act as applicant because of the concurrent court case) led to an NGO application under the Canada Shipping Act for a boating restriction regulation that exactly mirrored the public will. Wildsight (formally East Kootenay Environmental Society (EKES) carried out extensive public and stakeholder consultation during the summer of 2002. The response was definitive.

The Province of BC, the District of Invermere, the town of Radium, the Canadian Wildlife Service, both regional districts, First Nations, the Lake Windermere Rod and Gun club, DFO Fisheries Habitat branch, numerous conservation groups, Guide Outfitters, Trappers and the vast majority of identified stakeholders endorsed the EKES application.

Out of 261 written public consultation forms submitted during the summer of 2002, there was an overwhelming agreement of 95 percent of stakeholder and public respondents who identified a problem with unrestricted boating and suggested regulation as an answer to the problem.

The results of the consultation are summarized as follows:

97 percent of respondents identified an existing or potential problem with unrestricted motorized boating.

95 percent of respondents preferred regulation as the solution to the identified problem.

81 percent of respondents suggested, as a solution, a 10 horsepower restriction on motorized boating or more strict and restrictive regulation, such as no motors, electric motors only. Of this percentage, 17 percent preferred no motors or electric motors but were willing to live with the 10 hp as a compromise to allow some motorized use. 16 percent preferred no motors or electric motors only

14 percent of respondent suggested regulation but did not specify motor size.

2 percent of respondents preferred seasonal or geographic boating restriction to blanket solutions.

3 percent of respondents preferred no regulation and no restriction

Since that time, the responsibility for regulation has moved from Fisheries and Oceans to Transport Canada, making a bad situation worse. Officials of the Federal Ministry of Transport admit to being ill-equipped to evaluate an application to control motorized vessels primarily for environmental, rather than safety reasons. Yet the only regulatory tool available to protect the ecological treasure of the Columbia Wetlands from environmental degradation of motorized vessels is within the Canada Shipping Act, which is the jurisdiction of Transport Canada.

The best prospect for successful establishment of a boating regulation will be through a proactive and determined involvement of Environment Canada with Transport Canada, and this process has begun. Transport Canada has the jurisdiction and the legislation to achieve this required remedy and Environment Canada has the expertise and the interest. These agencies must expeditiously enter into an agreement to bring about the regulation to control motorized boats. Prolonged policy review will lead to further delay and is unnecessary, when the problem is clearly defined and the remedy is readily available.

However, 3 years after the application was filed, there has been little progress to establish regulation of vessels using the wetlands. The urgency of this matter grows. Motorized boating pressures increase daily with resultant negative impacts to wildlife and their habitat. Visitor and resident populations in the upper Columbia region have exploded and led to more and more boating abuses. There are a number of new boats piloted by people who are unaware that they are in an internationally recognized ecological treasure and one set aside for wildlife, despite the best efforts of my organization to inform and educate the public. If a regulation continues to be delayed, there will likely be ongoing and possibly irreversible damage to this valuable national asset and the wildlife and birds that depend on it. During the years that the province had regulated vessels, the rate of compliance was high and growing each year the regulation was in place. Since the courts struck down the regulation in 2002, the opposite situation is the case.

Because The Columbia Wetlands are a universally acknowledged special place, a single motorized vessel that causes any damage to wildlife habitat or in some way damages fish spawning habitat or inadvertently interferes with wildlife is one vessel too many in this particular place that has been set aside for wildlife and is special and unique on the continent and arguably in the world.

As Canadian citizens, we have dutifully fulfilled every requirement under the Canada shipping Act to regulate motorized boating in the Columbia Wetlands WMA. The regulatory process is long and involved. It must proceed without delay.

We ask for this petition at this time to receive a direct and specific response from Transport and Environment Canada as to when the boating regulation will be enacted. To date, we have only received responses acknowledging the need for protection and the need for policy review, none of which result in the actual remedy that the BC Court of Appeal noted in their decision. When we made this application and during the subsequent years during which we followed the instructions of the Coast Guard and fulfilled all the requirements, we were led to believe that a regulation would be forthcoming if only we fulfilled one more condition.

We further seek some recourse by which Transport Canada can be made to fulfill its obligations. The federal government challenged the province in the courts to win the right to regulate and has now failed to act, leaving a provincial protected area unprotected as a direct result of that failure. The government agencies in question must proceed and expedite the application.

I enclose a recent letter* from a high-ranking official in the provincial ministry and a recent letter* from the MLA for the riding. All other documentation is included in the boating regulation application package, but I can provide most of this in printed form on request.

Signed on July 26, 2005

[Original signed by Ellen Zimmerman]

Ellen Zimmerman
Program Manager for the Columbia Wetlands
Wildsight
P.O. Box 1496
Golden, British Columbia
V0A 1H0
Ph/fax: 250-348-2225
ellen@wildsight.ca

*[attachments not included]

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Minister's Response: Environment Canada

17 November 2005

Ms. Ellen Zimmerman
Program Manager for the Columbia Wetlands
Wildsight
P.O. Box 1496
Golden, British Columbia
V0A 1H0

Dear Ms. Zimmerman:

I am writing to provide Environment Canada's response to your Environmental Petition No. 154 to the Commissioner of the Environment and Sustainable Development, concerning the regulation of motor vessels in the Columbia Wetlands of southwestern British Columbia. Your petition was received in the Department on August 8.

As you know, Environment Canada supported the establishment of the Wildlife Management Area in the Columbia marshes and assisted with the development of the management plan for the area. The presence of the Wildlife Management Area provides protection to a much larger area of the wetlands than the four units of the Columbia National Wildlife Area, complementing the very strong protection afforded to those special places.

My officials followed closely the court cases you outlined in your Petition and the subsequent efforts by your organization and others to address the boating regulation issue. The consultations clearly show that protecting the wetlands is very important to many, if not most, of the people consulted.

The level of support for regulation from the general public is reflected in the position taken by most local governments, First Nations and the provincial government.

I recognize the growing pressures in the Columbia Wetlands and in the whole of the East Kootenays. The pressures of tourism and development in the area are key reasons why Environment Canada was one of the founding members of the East Kootenay Conservation Program and why my department continues to support the group. I believe Wildsight is a founding member of this group as well. Through coordinated action valley-wide, conservation organizations can provide for the ongoing needs of fish and wildlife, despite continued pressures.

The Government of Canada understands the importance of those wetlands for migratory birds, species at risk and local residents. At the same time, Canada has an obligation to preserve and protect navigation. Transport Canada and Environment Canada take the matter of environmental protection seriously and are working closely together to address protection of the wetlands, while maintaining the right of navigation. However, the initiation of regulatory action is bound by certain rules that must be followed, namely: the requirements of the Government of Canada Regulatory Policy and the type of restriction(s) that can be applied, depending on the situation, under the authority of the Boating Restriction Regulations of the Canada Shipping Act.

As indicated in previous correspondence, both from Environment Canada and from Transport Canada, before any restriction can be applied on any Canadian waters, the Government of Canada Regulatory Policy requires that certain steps be followed. These steps include problem identification, exploring non-regulatory alternatives, benefit/cost analysis of a proposed restriction, public consultation and development of an enforcement plan. I recognize that some of the work necessary to meet these requirements may have been carried out already and will certainly be useful in moving the matter forward. The Boating Restriction Regulations cannot provide for an outright prohibition of all vessels over 10hp in the large area being considered.

Environment Canada and Transport Canada are working collaboratively to develop a plan to clearly identify the specific problems, determine whether non-regulatory alternatives have been explored and, if so, whether they proved successful and propose appropriate restrictions that could be expected to address the specific problems. The plan will outline the details of the steps required to put this project back on track and move it forward in the proper sequence. As mentioned above, all available information that is already on hand will be used to avoid repeating work already performed.

I appreciate the efforts your organization has put into the designation of the Columbia Wetlands as a Wetland of International Importance under the Ramsar Convention on Wetlands. Let me assure you that both Transport Canada and Environment Canada are committed to working with stakeholders to advance the matter as expeditiously as possible.

I trust that you will find my response useful.

Yours sincerely,

[Original signed by Stéphane Dion, Minister of the Environment]

Stéphane Dion

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Minister's Response: Transport Canada

November 15, 2005

Ms. Ellen Zimmerman
Program Manager for the Columbia Wetlands
Wildsight
P.O. Box 1496
Golden, BC
V0A 1H0

Dear Ms. Zimmerman:

SUBJECT: Environmental Petition No. 154

This is in response to your petition under section 22 of the Auditor General Act concerning the Columbia River and Wetlands system.

The original application for a boating restriction of a Maximum 10 HP limit on a major part of the Columbia River and Wetlands system was intended to replace a previous provincial ordinance limiting all vessels in the area to a maximum of 10 HP, which was struck down by the Court of Appeal for British Columbia.

Both Transport Canada and Environment Canada take the matter of environmental protection seriously. Our departments are working together closely to address protection of the Wetlands while at the same time maintaining the right of navigation. The initiation of regulatory action is, however, bound by certain rules that must be followed, namely:

  • the requirements of the Government of Canada Regulatory Policy, and
  • the type of restriction(s) that can be applied, depending on the situation, under authority of the Boating Restriction Regulations of the Canada Shipping Act.

The Boating Restriction Regulations cannot provide for an outright prohibition of all vessels having over 10 HP in the vast area being considered.

As indicated in previous correspondence with Transport Canada, before any restriction can be applied on any Canadian waters, the Government of Canada Regulatory Policy requires that certain steps be followed, including problem identification, exploring non-regulatory alternatives, benefit/cost analysis of a proposed restriction, public consultation and an enforcement plan.

We recognize that some of the work required to meet these requirements may have already been done and will certainly be useful in moving this matter forward. Environment Canada and Transport Canada are working in collaboration to develop a plan on the next steps required to move this file forward. These steps will include:

  • clear identification of the specific problems;
  • whether non-regulatory alternatives have been explored; and, if they proved unsuccessful,
  • propose appropriate restrictions that could be expected to address the specific problems.

The plan will basically outline the details of the steps required to put this project back on track, organize the various steps in the proper sequence and advance it through the regulatory process. As mentioned above, all available information that is already on hand will be used to avoid any repetition of work already performed.

Both Transport Canada and Environment Canada are committed to working with stakeholders to ensure environmental protection. Please be assured that we will advance this matter as expeditiously as possible.

Yours sincerely,

[Original signed by Charles Hubbard, Parliamentary Secretary to the Minister of Transport]

Hon. Charles Hubbard, P.C., M.P.

c.c.

Ms. Johanne Gélinas, Commissionner of the Environment and Sustainable Development of Canada
The Honorable Stéphane Dion, P.C., M.P., Minister of the Environment