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Protecting Biodiversity Requires Paradigm Shift in Forestry by Sean Jones
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SEAN JONES
Protecting the biodiversity of British Columbia’s forests, and managing those forests through impending climate change, will require more than ad hoc measures, such as cordoning off protected areas from harvesting. Protecting biodiversity requires a paradigm shift in the legislation governing forestry. The BC forestry regime, like most extractive sectors, is a product of mid-twentieth century objectives — extract as much of our natural resources as fast as we can for the best price we can get. But, the wealth and economic expansion created by that thinking was costly not just to biodiversity and ecological values, but also Indigenous territories.
A recent report to the government of British Columbia, A New Future for Old Forests, documented how this outmoded trade-off continues to put biodiversity at risk. It explained how BC still views biodiversity conservation as a constraint on harvesting and limits such conservation measures to ensure they have only approximately 4% impact on total harvesting. This bias toward harvesting timber at the expense of preserving ecosystems is hardwired into BC’s forests practices and pricing to prevent forest managers from changing their harvesting systems to better protect natural processes even when they want to.
The result is a forestry economy dependent on harvesting from old growth forests with the attendant risk to biodiversity — the biodiversity of almost all of BC’s most productive forests are, or soon will be, at extremely high risk.
Fortunately, the solutions are in sight and opportunities to implement them should be high on BC’s legislative agenda. The process of reviewing, and then amending, the Forest and Range Practices Act is underway. BC must ensure the amended legislation
recognizes that ecosystems are not renewable, and that protection of ecosystem health is a priority. This includes recognizing the value of ecosystems as natural infrastructure and the role they play in sustaining healthy communities and economic sectors such as tourism.
But this paradigm shift in values, also requires a paradigm shift in who is managing those values. A New Future for Old Forests identified government-to-government agreements between BC and First Nations as the number one condition for change, noting that such agreements had widespread support across all sectors. Where those government-togovernment agreements exist, there is a higher standard of care for the land base, greater innovation in forestry practices and increased monitoring and oversight — a particular failing of the current regime.
BC is taking some small steps in this direction with modernized land use planning and other pilot projects with First Nations. But, those land use plans and forest stewardship plans will sit inside the legislative regime. To be effective, legislative change is needed to enable the shared governance required.
BC’s Declaration on the Rights of Indigenous Peoples Act (“Act”) empowers ministers to enter into the
government-to-government agreements necessary to shift forestry management and governance to the shared decision-making model required. The Act also requires BC to take all measures necessary to ensure that its laws are consistent with the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”). When BC is amending the Forest and Range Practices Act, its legislative commitments to UNDRIP must be given effect. Not doing so, will mean more than a lost opportunity, it will mean lost ecosystems.
Sean is a partner at MLT Aikins, practising in environmental, regulatory and Indigenous law. He has worked in every natural resource sector in BC.
advocacy
\ EMAIL: ADVOCACY@CBABC.ORG
CBABC ADVOCACY UPDATE
OUT WITH THE OLD, IN WITH THE NEW...
We are nearing the end of 2020, and what a year it has been! The one silver lining has been the movement within the justice system to embrace new technologies and process that allow legal services and court matters to resume during the pandemic. CBABC continues to advocate for initiatives to ensure that legal services are accessible during these challenging times. In this issue, the Advocacy Update announces some changes and highlights the advocacy plans of SOGIC, the Sexual Orientation & Gender Identity Community in CBABC.
As described in the Executive Director’s column, CBABC will launch An Agenda for Justice 2021 in January based on member submissions. Before the end of the year, members will find new CBABC web pages with curated Legislative Updates, Calls for Consultation, and CBABC Submissions. It is now easier to learn about issues of interest to you, engage with your colleagues to develop CBABC positions, and read our Submissions. As always, send your feedback to feedback@cbabc.org.
SOGIC exists to address the needs and concerns of lesbian, gay, bisexual, transgender, queer, two-spirited, non-binary, intersex, asexual, polyamorous, and other sexual or gender minority people within the CBA. This year, SOGIC focusses its advocacy around three core themes:
1. Calling for designated legal aid measures for the lesbian, gay, bisexual, trans, queer, two-spirit, intersex, asexual, non-binary, polyamorous, and other sexual minorities community; 2. Understanding more about the interaction of people in this community with the legal profession and the justice system; and 3. Greater inclusion of individuals from this community within the legal profession.
First, SOGIC built on SOGIC’s past submission to the Review of Legal Aid Services by preparing a submission included in An Agenda for Justice 2021. It calls for funding to establish a legal aid clinic for this community, provide SOGIC competency training to existing legal aid service providers and administrators, and additional resources for legal aid providers who support, serve, and represent the community.
SOGIC made a second recommendation for An Agenda for Justice 2021 calling for a more thorough collection of disaggregated data on variables such as race, ethnicity, disability, sexual orientation, gender identity, and gender expression. This information will increase understanding about how this community and other disadvantaged communities interact within the legal community and the wider justice system. This seeks to amplify the recent report of BC’s Office of the Human Rights Commissioner calling for legislative reform to better collect this data and immediate steps to begin collecting such data in key priority areas. Finally, SOGIC is undertaking several advocacy initiatives aiming to improve inclusion for its members within the legal profession. These include ongoing consultation with the Law Society of BC for improvements to the Professional Legal Training Programs. SOGIC is also liaising with the Vancouver Bar Association to add gender neutral spaces to the Vancouver Courthouse Barrister’s Lounge and is advocating for gender neutral and accessible washrooms in BC courthouses generally.
SOGIC sees the recent provincial election and the reconvening of the Legislature as an excellent opportunity for reinvigorated advocacy on a wide range of policy issues affecting the lesbian, gay, bisexual, trans, queer, twospirit, intersex, asexual, nonbinary, polyamorous, and other sexual minorities community, and always welcomes input and collaboration from its members and allies, and wider community stakeholders on all of its advocacy initiatives. Send your comments to feedback@cbabc.org.
As CBABC members look forward to 2021, we must remember that it is those who adapt to a situation who will thrive and even flourish. And with that in mind, Access to Justice Week January 24-30 will highlight lawyers who are using non-traditional programs, business models and resources to better serve our communities. These innovators (and disrupters) are part of a new breed of legal professionals who use a more client-focused approach in delivering legal services to their clients. Watch News + Jobs for details!
sectionupdate Sections Addressing Climate Change
A range of Sections have hosted meetings which touch upon climate change, and in particular, legislative changes in provincial and federal environmental laws. They have also held meetings to discuss the protection of the environment via legislation, as well as the role Indigenous peoples play in the development of projects that could impact the environment.
uuu Environmental Law
The Environmental Law Section hosted a variety of meetings related to laws concerning the protection of the environment. Earlier this year, the Section executives reviewed significant environmental law decisions and developments from 2019, including the cost recovery procedures of the Environmental Management Act in relation to remediating contaminated sites. They have also more recently reviewed changes to provincial and federal environmental laws in August, where they discussed new and amended laws relating to climate change, including the Canadian Energy Regulator Act.
In addition, they hosted Robert Wickett, QC, Vice-Chair of the Environmental Appeal Board (“EAB”), to discuss his insights on practice and procedures before the EAB, an independent, quasi-judicial regulatory agency which hears appeals from certain decisions under statutes such as the Greenhouse Gas Reduction (Renewable and Low Carbon Fuels Requirement) Act, and the Water Sustainability Act, among others.
uuu Constitutional Law/
Civil Liberties
The Constitutional Law/Civil Liberties Section offered two similar meetings in both the 2019-20 and 2020-21 fiscal years concerning federalism and climate change. In 2019, the Section hosted Gareth Morley, legal counsel for the BC Ministry of Justice, who was involved in the constitutional challenge held by provinces against Canada’s Greenhouse Gas Pollution Pricing Act. In this meeting, held in-person in both Victoria and Vancouver, Gareth touched upon the need to choose between federalism and confronting climate change, mentioning references in the Saskatchewan and Ontario courts upholding federal legislation.
In the following fiscal year, Gareth Morley returned to speak on more recent references, alongside Joseph Arvay, QC, counsel for the plaintiffs in La Rose et al. v. Canada. During this meeting, the speakers discussed La Rose, a lawsuit brought by Canadian youth and dismissed by a Federal Court judge, which alleged that Canada contributes to emitting greenhouse gases that are incompatible with a stable climate.
uuu Natural
The Natural Resources
Law Section hosted Sandy
Carpenter, Co-Founder of Canadian Regulator and Indigenous Law, to discuss reconciliation and the honour of the Crown in regulatory decisionmaking. They referenced cases such as Redmond v. British Columbia (Forests, Lands, Natural Resource Operations and Rural Development), 2020, and Fort McKay First Nation v Prosper Petroleum Ltd, 2020, both of which are concerned with the interests of Aboriginal peoples and their objections to development projects to take place on their territories.
In November 2019, the Aboriginal Law — Vancouver Island Section hosted a social, which featured Mark Gustafson of JFK Law to provide an overview of environmental regulatory law updates.
professionaldevelopment
\ EMAIL: PD@CBABC.ORG \ WEBSITE: CBAPD.ORG
PROFESSIONAL DEVELOPMENT FOR A NEW SOCIAL CLIMATE
As the legal profession in British Columbia adapts to a new social climate as a result of the COVID-19 pandemic, new ways to conduct a legal practice, and collective movements around equity, diversity, and inclusion, CBABC continues to develop relevant and timely professional development.
COVID-19 PD Programming has focused on delivering current and relevant information to support lawyers and their practice. The CBABC COVID-19 Resource Hub continues to be updated with Branch news and advocacy efforts; updates from provincial and federal courts, LSBC and others; expert advice to support your business; resources on wellness and practice management; and relevant PD programming from across the CBA.
The legal community continues to adapt to practising law virtually. PD programming to support this shift has included:
Effective Document Management in Digital Hearings (On-Demand Recording) BC Tribunals and their Work since COVID-19 (On-Demand Recording) Using Technology to Enhance your Practice Prince George Connects: Virtual Updates and Practice Management Civility and the Legal Profession during COVID-19 (On-Demand Recording)
Equity, diversity, and inclusion have been societal hot button topics in 2020. CBABC has provided opportunities for lawyers to strengthen their awareness and develop cultural competency by taking specific actions to address the Calls to Action, identifying and applying tools to disrupt systemic racism in the workplace; and developing an understanding of key personal, social, and legal issues within the LGBTQ2SI+ community.
Utilizing the Reconciliation and Response Plan in Your Firm (On-Demand Recording) Understanding Systemic Racism in the Workplace — Shifting from Perpetuating to Disrupting LGBTQ2SI+ Law Webinar Series — Part 1: An Introduction to Trans-Competent Lawyering LGBTQ2SI+ Law Webinar Series — Part 2: A Focus on Key Trans Legal Issues
PROFESSIONAL DEVELOPMENT ON THE HORIZON — WINTER 2020-2021
This winter’s professional development focuses on the legal community’s need to adapt to a changing world by being better prepared on a personal and professionally level. Upcoming PD programming includes:
Victoria and Surrey Provincial Court Early Resolution Process Supporting Lawyers with Disabilities and Accessibility Issues Business Law and Working with Indigenous Clients Young Lawyer Series — Enhancing Your Professionalism LGBTQ2SI+ Law Webinar Series Part 3: A Focus on Substantive Queer Issues Adverse Childhood Experiences and the Family Justice System
uuu We welcome your thoughts and suggestions. Email pd@cbabc.org.
