2011 Legislative Session: Fourth Session, 39th Parliament
HOUSE BLUES
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This is a DRAFT TRANSCRIPT ONLY of debate in one sitting of the Legislative Assembly of British Columbia. This transcript is subject to corrections, and will be replaced by the final, official Hansard report. Use of this transcript, other than in the legislative precinct, is not protected by parliamentary privilege, and public attribution of any of the debate as transcribed here could entail legal liability.
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DEBATES OF THE LEGISLATIVE ASSEMBLY
(HANSARD)
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HOUSE BLUES
THURSDAY, OCTOBER 6, 2011
Afternoon Sitting
Second Reading of Bills
BILL 2 — FLATHEAD WATERSHED AREA CONSERVATION ACT
(continued)
G. Gentner: First of all, regarding Bill 2, I want to say that the Flathead Watershed Area Conservation Act…. I think a lot of recognition has got to go towards the Parks and Wilderness Society, Wildsight, the Sierra Club and many of the locals in the area, not only, of course, in the East Kootenays but all the Kootenays.
They share the various watersheds there, and they know what it means relative to the industrial component of their constituencies and, of course, the importance of recreation and the stewardship of ecologically sensitive areas.
Also, some recognition has got to go to the government of Canada, in particular, Mr. Prentice, years ago, who was actually very strong on this file. I have to give the Conservative government some credit there. And the government of Alberta, who over the years have been very strong relative to their park there on the other side of the Continental Divide. The Americans and above all, of course, the state of Montana, who have working very steadfastly on the file.
The legislation's main focus here is to prohibit mining and oil and gas extraction in the watershed area of Flathead. This legislation meets the commitment made back in 2010, a memorandum of understanding signed by the state of Montana on environmental protection, climate action and energy. But let's call it what it is. It is a first step, a first step only, towards what we're hopeful will be much more protection in that area.
There is a missing piece here for a continuation of, hopefully, one day perhaps park status shared with Waterton Glacier on both sides of the Continental Divide, shared by Montana and on the other side, of course, Alberta.
This act prohibits Crown land dispositions of mining purposes, prohibits issuance of Mines Act permits, prohibits issuance of Oil And Gas Activities Act permits for oil and gas exploration and development and prohibits disposition of Crown reserves under the Petroleum Natural Gas Act.
We've known how this has come about. United Nations scientists recommended a moratorium of mining in the valley some time ago when they visited this part of the world, in particular that of UNESCO. But we've seen also for quite some time over the last four or five years a kind of flip-flop by the government opposite on the policy to permit mining.
On one side they are saying they are certainly for preservation, but on the other side we are seeing even the talk of extracting coal bed methane in the Flathead Valley.
This may be the first step, but it doesn't go far enough. The legislation does not protect the Flathead from coalbed methane in the Flathead Valley.
This may be the first step, but it doesn't go far enough. The legislation does not protect the Flathead from logging in a proposed national park, trophy hunting, new road access and quarrying. I believe that most of the groups are still going to continue to lobby on this behalf. In many ways it's quite puzzling. I'm quoting here from spokesperson Chloe O'Loughlin, from CPAWS B.C., who stated they're quite puzzled that the B.C. government states in its press release that the Flathead is a world heritage site and UNESCO biosphere reserve.
Again, they're giving a lukewarm endorsation of the group, but however, it doesn't go far enough. I have to tell you, I spent time in the Flathead and went and visited it. I spent some time in Montana, and I spent some time with the members of the governor's staff to talk about where the state of Montana was going with this. I have to tell you, it was an incredible ecological jewel on both sides of the border. I remember it well. Having spent some time with the state officials, I went up through the American side, along the Flathead Valley and came to the Canadian border. I have to tell you, if you are looking at a customs agency, it is quite deplorable. It's like a sign that said "closed," and yet on the American side, it was quite pristine in their values and how they are able to keep that area in check.
But I have to tell you, too, hon. Speaker, that it was pristine. The air and the water were clear. Incredible flora and fauna. It was quite spectacular, quite frankly. I've been to many parts in British Columbia. There's a wide valley, next to the continental ridge, the height of the land and our continent in an area that's without question one of the richest in wildlife resources.
The Flathead is a river that supports a rich biota. Certainly, the bull trout and cutthroat trout populations are considerable, and they are particularly vulnerable to the kinds of disturbances that could have occurred through mining. The wildlife issues, particularly with regards to the grizzly population area, have always been of great concern.
Regarding the grizzlies, it is definitely a unique community of carnivore species that reside in the transboundary flatland region that really is in many ways outmatched in the continental centre of North America, with the valley bottom lands, the densities of the species, which are rare. It's really quite an interesting and wonderful place. Not only are there grizzly bears but black bears, wolves, mountain lions, within that area.
During my time there I spent a good day on the American side. I went back across the border and came back through, of course, Fernie. When I was walking through some of the logging roads and looked in the valley, I was quite impressed with not only the glaciated peaks and the untouched riparian valley, the mountain lakes, the prairie grassland, aspen stands, coniferous forests. It was the wildlife that really impressed me. I'm hopeful that with this new bill, we'll go on to the next stage.
But I have to tell you a little bit about the process and the process of why we are getting here. We are not getting here, I think, because the government opposite has the heart and the inspiration to save the flatland. They have sort of been forced in it through international pressure. I know well that the negotiations with UNESCO and the Americans really went askew. There was a meeting with the United Nations UNESCO delegation. They came to B.C. But B.C. at the time did not have a land use plan for the Flathead, even though they had been asked to.
There were several meetings at Glacier, Waterton Lakes and Fernie. In Fernie UNESCO met up with NGOs. B.C. would only allow one half-hour with the NGOs and the various delegations. In Montana, when the delegations for UNESCO appeared, they gave them quite the time of day. The delegation seemed to be given a sort of an aloofness by the B.C. government.
U.S. and Canadian governments were supposed to take the lead, however. But Canada really dumped it onto British Columbia. Given a sort of an aloofness by the B.C. government. U.S. and Canadian governments were supposed to take the lead, however. But Canada really dumped it onto British Columbia.
And you know, Montana has never really insisted on a park. It's not their job. But they are concerned, primarily, about the water. This is what this bill is really all about. It's about a treaty. It's about water. It's about international relationships with our good cousin south of the border.
You know, when UNESCO came here, the B.C. scientists' presentation, I've been told by many, was extremely poor. When they talked about the hydrology they were asked about water, and B.C. danced all about it. They were really hesitant. They were not really on board to try and preserve this area. And my sources tell me that when they were asked to speculate how mining would affect water, the delegation for British Columbia said they didn't really know and didn't have much of a comment. There seemed to have been a gag order in that whole process.
I remember well. The then Premier was talking. He said the main reason Montana is concerned about the Flathead is because the rest of the state has already been industrialized, often with exactly the same kind of projects B.C. was looking for. Well, it was really a mud-in-the-eye type of relationship that the provincial B.C. Liberal government had with the state of Montana. It was kind of this cowboy attitude that seemed to predominate those relationships. They seemed to be on board more with the directions of the Ministry of Energy, Mines and Petroleum Resources rather than our own so-called environmental standards.
Now, I have to talk about the previous minister. I'll give you an example of what those relationships were about. The previous Minister of Environment, when he started talking about Montana, trying to get something done in the good spirit of good relationships, his comments were quite clear. He said: "I hardly think that we'll be in a position to take too many lectures from the conduct of officials south of the border."
I mean, here we were. We're moving into an Olympics mode. We're trying to develop relationships, but really it was a stick in the eye by this government. I really think the government took a cheap shot rather than try and negotiate this at all. The government ridiculed the Americans for their declining grizzly bear populations as a pretense for our own grizzlies starving because of a mismanaged fish-fly, which his government, this government, helped create.
I do want to talk a little bit about the relationship itself and what really happened and why we are here today. It's about water. It's about downstream rights. And you know, we do have the unfortunate, I suppose, situation that we're mostly upstream in British Columbia to everything that happens downstream. So what we do on this side of the 49th can detrimentally affect the water regime, the hydrology, the farming, the industry, the cities south of the line.
We talk about the Columbia River treaty. We know that went through immense negotiations. They're still going on today — a huge diversification of water. But there was a good relationship back then in how we worked with our friends south of the river. We're talking about a remarkable transboundary watershed here, in that part of the province, and we've got to work together to maintain it.
What Montana was asking for I don't think was really quite out of the ordinary — you know? The watershed there contains eight blue-listed aquatic and terrestrial species in British Columbia and seven species listed as endangered or threatened on the U.S. Endangered Species Act. So the Americans had to act. They had to insist. They had to work with UNESCO to resolve this.
I think that when you talk at the…. The area there that had the major conflict over a proposed mine at Cabin Creek some time ago let Canada and the United States refer the matter to the International Joint Commission, the IJC, for a study and recommendations. That happened some time ago. There was at least working order happening there.
But on an international trade law, we can start looking at…. I'm a little reluctant to go here. I'm not one who's always going to support NAFTA, but under the North American agreement under international trade law we can start looking at…. I'm a little reluctant to go here. I'm not one who's always going to support NAFTA, but under the North American agreement, there is also a subsection on North American agreement on environmental cooperation. It is to increase cooperation between the parties to better conserve, protect and enhance the environment. In passing the North American Free Trade Agreement, Canada, the United States and Mexico also agreed to a North American agreement on environmental cooperation.
So this government is compelled to save the upstream and its effects on what goes south of the 49th.
Now, under the boundary waters treaty, the United States and United Kingdom created and signed the boundary water treaties in 1909 when Canada was still a dominion in the United Kingdom. The treaty remains in force today between the United States and Canada. Its signatories intended the treaty to be a means of "preventing disputes regarding the use of boundary waters."
Good will was established well over 100 years ago. The treaty defines boundary waters as the waters of lakes and rivers and connecting waterways or the portions thereof, along which the international boundary between the United States and the Dominion of Canada passes. Appropriate for the pressing matters of the era, the treaty largely addresses obstructions or diversions, dams and canals of the boundary waters. However, precipitously, it also contains a provision that "boundary waters and waters flowing across the boundary shall not be polluted on either side to the injury of health or property on the other."
Amazing. They were using the word "pollution" way over 100 years ago. There's a mechanism put in place about the effects of destroying upstream water and its effects that can affect the downstream effects, of course, on the waters of the Flathead south of the 49th.
Again, we can give all the great accolades and say how wonderful this bill is, but we are compelled, and through international law we would pay deeply had we not negotiated bill Bill 2.
Now, article 8 of the treaty extends mandatory jurisdiction to the International Joint Committee over cases involving the use, obstruction or diversion of waters, and we've been seeing that process in place for some time.
You know, from Montana's perspective, it would be ideal to have the International Joint Committee review the dispute and make the recommendations. There seems to have been a real reluctance up until a few years ago when there was a decision made — of course, by the IJC.
Now, regarding general practice accepted as law, customary international law is the binding law that emerges from regularities but not necessarily uniformities of state behaviour.
A number of important matters, treaties and conventions have recognized the principle of sustainable development and ecosystem management. Sustainable development, the principle of "development that meets the needs of the present without compromising the ability of future generations to meet their needs," first became well known with the publication of the Brundtland report of 1987.
Now 20 years after the Stockholm conference, the Rio declaration in 1992 expressly announced that sustainable development was a guiding principle of global significance. Today there is universal recognition of the application of the overarching objective of sustainable development.
Again, we are bound, I think by international law, to save the Flathead. Similarly, ecosystem management has been widely recognized in the international convention treaties. In 1966 the Helsinki rules on the uses of the waters of international rivers designated the river drainage basin as the appropriate unit for analysis regarding transboundary watercourses.
The ecosystem management principle gained recent expression in the United Nations convention on the law of non-navigable uses of international watercourses. Article 20 of the convention provides that watercourse states shall individually and, where appropriately, jointly protect and preserve the ecosystems of international watercourses. The near unanimous 104-3 vote in the United Nations shall individually and where appropriate jointly protect and preserve the ecosystems of international water courses. The near unanimous, 104-3 vote in the United Nations approving the convention indicated the broad international support of its principles."
Again, I reiterate. We are compelled under international statute and obligations to save the Flathead, and heaven help us if we didn't.
Now, the body of the decisions of the IGAC regarding water use between Canada and the United States most validates the application of sustainable development, ecosystem management principles and transboundary water issues between the two countries.
Now, the prevention principle — the prevention principle that no nation may undertake activities within its borders that will cause significant injury to another nation is widely considered a basic tenet in customary international law.
A brief elaboration of the history of this principle reveals ample support for this conclusion. It is further significant because the development of the principle is closely linked to the development of U.S.-Canadian relations regarding transboundary environmental issues. The international arbitral panel, convened to settle the old Trail smelter arbitration, a transboundary dispute between Canada and the U.S., set the precedent. It was done.
Now, a review of the 20th century international law reveals that international courts and arbitral panels have reaffirmed the principle that no nation may act in its territory in a way that significantly harms another country, and nations and international bodies have included this principle in treaties and conventions.
Now, following the Trail smelter in the International Court of Justice, the ICJ, decided the Corfu Channel case, stating the general and well-recognized principle that is "…every state's obligation not to allow knowingly, its territory to be used for acts contrary to the rights of another state."
You go into the Flathead, to the American side, you'll see these beautiful farms. They had a right to be concerned about how we were going to perhaps destroy the watershed on the Canadian side of the Flathead.
"In addition to the aforementioned arbitral panels in the ICJ, numerous international declarations and conventions regarding transboundary waterways uphold the principle that one waterway state may not use the waters in its jurisdiction in a way that will harm other states in the river basin. This is significant because such accords may be a source of customary international law 'when they are intended for adherence by states generally and are, in fact, widely accepted.'
"Three important international instruments affirm the obligation of states" — namely, Canada, British Columbia within the Flathead — "not to use their resources in a way that causes significant harm to others. First, principle 21 of the Stockholm declaration stated that while states have the 'sovereign right to exploit their own resources pursuant to their own environmental policies,' states also have 'the responsibility to ensure the activities within their jurisdiction or control do not cause damage to the environment of other states or of areas beyond the limits of national jurisdiction.'
"Twenty years later, the United Nations Conference on Environment and Development…repeated the same language in principle 2 of the Rio declaration, echoing this limitation on exploitation of resources within national boundaries. Finally, in 1997 the international watercourses convention reaffirmed that 'watercourse states shall, in utilizing an international watercourse in their territories, take all appropriate measures to prevent the causing of significant harm to other watercourse states.'"
I guess I can go on more about international law and why we have got to, I would say, walk on eggs on this sort of issue. But be cognizant that the liabilities and the repercussions of destroying another nation's water systems, all in aid— I hate to say it, but — some greedy aspirations. You've got to look at the whole enchilada. You've got to look at the whole implications here.
You just can't go ahead and go to Foisey Creek and decide to create slag. Regardless of how good you may think your environmental assessment is, you have to not only compromise, but you've got to work in conjunction with the Americans. You know, the effects of a valley at Foisey Creek if localized how good you may think your environmental assessment is, you have to not only compromise, but you've got to work in conjunction with the Americans. You know, the effects of a valley at Foisey Creek, if localized to the immediate stream segment, would not violate, necessarily, the prevention principle. But there would be no cross-border harm and, if that is the case, we get away with it. But obviously the Americans made a big case, and the international community agreed.
Unfortunately, it's not possible to isolate the headwaters of the North Fork with its downstream waters. This is the case, for example, for migratory fish species that travel to upper reaches of the Flathead to spawn.
Coal mining activities in Foisey Creek would likely destroy spawning grounds for protected and valuable migratory fish species such as bull trout. The Cabin Creek referral…. The IJC recognized that the combined efforts of the proposed coal mine to the headwaters of the Flathead would: "cause a loss to a fishery, a loss which is felt on the other side of the boundary."
The Americans did their homework. There's no question that they did their homework. I don't think the same could necessarily be said with the B.C. Liberal government, relative to how it has handled the file.
Now, like the substantive principles of sustainable development and the ecosystem management, a procedural requirement for an environmental assessment for trans-boundary harm is not foreign to international environment law. The watercourses convention in '97 requires an environmental assessment before a nation may proceed with a project which may have significant adverse effect upon other watercourse states. Clearly, Montana and the United States of America do not believe that the environmental assessment standards, I believe, in British Columbia were up to snuff.
British Columbia and Canada are unwilling to take steps to analyze the potential cross-border harm that can result from coal mining of Foisey Creek. The United States would require that an international arbitrator panel address the question under customary international law. Now, I raise this because, I say again, all the lofty accolades and discussion about how wonderful this government is relative to the bill, and we support it in principle, and we think it is the first step….
But let's not forget what or how the pressures came. It didn't come from the good will of the government. Not at all. It came from the good pressures from those in the region, those who fought hard. They found the ear of the United Nations and, of course, we have cousins south of the 49th who I dare say have a big stick. They don't use it. They certainly were willing to do their due diligence and show that that the detrimental effects within the course in the Flathead area would be detrimental to the environment, the socioeconomic development of a state.
In conclusion, hon. Speaker, I just want to…. I had to get that on the record. I think it is very important that we understand how this game was played. We have to understand that this is a complex situation. We also have to appreciate that Alberta has established itself with an internationally recognized national-provincial park system, and the same thing with Montana. We are missing that piece, that piece on the British Columbian side, to make it complete.
With that, Hon. Speaker, I will take my place in the House and thank you for the opportunity to speak relative to Bill 2.