Submission on Amendments to the Agricultural Land Commission Act - Defining the "Provincial Interest" and Expanding the Criteria for Considering the Effects of Proposals to Remove Land from the Agricultural Land Reserve

Linda Nowlan
Staff Lawyer

West Coast Environmental Law Association
August 4, 1998

Background

In January 1998 the public hearing process under the Agricultural Land Commission Act was used for the first time in the case of the Six Mile Ranch resort proposal near Kamloops. Commissioner David Perry was appointed by Order in Council to conduct hearings and make recommendations to Cabinet on the disposition of applications to the Agricultural Land Commission (ALC), involving a number of changes to the status of Six Mile Ranch land within the Agricultural Land Reserve (ALR). The Perry Commission recommended that Cabinet approve the Six Mile Ranch golf course and destination resort proposal.

The public hearing process was designed to replace the previous system of Cabinet appeals of ALC decisions through a two-step process.

Section 40 of the Agricultural Land Commission Act first requires Cabinet to determine that it is in the "provincial interest" to refer an application before the ALC to public hearings. Then, section 43(1) of the Act requires a Board or Commission conducting the public hearing to investigate "probable environmental, economic, social, cultural and heritage affects, and without limitation, the agricultural affects" of the proposal. Cabinet then makes a decision on the applications.

As the judge in a judicial review application of the Perry Commission decision described the process:

"…Cabinet's assessment at this stage is not a determination that the proposal itself is in the provincial interest. Rather, Cabinet's assessment is that the referral, itself, is in the provincial interest. The referral leads to the public hearing and a written report addressing the probable environmental, economic, social, cultural, heritage and agricultural effects of the proposal. Not until that report is filed may Cabinet decide the outcome by granting the applications, with or without conditions, or by refusing to grant the applications." ¹

During the Six Mile Ranch hearings, many members of the public voiced confusion about the meaning of the term "provincial interest" and about the balancing test used to weigh the effects of the proposal. In response to these concerns, and because of his own misgivings about the vacuum left by the lack of a definition of "provincial interest" in the Act and the potential of the public hearing process to undermine the integrity of the ALC, Commissioner Perry recommended that:

• The term "provincial interest" should be a defined term preferably under the Agricultural Land Commission Act or at a minimum under the ALC regulations.
• Consideration should be given to clarifying the balancing test found in section 43. If the intention is that agriculture should dominate when considering an exclusion of land from the ALR, this should be stated explicitly in the Act.²

As a result of these recommendations, the Minister of Agriculture asked Moura Quayle, Dean of the Faculty of Agricultural Society at UBC, to conduct stakeholder consultation on the definition of "provincial interest" in s. 40 and clarification of the balancing test in s. 43 of the Act. This submission of West Coast Environmental Law Association is in response to the stakeholder consultation.

1. Defining "Provincial Interest"

No limits now constrain the government’s discretion on when it may invoke the "provincial interest" procedure for removing an application from the ALC’s jurisdiction. The term "provincial interest" is not defined in this Act, or in other provincial legislation. The term is general, and open to broad interpretation. Little guidance is provided by the government other than the Guidelines for Invoking the Provincial Interest, attached to the Perry report. The question to be answered is in what circumstances the government should be permitted to invoke the "provincial interest" procedures of the Act.

In our submission, the term "provincial interest" should be defined to limit the government’s discretion. The provincial interest procedure should only be invoked in the rarest of circumstances. In addition, the government’s commitment to sustainability should be reflected in the "provincial interest" definition. Our submission is based on a discussion of:

A. Principles of administrative law concerning specialized tribunals,

B. Principles of statutory interpretation, and

C. The need to translate the government’s promises about sustainability into legally binding commitments.

A. Principles of administrative law concerning specialized tribunals,

As it now stands, the undefined term "provincial interest" is broad enough to allow the government to make such a referral at its complete discretion. This appears to revert the province back to the days of Cabinet appeals from ALC decisions. The practice of Cabinet appeals was sharply criticized, by the public, the press, and the courts.³ By abolishing Cabinet appeals, the government showed a resolve to defer to the specialized jurisdiction of the ALC except in those exceptional cases in which the "provincial interest" dictates that the matter go to public hearings.

The creation of a tribunal such as the ALC is itself evidence of the government’s intention to leave these decisions to the expertise of a specialized and independent tribunal. A court will not lightly interfere with a decision of an administrative tribunal such as the ALC. Neither should the government permit itself to second guess this type of tribunal, except in the rarest of cases. The phrase "provincial interest" should be defined to clarify that only exceptional cases will justify overriding the ALC’s jurisdiction.

B. Principles of statutory interpretation

The leading authority on the interpretation of statutes states that the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. ⁴

The ordinary sense of the term "provincial interest" is the interest of the entire province, or at least a majority of people in the province.

Next, the phrase must be interpreted harmoniously with the scheme and object of the Act. The primary purpose of the Act is the preservation of agricultural land.⁵

The intent of Parliament can be deduced through an Act’s legislative history, and through related Acts.

The legislative history of the ALC Act and the Cabinet Appeals Abolition Act was forcefully presented by former MLA and Cabinet Minister Tom Perry. He cited some excerpts from the debate surrounding the Cabinet Appeals Abolition Act in his presentation to the Perry Commission. These excerpts deserve repetition.

The Attorney General at the time, Colin Gabelmann, said that "there may be rare instances, however, where an application before the Land Commission has such a significant impact that it needs to be more comprehensively considered. In these extraordinary cases, Cabinet will have the power to suspend the proceedings …and refer the matter to an independent Board for consideration of its environmental, economic, social, cultural and agricultural effects. The Board will hold a public hearing and make a public report to Cabinet. In these rare cases, Cabinet will make the final decision." (emphasis added)

What examples did the MLAs of the time give of possible circumstances for invoking the provincial interest?

• the need for a military airport in wartime (Dr. Tom Perry);
• construction of a hydroelectric dam, such as the proposed Site C dam in the Peace River region. (Minister of Agriculture at the time);
• a golf course or tourism resort would not qualify (then MLA Jack Weisgerber: "Under the current amendments, I'm not sure that the development of that golf course facility would qualify as an extraordinary circumstance of provincial magnitude…." ).

This legislative history is important to underscore that the provincial interest was meant for only a very narrow class of projects, ones with importance to the province as a whole. The test as currently worded has not been used in this sense and so must be further refined.

Recent Acts, policy statements and legislative proposals are relevant to the discussion of the provincial interest. For example, the Farm Practices Protection (Right to Farm) Act was introduced to support farmers who use normal farm practices, and encourage local governments to support farming in their local plans and bylaws. Also, Land Title Act amendments meant to ensure that new residential developments do not affect agriculture and that developments adjacent to farming eliminate unnecessary road endings directed at land in the Agricultural

Land Reserve (ALR) demonstrate the importance that the province attaches to the preservation of the agricultural land base.

C. The need to translate the government’s promises about sustainability into legally binding commitments.

The government of B.C. has made many pledges concerning sustainability, including the creation of two institutions:

• the Round Table on the Environment and the Economy in 1990 mandated to develop a provincial strategy for sustainable development , and
• the Commission on Resources and the Environment (CORE) in 1992 charged with devising plans for land use and related resource and environmental management.

Both the Round Table and CORE stressed the need to preserve agricultural land as an integral component of sustainability.

CORE recommended that the provincial Land Use Charter and land use goals, developed after extensive public consultation, and adopted in principle by Cabinet should be incorporated into a proposed Sustainability Act. One of the land use goals is to ensure the long term designation of land for agricultural purposes. After two years of research and broad public consultation, CORE concluded that :

"British Columbians must make a formal and enduring commitment to social, environmental and economic sustainability. It is time to make sustainability the law in British Columbia. In recent years, British Columbia has moved rapidly towards establishing a world leading strategy for sustainability. However, without a formal, statutory commitment we put ourselves and the future at risk. While we may not be able to measure this risk exactly, it is as real as the national debt. It will continue to increase and pass on an enormous burden to future generations without a comprehensive and strong response."⁶

In light of the above discussion, we recommend that the term provincial interest be defined as follows:

We also recommend that a definition of "sustainability" be included in the Act to provide further guidance to decision makers.⁷

1. the maintenance and enhancement of the life-supporting capacity of the environment,
2. the efficient management of natural and physical resources,
3. the use, development or protection of natural and physical resources in a way which provides for the social, economic, and cultural needs and opportunities of the present and future residents,
4. if the environment is modified by human activity, the adverse effects of irreversible change are fully recognized and avoided or mitigated to the extent practicable,
5. the use, development or protection of renewable natural and physical resources so that their ability to yield long term benefits is not endangered.⁸

2. Clarifying the Balancing Test

The test set out in Section 43(1) of the Agricultural Land Commission Act is that a Board appointed to investigate a proposed application before the ALC must investigate "probable environmental, economic, social, cultural and heritage effects, and without limitation, the agricultural effects" of the application.

Although all these factors are relevant for any hearing on an application for land exclusion from the ALC, there is no direction about the weight to be given to each of the individual factors. Elaboration of the environmental effects test is also required, given the cursory treatment of these effects by the Perry Commission.

As the Perry Report demonstrates, decision makers often allow economic factors to outweigh all other evidence. This tendency makes preservation of ecological integrity difficult. The "pro-development ratchet effect" that pervades land management has been convincingly described by Steven Kennett. "A decision not to develop an area almost always leaves open the opportunity for pro-development decisions later on, whereas much development has the effect of severely limiting the possibilities for other land use options, some of which may be more environmentally and economically sustainable over the long term." ⁹

To provide a counter balance to the economic factors that traditionally dominate the decision-making process, more guidance should be provided on how to evaluate the environmental effects. This could be done either through regulatory amendments or through publication of a detailed policy. Environmental effects should include:

• environmental impacts of the proposal on the regional ecosystem;
• ability of the land to be restored to agricultural use; ¹⁰
• the overall provincial land-use policy, as expressed in the provincial Land Use Charter;
• "When making land and resource decisions, the province shall exercise caution and special concern for natural values, recognizing that human understanding of nature is incomplete;"¹¹
• the cumulative environmental effects that are likely to result from the project in culmination with other projects;
• the significance of the environmental effects referred to;
• measures that are technically and economically feasible that would mitigate any significant adverse environmental effects of the project;
• alternative means of carrying out the projects that are technically and economically feasible and the environmental effects of such alternative means.¹²
• the availability of any alternative locations that would be suitable for the proposed projects other than on agricultural land. Considering the scarcity of agricultural land in the province, and the importance of preserving this land, this is a crucial consideration.

Also, the legislation should clarify how all the factors are to be weighed.

Decisions of the Alberta Natural Resources Conservation Board are useful guides on how to weigh the factors.¹³ Rather than judging whether the proposal meets each of the three pillars of sustainability - economic, environmental and social - the Board decides whether the proposal produces a "net positive" for the public of Alberta. In the "Three Sisters" case, an application to construct a major recreational complex near the town of Canmore, the Board found that if the evidence on one of the three areas produced a finding which threw the balance of the decision toward the negative to a sufficient extent, it could reject the entire proposal on those grounds.¹⁴

The Board’s discussion on the public interest test in the West Castle case, an application to build a major recreational resort in an ecologically sensitive area near Waterton Lakes National Park, is also helpful. From the social and economic perspectives, the proposal was viable. However, when the Board reviewed the environmental effects of the development on the entire region rather than just on the project area, and considered the need for protected areas within the project’s proposed area, it decided that the project as proposed would not meet the test of sustainability and would not be acceptable without significant modification. ¹⁵

In the case of the ALC Act, agricultural factors should be more heavily weighted than as just one of a list. It appears that the legislature attempted to achieve this goal by adding the phrase "without limitation" in front of the phrase "agricultural effects".

Consequently, we recommend that the procedure for reporting on the probable agricultural, environmental, economic, social, cultural and heritage effects be amended by adding a new subsection to s. 43(2) of the ALC Act.

s. 43 (2) On conclusion of the public hearing, the board must submit to the Lieutenant Governor in Council

1. a written report in accordance with the written terms of reference specified under subsection (3), and
2. a summary of the evidence received and submissions made in the course of any public hearing held in accordance with the terms of reference, and
3. its recommendations on whether the application referred to in s. 43 (1) will provide for sustainability and a net benefit to agriculture. If the Board finds that any one of the categories of probable agricultural, environmental, economic, social, cultural and heritage effects, are negative and cannot be mitigated, it will recommend against approval of the application.

Endnotes

1. Farmfolk/Cityfolk Society v. David Perry et al.Date: 19980608 Docket: A980330 Registry: Vancouver.

2. Perry Commission Report, February 1993, at 53-54.

3. For example, the Supreme Court of Canada criticized Cabinet appeals in Canada (A.G.) v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735 at p. 756. Also see Gary Runka, "Agricultural Land and its Management" in Law Reform for Sustainable Development in British Columbia, (Canadian Bar Association: Vancouver, 1990) 10-15.

4. E.A. Dreidger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1993) at p. 87.

5. Section 10(1), ALC Act.

6. A Sustainability Act for British Columbia, Victoria: Commission on Resources and the Environment, 1994, 5.

7. The concept of sustainability is found in other Canadian statutes. For example, one of the purposes of the Ontario Environmental Bill of Rights is to "provide sustainability of the environment", s. 2 (1) (b), R.S.O. 1993, c. 28.

8. This definition is from the October 3, 1994 draft of the B.C. Environmental Protection Act, developed by the provincial government in consultation with a wide range of interested stakeholders from industry and nongovernmental organizations.

9. Steven Kennett, New Directions for Public Land Law, Canadian Institute of Resources Law: Calgary, 1998 Occasional Paper #4, at 8-9.

10. Conversion of agricultural land to a paved resort makes reconversion to agricultural use virtually impossible.

11. Land Use Charter, Principle 3 under the Sustainable Environment heading.

12. These latter four headings are all factors that are to be considered by law in conducting an environmental assessment pursuant to the Canadian Environmental Assessment Act.

13. The Board applies a "public interest" test" in deciding whether to grant approvals for projects that may affect the natural resources of Alberta The test is whether "in the Board's opinion, the projects are in the public interest, having regard to the social and economic effects of the projects and the effect of the project on the environment." Natural Resources Conservation Act, S.A. 1990, c. N-5.5, s. 2.

14. Application to Construct a Recreational and Tourism Project in the town of Canmore, Alberta, NRCB decision no. 9103.

15. Application to Construct Recreational and Tourism Facilities in the West Castle Valley near Pincher Creek, Alberta decision, NCRB decision no. 9201. Conditional approval for the project was granted, based on a number of preconditions and changes to the proposal.