Regulatory Options to
Preserve Burns Bog

Submission to Greg McDade, Advisor,
Minister of Environment, Lands and Parks,
for the Burns Bog Ecosystem Review.

January, 2000

Linda Nowlan, Staff Counsel
West Coast Environmental Law
Research Foundation

The focus of this brief from West Coast Environmental Law (WCEL) is on the range of regulatory and legal options that governments have to preserve Burns Bog. The brief is provided to the advisor for the purpose of expanding the public debate about the options that are available to government. Though regulatory solutions from all levels of government are available, this brief will focus on select provincial and municipal solutions that are most likely.

This brief is divided into six sections:

1. Provincial regulatory mechanisms to protect Burns Bog,
2. Municipal regulatory mechanisms to protect Burns Bog,
3. Federal regulatory mechanisms to protect Burns Bog,
4. International regulatory mechanisms to protect Burns Bog,
5. Private land regulatory mechanisms to protect Burns Bog, and
6. Innovative solutions to protect Burns Bog.

Regulatory options to preserve the Bog exist primarily at the provincial and municipal legal levels.

The most obvious option is for the province to purchase the Bog outright. This has been attempted on several occasions in the past, but no purchase agreement has ever been completed. The province still has the ability to negotiate to buy the land from the private landowners. Now may be an opportune time to resume negotiations as the partners involved in the largest private landholding in the Bog are suing each other.

Regulatory action could also be taken by the government to ensure that the ecological values of Burns Bog are maintained. This could involve passage of a new wetlands protection law; or regulations designed to prohibit activities which would harm the Bog, such as cranberry farming, sand extraction or future industrial, commercial or residential development.

If negotiations to purchase the property continue to be unsuccessful, the provincial government also could expropriate Burns Bog. Expropriation could be done by statute and could specify either that no compensation would be paid or could follow the compensation regime established by the applicable expropriation laws.

Each provincial regulatory option is discussed in more detail below.

Current Provincial Legal protection for Wetlands – the need for a wetlands reserve act

Long term preservation of Burns Bog and other wetlands in BC requires new provincial legislation. When significant ecological values are at stake, the public’s right to intervene through government action is well established. On two occasions in British Columbia the government passed laws to protect land of significant ecological value which provided that no compensation would be payable to affected private landowners. The two examples are the creation of the agricultural land reserve in 1972 and the creation of the forest land reserve in 1994. On both occasions the unique value of these types of lands was recognized, and protected by a reserve system. Both statutes contained specific provisions that no compensation would be paid to owners of land placed in these reserves:

• No compensation for reserve land - s.36 Land is deemed not to be taken or injuriously affected by its designation as an agricultural land reserve. (Agricultural Land Commission Act, RSBC 1996,c.10)
• No compensation for reserve land - s.36 It is conclusively deemed for all purposes, including for the purposes of the Expropriation Act, that land is not taken or injuriously affected because of its designation by or under this Act as forest reserve land. (Forest Land Reserve Act, RSBC 1996, c.158.

The province could similarly pass a Wetlands Reserve Act and establish a wetlands reserve. This act would state that no compensation would be payable for land that was designated as part of the wetlands reserve. The definition of wetland would include Burns Bog. The land would remain open to some uses which could be proved not to negatively impact the Bog’s integrity, such as operation of a nature interpretation centre and/or scientific research centre or other educational facilities, with decisions on acceptable uses delegated to the provincial Land Commission.

A Wetlands Reserve Act would fill a prominent legal gap in environmental protection in the province. While there are many laws that can be used for wetland protection in BC, there is no specific provincial law or policy focused on protection of wetlands. Since legal responsibility for the water in wetlands, the fish in the wetland, the wildlife that depend on the streamside habitat, and the land beside the wetlands streams is found in different levels and branches of government, the result is often a lack of accountability.

A Ministry of Environment, Lands and Parks working group on wetlands has identified a number of shortcomings with the legislative and policy regimes that leave wetlands vulnerable to exploitation. These include: a lack of adequate measures to protect wetlands in non-forested areas, private lands and water bodies without salmonid presence; and shortcomings of the Wildlife Act, the Fish Protection Act, and the Forest Practices Code.

WCEL recommends that a Wetlands Reserve Act is the best legal option for the preservation of Burns Bog.

Other Regulatory Solutions – Prohibiting Harmful activities

Currently permitted activities that are most likely to harm the Bog are cranberry farming and sand extraction. In the short term, the province has the legislative authority to prohibit these activities and to protect Burns Bog by using one of the statutes listed below. Each grants the government broad powers to regulate for environmental protection. Depending on the statute, the Minister of Environment may act alone, or Cabinet may take action directly and quickly. In each example, there is no need for the legislature to be in session.

Environment and Land Use Act

This Act establishes the Environment and Land Use Committee (ELUC), which reports directly to Cabinet. Environment Minister Joan Sawicki currently chairs ELUC. This Committee has wide ranging powers related to the environment and land use, listed in s. 3 of the Act:

1. to establish and recommend programs designed to foster increased public concern and awareness of the environment;
2. to ensure that all the aspects of preservation and maintenance of the natural environment are fully considered in the administration of land use and resource development commensurate with a maximum beneficial land use, and minimize and prevent waste of those resources, and despoliation of the environment occasioned by that use;
3. if considered advisable, to make recommendations to the Lieutenant Governor in Council respecting any matter relating to the environment and the development and use of land and other natural resources;
4. to inquire into and study any matter related to the environment or land use;
5. to prepare reports, and, if advisable, to make recommendations to the Lieutenant Governor in Council

Based on these powers, ELUC could examine the currently permitted uses in Burns Bog, and determine whether they are compatible with preservation of the wildlife and continued intact ecosystem functioning of the Bog. The ELUC could recommend to Cabinet that regulations be passed to prohibit certain activities in the Bog that are causing or may cause environmental degradation:

• currently permitted uses (e.g., cranberry farming, sand removal, road construction, tree cutting) and
• any planned future uses (e.g., any residential, industrial or commercial development unless authorized by the Ministry of Environment, Lands and Parks).

Cabinet has the authority to act on ELUC’s recommendations, "despite any other Act or regulation", and may make orders that it "considers necessary or advisable respecting the environment or land use." (s.7) This extensive order-making power could be used to prohibit harmful activities in the Bog, and to achieve any number of other possible goals with respect to the Bog.

ELUC also has the power to order an inquiry "if it appears to the committee that the proper determination of any matter within its jurisdiction requires an inquiry".(s.4)

Environment Management Act

This is another far reaching statute. Section 2 extends the duties, powers and functions of the Minister relating to the management, protection and enhancement of the environment to include, but not be limited to:

1. planning, research and investigation with respect to the environment;
2. development of policies for the management, protection and use of the environment;
3. planning, design, construction, operation and maintenance of works and undertakings for the management, protection or enhancement of the environment;
4. provision of information to the public about the quality and use of the environment;
5. preparation and publication of policies, strategies, objectives and standards for the protection and management of the environment;
6. preparation and publication of environmental management plans for specific areas of British Columbia which may include, but need not be limited to, measures with respect to the following:
1. flood control;
2. drainage;
3. soil conservation;
4. water resource management;
5. fisheries and aquatic life management;
6. wildlife management;
7. waste management;
8. air management.

The authority to make environmental management plans, in particular, is a valuable potential regulatory solution for preservation of Burns Bog. A management plan could contain measures to manage wildlife, soil conservation and water resources, including the prohibition of harmful uses. Management plans made under section 2 are binding only when the Minister has made a declaration under s.4 of the Act and the Lieutenant Governor in Council has requested preparation of a management plan and subsequently accepted or modified the plan. This regulatory tool has been used to protect another ecologically significant wetland area, the Cowichan Estuary. A Management Plan for the Estuary was approved by Order in Council pursuant to this Act.

The Minister may make environmental protection orders under s. 4 of the Act and declare that an "existing or proposed work, undertaking, product use or resource use has or potentially has a detrimental environmental impact."Once this order is made, and without the need to hold a hearing, the Minister can make an interim order under (s.3), valid for 15 days:

1. restricting, modifying or prohibiting the operation of the work or undertaking, or the use of the product or resource, or
2. generally requiring the person to do anything that the minister requires to be done with respect to the work or undertaking, or the use of the product or resource.

In the case of Burns Bog, this means the Minister could act alone to immediately prohibit harmful activities. Cabinet may then extend this order either permanently or for a specified period. Notification of affected persons is required, but again there is no requirement to hold a public hearing, s.5.

Environmental Assessment Act

The BC Environmental Assessment Act examines the potential environmental effects of projects and activities before government agencies grant approvals that may result in habitat loss or environmental damage or destruction. Depending on the outcome of an environmental assessment, a project may not be approved, or may be modified to minimize any environmental impacts.

The government could amend the Environmental Assessment Reviewable Projects Regulation to prescribe that any project or activity undertaken in Burns Bog constitutes a "reviewable project" for the purposes of the Act.

The Lieutenant Governor in Council under 3 (1) may make regulations prescribing what constitutes a reviewable project for the purposes of this Act, and may categorize projects according to, among other things, location, potential for adverse effects, or on any other basis that the Lieutenant Governor in Council considers appropriate. (s.3(2))(a)). The Minister could also exercise her authority pursuant to s. 4 of the Act and designate any project or activity proposed for Burns Bog as a reviewable project, even though it does not constitute a reviewable project under the regulations if she is satisfied that the project "has or may have a significant adverse effect and that the designation is in the public interest" (s.4)

If an environmental assessment is ordered, the Act prohibits proceeding with the project without approval, s.5. This course of action would allow the Minister of Environment to temporarily prohibit all harmful activities from taking place in the Bog until the assessment was concluded. The assessment could recommend that no approvals be given, allowing for a permanent order restraining the operation of activities damaging to the ecological integrity of the Bog.

HERITAGE CONSERVATION ACT

This Act also allows for the government to order the cessation of any activities that would harm Burns Bog. A temporary protection order prohibiting any alteration may be made for a property that "has or may have heritage value and is likely to be altered for any reason". (s.16) The definition of "heritage value" is "the historical, cultural, aesthetic, scientific or educational worth or usefulness of a site or object". Burns Bog could qualify as a worthy and useful scientific and educational site. This order is valid for a period of up to 120 days. If the Minister planned to designate the site as a heritage site, then compensation would ultimately be payable, but the temporary order is a regulatory tool that could be used in the short term.

WILDLIFE ACT

Under this Act, the Minister has broad authority to protect wildlife. The habitat protection measures are limited to Crown land, for the most part. However, s. 109 of this Act provides that the minister may make regulations:

2. prohibiting, restricting or allowing access by members of the public to designated areas of British Columbia, for the purposes of wildlife management; and
3. with the approval of the minister responsible for the highway or road, for the temporary closure of or for the imposition of restrictions on vehicular access to a highway or road, or part of either, for the purpose of protecting wildlife;

These sections do not state that they are limited to Crown land. Therefore, this Act provides additional potential regulatory tools that could be used to protect wildlife in Burns Bog and prohibit public access (and consequently harmful human activities)to the Bog. Restricting access to privately owned land is likely to involve claims of expropriation and compensation, so this set of tools is less useful than those described above.

Provincial Economic Incentives

The province could also provide economic incentives to the private landowners to encourage them to donate the land for preservation. For example, the province could:

• forgive the $830,000 in outstanding property taxes that Delta Fraser Lands currently owes,
• exempt Delta Fraser Lands from paying property taxes for the next one or two years until the land donation is complete,
• forgive the $25 million loan it advanced to Delta Fraser Lands in exchange for donation of the land.

Expropriation without Compensation

In Canadian law there is no absolute legal right to compensation when government interferes with property rights. Unlike in the United States, property rights are not entrenched in our constitution. Legislation can take away, or provide for entitlement to compensation at any time.

There are certain legislative presumptions, which may be overcome by clear statutory language. Legislation is presumed not to authorize the expropriation of land without compensation unless the statute clearly shows a contrary intent. If the statute is clear that compensation will not be paid, that direct statement of intent will be the law. The province may only expropriate land where it is authorized to do so under another separate law. This option of outright expropriation without any compensation payable to the landowners is politically unpalatable and unlikely. But it is a powerful option available to the government, and should not be ignored.

Expropriation with Compensation

Alternatively, the government could expropriate Burns Bog by legislation and provide that compensation would be payable.

If expropriation occurs, WCEL recommends that the government allow members of the public to make submissions on the appropriate measure of compensation in this case.

The provincial Expropriation Act provides that the basic formula for compensation is the market value of the owner’s interest in the expropriated land plus reasonable damages for disturbance. Market value is defined as "the amount that would have been paid for it if it had been sold at the date of expropriation in the open market by a willing seller to a willing buyer." Using this definition, as it is unlikely that buyers exist for a property that has been so controversial, and where development proposals have been repeatedly refused, the market value would likely be similar to previous offers to purchase made by the provincial government. WCEL submits that compensation payable to the private land owners in Burns Bog should not be based on the full development potential of the land, which is unlikely to ever be realized. Development has been proposed on a number of occasions by these and other private landowners. On each occasion the relevant authorities have refused to grant permission for these development schemes. Given that development is unlikely to ever be approved on the scale originally contemplated by the landowners, the amount of compensation should not be unrealistically inflated.

It is also notable that in the current lawsuit between the partners of Western Delta Lands Partnership, the lawyers have stated the need to obtain expert appraisal evidence on the value of the land because of the "huge discrepancy" between the cost of the lands to the Partnership and "the values assigned to the lands by the [one of the parties] for other purposes."

As the Ecosystem Background Report states "current zoning allows the owners to carry out activities such as limited agriculture – including cranberry farming – as well as sand, gravel and peat extraction and other industrial uses." The local government could cuse its zoning and land use control powers to preserve the Bog.

Both the common law and the Municipal Act are clear that compensation will not be payable to landowners when a local government restricts the use of their land, except in very limited circumstances.

Legal texts confirm this general rule:

"In practice, it is rare that losses resulting from the exercise of planning powers give rise to a right of compensation for the property owner."

"It is well settled that owners may be compelled to surrender some value or future value of their land to the local authority and no price has to be paid."

There are several regulatory options available to the municipal government of Delta under the Municipal Act.

It could:

1. prohibit the uses most likely to damage the ecological integrity of the Bog, such as cranberry farming and sand extraction;
2. designate the Bog as a development permit area for the protection of the natural environment, including specifying areas that must remain free from development; and/or
3. change the zoning to allow only uses that would not harm the Bog such as a designation of "parks, recreation and open space".

Prohibiting Harmful Uses

Section 903 (4) of the Municipal Act expressly provides that the zoning bylaw authority extends to prohibiting land uses. Delta could amend the zoning bylaw applicable to Burns Bog to prohibit uses that damage to the ecosystem.

The sole restriction on the zoning power relates to prohibiting farming uses. Local governments may not restrict farming by bylaw unless the Minister of Agriculture and Food (MAFF) approves the bylaw. Delta could obtain approval from MAFF for any bylaw that restricted cranberry farming in the Bog.

Designation as a Development Permit Area

Delta could designate Burns Bog as a development permit area. Development permits are one of the strongest municipal legal tools for protection of urban green space.

Development permit areas (DPAs) are designated in an Official Community Plan and may set additional or different requirements than the zoning bylaw which otherwise applies in the area. No development can take place in a development permit area until the permit has been obtained. s. 920 (1).

The DP designation may specify areas that must remain free from development. This is particularly valuable for protecting ecological features such as the peatlands, wetlands and habitat areas for rare or endangered species in Burns Bog.

The terms imposed by a development permit must be authorized by the Municipal Act, s. 879 (1). The DP designation relevant to this case is a) protection of the natural environment, its ecosystems and biological diversity.

DPs that are designated to protect the natural environment may do one or more of the following:

1. specify areas of land that must remain free of development, except in accordance with any conditions contained in the permit;
2. require specified natural features or areas to be preserved, protected, restored or enhanced in accordance with the permit;
3. require natural water courses to be dedicated;
4. require works to be constructed to preserve, protect, restore or enhance natural water courses or other specified natural features of the environment;
5. require protection measures, including that vegetation or trees be planted or retained in order to
1. preserve, protect, restore or enhance fish habitat or riparian areas,
2. control drainage, or
3. control erosion or protect banks., s. 920 (7).

Development permit areas with precise guidelines provide some assurance that sensitive habitat will be protected through site specific requirements. This is a valuable legal tool for Delta to use to preserve the Bog.

Changing the Zoning

The issue of "down zoning" is a complicated one. The Municipal Act rebuts the presumption that legislation will not be interpreted to authorize expropriation without compensation unless there is clear language to that effect. Section 914 of that Act states that changes in zoning will not give rise to a right to compensation unless the bylaw restricts the use of land to a public use. Courts have said that this section of the Municipal Act must be narrowly interpreted. The exception should be limited to the ambit clearly expressed. The municipal government would have to carefully consider how to change the zoning without triggering this "public use" exception in the case of Burns Bog. Uses that could be allowed include nature interpretative centres, scientific research stations, demonstration eco-efficiency and zero waste discharge facilities, for example.

The municipality of Delta could follow the example of the District of Northern Vancouver in a recent case by changing the zoning of Burns Bog to parks, recreation and open space. The District of North Vancouver successfully changed the zoning on land owned by the federal Canada Mortgage and Housing Corporation (CMHC) agency from residential to parks, recreation and open space. The CMHC sought to quash the zoning bylaws, which made these changes. The court found that the bylaws left uses available for the land, even though the uses were unsatisfactory to CMHC. As there was no evidence that the District was trying to acquire the lands or hold them pending future decisions, the bylaws were valid. Mere restriction of uses will not justify quashing a bylaw.

Three additional recent cases illustrate that compensation claims for land use restrictions for legitimate environmental purposes are unlikely to succeed.

The first example shows that Courts have allowed bylaws to impose dramatic changes in the use of land without giving rise to a right of compensation. In MacMillan Bloedel Ltd. v. Galiano Island Trust Committee the logging company was a large landowner of land in a forest zone, which it wanted to sell for residential uses. The local trust committee increased the minimum parcel size to 50 acres, which effectively sterilized the use of the land for residential purposes. At trial the company succeeded in having the zoning bylaws quashed. The trial Judge found the bylaws were beyond the trust committee's powers, discriminatory and passed in bad faith. On appeal this judgement was reversed. The Court of Appeal held that the Trustees acted within the scope of their legislative authority especially considering the objects expressed in Section 3 of the Island Trust Act "to preserve and protect the trust area and its unique amenities and environment." This case shows that when a provincial statute clearly states environmental protection objectives, those objectives will be taken into account in a Court's review of bylaws that affect private property owners. A zoning change, made under the authority of an existing environmental statute such as the Wildlife Act or Environment Management Act, or in conjunction with a new Wetlands Reserve Act, would similarly likely be upheld in the case of Burns Bog.

The second recent BC case held that a 30 metre setback requirement contained in a development permit for the purpose of fish protection did not amount to expropriation without compensation. In Bignell v. Municipality of District of Campbell River, the landowner argued that his lot had been "rendered of limited value" and was "unsuitable for almost any purpose" because most of the land could not be built on as a result of the setback requirement. The property had been purchased for his used car business. The local government agreed to issue a development permit subject to drainage and setback conditions to protect fish habitat, based on DFO Guidelines. The property owner disputed the drainage condition, and it was eventually removed, but the setback distance from the creek was increased from 15 to 30 metres. The property owner sued. He argued that the municipality had expropriated the lot for public use without compensation. The judge admitted that imposing the setback, which he said was a "reasonable condition" had the practical effect of rendering the land "undevelopable." But the shape of the lot and the location of the creek, not the setback, caused the change in usability: "Had the petitioner been willing to comply with the drainage condition, it would have been free to develop the lot… The respondent was willing to allow development of the lot, but not environmentally dubious development."

In the case of Steer Holdings Ltd. v. Manitoba, a company planned to develop land bisected by a creek. The province passed a law which prohibited the issuance of a building permit for any construction spanning a water course. The company sued for compensation on the ground that its land had been confiscated. The action failed at both trial and appeal levels. The Court of Appeal reviewed the common law applicable to the case and said that to determine whether expropriation had occurred, it was necessary to find some level of benefit to the government:

"To qualify for compensation there must be an expropriation, if not in name, then in effect. The limitation on usage must be balanced by some corresponding acquisition by the authority. Thus, zoning bylaws passed by municipalities do not give rise to claims for compensation, and this is so even where there is a "downzoning" by which the owner’s use of property is restricted…The fact that the bylaw has imposed greater limits on the use of the land is not, in itself, a ground for declaring the bylaw invalid…. However, where the bylaw is merely a disguise for an attempted confiscation of the land without compensation, the bylaw will be set aside."

Whether any private uses remain available to the landowner is the key factor that must be examined when looking at the issue of whether the land in question has been converted to a public use. Protecting ecologically valuable wetlands of regional and global significance such as Burns Bog is a public purpose which could be statutorily authorized by a new Wetlands Reserve Act or another existing environmental protection statute. Zoning changes to achieve this protection will not give rise to compensation as long as there are still private uses available.

The Government of Canada’s policy on wetlands conservation states that wetlands are among Canada’s most threatened ecosystems and commits the government to "no net loss" of wetlands.

There are a number of regulatory options available at the federal level to help protect Burns Bog. The most promising options provide economic incentives to the landowners to donate the land as a park or nature reserve.

The Income Tax Act is a notable example. The ecological gift provisions under the Income Tax Act of Canada encourage private landowners to make donations of ecologically sensitive land to either governments or to registered non-governmental organizations. In exchange, a tax credit is received by the landowner. This provision has been limited in utility due to restrictions on the amount of the tax credit that a landowner could obtain. However, it is very likely that upcoming amendments to the Income Tax Act planned for the 2000 federal budget will remove these restrictions. The government is poised to amend the Income Tax Act to exempt, or significantly reduce, the deemed capital gains tax payable on the donation of certified ecological gifts of land. The private landowners in Burns Bog could obtain a substantial benefit by donating their land under the ecological gift procedures.

Another upcoming federal law, which could be of great assistance in the preservation of Burns Bog, is the proposed Federal Species at Risk Act (SARA). The Act will contain both "carrots" and "sticks" that could be useful tools to preserve the Bog. The stick, or sanction, will be habitat protection provisions that will apply to private land, and restrict activities that threaten or harm the habitat of listed species. This new law, which will be introduced in the next two months, may substantially alter the permissible uses of the Bog.

In conjunction with the introduction of SARA, the Government of Canada is also releasing a stewardship strategy that is reported to include a national Stewardship Fund, the "carrot" or incentive, for private landowners to protect habitat. The Fund will be directed towards private land owners and may provide direct cash benefits for protection of habitat of species, and other incentives for land owners to maintain the habitat of species at risk. Burns Bog is home to a number of species at risk, as the detailed ecosystem review has revealed. The Stewardship Fund will complement the Act, and provide incentives for landowners to preserve habitat.

A number of international environmental treaties illustrate the importance the global community has placed on preserving wetlands, biodiversity, habitat and unique natural heritage sites. Canada has signed many of these treaties such as the Migratory Birds Convention, the World Heritage Convention, the Biodiversity Convention, and most significantly, the Ramsar Convention on Wetlands of International Importance. The legal obligations assumed under these treaties are limited. So for example, though Canada agreed in the 1992 Convention on Biological Diversity, to regulate or manage biological resources important for the conservation of biological diversity whether within or outside protected areas, with a view to ensuring their conservation and sustainable use, this obligation is limited by the phrase " as far as possible and as appropriate". The prevalence of these "escape hatches" in many treaties reduces their overall power and effectiveness. Nonetheless, the treaties are legal documents and, as Canada’s Commissioner of Environment and Sustainable Development has noted:

"Canada has often played a key role in shaping the international environmental agenda, and is a party to a significant number of agreements. In entering into these agreements, Canada has made commitments to the international community and, under international law, is bound to carry out those commitments in good faith."

The federal government should be encouraged to play a role in the preservation of Burns Bog to fulfil its environmental treaty obligations, specifically those it has under the Ramsar Convention.

Ramsar Convention

This treaty is of particular significance for the preservation of Burns Bog. The Convention on Wetlands of International Importance, signed in Ramsar, Iran, in 1971, is an intergovernmental treaty which provides the framework for national action and international co-operation for the conservation and wise use of wetlands and their resources. There are presently 116 Contracting Parties to the Convention, with 1005 wetland sites, totalling 71.7 million hectares, designated for inclusion in the Ramsar List of Wetlands of International Importance. There are 37 Ramsar sites in Canada. BC has 2 of these sites: Creston Valley and the Alaksen National Wildlife Refuge.

Canada is committed in particular to increasing the number of peatland systems in the Canadian Ramsar Network.

The Canadian Wildlife Service (CWS) solicits nominations for Ramsar sites from provincial, territorial, federal and nongovernmental organizations, and formally presents those nominations that meet specified criteria to the Ramsar Bureau in Switzerland. Burns Bog is a prime candidate for Ramsar designation, has been proposed as a Ramsar site in the past, and would likely meet the criteria for inclusion on the list of Ramsar sites. The CWS has expressed interest in adding the Bog to the Ramsar list, but will promote a proposed site only if there is concurrence from the province where the site is located, and agreement from any private landowners.

Placing a site on the Ramsar list does not mean that the site cannot be altered, only that conservation of the site must be "promoted" and nature reserves on the site are also to be "promoted". However, some protection is available, for if a site is being degraded, it can be placed on the "Montreux Record", a list maintained by the Ramsar Bureau, which can be embarrassing for the national government where the site is located. The "wise use" principles of the Ramsar Convention would also be a valuable guide on maintaining the Bog’s ecological integrity.

The federal government should be encouraged to contribute financially to the purchase of Burns Bog, with the goal of eventual designation as a Ramsar site.

There are a number of options available to preserve privately owned land. For a full catalogue of these options, see Here Today, Here Tomorrow: Legal Tools for the Voluntary Protection of Private Land in British Columbia (WCELRF, 1994). Some of these legal tools could be used by the private landowner to preserve Burns Bog.

In return, the landowners could be granted tax credits, such as those under the Income Tax Act discussed under the section on federal regulatory mechanisms above. In addition, they would be eligible for property tax reductions, if, for example they placed a conservation covenant on the land they owned. There may be a number of other legal tools under the private land regime that would enable the land to be preserved.

In addition to the catalogue of regulatory options described above, there are other potential innovative solutions, which the Burns Bog Ecosystem Review should examine.

For example, the provincial government and the private landowners could explore the issue of a land swap. The landowners could be offered other land available for development, in a suitable area, such as vacant industrial land slated for redevelopment. In exchange, the landowners would donate their holdings in Burns Bog to the province.

There may be options for granting the private landowners some credits for the Bog’s unique ability to sequester carbon dioxide and methane, which are greenhouse gases contributing to climate change. Corporations that are having trouble meeting their greenhouse gas emission reduction targets under the Kyoto Protocol to the Framework Convention on Climate Change may wish to explore the option of paying the landowners in Burns Bog to maintain this land as a sequestration source for methane and carbon dioxide. The Kyoto Protocol does not currently authorize this option, but sequestration rules are currently under negotiation, and many corporations are exploring different options for emissions credit trading even in the absence of binding emission credit trading rules, or strictly regulated greenhouse gas emission limits.

Finally, some mix of these options may be available to preserve the Bog. A package of ecological gifting, purchase, expropriation, conservation covenants, land swaps and other options could be crafted to provide a solution. The solution should be acceptable both to the public who has vociferously expressed its desire to preserve the entire bog, and to the landowners.

As the Technical Review Summary Report notes: "Burns Bog has considerable significance both at a global and regional context; within Canada and in Holarctic, it is exceptional and unique, particularly from a geographic / climatic perspective…" and also that: "Current policy, legislation and international obligations do not currently address Burns Bog very well. "

The government of BC has the obligation to protect this irreplaceable globally significant natural heritage site. The residents of the province have repeatedly demonstrated that they support preservation of Burns Bog. Though the current legal structure contains no obvious solutions to the problem of preserving the Bog, there are legal tools available to help reach a solution. A creative mix of these tools, combining incentives and regulatory restrictions, can be crafted to satisfy most, if not all, of the competing interests at stake in the Bog. In the short term, the government can and should act under its existing legislative authority to prohibit any harmful activities in the Bog.