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STAKES IN THE GROUNDProvincial Interest in the Agricultural Land Commission ActA report to the Minister of Agriculture and Food
Table of ContentsIntroductionPart One: Defining Provincial Interest: The Basics
Part Two: Defining Provincial Interest: Balancing Agriculture and Other Uses
Part Three: Open and Accountable Decision-Making Processes
Appendices IntroductionIn British Columbia, less than 3% of our land can support agriculture; less than 1% is class one soil. As an example of unique environmental conditions affecting specific needs, less than 0.01% is suitable for tree-fruit production.{1} Prior to the introduction of an Agricultural Land Reserve in 1973, 6,000 hectares (15,000 acres) of agricultural land were lost to urban growth each year.{2} In 1997, 90% of British Columbians felt that government should limit urban development to protect farmers and farm land; 72% believed it should be difficult or very difficult to remove land from the ALR.{3} This is the report of my review of "Provincial interest" as a condition for Cabinet involvement in decisions under the British Columbia Agricultural Land Commission Act (the Review). The BC Ministry of Agriculture and Food appointed me for this Review on a part-time basis from May 6 to September 10, 1998. I am the Dean of Agricultural Sciences at the University of British Columbia, with a professional background in land planning, landscape architecture, and development. With the help of the Ministry of Agriculture and Food a background paper was available to the public on May 6, 1998. I then prepared a Discussion Paper dated June 15 (revised July 2, 1998), and conducted a series of interactive consultations throughout June and July, 1998; the stakeholder process culminated in an Options Paper dated July 31, and a Stakeholder Workshop on August 21, 1998.{4} I was fortunate to link this Review’s stakeholder consultations with the Ministry’s Agri-Food Policy workshops. These six regional workshops were organized by the Ministry in June and July, 1998. During three months of consultations I spoke with many stakeholders personally, and exchanged ideas with many others by fax, telephone and e-mail. A special note of thanks must go to all who participated in and assisted with this work. Continuing population growth in BC will only increase pressure on agricultural lands. These lands, neither abundant or renewable, are a small fraction of the province’s land base. The agricultural industry and principles at stake are critical to the future of our province. The concept of the Act, and work of the ALC with the resources available, is commendable. Coincidentally, this year is the 25th anniversary of the policies and legislation behind our current Act and ALC, and a good time for reflection and refinement. The ContextThe Agricultural Land Commission Act{5} (the "Act") evolved in the mid-1970s with primary objectives to preserve agricultural lands and promote agriculture in the province, through the creation of an Agricultural Land Reserve ("ALR"), and a Provincial Agricultural Land Commission ("ALC"){6}. The ALC was empowered to act as an agent of the government to fulfill the objectives of the Act. In 1993, a Provincial interest reference process was introduced when general appeals to the legislative executive body in BC ("Cabinet") were abolished, including those to an Environment and Land Use Committee of Cabinet.{7} Amendments to the Act at that time included adding sections 40-44, which for the purposes of this Review are referred to as the "Provincial Interest Reference" as it is a referral of a matter by Cabinet to a board for a preliminary report (in short, the "Reference"){8}. The Reference process provides Cabinet with a pre-emptive override of the ALC process. The current Provincial Interest Reference process is initiated by Cabinet if, "[it] considers [a matter] to be in the Provincial interest" for Cabinet review (s.40). The process requires Cabinet to specify terms of reference, and refer the matter to an Environmental Assessment Board or commissioner, which,
The section 43 listing of effects is generally referred to as the "Balancing Test". On receiving the board or commissioner’s report, Cabinet may make a final and binding decision on the matter (s.44). In 1998 Cabinet invoked the Provincial Interest Reference process under section 40 for the first time. Mr. David Perry was the first commissioner under the existing process, and subject to Cabinet Guidelines at that time.{9} The Minister of Agriculture and Food, the Honourable Corky Evans, asked me to further consider several important issues raised by Mr. Perry. I was asked to review Provincial interest under the Act using a stakeholder consultation process. The assignment was to refine or clarify the concept of "provincial interest" and the Balancing Test. To focus the Review process, we re-stated the general objectives as two questions:
and
Whenever "provincial interest" refers to the recommended clarification proposed in this Review, it is noted and capitalized as in "Provincial Interest". The Review Process and ReportThe time frame of this Review was challenging given the topic, province-wide consultations, and my interest in interactive consultation and follow-up, not just input. The initial Discussion Paper was intended as both a report on what I had heard to date, and as a catalyst for more input from stakeholders. The Options Paper was intended to test underlying assumptions behind the Provincial interest question, and the context of the Review questions. The stakeholders have significant opinions about agriculture and its current status in the province. This final report of the Review is then both a response to the questions posed, and responsive to stakeholders’ concerns about the future. This report is not a consensus document, nor a result of a full public consultation process. It is the product of listening, discussion, research and my professional judgment. The consultation approach was intended to provide me with a sense of the problem and its scope. The consultation aspect grew with the opportunity to link with the Agri-food policy workshops, however this Review was never structured as a public participation process. Some consultation respondents focused on concerns about process, some on weighting and rating of the Balancing Test factors, and we all brought our own values and beliefs to the table. However, during the consultation, parties with opposing views on politics and other matters frequently found common ground. They independently voiced strong opinions in favour of the preservation of agricultural lands and agriculture in BC. The report has been written for a public audience with minimal reference to where specific amendments relate to particular sections of the Act. I refer the reader to Appendix B for such details. I would like to extend thanks to the participants in the stakeholder consultation for their energy and commitment to the process. Mr. Ken White offered valuable layout assistance in the preparation of the final report. I would also like to thank the part-time Review secretariat at UBC: Ms. Shannon Pitney, Administrative Assistant; Ms. Carolyn McCool, Legal Researcher; and, especially, Mr. Paul Fenske, Research Assistant for their work above and beyond the call of duty. Part 1: Defining Provincial Interest: The BasicsRecommendation One: Define Provincial Interest in the ActThe expression provincial interest should be defined in the Act as province-wide public interest and should include consideration for:
Proposed Definition:
Supporting Argument This part of the Report (1) suggests an approach to defining "provincial interest" in the Act with three basic characteristics: substance, scale and process, and (2) proposes a definition. Should "Provincial Interest" be Defined?Yes, I have concluded that this expression must at least be clarified in principle, if not defined in detail. The Review consultations included spirited debate over whether a defined or undefined term is most desirable. However, my conclusion is based on the need to promote common understanding by defining terms of reference in an age of information overload and diverse backgrounds. I support clarifying "Provincial interest" to provide decision-makers with a framework for making more principled and consistent decisions over time. Clarifying this expression will promote a more accountable process, and narrow opportunities for interference or manipulation. My conclusion is consistent with a decision from the Supreme Court of Canada which considered "public interest", and concluded that in some situations such an expression needs clarification to avoid being unconstitutionally vague.{10} It is also consistent with a recommendation of the first commissioner faced with a Provincial Interest Reference under the Act, who advised further clarification.{11} As discussed below, the relevant questions then become where and how to clarify the expression "provincial interest". In the Act or Regulations?The Act. People expressed concern about the openness and accountability of the process. Clarification in the Act provides the safeguards of the legislative process. Including a definition or clarification in the Act would still permit changes, as we expect legislation to be improved over time. Although more detailed clarification may also be included in guidelines, policies or regulations, the framework for clarifying the provincial interest should be in the Act. What is the "Provincial Interest" and How Should it be Defined?The term "provincial interest" is broad and hard to pin down. We grappled with how to provide useful clarification without establishing a rigid definition. To build a definition, I initially looked at some of the concepts behind the words "provincial interest":
I identified three groups of characteristics that seem important to any consideration of provincial interest: substance, scale, and process.
Part of the challenge is that all three sets of characteristics or values need to be considered collectively for a decision to be in the provincial interest. Substantive values (such as "promotion of agricultural purposes is good") mean little if not applied by open and accountable processes (such as the Provincial Interest Reference process) or in the context of the appropriate scale (province-wide, long-term). Initially I thought of the two questions for this Review, namely the Definition and the Balancing Test, as separate. However, the process of thinking this through has revealed that the Balancing Test is an important aspect of refining the Provincial interest definition. I therefore arrived at a two-part definition or clarification of Provincial interest:
The following discussion briefly expands on the definition. (a) Province-wide context Scale is the first characteristic which is essential to a definition of Provincial Interest. Some people said - isn’t the scale of a "Provincial" Interest Reference obvious enough? Apparently not. A number of submissions and comments in my consultations, as well as the initial Cabinet guidelines of 1998, and the first Provincial Interest Commission, all had a tendency to slip to a context of regional-not provincial-interests. It is important to underscore province-wide scale and context. (b) Long-term consequences There is also a time element to a sense of scale. The Provincial Interest is about long-term consequences. This is even more critical because the Agricultural Land Reserve represents a scarce and important asset intended to benefit all British Columbians. Politics and economics tend to be based on short-term cycles: the Provincial Interest is about long-term consequences. (c) Open and accountable decision-making There were a number of thoughtful and strongly held concerns about the need to refine the Reference process. Although fine-tuning the process was not an initial focus of this Review, people suggested that good intentions mean little if not applied, or applied with a lack of integrity. Integrity in this context means a process which is fair, informed and accountable. The stakeholders consulted appreciated that the Reference process in the Act provided for separate review by an independent board, as well as the obligation for a public debate. They were, however, concerned about the fact that a matter may never reach that point of public discussion. What if (a) Cabinet chooses to ignore the matter? or, (b) the matter is effectively trivialized under poor terms of reference? or, (c) effective review of public debate is undermined if poorly administered or poorly considered? The Review consultations identified three areas in the Reference process as needing clarification: the start-up of a Reference, the importance of informed decisions, and the importance of an open and accountable process. Part Three of this report addresses these process issues. (d) Preservation and sustained use A general principle of public interest is that scarce and particularly sensitive or irreplaceable things are worthy of preservation and protection. This principle has evolved from cultural and natural heritage preservation legislation over the last century, and through environmental protection policies and laws of more recent times. This principle recognizes the value of a historical perspective as we make decisions about the future. Preservation policies work best when they integrate and support other uses. Increasingly, preservation objectives acknowledge that appropriate, sustained use of a resource is also in the public interest. For example, one definition refers to "the use and development of natural and physical resources in a way, or at a rate, which enables people to meet their needs now without compromising the ability of future generations to meet their own needs."{14} Fundamental to these expanded public policy statements, however, is the recognition and requirement that there will be situations where irreversible change to non-renewable natural (plants and animals) and physical (soil and water) resources must not be endangered. This fourth general principle of Provincial Interest, that of the value of preservation and sustained use of resources, is the foundation for the more specific objectives of the Act discussed in the Balancing Test which follows. It is worthwhile to note here the difficulty I had separating the Review of the specific term "provincial interest" from the greater context of agriculture, and beyond that, provincial and global issues. While I have chosen to make the very focused "preservation" argument, I am also aware that "times have changed" since 1973. We are approaching the millenium. Issues of globalization, food safety and security, bio-regional ecology, sustainable communities, rural and urban community form and technological growth should be influencing our policy-making. A much broader approach is needed to address the future of agriculture relating to the above issues. Preservation policies in isolation will not be enough. However, I believe strongly that the preservation argument holds strong in the Provincial Interest Reference context. Part 2: Defining Provincial Interest: Balancing Agriculture and Other UsesRecommendation Two: Re-affirm that the Protection of Agricultural Land is in the Provincial InterestThe preservation of agricultural lands and the promotion of agricultural purposes is in the Provincial Interest. In any balancing test to consider overriding the value of agricultural purposes, the following priorities are proposed:
Environmental and heritage values share a long-term perspective and a uniqueness with agricultural values. However, in the ALR these purposes on a site should only override agricultural purposes if they cannot be replaced or re-located to another non-agricultural site OR if these purposes result in a "no net-loss" to the agricultural capabilities of the area. No net-loss means replacing the land in the ALR with the same size or larger site that has equal or better agricultural capability. Economic, social and cultural factors reflect a short-term and often private instead of public perspective. For these reasons, they should factor little in any consideration of the Provincial Interest. Supporting Argument The above recommendation responds to the challenge of applying the basic principles of Provincial Interest to the specific subject matter of the Agricultural Land Commission Act. The following discussion provides a summary of the thinking behind the above recommendation. More detail can be found in Appendix B, Part V. Agricultural Lands and Purposes: The PriorityMost of us think "it’s obvious" that agriculture is important - but why? How important? The fact that agricultural land preservation was legislated in 1973 and has been supported and maintained every since is persuasive evidence that it is in the Provincial Interest. How does agricultural land preservation fit the proposed definition in Recommendation One? Public Benefits. All British Columbians benefit from the sustained economic returns from agriculture, the diversity of agricultural communities, and the safety and security of local food supplies. A pride in the quality of agricultural products ("Grown in BC"!) and the preservation of a limited resource for future options, also benefit all British Columbians. Long-term and province-wide scale. The benefits noted above are all positive, long-term consequences of the preservation of agricultural lands for agricultural purposes, and create a legacy for all British Columbians. Open and Accountable Process. The administrative provisions of the Act and the work of the Agricultural Land Commission could use some updating or clarification, but generally provide a very workable framework for decision-making. This framework promotes the integrity of the process, including building information bases, collaborating with public and private parties and developing the expertise for open and accountable decisions.{15} The above three principles confirm that the ALR is in the Provincial Interest; the fourth is why we give it priority status. The fourth general principle is that "the preservation and management of scarce and important provincial assets, particularly if sensitive or non-renewable" is in the Provincial Interest. Is it scarce? Less than 3% of our province’s land base can support a variety of agricultural uses; as low as 0.01% with the unique environmental, natural and physical capabilities for a given crop. Is it sensitive? Fertile soil and prime agricultural land compromise an extremely sensitive system which is effectively irreplaceable in the context of reasonable criteria of time and economics. Is it important? The Act was not merely to preserve agricultural lands under a bell-jar for museum reference, but emphasized the critical economic, social and cultural value of the agricultural use of these lands. These lands support one of the largest industry sectors in the province. They support communities and a way of life. They provide environmental and natural disaster buffers. They provide educational opportunities, and tourist and recreational visual amenities. They provide links to the past and opportunities for the future. As scarce, sensitive and important assets, preservation priorities would be properly assigned. However, in addition, this asset is endangered. Even in 1972, legislative records referred to the loss of agricultural land as a "tragic misuse of an irreplaceable resource".{16} Current figures estimate that at that time, prior to attempting to preserve agricultural land, 6,000 hectares (15,000 acres) of productive land was lost to urban, non-agricultural development per year. In the past twenty-five years urban and infrastructure development pressures have increased. What about so-called "marginal" or class 4 and 5 agricultural lands? Even "marginal" agricultural lands now support important industries such as cranberry production and processing, and fine BC vineyards and wine production (and associated tourism) - which were largely unknown in 1973. But thanks to the foresight of the Act the land resources were there to foster these (and other) new agricultural economic centres. What about the increasing need for urban/agricultural transition zones? Although there may need to be some rationalization of smaller marginal land parcels, too often larger projects "in the Provincial interest" in the past have claimed prime, fertile, class 1 agricultural lands for a net loss to all of us. For these reasons, I strongly recommend that we amend the Act to confirm the fundamental priority of preserving agricultural lands and promoting agricultural purpose. Agricultural purposes are the highest and best use for such lands. This is especially important for any Reference to other uses, to avoid misunderstanding, overlooking or abusing the intents of the Act. The time and cost of considering non-agricultural uses of agricultural lands should only be undertaken if likely to override this priority use. The Balancing Test: Focusing the Scope and PrioritiesThe existing section 43 establishes the Balancing Test as follows:
The Balancing Test currently provides a general background for a board to consider non-agricultural uses of agricultural lands, and report to Cabinet. My conclusion is that the basic principles and definition of Provincial Interest from Recommendation One (substance, scale and process) need to be applied to the specific context of agriculture. Only in this way is the Balancing Test consistent with the Act. Focusing the Scope. Why focus the scope of the Balancing Test? One good reason is sheer logistics. The broad range of information, the time and cost constraints, and the complex issues could risk losing sight of important fundamental principles. In fact, this appears to have happened when well-intentioned statements were made by reasonable people about the broad and flexible scope or effect of the section 43 Balancing Test.{17} Based on events earlier this year, the message could be taken that the erosion of an ecological and industry land-base preserve representing less than 3% of the province is okay if it involves something like a major transportation facility or a project important to a region. Even the court offered little consolation as it noted that such a result should be expected by the consideration of a "truly complex set of issues by the body politic."{18} The result has been to potentially open the floodgates to another wave of erosion of our limited agricultural land base. To Mr. Perry’s credit, in the Perry Commission Report he called for a review of the language of the Act to provide better direction on such considerations in future; to the Minister’s credit, he acted in appointing this Review. Perhaps part of the problem lies in looking for examples of how to balance values in typical planning legislation. It is important to note that the Agricultural Land Commission Act starts out several steps further advanced than such legislation. Planning legislation often responds to situations where there is a lack of information or an absence of values with set priorities. In the Act, however, we have the information (agricultural capability), and the value of such has been determined (high, based on limited supply, and market and not-market factors). Therefore models from other forms of legislation may not be useful. Establishing Priorities. The discussion above outlines my reasons for clearly confirming the priority in any Reference: the preservation of agricultural lands and agricultural purposes. The intent, however, is not to advocate zero-tolerance in the management of the ALR. There may be a need for the ongoing rationalization of lands of marginal agricultural benefit as more and better information is available on agricultural capability. I understand that the ALC currently seeks to provide such clarification by a due and informed process. Further, what we are talking about is establishing priorities in a very specific context: in a Reference which would override the assessment of unique lands previously deemed worthy of preservation in the Provincial Interest. Such an override should only occur due to a higher order of Provincial Interest. The Act currently identifies the effects of five factors as the subject for consideration under the balancing test, in addition to agricultural purposes. These are,
For reasons indicated below, I have considered these in two groups: (a) environmental and heritage, and (b) cultural, economic and social. a. Environmental and Heritage Factors There may be many uses compatible with the principles of preserving the scarce resources of agricultural lands and sustaining agricultural purposes. However, following serious consideration of various points of view, in my opinion, only environmental and heritage factors warrant consideration as in the Provincial Interest. They likely reflect a long-term perspective from the past to the future, and if sufficiently unique and important to be deemed worthy of preservation, they will be of public value to all British Columbians. These factors could be consistent with the principles of Provincial Interest if the proposed sites for such consideration (i) could not be replaced or relocated to a non-agricultural site, and (ii) could be implemented with a no net-loss to the agricultural capabilities in the area. Further considerations are that environmental and heritage factors are less likely to impair or endanger the sensitive and non-renewable conditions of agricultural lands. Also, such factors are less likely to lead to a creep or erosion of agricultural lands on a larger scale due to political or economic conditions. For these reasons, I am recommending that the probable effects of environmental and heritage factors be considered as proper considerations under a Provincial Interest Reference, and accorded secondary priority weighting. b. Economic, Social and Cultural Factors Economic, social and cultural factors are treated in a block here because of the context: whether such considerations are relevant to override the preservation of agricultural lands and the promotion of agricultural uses. These factors warrant tertiary consideration as in the Provincial Interest as they reflect,
There is also a serious risk management aspect to including the effect of economic, social and cultural factors in the Provincial Interest Reference. These effects are more likely to impair or endanger the sensitive and non-renewable conditions of agricultural lands, and such effects are more likely to lead to a creep or erosion of agricultural lands on a larger scale due to political or economic motivation from "precedent" decisions. The recommendation to relegate these factors and resulting effects to tertiary status is not one made lightly. I know that local economic viability is critical to community pride and to support important programs for education, health care and environmental research. I know that any number of provincial infrastructure facilities can be viewed as in the Provincial interest. However, we also know that destroying unique conditions or ignoring fundamental natural systems has devastating economic and community effects down the road. We need to look no further than our local fishery and forestry communities or the quality of our air. The priority here is not an abundant resource with a buffer for abuse or misuse. It is not prairie in a prairie province, forest in a forested province, or a fishery in a coastal province. The priority here is scarce, important agricultural land which represents a small fraction of our province. The priority here is not the preservation of lands to the exclusion of economic, social and cultural considerations, but for vital agricultural purposes which provide sustained jobs, food, sustained communities and ecological options. Therefore, the Balancing Test recommended above reflects the priority of agricultural purposes on agricultural lands, and on other irreplaceable resources of long-term importance such as environmental or heritage effects. We need to encourage extremely sober and careful second-thoughts in these decisions. If Cabinet feels strongly about a special project, I also understand that it has the ability to pass new legislation for that project. At least that would have the checks and balances of due legislative process, and would not confuse decision-makers addressing Provincial Interest References under the Act. We need to respect the stakes in the ground around agricultural lands. By doing so we will focus the need to apply our creative juices to more comprehensive decisions necessary for better use of non-agricultural lands. More comprehensive land management will better accommodate all forms of economic, social and cultural purposes, in ways that are consistent with the preservation of agricultural lands and the economic, social and cultural values of agricultural purposes. Part 3: Open and Accountable Decision-making ProcessRecommendation Three: Establish an Open, Accountable Decision-Making ProcessIn the exceptional cases when Cabinet reviews an application for inclusion, exclusion or designation change to agricultural land in the Agricultural Land Reserve, the decision-making process should be open and accountable. To accomplish this, I recommend the following:
Supporting ArgumentStart-upStakeholders frequently asked "who" should be able to initiate a Provincial Interest Reference process? There was also confusion about "when" a Reference could proceed relative to the ALC considering an application. Who can request a Reference? Stakeholders requested an amendment to section 40 in the Act to clarify who can request a Reference. An amendment should be considered to allow the ALC Commission, a regional district board or municipal council, or aggrieved owner to apply to the Lieutenant Governor in Council for a decision on a matter through a Provincial Interest Reference. However, I also appreciate that this right to apply must then be carefully filtered by Cabinet to avoid usurping the credibility and effectiveness of the ALC. I understand that there may be concerns with what are perceived to be appeals to Cabinet. Appeals to Cabinet were generally abolished with the intent of restoring the integrity of decision-making, particularly that of the ALC, by transferring greater decision-making authority to the ALC.{19} Concerns were expressed that Cabinet would either not be properly informed or would be influenced by political interest.{20} When do References occur? The "when" concern arises from the inference in section 40 which currently provides that the referral by Cabinet must be for a matter, "...that is before the commission at the time of the order making the referral". This seems to imply that the Provincial Interest Reference could only occur before a decision is rendered by the ALC, implying that a pre-emptive intervention is required. This timing also impairs the ability of others to approach Cabinet after an ALC decision with concerns of a breach of procedural fairness or the principles of discretion under the balancing test. What is more of a concern is the implication from the current phrase ("that is before the commission") that the Cabinet referral is intended to proceed as an overriding and intervening process, to preclude any ALC decision or, advising or even interactive submission. In procedural matters of "who" and "when" to initiate a Reference, I defer to experts on whether the right and timing to initiate a Reference by others is consistent with the intents and purposes of the Act and government practice. The threshold currently to initiate a Provincial Interest Reference is "if Cabinet considers it to be in the Provincial interest". Another point of clarification, is that this phrase was not likely intended to imply that Cabinet needed to make a pre-emptive assessment of the matter. Again the court has offered a reasonable interpretation: "Cabinet’s assessment at this stage is not a determination that the proposal is itself in the Provincial interest. Rather, Cabinet’s assessment is that the referral, itself, is in the Provincial interest."{21} (emphasis added) To save time and possible debate of this point by those of us who do not generally refer to judicial interpretations, an amendment to clarify section 40 should be considered, perhaps along the lines of "if Cabinet considers a Provincial Interest Reference to be warranted...". The "Provincial Interest Reference" process could then be defined as the proposed process described in amended sections 40 through 44. Informed DecisionsDecision-making itself is a challenge when dealing with important principles like agricultural land preservation with vast amounts of information that must be managed to be useful. Decisions in the public interest ought to be informed decisions. Therefore, a Provincial Interest Reference decision needs to be made using good judgment by those trained and experienced in making judgments in the public interest. These judgments must carefully consider information that is relevant and important. The first commission for a Provincial Interest Reference was criticized in regard to its process. It was suggested that the commission was unable to be adequately informed in the time frame provided, and that the participants in the public hearing were not adequately informed. Further, a good resource was likely under-utilized in that first Provincial Interest Reference process - that of the ALC. The Agricultural Land Commission has an established reputation as the experts in information management related to the Agricultural Land Reserve. The Commission needs to be supported in the effective development of this role and more involved for effective Provincial Interest Reference processes in future. I agree with and recommend amendments to the Act to confirm the following important suggestions for improved integrity and credibility of information in the process:
Open and AccountableMany suggestions were made to clarify the process and perception by the public of process integrity. The entire Provincial Interest Reference process can currently proceed without (a) briefing the public before a hearing on the facts, without (b) a report from the ALC, and without (c) public review of the Board’s report before the Cabinet makes a decision based on the report. Any (public) Provincial Interest process must be open to the public. The following three amendments support an open public process:
Accountability refers to the need for a check and balance on all decisions affecting the ALR, including Provincial Interest Reference exclusions, inclusions, changes in designation or orders. Important considerations include the following: Keeping Local Authorities and ALC Accountable Clarifying who can approach Cabinet with a request for a Provincial Interest Reference (see comments under Start-up, above) will provide a check to benefit all parties except as against a Cabinet order. Keeping Cabinet Accountable Throughout the history of the Act, a major concern has been to help Cabinet make more informed decisions and to avoid the taint of improperly considered decisions, thereby increasing public confidence in the Reference process. Building on the concept of the scale of "provincial interest", and the problem of repeated confusion with "regional interest" by decision-makers, I suggest a requirement that the public hearings be held in each of the six regions of the province. This would help to preserve the credibility and intent of a "Provincial" Interest Reference. The cost to the taxpayers would also help give pause to decision-makers who might otherwise lightly consider invoking a Reference. In future, both the public hearing process and quality of information for decision-making could be improved by using an information technology approach to this public consultation problem through the internet, television or other means. Stakeholders expressed concerns that Cabinet not act capriciously or ignore reasonable parameters for decisions.{22} Even well-intentioned decision-makers sometimes need reminders of key considerations and a framework for decisions. I strongly recommend an amendment to require that any final decision of Cabinet under a Provincial Interest Reference be based on Provincial Interest as defined in the Act. For example, amend section 44 to read, "...may decide, as in the Provincial Interest, the outcome of the matter..."[additional phrase italicized].{23} In a similar sense, the Balancing Test should be part of the process and Cabinet accountability. If the test is clarified, (a) who is bound to consider these effects? and (b) can this test be varied by other requirements? Under the current Act, it is unclear how Cabinet could limit or extend either the scope of effects or factors themselves. Or how Cabinet can affect weighting or relative importance, by issuing guidelines or by giving directions through the terms of reference for the Board. The Act is also silent about the need for Cabinet to make its final decision in accordance with the Balancing Test. For the benefit of Cabinet and Cabinet advisors, commissioners and the courts in determining what considerations should guide Cabinet decisions, and for greater integrity of the process, Cabinet decisions should also be made in the Provincial Interest using consistent factors. Keeping the Land Owner Accountable If a project is given a go-ahead in the Provincial Interest there are minimal safeguards that the project will proceed as "promised" or on the conditions required. The Act provides for a registered covenant under section 19 currently, and this could be used with a tool like an "exclusion contract" with an owner to provide the text of conditions for a covenant to be registered against title to the land. The ALC should also be supported to develop a variety of mechanisms in the support of agriculture in the province, whether exclusion contracts, or betterment recapture plans. PART 4: Going ForwardRecommendation Four: Promote Integrated Land Management and Agricultural InnovationWhile I believe strongly in the preservation argument that is the basis for the Provincial Interest definition, there is also the need to address the broader context of agriculture and its future. Preservation in isolation will not be enough. The following recommendations address our need to move forward in support of agriculture and general resource management in the province.
Supporting Argument One of the challenges in conducting a consultative review on a topic as broad as Provincial Interest is that you may find that you are not asking the questions that really concern the stakeholders. More often than not stakeholders used Provincial Interest as a springboard to quickly move into related concerns which did not talk about words in a definition, but always indirectly supported the critical importance of agriculture as in the Provincial Interest. In this part of the report, I am respectfully going beyond my specific terms of reference to summarize many thoughtful and good suggestions from stakeholders. Land Equity ReparationThinking about the weighting of economic considerations and land values raised a very critical issue - the deplorable ignoring of farming families’ investment in their land as their fundamental personal asset. The effect of preserving agricultural lands appears to have had the unintended effect of expropriating the potential for return on investment. The result is unintended hardship through loss of equity for financing, and loss of flexibility for families and retirement. We must acknowledge the value of what farming families lost "in the Provincial Interest" of the ALR. We must renew the pride of a future in farming. For example, we should explore the creation of an Agriculture Infrastructure Fund. The fund could be bolstered by betterment recapture funds from changes to the ALR through exclusions or changes of use. The fund could support resident farmers and producers in growing the agricultural industry in the province and thus creating jobs as well as turning agriculture into an even stronger economic generator. An Infrastructure Fund could also support farmers in their roles as stewards in terms of habitat and general environmental protection. Future FarmersOne of the questions that bothered me the most through the consultations was the thought that no one is going to want to farm in the future if we do not improve the conditions and rewards for farming. And if no one wants to farm, how do we retain and even increase our Provincial food security - home grown food? Farmers now do not urge their children to follow in their footsteps. We need an immediate strategy to encourage young people to be educated in the professions and activities involving agriculture. At the same time we need to find ways to encourage innovation in agriculture. People have ideas - how can their creative ideas be supported and implemented? Precedents exist elsewhere for large scale land trusts in the public interest. Why not establish a Trust and Foundation for BC Lands? A specific umbrella trust for agriculture could be developed so that a percentage of the billions of dollars of intergenerational wealth in the province could be put to good use as a support for "beginning" farmers and for innovation. The mission of such a proposed Trust and Foundation would be to "bring to the public and private sectors one agenda for the preservation and conservation of valued settlement and natural assets of lands in BC"{24}. Land or money that might flow under the agriculture umbrella could be used to support new farmers by allowing a land leasing arrangement and a stipend to get started. This process could begin with the leasing of existing crown land in the ALR. This fund should also be available to people who have ideas about new projects or better ways to do something that might benefit agriculture. This could involve a variety of partners (private, non-profit and governmental) who might come together with a project. These funds would be targetted to people who are extending the business of agriculture through connecting it to other resource uses or business or entrepreneurial opportunities. "The unique concept of a Trust for BC Lands and the companion Foundation will encourage and challenge the broad public to turn their passion for conservation into investment in a lands legacy for future generations."{25} This same passion runs deep in the public for preservation of agricultural lands - the Trust would facilitate many of the agricultural enhancement objectives of the Agricultural Land Commission and its Act. Public Literacy About AgricultureHow do citizens find out about agriculture in the province? How much do people actually know about where their food comes from? How safe it is? Who produces it? I strongly support the current initiative to develop the Provincial Agri-food Policy. The policy and implementation strategies should be the topic of a broad public debate and discussion with the citizens of the province. Food is, after all, one of the basics of life. The public discussion around the Agri-food Policy is a good time to start a partnership promoting agricultural literacy. This partnership could improve the amount, type and quality of information available to consumers about food and agriculture. Programs like Agriculture in the Classroom are an important start at the kinds of promotion we need. Another possibility worth exploring is the concept of Regional Centres for Sustainable Agriculture. These demonstration centres could focus on learning and research about our natural resource and human systems especially as applied to agriculture, food and small community development. Facilities for teaching, learning and research, housing, some commercial activities related to food production and a working landscape could be supported by a partnership involving citizens, educational institutions, municipal, regional, provincial and federal governments, and, industry. These centres could build on existing infrastructure and focus on combining the strengths or assets of each of the partners.{26} Another recommendation is to appoint a Provincial Agrologist to be the champion for agriculture in the province. The Provincial Health Officer and the Provincial Forester are important positions in other sectors for helping to coordinate information and collaboration. The agricultural sector has incredible growth and job creation potential. Consumer demand for "whole foods" and organic foods combined with the possibility of sustainable agriculture initiatives can contribute to this growth. After all, the commodity is something we all need: food. It is not like resource extraction or even like fishing where the management of the resource is difficult to control. With much of agriculture, we can have some control over the crops we grow or commodities we produce and how successful we are in growing or producing them. However, the amount of basic research funding (as opposed to applied industry-based research) that is supported by the Provincial government is not adequate to meet the need for innovative solutions in agriculture and food.{27} We have an incredible opportunity to expand an industry which is ranked as the third largest employer in the province, larger than mining or fishing.{28} The Agricultural Land Reserve and its CommissionThe Agricultural Land Reserve remains a vital long-term land-use strategy for keeping our food options open. As such, the Reserve is an invaluable legacy of land, resource and wealth. As our society continues to experience rapid change, both the ALR and agriculture continue to be under threat even from the legislation developed to sustain it. How we as a province choose to respond will largely determine the answer to who will grow our food. There continues to be mis-information about the ALR and the ALC. One person even suggested that the boundaries of the ALR were just decided with a broad felt pen! In fact, the Canada Land Inventory provided a solid background for boundary decisions. Granted, legal straight lines laid over the natural landscape’s topography will create pockets that should be either "in" or "out" of the reserve. However, the Commission works to modify and adjust boundaries where appropriate. This Review presented stakeholders with an opportunity to raise general concerns and frustrations about the Agricultural Land Commission, its process, its timing and its apparent lack of regional understanding. Concerns were expressed around the role of the ALC General Manager and Chair. Should one person hold both positions? Some stakeholders maintained that the Commission should be more pro-active. Others made the case for a 25 year review. It is important to say that there is also a good deal of support for the role of the ALC and the good work that it has accomplished over the 25 years. Looking back at its inception and thinking about the need for integrating rural planning and land management, I suggest that we consider returning to the initial "Land Commission" structure.{29} A Provincial Land Commission was established in 1973 whose objectives were to preserve agricultural land for farm use, encourage family farms, and preserve park or green-belt land. By 1979, the Commission had its scope reduced to agricultural lands only and the Act became the Agricultural Land Commission Act. We also now have a Forest Land Reserve, a Forest Land Commission and a Land-Use Co-ordination Office.{30} The Forest Land Commission and the Agricultural Land Commission both have mandates for managing "cultured" resources which need to be co-ordinated with broader planning initiatives. Perhaps it is time to return to a broader concept of a "Land Commission" with powers and resources to actually do broader full-cost accounting or multiple accounts analysis as part of its decision-making processes. This Commission should be provided with an appropriate budget to maintain a good information base, and promote good decisions for our land legacy in the province. Urban Countryside - Rural MetropolisManaging the pressure of urban areas to expand will be increasingly critical to avoid serious conflicts. In this Review, many stakeholders were adamant that urban dwellers see agricultural land simply as something green to look at - a visual amenity. Certainly agricultural uses include all sorts of sensory stimulation: smells, noise, pollen and large machines on roads. Planning for this transition zone and programs of public education can promote the better understanding of agriculture. The need for food production and habitat protection must be a priority in the next decade. Even in places such as Delta where the impressive Delta Farmland and Wildlife Trust is in place to help mediate between agricultural values and habitat values, it is not easy. A combination of legislation, education and physical planning and design is required. The City of Kelowna has prepared an agricultural plan and many other municipalities are integrating agricultural planning in their Official Community Plan processes.{31} A number of other countries have creative initiatives around their agricultural sectors. In June 1996, the Swiss ratified a new article in their Constitution setting forth the tasks of agriculture:
The development of a British Columbia Agri-Food Policy will be a step in the right direction. In terms of easing the tension between the urban (generally housing) and rural (generally intensive agriculture). We should think more about the edges between the two uses. This needs coordinated efforts at the local and regional levels involving agricultural planning and open-space planning (including the total landscape of the area - such as forests, parks, riparian lands). We need to think about community supported agriculture and agri-tourism enterprises that combine a variety of activities to provide a transition zone. While there is concern for keeping the 3% of our land that is prime agricultural land in the ALR "preserved", it is equally important that we ensure that appropriate planning and design principles are in effect both inside and outside the ALR. The ALC has produced a workbook for agricultural planning.{32} This is an excellent start towards improving the design decisions on agricultural lands. The municipality of Delta is also working on important bylaws to encourage citizens to be sensitive to their location in a rural community and within an agro-ecosystem. Careful and integrated planning of our rural and agricultural landscapes is a key component to supporting agriculture and agriculturally-based communities. "Saving farmland is not enough when farming itself is only marginally profitable."{33} Experience in the United States indicates that both farmland protection measures and economic development measures are needed to bolster the future prospects of agriculture as an industry. In Hartford County, Maryland, for example, an agricultural planner was put in charge of working with farmers and conservationists to develop a comprehensive program for helping farmers stay profitable. Ideas ranged from streamlining of local regulations to establishing a county value-added production centre.{34} The last point is one of support for the integrated programs which our government has undertaken to address the critical issues of land-use management such as our growth management strategies. Such initiatives need to be tightly woven into consideration of our cultural landscapes of agriculture and forestry as well as consideration of the relationship between cities and the countryside. We need to seek creative solutions that go beyond our typically rigid and linear thinking. Instead we must support effective, sustainable and economic solutions for maintaining the resources we have in this wonderful part of the world for living and working. In ConclusionThis Review forced me to look at the heart of good government; what effect will words in a piece of legislation have on our lives and livelihoods, and those of our children? In this case, the stakes are high-the limited, non-renewable arable land base of the province and the life of our communities. Our Review consultations affirmed that land-use management questions evoke strong feelings - but these are often fanned by uncertainty or misunderstanding. Greater certainty of process always helps - if only to focus discussions for further improvements. I thank the Minister for the opportunity to work on this Review. Many thanks go to those who generously gave their time, energy and thoughtful comments. Without the courage to hold firm, with stakes in the ground, there will be no incentive to better manage our land base in the face of competing uses. We must halt the slow, but steady erosion of our agriculture and food resources, and support our varied agricultural industries. As a forward thinking society, we must dig in, take responsibility, and make sure that future generations have a vibrant agricultural land base.
Respectfully submitted, Moura Quayle
FOOTNOTES
Report Summary | Appendix A | Appendix B | Appendix C | Return to Index
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