Environment

Too Little Too Late

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First Published on September 28, 2016 Written by Neryl Poole, LL.B.

The municipality recently released a ‘closing summary’ from the Ombudsperson’s office, concluding a complaint launched three years ago by a Bowen resident.  The complaint originated as a result of the 2011-2014 Council’s actions when making decisions behind closed doors about the dock applications at Cape Roger Curtis.  The summary closes this file and dismisses the complaint, but not without reminding Council and the municipality about the importance of openness in public decision making.  The failure on the part of Council at the time to be open about their decision-making around the dock applications resulted in the eventual approval of four docks.  These eyesores mar the “pristine coastline” of the Cape (quote from The Cape on Bowen Development Co. website).

The Ombudsperson complaint focused on a number of decisions of the previous Council relating to the dock applications.  In my view, one of the most significant decisions made by that Council was the decision to close a meeting on June 25, 2012. The information presented to that closed meeting, and an open debate with the public listening and responding, might have influenced Council to take a stand in clear opposition to the docks.  We only knew that Council discussed the dock applications at that closed meeting because of a brief press release issued soon after the meeting.  The press release merely stated the resolution to allow the docks with conditions but gave the public no idea as to why Council made that resolution.

What we did not know, as it was not released until one year later as a result of a Freedom of Information request, was that the municipal head planner had issued a report outlining the reasons for opposing the dock applications and recommending that the municipality communicate its clear opposition to these docks to the Province.  This report cited the environmental protection covenants along the coastline, the provisions in the Official Community Plan for protection of the Cape, the designated park area with public access to the beach, and the longtime public enjoyment of that coastline, etc.

The importance of releasing this report at the time when Council was debating the issue cannot be overstated.  The public had a right to know that its municipal staff had communicated to Council clear justification to oppose the docks, and that the planner was recommending this as a course of action.  This was not legal advice and therefore did not justify its non-disclosure to the public.  Council could still have chosen not to oppose the applications but if the meeting had been open to the public, the public might have understood the reasons why.

The Ombudsperson’s closing summary refers to the municipality’s process as “generally reasonable” and goes on to state that the Community Charter “provides significant latitude for municipal councils to decide whether or not some subjects will be discussed in a meeting that is open to the public.”

The Ombudsperson concludes that the Municipality “appears to” have been authorized to close those meetings to the public and states “We discussed with the Municipality some best practices with respect to the implementation of the open meeting provisions in the Community Charter and drew attention to a guide produced by this office.”  The Council of the day was not following best practices.

Why was this significant?  As many of us remember, there was considerable public opposition to the dock applications.  This opposition was met by statements from Council that they had “no jurisdiction” to do anything about the docks, and that the decision to issue tenures lay solely with the Province.

Why do we know these statements were wrong?  The grassroots ‘stop the docks’ protest group took the initiative to commission an independent legal opinion from an expert municipal lawyer.   This opinion demonstrated that the municipality had the legal jurisdiction to oppose the docks – it simply chose not to.  Not surprisingly, we now have a B.C. Supreme Court decision (Dong v. BIM 2016 BCSC 553), emphasizing that Council does have jurisdiction over docks, stating that the docks bylaw enacted by the current Council is consistent with the Official Community Plan and upholding the docks bylaw that now prevents any future docks at CRC.  Further, Mr. Justice Punnett emphasized that the provisions of the OCP were consistent with prohibition of docks at CRC, stating at paragraph 58: “The prohibition of docks is not incompatible with the objectives and policies . . . of the Official Community Plan.”  Bowen Council had the power, and we had an OCP that provided clear policy guidance to support this community’s opposition to the docks.

So too little, too late – but we still do not know why the previous Council did not oppose the docks.   We are left with the visible evidence of the previous Council’s failure – the broken docks at CRC scar the landscape and cannot be used.  Perhaps nature will have the last word with these docks.

Addendum:  B.C. Supreme Court heard a second case, Zongshen v. BIM  on Sept.1 and 2.  Decision reserved.  Zongshen, an investor in the Cape, abandoned the challenge to the docks bylaw and argued for the right to construct a dock on lot 14, next to the lighthouse.  More wasted, valuable time and public money that could have been avoided if the previous Council had exercised its jurisdiction to do the right thing and oppose the docks when the applications were made.

Wild Food Spotlight 3: Plantain


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First Published on August 17, 2016 Written by Emily van Lidth de Jeude

This past May, my daughter had a big fall, goring her knee on a rotten branch. She endured not only a week of emergency room IV for the ensuing infection, but then three months of the wound slowly expelling all the remaining bits of rotten wood. Plantain to the rescue! Yes – seriously! What the salt water soaks didn’t pull out, we got out with plantain poultices. Grab a leaf, chew it up, and place it on the (closed) wound. You can even use one of the flat leaves as a bandage to hold it in place (tied with string).

Not to be confused with plantain bananas, the small green inconspicuous plants of the Plantago family are exceedingly common. Find them along the edges of roads, meadows, lawns, paths, and playgrounds. Most common around here are P. major (broad-leaved plantain) and P. lanceolata (narrow-leaved plantain or ribwort). Maybe when you were a child you learned to pluck a broad-leaved plantain and find the veins sticking out where you tore it off. Maybe you discovered that if you pulled those veins you could make the leaf curl up. Apparently some people have used these tough fibres as thread! When I was a little girl, my mother and I sometimes made the long gruelling climb from our home in Bowen Bay up towards Adams Rd. And along the way we saw ribwort, although we didn’t know it at the time. We called them the Crowned Princes and Princesses of Denmark, because of their flowers’ beautiful crown-like flower-heads. Oh the adventures those crowned princes and princesses have had over the two generations this game has persisted! Plantain is a wonderful entertainment system for kids on otherwise boring walks.

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But it’s also a food and a valuable medicine. Modern science is slowly beginning to study and confirm what folk medicine has taught for centuries. In her review, Anne Berit Samuelsen states that “P. major contains biologically active compounds such as polysaccharides, lipids, caffeic acid derivatives, flavonoids, iridoid glycosides and terpenoids. Alkaloids and some organic acids have also been detected. A range of biological activities has been found from plant extracts including wound healing activity, anti-inflammatory, analgesic, antioxidant, weak antibiotic, immuno modulating and antiulcerogenic activity.” (1) In my own life, I often use broad-leaved plantain as a wound or sting poultice. It’s handily available in the wilderness, where stings, nettle burns, and other small injuries often happen, and makes a huge difference to such inflammations when chewed up and applied directly. Ribwort is also valuable, both for the gut-cleaning (bulking) properties of its seeds (psyllium), as well as for its leaves’ value in treating coughs and uterine complaints. As an anticatarrhal and expectorant, ribwort tea is an excellent cough remedy. (2)

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Food is maybe the least exciting thing about plantain, since it’s basically a plain-tasting leaf that gets tough very early in its life. But if you get stoked about the prospect of eating food out of your lawn or healing and nourishing your body naturally, plantain is definitely for you. As with so many wild greens, the young leaves are great in salads, or braised as they grow tougher. They’re also delicious in green smoothies – especially with the knowledge of all those nutrients you’re consuming! And if you are eating a grain-free diet, you may already buy the mucilaginous psyllium as a binder for coconut flour confections, or perhaps you use it simply as a dietary fibre. Either way, find it growing atop a humble plantain. Commercial psyllium seed actually comes from P. afra, ovata, or indica, but seeds of ribwort also have mucilaginous properties. Find some ribwort blossoms that have fully gone to seed, rub the seeds out into a small bowl, blow off most of the separated husks (some remaining is fine) and add a bit of water. After a while you’ll see the mucilage forming around the seeds. The mucilage is, of course, the same colour as the water, so it is only apparent in that the seeds sit increasingly distant from each other in the water, held separated by their growing coating of mucilage. When there’s enough of it you can feel its gooeyness.

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But let’s get down to business. Everybody needs some inspiration to try plantain, so I recommend starting with this lovely green plantain smoothie: Pick a bunch of youngish plantain leaves (either broad-leaved or ribwort will do), wash them, check for unwanted bits, and stuff them in your blender. Cover them with ice cold water (and a few ice cubes if your blender can handle it!), and add some fresh lemon juice. Blend until the leaves are fully macerated and suspended in the water. If you want it sweet (like lemonade!) then blend in a little honey, to taste. If you want it creamy, blend in an avocado or some nut-milk. Enjoy!

 

(1) Anne Berit Samuelsen: The traditional uses, chemical constituents and biological activities of Plantago major L. A review. Journal of Ethnopharmacology, Volume 71, Issue 1, Pages 1-21

(2) Chloe Sobejko: Materia Medica. https://herbalmateriamedica.wordpress.com/2014/04/17/plantago-lanceolata/

 

 

Sex on the beach: is there a better way to spend a beautiful August afternoon?

First Published on July 20, 2016 Written by The Bowen Island Conservancy

The Bowen Island Conservancy is looking for some volunteers to help us with a Forage Fish Sampling Blitz, from 1:00 pm to 4:00 pm, on the afternoon of Saturday, August 6th.

What are Forage Fish? They are the cornerstone of marine food webs and are essential food for seabirds, marine mammals, and fish. Multiple species spawn on sandy and pebble beaches around Howe Sound and elsewhere in the Salish Sea. We are mostly aware of herring, which have been seen in increasing numbers in Howe Sound in the last few years. As well, juvenile salmon forage along the high tide line, feeding on land-based insects swept to the ocean’s surface by winds, and on tiny invertebrates living within the beach seaweed wrack line.

What species are we looking for here? We are interested in Pacific Sand Lance, Capelin, and Surf Smelt. These fish form massive schools which are often measured in metric tons, since they are so large. You can learn more about these fish with a quick Internet search, but to give you some high-level information about just one species, let’s look at the Surf Smelt. At maturity these fish will be about 20 cm long, and a typical fish shape with olive green backs and silvery bellies. They have relatively short lives of up to about 5 years, and spawn on beaches in summer and winter. The embryos are usually found buried just below the surface of beaches, between 2 and 4 metres below the high tide line. Watch where you tread next time you’re on a beach!

In 1904, at the peak of commercial harvest, 230 metric tons of Surf Smelt were caught in BC. In 2002 the catch was just 710 kg. As we all know, a number of fish, seabird, and marine mammal populations are in steep decline in BC, and scientists have now started to look at the link between forage fish biomass reduction and these declining populations. For example, 35% of juvenile salmon diet is made up of Pacific Sand Lance, so these fish are critical elements of the food chain that leads to our tables.

Why is there a “Sampling Blitz” taking place? In 2014, Conservancy members formed an Island team that conducts periodic surveys of certain Bowen Island beaches to test for the presence of forage fish eggs This is part of a much larger effort, coordinated by the Sea Watch Society and involving many other communities, to determine the locations of spawning beaches, and estimate the growth in population of these important species.

To date we have not found any evidence of forage fish eggs on Bowen Island. We know that other Howe Sound communities have found eggs, and that they are also present on Sunshine Coast and West Vancouver beaches, but nothing has shown up here. And we don’t know why. Possibly there’s something about our beaches that makes them unsuitable for spawning (could be the length of the beach, or the mix of sand and pebbles, or something else). But we want to sample as many beaches as possible in one day in August, which is peak Surf Smelt spawning season, to see whether we are able to obtain a positive result.

How will the blitz work? We are going to work from 1:00 pm to 4:00 pm on August 6th. We’ll divide into two teams, and sample as many beaches as we can. We’ll try to include Pebbly (Cape Roger Curtis), Tunstall South, Tunstall North, Sealeigh Park, Bowen Bay, Bluewater, Galbraith Bay, Smuggler, Cates Bay, Eaglecliff, Pebbly (Deep Bay), Sandy, Snug Cove, Seymour Landing, September Morn, and Alder Cove beaches.

Do I need any qualifications to participate? No, we welcome everybody’s help. We are particularly interested in having children participate: they always enjoy themselves and make the sampling event special.

Do I need to bring anything to sample? All you need to do is dress to match the weather. A hat and sunscreen is probably all you’ll need (we hope that nobody needs rain gear!). And we’ll supply everything else that’s needed for sampling, so you just need to show up.

How do I learn more? Send us a quick email message at “info@bowenislandconservancy.org”, or call 604.612.6572, and we’ll get back to you with more details.

What happens afterwards? After sampling we will meet from 4:00 pm to 6:00 pm, with refreshments and snacks, to celebrate a job well done. We’ll process the afternoon’s samples by sieving to concentrate the fine material, and hope we find some fish eggs! And later we’ll be sending our samples to Vancouver Island to be analyzed. We’ll be sure to let everybody know the results once we have them.

We hope that you will be able to join us as we search for evidence of Sex on the Beach on Saturday, August 6th.

 

Wild Food Spotlight 2 – Rubus!

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First Published on June 22, 2016 Written by Emily van Lidth de Jeude

How many times have blackberries scraped big bloody tears from your leg as you simply attempted to access the beach? Or the salmonberries taken over your garden and you spent day after day cutting them down and then digging out their stubborn, tough roots, only to find them growing back again a couple of months later? How many times have you planted delightful raspberry canes in your garden and found them soon interspersed with those godforsaken-spiny-blackberries-whose-fruit-is-inferior-and-nobody-seems-to-know-the-name-of?! Ha ha! Me too. But I love these Rubus anyway.

The Rubus genus is well-represented both in our gardens and in our island wilderness. We commonly grow raspberry, boysenberry, and wineberry in our gardens, but in the wild here we also find an abundance of red and yellow salmonberries, black raspberries, thimbleberries, and various blackberries: Trailing, Himalayan, and Evergreen (that horridly vicious spiky-looking one).

All of these are known for their heavenly berries, especially when ripened and warmed by the sun and picked during a hike through the woods. But did you know that you can use other parts of the plants as well? The leaves of red raspberries are well known for their use in teas as a uterine tonic, and black raspberry and young blackberry leaves can be picked, dried, and used the same way. Wear gloves, though – their thorns grow under the leaves as well.

And then there are the shoots. Every spring for hundreds if not thousands of years, the fresh shoots of salmonberry, blackberry, and thimbleberry have been harvested young and tender, often eaten fresh, steamed, pickled, or stir-fried. It’s June, and we’re a bit past this stage of their growth by now, but if you do find any soft flexible cane shoots extending up off the older canes or out of the ground nearby, you can pull your hand along them until they snap off like asparagus. When you’re ready to eat them, peel off the skin and prepare them any way you enjoy asparagus. It’s certainly very different, but totally delicious. And each species (even each colour of salmonberry bush) has a different flavour!

Finally berries.

Salmonberries – first of the wild rubus to ripen, they grow unstoppably all over the place, here – especially in wet meadows and roadsides. Those with exclusively green shoots grow yellow/orange berries, and those with red shoots grow red berries which darken to nearly black as they ripen. Salmonberries taste a little brighter, and with less of a rich flavour than other Rubus berries, although the red ones are sweeter than the yellow. Salmonberries seem to develop the most juicy flavour when they’ve plumped up in wet weather and sunshine, but then they’re so watery that they don’t work well in pies. They’re also a little too seedy for baking, since they lose so much water in the process that you’re left with mostly seeds. Also watch out if you’re picking after a few days of rain showers; they tend to lose their flavour, or even get mouldy inside.

Blackberries – sweet, rich, earthy, and a little bit terrifying, if you’ve ever been caught among them. And also the best for baking, which is why you may have been caught there in the first place, heading towards the middle of the brutal thicket, trying to fill a five-gallon bucket for pies. They seem to retain a lot of their juice and flavour when baked or frozen. For fresh eating, I prefer the trailing blackberries, which are smaller and less abundant than the huge invasive species, but which taste sweeter and more precious. Like little diamonds compared to big quartz crystals. One thing to watch out for, these days, is the increasing population of D. suzukii larvae (that’s Drosophila, not David, though you might be forgiven for any confusion…). You may not notice the tiny fruit fly larvae as you pick the berries and shove handfuls into your mouth, but if you freeze them on a tray you might discover many little frozen white larvae protruding from between the drupelets of the fruits. It’s OK. Insect-eating is growing in popularity. Just eat them anyway! They’re the last of the Rubus to ripen in our area, and you’ll want to store them all up for winter.

Black Raspberries – these are far less common here, but if you find them they’re absolutely delectable. So try to! The plants look a little like raspberries, more fragile than Himalayan blackberries, and with smaller leaves and stems than salmonberries. The berries themselves are much darker in colour than cultivated raspberries, but have the same dull waxy coating, so can reflect almost purple in some light. The taste is fantastic, and you’ll likely not find enough to satisfy, so just eat them all fresh and quickly, before they’re gone.

Thimbleberries – ripe around this time of year, tall and green and leggy; home to gall wasps and bane of my garden, and I know people complain about their lack of juice and consequent seediness. They don’t even ripen all at once, forcing us to graze very very slowly… just a few every day. But to me they are worth it all for the flavour. They’re almost shockingly sweet, with both the earthiness of blackberries and the tartness of raspberries. I allow them to grow behind my bean trellis, poking their multi-coloured berries through at the sunshine. By the time the beans grow there, I have eaten them all anyway.

Happy summer, neighbours! I hope you enjoy the bounty of Rubus, this year.

Wild Food Spotlight: Maple Blossoms


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First published April 27, 2016 Wriiten by Emily van Lidth de Jeude

Last year for the Earth Day Bulletin issue I began a series called “Earth Day Every Day”, where I explored the island and talked about my discoveries. That year has come full circle, and it’s time for this series to evolve, too. I’d like to share some foraging delights with you! So, every couple of months for the next year, I’ll explore a seasonal wild food opportunity that we can easily find here on Bowen.

One of the most iconic and bountiful plants we have here is the bigleaf maple. As you walk through the springtime coniferous forest you can see a maple a long way off, as it’s brilliant leaves catch and hold the sunlight – chartreuse against the deeper greens of hemlock, cedar, fir and spruce. Even its bulky-looking trunk and often sprawling limbs seem to burst with vivid colour: In early- to mid-spring the moss that covers them is a vibrant rich green, punctuated only with the deep grey-brown and white of the bark, and sometimes with haphazard fields of licorice fern.

Look out to the ends of those sprawling branches, reaching umbrella-like over your head, and if you’re there at the right moment you’ll see it’s blossoms. Maples’ blooming times vary according to their geographic location, elevation, and situation in the forest. Although as I write this most of our local maples have finished blooming for the year, if you explore a bit you’re likely to find a few still going strong.

A maple blossom cluster is referred to as a raceme, due to the fact that many flowers hang off a central axis (or stem) at approximately equal lengths and distances. The flowers develop first at the point closest to the branch, and successively out to the end of the raceme. Therefore, if you pick a raceme at the height of its development and sample it at various points along the stem, you’ll notice that it has various different flavours. (Note: Maples are as delicious to insects as they are to humans! Before you eat it, check the blossom for flies, aphids, ants, etc. and knock them off.) Now start tasting. Any closed or barely-open flowers near the end will have a bitter, astringent taste, due to the oxalic acid which they and many other fresh wild greens contain. Further along, both the stem and the blossoms lose this sharp flavour, and have a much more pleasant, mild taste. The flowers that are in their prime even have a slight sweetness, and this is absolutely delicious in salads! Further up, and nearer the branch, the stem becomes progressively tougher, and the flowers less flavourful. Eventually, where the two pistils in the flowers have turned brown, the flowers will taste very bland, and by the time the whole flower begins shrinking, it’s more like dried leaves – not worth eating!

So now that you’ve familiarized yourself with all the different flavours of the maple blossom… what to do with it? Some people stir-fry them. I’ve heard of people battering and deep-frying them, too, but I prefer to taste them in all their glory: quiche, rice-wraps or salad!

For a quiche, simply prepare a good savoury butter crust, steam some maple blossoms until they’re wilted, and fill the crust with a mixture of the blossoms and some other sweet or mild vegetable such as fennel, mild celery, or spinach. Mix up some eggs, milk, and a bit of sea salt, and pour it over. Cheese is always an option, but I find it overpowers the maple blossoms in this case and prefer to leave it out. Bake and enjoy!

Wraps are as diverse as they are easy. Whether you use pitas, tortillas, nori or rice paper, fill it with some sweet rice, maple blossoms, and a dressing you love. It can be quick and dirty or absolutely elegant, depending on your desire and presentation.

My favourite for last: Salad! Take out the most delicious section of the racemes, and fill your salad bowl half-full of these – flowers, stem, and all. I break the stem into sections approximately one inch long. Now make up the rest of the salad with whatever mild greens you like. Butter lettuce works well, but so do many other seasonal wild plants such as salmonberry or dandelion petals, bitter-cress, or miner’s lettuce. If you grow kale year-round in your garden, it may blossom at the same time as local maples, and kale flowers are also a delicious and beautiful addition. I like to make a dressing of grape seed oil, maple syrup, and lemon juice, as well as sometimes a little salt or wholegrain mustard, depending on the ingredients in my salad. Experiment to year heart’s delight, and enjoy! I hope you love maple blossoms as much as I do.

The Balance of Nature

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Artist Michael Grab www.gravityglue.com

First Published March 2, 2016, written by Denis Lynn

There is a popular belief in “the Balance of Nature.” This has likely been our belief for thousands of years. It arises possibly from the observation that the world around us is generally the same from year-to-year, decade-to-decade, and even generation-to-generation. The trees grow but do not change dramatically in numbers; the numbers of other plants and of animals generally do not dramatically change. That is, things tend to “stay the same” or there appears to be a “Balance of Nature”. In fact, it is the exceptions that prove the rule: plagues of locusts, floods, and droughts.

How to explain these exceptions? If we take the explanations in the Greek writings about the workings of nature as indications, it was likely that our ancestors explained these exceptions as the workings of the mysterious forces of the Universe – eventually conceived of as gods. Egerton describes this as “providential ecology.” Providential ecology was still the primary view as the JudeoChristian worldview flourished. If the exceptions brought hardship on us, then we looked to our actions as having displeased the gods – sacrifices and prayers were needed to “re-balance” the ecology.

Throughout history, and certainly by the 1600s and 1700s, there were attempts at understanding the wisdom of the gods by providing naturalistic explanations for the characteristics of species. For example, the Greeks observed how wise it was that prey, such as rabbits, were much more fecund than their predators, like foxes, and so a “balance” was preserved between predator and prey. Carolus Linneaus, the Swedish father of taxonomy and perhaps also of ecology, suggested that intimate and specific relationships between species, created by God, “contribute and lend a helping hand towards preserving every species, and … that the death and destruction of one thing should always be subservient to the restitution of another” (p. 336, Egerton, 1973). One might say “a place for every thing, and every thing in its place.”

However, the notion that a fixed number of species had been created and that these all had a significant role in Creation was challenged by the discovery of fossils: the remains of once living organisms that seemed to be very different from anything alive. Furthermore, some fossil aquatic organisms were discovered near the tops of mountains – so not every thing was in its place, neither in terms of its interactive role in the ecosystem nor in relation to its habitat – what once was apparently underwater is now on top of the world! Scientists could not believe that species were extinct, and John Ray, an Anglican clergyman naturalist, argued in the late 1600s that once Europeans had explored the whole globe, living “fossil” forms would be found. A century later, with much of the world explored, this position was untenable. Certainly by the time Darwin’s travels ended, there was little doubt that many species had become extinct, challenging the notions of “balance” and Special Creation. Jean-Baptiste Lamarck, a French biologist in the 1800s, resolved the problem of extinctions by arguing that species changed through time, originating every moment from the mud, and progressing through a series of transformations from unicells to multicells. This, of course, clearly challenged the notion of a Special Creation, which caused Lamarck problems with his more religious colleagues, but it resolved the problem of fossils: fossils were just older stages of existing species.

What might have caused these extinctions? Up to the 1800s, competition between individuals and between species was considered antithetical to the notions of “harmony” and “balance” in Nature. Charles Lyell, the great geologist of the 1800s, however firmly emphasized competition as a cause of extinctions. Darwin had read Linnaeus, Lyell, and on discovering Malthus, formulated his theory of natural selection premised on the existence of competition between members of a species in their struggle for existence. Yet, Darwin it seems implicitly still believed in some kind of balance as the inspirational last paragaph of “The Origin of Species” suggests: “It is interesting to contemplate a tangled bank, clothed with many plants of many kinds, with birds singing on the bushes, with various insects flitting about, and with worms crawling through the damp earth, and to reflect that these elaborately constructed forms, so different from each other, and dependent upon each other in so complex a manner, have all been produced by laws acting around us.”

In contrast, Alfred Russel Wallace, the instigation for Darwin to publish “The Origin”, wrote in his 1855 notebook: “Some species exclude all others in particular tracts. Where is the balance? When the locust devastates vast regions and causes the death of animals and man, what is the meaning of saying the balance is preserved?” (p. 339, Egerton, 1973). Wallace’s musings anticipated the views of most contemporary ecologists who consider “the Balance of Nature” an untestable hypothesis. Simberloff (2014) concludes “It is increasingly difficult to imagine what sorts of empirical or observational data could test the notion of a balance.” Yet, if one carefully defines what one means, “balance” can be observed in Nature.

Further Reading: Egerton. 1973. Quart. Rev. Biol. 48:322; Simberloff. 2014. PLOS Biology DOI: 10:1371/journal.pbio.1001093

– Denis Lynn, Professor Emeritus, Integrative Biology, University of Guelph

 

Democracy and the Role of Courts

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Originally Published Feb.16, 2016, written by Nerys Poole

Uh, oh, I hear you say – “Yawn, this one for the recycling bin.”  “No, No,” I say – “give me a chance.”  Read on before you cast this aside.

As I sat in the B.C. Supreme Court a few weeks ago, listening to the latest challenge to a bylaw of our island municipality, I recalled my introduction to and fascination with administrative law, a required course in first year law school.  Many of my classmates found it incredibly boring but I loved it.  This was the reason I went to law school.  As a mature student, I had chosen to go to law school partly because of my desire to understand our legal system and how it can be used to bring about change in society.   Because of my activism on a number of social issues, I wanted this knowledge: What is meant by jurisdiction? What is fairness in the legal context? What is justice?  Where are the limits of political and judicial power?

Administrative law is based on the principle that government action, whatever form it takes, must be legal, and that citizens who are affected by unlawful acts of government officials must have effective remedies if the Canadian system of public administration is to be accepted and maintained.

To bring this principle back to the case recently heard before the Supreme Court, we have two Bowen Island landowners, Shu Lin Dong and Zhen Wang,  unhappy with the docks bylaw passed by this current Council, applying to court to overturn the bylaw.

What do the courts generally do with such challenges?  Over the years, judges have developed a number of principles when reviewing decisions of elected officials.  Unless there is some major defect in the process leading up to a decision, or the passing of a bylaw, e.g. a failure to give the required proper notice of the public hearing – judges take a very “hands off” or deferential approach to these decisions.  And rightly so.  This, to me, is the essence of our democracy.  We elect people to represent us – whether municipal, provincial or federal.  In doing so, we expect these people to make decisions on our behalf, to follow through where possible on their campaign commitments and not to have their decisions overturned by unelected officials like judges.

You may believe that a bylaw is wrong – that is your right.  But it is not your right to have it overturned just because you believe it is wrong or maybe even unfair to you or your neighbours.  With respect to something like this bylaw, zoning bylaws by their very nature are not fair and treat landowners differently.  I may want to build a hotel on my property or a widget factory, but if my property is zoned residential, I am forbidden from doing so – for very good reasons.  If you as a citizen are unhappy with a decision of your elected official(s), and the decision was passed fairly in accordance with all procedures, your remedy is at the ballot box.  The courts have been very clear about this principle.

To quote a 2012 decision of our Supreme Court of Canada:

“The case law suggests that review of municipal bylaws must reflect the broad discretion provincial legislators have traditionally accorded to municipalities engaged in delegated legislation.  Municipal councillors passing bylaws fulfill a task that affects their community as a whole and is legislative rather than adjudicative in nature.  Bylaws are not quasi-judicial decisions.  Rather, they involve an array of social, economic, political and other non-legal considerations.  “Municipal governments are democratic institutions”, per LeBel J. for the majority in Pacific National Investments Ltd. v. Victoria (City), [2000] 2 S.C.R. 919, at para. 33.  In this context, reasonableness means courts must respect the responsibility of elected representatives to serve the people who elected them and to whom they are ultimately accountable.”

Court challenges may be one way for an angry citizen to express his/her displeasure at what an elected body is doing.  However, the threat of litigation is too often used as a tool to stifle legitimate and considered decision-making by an elected body.  One need only look at the views expressed by one of our councillors during the third reading debate on the docks bylaw (Dong’s lawyer showed the video of this during the hearing), who, despite not being a lawyer, stated: “we know this bylaw will be challenged and challenged successfully.”

These kinds of threats have a real chilling effect on municipalities like ours where taxpayers often end up paying the costs of litigation even when the municipality is successful.  A good example of this is the Duntz & Underhill v. BIM lawsuit, a challenge to our Official Community Plan that was heard by the Supreme Court in 2011.  The court dismissed the challenge and awarded costs to BIM just prior to the 2011 election.  Despite this, the newly elected council of 2011 made a decision to waive the collection of these costs and they were never collected.  Even when the successful party collects costs, they rarely represent the actual legal costs of a lawsuit.

The threat of litigation should never be a deterrent to a duly elected Council in its decision making.  Yes, the Council should be making any decisions with full legal advice but should not back off in the face of such threats.  I applaud our Council members who voted for the docks bylaw.  I look forward to the outcome of the Dong lawsuit.  Mr. Justice Punnett heard the case on February 1 and 2, 2016 and reserved his decision.

Submitted by Nerys Poole, a retired lawyer who practiced constitutional and administrative law

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