LEGISLATING BRITISH COLUMBIA: A HISTORY OF B.C. LAND LAW, 1858-1978 by Michael Begg LL.B., University of Victoria, 1994 B.A., University of Victoria, 1991 A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS in THE FACULTY OF GRADUATE STUDIES THE UNIVERSITY OF BRITISH COLUMBIA October, 2007 © Michael Begg, 2007 Abstract Almost all of British Columbia, 95%, is public land, managed by the B.C. government. This "95/5 split" is unique in the industrialized world. Public land, in its use for forestry, oil and gas, mining, tourism, and agriculture, remains the foundation of the B.C. economy. It has also come to define how the people of British Columbia see themselves as a society. But when did land become so much a part of British Columbia's identity? How is it that so much of British Columbia remains public? What does the high proportion of public land tell us about the role of the government? Why does land continue to have such an important role in this modern society? And what role does law play in the relationship among society, the economy, land, and government? With these questions as its starting point, this thesis offers a history of British Columbia through the lens of legislation for the allocation of land. The period covered, 1858-1978, enables the study of the two major periods of transition in land law, and of the continuity between them. Those periods are the establishment of colonial land legislation, from 1858- 1871, and the upheaval of those laws, from 1965-1978, ending just before the era of provincial land-use planning. A close study of these two periods, and of the themes apparent in the changes to the legal regime between 1871-1965, allows the thesis to ask questions about the role of law itself: Is law merely a tool of economic and political actors, or does it play an instrumental role of its own in structuring society? This thesis argues that, in the context of B.C. land legislation, law does play such a role, and considers the implications of this conclusion for those, such as environmentalists, seeking to change society. ii Table of Contents Abstract ii Table of Contents iii Acknowledgements iv Chapter 1 - Introduction 1 Chapter 2 - Colonial Origins of B.C. Land Law 11 Part 1 — Empire and land 12 (1) Objectives of colonization 12 (2) Theories of economy, property, and state 14 (3) Colonial land policy for Canada 17 Part 2 —Colonial British Columbia: The Golden Mean(s) to a New Society 22 (1) Land policy, 1858-64: reactive and proactive assertions of authority 25 (2) Extending the vision: excluding "Aborigines"; including minerals 46 Conclusion 57 Chapter 3 - Government of the Economy 61 Part 1 — Developing a Province 63 Part 2 —From Allocation to Administration 82 (1) From rudimentary classification to (fitful) research and analysis 83 (2) Intervening in land and the economy 87 (3) Developing resources becomes developing economy 92 (4) Conservation—of resources, not nature — takes root in forest(ry) 99 (5) Provincial park reserves: recreating the vision for land? Ill Conclusion 122 Chapter 4 - Environmentalism & Law, 1965-1978 123 Part 1 — "Environmental Law" 126 (1) Parks, plans, and pollution: protecting the use of land 126 (2) Land Act, 1970: updating the allocation statute 134 (3) "Environment" enters the lexicon 137 (4) Language of environment, context of development 140 (5) "orders respecting the environment" 146 (6) Land protection statutes: the belt and reserves approach 151 (7) Foreshadowing the 1980s: making the Province a forest 158 Part 2 —From Administration to Management 163 (1) Cornrnitting to co-ordination 164 (2) The Secretariat: "Junior, youthful" zeal amid the dirt departments 174 (3) A Department of (not for) the Environment 191 Part 3 — Environmental activism and land law 195 (1) Roots of pressure: conservation and recreation 196 (2) Conflict catalyses the pressures for change 203 Conclusion 211 Chapter 5 - Conclusion: The Role of Law 212 Bibliography 221 Appendix - Research Ethics Certificate 243 iii Acknowledgements They say writing is a lonely act, that you are on your own, with no one to help you. I am happy to report that in my case this was not true. In the preparation of this thesis I spent a good deal of time locked away in my office or in the library researching, writing, and researching some more. But I had help. Most particularly, I thank my supervisor Dr Douglas Harris, who helped me to find my way into my subject, enabled me to work through it more thoughtfully, and generously gave of his time and editorial wisdom in commenting on my final. And I thank Dr Natasha Affolder, who has inspired me with her passion for land law and activism, and who provided me with just the right advice to steer the thesis through the final editing stage. I am grateful to Dr Wesley Pue and Joanne Chung for creating such an inspiring and supportive graduate program at UBC Law School, and to Catherine Dauvergne for her support when events threw me off schedule — and off my bicycle. Speaking of schedule, I should acknowledge my cat, Carmina, whose preferred place to sit probably delayed the completion of this thesis by a considerable period of time, but whose caliriing influence was worth the delay. The experts I interviewed have given me a wealth of material to think about and work with in this and future projects. I think them for their generosity, knowledge, and enthusiasm. For many reasons, my most heartfelt acknowledgement goes to Jennifer Butler, who inspired me to pursue graduate studies, continues to inspire me in ways beyond number, and went so far out of her way to ensure that the writing of this thesis was not a lonely experience that she married me in the middle of it. iv Legislating British Columbia: A History of B.C Land Law, 1858-1978 Chapter 1 - Introduction A remarkable feature of the Canadian Province of British Columbia is its unusually high proportion of public land. Only five per cent of British Columbia's land is privately owned. Most of that land is in the cities and towns, which are themselves concentrated in the southern third, and especially the south-western corner, of the Province.1 One per cent is federal land, which includes all the Indian Reserves in the Province.2 Ninety-four per cent belongs to the provincial government.3 The "95/5 split," as some call it, is almost unique in the industrialized world.4 These public lands are the foundation of a provincial economy in which many of the major industries—in both revenue-creation and political capital—are still 1 In this thesis, I use "B.C." as an adjective, and interchangeably use "British Columbia" and "Province" as nouns. General references to provinces will be in lower case, as will be the general reference to the colonial or provincial, or federal Canadian government as the "crown." 2 This figure excludes federal parks. Parks remain provincial land, but the B.C. government transfers management of those lands to Canada under an instrument called a Transfer of Administration and Control. 3 British Columbia. Ministry of Environment, Lands and Parks, British Columbia Land Statistics (Victoria: Ministry of Environment, Lands and Parks, 1996) at 7 [Crown Land Statistics ]. This figure includes the 1.9% of the province covered by water. Since the 1980s, the amount of Crown land has remained constant, with the government granting about the same amount as reverts to it, 11,000 hectares each year. Electronic mail message from Jeff Oulton, Business Analyst, Ministry of Agriculture and Lands (23 March 2006). First Nations contest this "belonging." To legally create British Columbia the colonial government had to displace First Nations from their traditional territories. Due to breakthroughs in the common law on aboriginal title to land, First Nations have legal claims on the ownership of land this thesis refers to as "crown land" or "public land." Although chapter 2 does touch on the role of law in the displacement of First Nations, its focus is the legal regime the colonists brought, so it does not explore First Nations' jurisdiction over land. 4 Parts of the western United States also have a significant portion of public land. Nevada has the highest percentage, with 83% federal land, followed by Alaska at 68%. The other two states with more than 60% government land are Utah (65%) and Idaho (62%). United States, Bureau of Land Management, "Table 1- 3: Comparison of Federally Owned Land with Total Acreage of States" in Public Land Statistics 1999 (Washington, D.C.: United States, 1999), online: <http://www.blm.gov/natacq/pls99/99pll-3.pdf>. While these numbers are also high, a smaller portion of those states is usable by industry. Nevada and Utah are dominated by desert, and Alaska's northern climate makes much of its land unusable. British Columbia's coastal forests, valleys, and interior plateaus support numerous industries, including forestry, tourism, ranching, agriculture, mining, and oil and gas extraction. 1 the "resource industries" such as oil and gas, energy, tourism, mining, and agriculture.5 But the public lands have come to be the foundation for more than the economy. The mountains, lakes, valleys, rivers, plateaus, and forests of British Columbia are bound up in the Province's identity. Descriptions of British Columbia and of its major cities almost invariably start with the beauty and bounty of its natural environment. And British Columbians have become fiercely protective of "their" public lands. Land is central to what British Columbia is as a society.