Protecting the Coast and Ocean: A Guide to Marine Conservation Law in British Columbia

Review By Deborah Curran

January 22, 2024

BC Studies no. 220 Winter 2023/24  | p. 135-137

Canada has the longest coastline in the world (Statistics Canada 2016), with the western coastline of British Columbia (BC) including some 6500 islands and 29,000 kilometres of intertidal habitat (University of Santa Cruz 2022). Some measures identify seagrass-predominant coastal and intertidal areas as “blue carbon ecosystems”, the most efficient carbon sinks on earth (Commission on Environmental Cooperation 2016). Given the enormous global and local importance of domestic oceans, it is remarkable that there is meagre scholarship on ocean law and marine protection in Canada. A small number of notable legal academics such as Aldo Chircop (2023, Chircop et al 2009), Ted McDorman (2006, 2009, Gavrilov et al 2022) and David VanderZwagg (Scott and VanderZwagg 2020) have done the heavy lifting in this area and have published extensively on ocean law from a Canadian perspective. However, their focus has been largely on the international ocean and less in the domestic arena of Indigenous, federal, provincial and local law and policy, or they are now somewhat dated (McDorman and Chircop 2012; VanderZwagg 1992, 1995).

The publication of Protecting the Coast and Ocean: A Guide to Marine Conservation Law in British Columbia is a much-needed detailed explanation of the complexity of contemporary domestic ocean law described through the lens of opportunities for conservation. The author team from West Coast Environmental Law Association originally wrote the Guide to Marine Conservation Law as a citizen and professional’s guide to the myriad legal and planning tools available to address ocean health (2020). All those graduate students and lawyers who avidly relied on the Guide between 2020 and 2023 will be glad to learn that the book Protecting the Coast and Ocean is the published form of the Guide and includes important context from international treaties and classifications that help shape the BC coastline.

The authors are transparent about the purpose and intent of the book: “To put spatial protection tools in the hands of the public, and particularly the Indigenous nations, marine scientists, environmental organizers, community members, civil servants and political leaders who can effect change” (4). They achieve this goal by pairing plain language explanations of the structures of law and management operating in the marine environment with case study examples of the operation of those legal protection tools. They also assess the strengths and weaknesses of each tool.

The fairly standard organization of the book, which follows the hierarchy of legal orders from International to federal, provincial and local government, does not dampen the book’s significance. The authors express their understanding of and the need to reveal Indigenous legal orders as governing authority in the ocean. In the extensive examples used throughout the book, the authors foreground expressions of Indigenous laws in action and demonstrate how multiple legal orders can coordinate coastal protection through interjurisdictional arrangements (see Chapter 7 in particular). The authors also explore Indigenous legal orders in the overview chapter on jurisdiction and in its own chapter (Chapter 5) using Indigenous Protected and Conserved Areas, Indigenous stewardship laws and collaborative management agreements as examples of the modern expression of Indigenous laws and Indigenous-led ocean protection.

The scope and accessibility of the book is remarkable. It is the only comprehensive reference available to assist those in professional communities, citizen activists and Indigenous peoples to understand the confusing layers of state ocean governance built upon the foundation of Indigenous legal arrangements. Although there is no similar treatment for Indigenous laws, early in the book the authors summarize the mandatory (at Table 4 page 37) and voluntary (at Table 5 pages 60-61) designations for coastal and marine protection in international law and replicate these summaries for federal (Table 7 page 74) and provincial (Table 8 page 126) legal designations later in the book. Each chapter is peppered with short one or two sentence examples and longer case studies that demonstrate the tool in use. My one request for the second edition is a detailed table of contents so that readers can easily view the extensive list of conservation tools listed as subsections within each chapter and navigate to those directly.

Minor critiques relate to the characterization of legal orders and precision in use of legal terminology. It is unclear in the book that the three orders of governments in Canada are Indigenous, federal, and provincial governments. The authors state that “[t]his volume catalogues the legal tools that exist, at every order of government” (4), but are not explicit that local governments are administrative governments falling under provincial jurisdiction. Noting only the delegatee status of local governments and that they are not Crown representatives (page 181), the volume could benefit from additional detail and references to those who practice extensively in this complex area (see, for example, Buholzer 2001). In addition, while I appreciate that the authors explain Indigenous rights and jurisdiction between “International law” and “federal and provincial Crown jurisdiction” in chapter 1, legal scholars often clarify the interaction between Indigenous legal orders and between Indigenous and state legal orders as inter-societal or international law (Napoleon 2013). This characterization makes the application of state international law, state failure to uphold Indigenous law, and implementation of the agreements between Indigenous communities and state governments more explicit.

These are small complaints in the context of the significant scope and importance of this book. It is the first comprehensive treatment of the voluminous policies and legal orders working in the BC coastal environment. It provides significant detail and examples in what is a swiftly adapting marine governance space. It demonstrates the evolving legal, governance and management approaches using site- and community-specific examples. This book will assist a generation of legal practitioners, students and scholars to better understand the unique BC marine legal and governance ecology.

 

REFERENCES

Buholzer, William (2001). British Columbia planning law and practice (Toronto: LexisNexis Canada)

Chircop, Aldo. “Canadian Maritime Law Jurisdiction Revisited: Quo Vadis?” Dalhousie Law Journal 46, no. 1 (2023): 1–

Chircop, Aldo, Ted L McDorman, Susan J Rolston (eds) (2009). The Future of Ocean Regime-Building (United States: BRILL)

Commission on Environmental Cooperation (2016) North America’s Blue Carbon: Assessing Seagrass, Salt Marsh and Mangrove Distribution and Carbon Sinks (Montreal, Canada: Commission for Environmental Cooperation)

Gavrilov, Viatcheslav, Ted L McDorman, and Clive Schofield (2022) “Canada and the Russian Federation: Maritime Boundaries and Jurisdiction in the Arctic Ocean.” Arctic Review on Law and Politics 13: 219–231

Hewson, Stephanie, Linda Nowlan, Georgia Lloyd-Smith, Deborah Carlson, Michael Bissonnette (2020) Guide to Marine Conservation Law in British Columbia (Vancouver: West Coast Environmental Law Association) online: https://www.wcel.org/publication/protecting-coast-and-ocean-guide-marine-conservation-law-british-columbia. Accessed 27 October 2023

McDorman, Ted L (2009) Salt Water Neighbors: International Ocean Law Relations Between the United States and Canada Oxford: Oxford University Press,

McDorman, Ted L, and Bruce Calderbank. Canada’s Offshore: Jurisdiction, Rights, and Management (3rd ed.) Victoria, B.C: Trafford Publishing, 2006

McDorman Ted L, and Aldo Chircop (2012) Canada’s Oceans Policy Framework: An Overview, Coastal Management, 40:2, 133-144, DOI: 10.1080/08920753.2012.652517

Napoleon, Val (2013) Thinking About Indigenous Legal Orders. In Provost, R., Sheppard, C. (eds) Dialogues on Human Rights and Legal Pluralism (Dordrecht, Netherlands: Springer) https://doi-org.ezproxy.library.uvic.ca/10.1007/978-94-007-4710-4_11

Scott, Karen N, and David L VanderZwaag (eds.) (2020) Research Handbook on Polar Law Cheltenham, UK: Edward Elgar Publishing Limited

Statistics Canada (2016) International Perspective online: https://www150.statcan.gc.ca/n1/pub/11-402-x/2012000/chap/geo/geo01-eng.htm. Accessed 13 November 2023

University of Santa Cruz (2022) MARINe Multi-Agency Rocky Intertidal Network – British Columbia online: https://marine.ucsc.edu/sites/sites-region/sites-region-bc.html. Accessed 6 November 2023

VanderZwaag, David L (ed) (1992) Canadian Ocean Law and Policy

https://www.doullbooks.com/product/114117/Canadian-Ocean-Law-and-Policy-First-Edition

VanderZwaag, David L (1995) Canada and Marine Environmental Protection: Charting a Legal Course Towards Sustainable Development