No man's land

On B.C.'s Galiano Island, there is a pitched battle between those who [say they] would protect the land and those who want to live on it

Galiano Island is an idyllic 20-square-mile stretch of stunning cedar and Douglas fir forest between Vancouver Island and the mainland. But there is a darker side to life on the island. In the words of a provincial tax official: "We believe this is the only jurisdiction in B.C. where the people do not have the right to reside on their own property." In a concluding article in our Strong and Free series, Elizabeth Nickson examines what happens when collective rights override individual property rights.

BRITISH COLUMBIA, Canada - It is a sunny autumn afternoon and some members of the Coalition of Concerned Citizens on Galiano have gathered in a large kitchen overlooking Georgia Strait. They refer to themselves, only partly in jest, as "The Northern Alliance," and call the powers-that-be on the island -- those on the other side of the barricade -- "The Green Taliban."

The "Taliban" include the Galiano Conservancy, a group formed to preserve, protect and enhance the environment, and the Islands Trust, a government agency that has the power to legislate land use on Canada's Gulf Islands.

Although they share the same mandate -- "to preserve and protect" -- the two groups are not formally linked. Their fight with "The Northern Alliance"-- comprising 98 of the approximately 100 forest-lot owners on the island -- is over whether these owners can legally build homes on their properties, which total 7,000 acres and cover half of Galiano Island.

So far, the owners have been stymied by what many see as the environmental movement's least known, yet most spectacular triumph: the tying up of formerly urban land in webs of regulation so complex that virtually nothing can be done on that land.

The new battle lines are drawn as sharply as they were in the Old West. Rural dwellers believe those who live on the land and work it can best guarantee its lasting integrity. Environmental activists, funded and advised largely by wealthy and middle-class urbanites, believe all land use must be strictly regulated by government agencies and watchdog NGOs. And where funding and advice fail, litigation steps in.

As Karen Wristen, past chairwoman of the Canadian Sierra Legal Defence Fund, recently said, "Our role is to help formulate local by-laws and enforce them."

The results of this struggle are written on the faces of the forest-lot owners gathered around the kitchen table. Despite the joking, it is easy to see that these people, many retired or close to retirement age, have reached their wit's end.

Mel Brown, a big, gentle former corporate executive with Telus, leans forward, the subject so fraught with emotion, that he speaks with difficulty. He has spent 10 years trying to avoid his worst nightmare: clear-cutting his property to pay his mortgage and fees for failed planning efforts.

Beside him at the table sits Bowie Keefer, a physicist, inventor and former commissioner on Vancouver's Parks Board. The kitchen belongs to retired Québécois photographer and eco-forester Bernard Mignault and his partner, Lyn-Marie.

Also present are the assistant fire chief, Fred King, Barbara Geary, a former medical technician who runs a small resort, and a half-dozen others.

None of them is here by choice. Not wealthy, all their money and most of their retirement plans are bound up in land many bought 10 years ago and still can't use as they see fit. They are committed to fighting the regulations and winning, no matter what it takes.

And the battle has taken its toll.

It is perhaps easiest to see the results in the case of Bernard and Lyn-Marie Mignault.

When Bernard, now in his early 60s, bought his 75-acre forest with his life savings in 1989, he had the right to build three houses on it. While he was putting up the first house, the new set of by-laws removed his right to build the other houses. Now, he can only get this right back by donating 30 acres of his land to the "heritage forest."

But Bernard and Lyn-Marie earn their living making furniture from their trees and cannot afford to give up any of their forest. Moreover, because of the new by-laws, they have to rent their house to tourists each summer to pay their property taxes, and so live in a camping van.

"I am a good citizen," says Lyn-Marie heatedly. "I have asked our local Trust official to come and see how we live. She does not come. We are good stewards and we are treated like dirt."

The story is fiendishly -- some say deliberately -- complex.

It began in 1989 when the forestry giant, MacMillan Bloedel, which owned half of Galiano Island, became exhausted by protracted fights with ecological activists and approached the Islands Trust with a plan to divest itself of the Galiano holdings. It proposed the building of 350 houses on five-acre lots and the dedication of the rest of the 7,000 acres to a tree farm and parkland. The Trust rejected the plan and decided instead that, together with the Galiano Conservancy, they would raise the money and buy the land themselves. But after six months of fruitless negotiation with the Trust and the Conservancy, MacMillan Bloedel decided to sell the land on the open market.

At the time, the Official Community Plan on Galiano -- permitting the building of one dwelling for every 20 acres -- was still in force. Purchasers were told the Official Community Plan was being rewritten, and signed a disclosure agreement indicating they understood residency rights were in flux. However, no one believed all residency rights would be removed forever, since that had happened nowhere else in Canada.

Over the next few years, approximately 90 families, individuals and groups of families bought lots from Mac-Blo ranging in size from 20 acres to 220 acres. Except for a few developers and some loggers who, regrettably, bought the land expressly for the merchantable timber, by far the largest proportion of buyers were actuaries, school teachers, scientists and businessmen and women who planned to retire on Galiano on property big enough that their children and grandchildren, if they desired, could have houses there, too. Most purchasers were sensitive to environmental issues and some planned small eco-forestry operations, or stewardship programs, with parks and pathways for the public through their lands.

The conservationists on Galiano saw this as the thin edge of the wedge which, if left unchecked, might lead to the urbanization of the island. "We are only 50 miles from Vancouver's main ferry terminal," says Margaret Griffiths, a current Trust Officer. "The pressure to develop is immense."

In 1991, to buy time for necessary planning, the Islands Trust passed four by-laws that removed all residential rights and increased minimum building-lot size from 20 acres to 50 acres. MacMillan Bloedel, which had not yet sold all its lots, promptly took the Galiano Island Trust Committee to court.

In 1993, Mr. Justice Raymond Paris found the by-laws to be "discriminatory and passed in bad faith and therefore declared void for illegality." The Islands Trust immediately appealed, but another two years passed before the decision came down.

In the view of David Borrowman, until recently vice-chairman of the Islands Trust, those two years "wrought terrible mischief." Developers created approximately 45 new 20- to 50-acre lots and built roads to them. In that same period, 12 homes were built.

In 1995, the Islands Trust won the appeal. Residency rights were entirely extinguished, and mayhem ensued. Homes that had been built legally were declared non-conforming, which meant that if, for instance, they were to burn down, they could not be rebuilt. A road put in at the personal expense of two families at a cost of $1-million could no longer be used since henceforth subdivision was forbidden. In retaliation, the road-building families refused to allow public use of the road. People who owned 20-acre plots saw the value of their property reduced to the value of the trees standing on it, and many cut those trees down to pay their taxes and mortgages.

Later in 1995, a new Official Community Plan, argued over in exhausting and emotional 12-hour community meetings, brought forward a compromise solution that would allow one house in 50 acres, with residential provisions for those who owned smaller lots. The entire community breathed a sigh of relief. It seemed the battle was over.

Not.

In 1997, the elected Islands Trust trustees, Margaret Griffiths and Debbie Holmes, drafted yet another by-law, No. 127. It was unprecedented, even historic, and, many thought, draconian.

The draft included a host of complex proposals, but the one most preferred by the Galiano Conservancy and the Trust would remove, once again, all residential rights from the forest lots. However, forest lot owners could rezone, an expensive, arduous and long process at the end of which their right to reside on their land could be retrieved, but only if they donated three-quarters of their property to a "community heritage forest." Further, two-thirds of any waterfront would have to be donated to the heritage forest.

The somewhat beleaguered Margaret Griffiths, an elderly, well-spoken Englishwoman, explains: "If you're going to increase your benefits, you usually give the community a benefit as an amenity. So if they get the residential benefit of one house per 20 acres, on a five-acre lot, then yes, that's what they must do, if this is what they choose to do. Nobody's asking them to do it. But they refuse to make applications to rezone."

But even if you donated three-quarters of your property to the community heritage forest, you couldn't even choose where on your property you might build your house. The Trust would choose for you. If you had 20 acres, say, and donated 15 of them to the community heritage forest, the five that you wanted to keep would be chosen for you by the Trust. The heritage forest would be run by a private non-profit outfit called the Galiano Club. Here was the precedent-setting rub. The Club, a non-profit society, would then run a sustainable forestry operation that would operate for profit but would be taxed as a non-profit organization. Moreover, the new by-law would end up creating 600 dwellings -- 250 more than Mac Blo's original proposal would have created -- and 5,000 acres of donated land for a community forest.

The by-law sat on the desk of the Minister of Municipal Affairs for months, but it was eventually signed, by Jim Doyle, in March 2000, shortly before the provincial NDP government left office. Although Mr. Doyle chose "Option 1 -- approve the by-law," embedded in the decision were the notes on "Option 2 -- not approve the by-law." The notes read: "The property rights issue is a significant enough provincial interest to reject the by-law. If this decision is made, the Trust would have to be advised that the by-law represents a major intrusion into private property rights, in particular the quantity of land that must be turned over to a private society."

The minister's briefing notes continue: "This type of land donation to a private society, which does not have public responsibility and accountability, appears to be an unprecedented form of land-use regulation by any local government ... and could be seen as going beyond the Trust Committee's authority for land use management."

Nevertheless, the by-law was approved.

Mel Brown and his wife, stretched to the financial breaking point by two prior expensive and failed attempts to attain residency rights, decided they would donate 75% of their land to the community forest, sell the rest and leave the island. He started the process (again, it cost money he couldn't afford) but he got all the way to ministerial approval when the requirement to build an access road to his property came down.

"The road will cost from $300,000 to $400,000. We can't afford to do that. Nobody likes to give away 75% of their land. It was a tough enough thing to come to grips with. But this! I said to my partner, the dream to have land for our children, it's gone. All we can do is sell up to try to make back what we've paid. But now we can't even do that."

Brown is now facing a harsh choice: clear-cutting his property to pay his $50,000 planning bill.

Some residents have already given up. Jim Robson, the longtime "Voice of the Vancouver Canucks," and his wife have sold their house.

"Though we loved the island, and were against development, we couldn't stand living there anymore," he said on the phone from Vancouver. "Island life was full of animosity. Extremists have infiltrated local politics [and] instituted restrictive by-laws. You know, it's the only place in Canada where you can't live on your land, but must pay residential property taxes, yet can't vote."

Bill and Joan Paterson, co-founders of the Suzuki Foundation's Council of Elders, also helped found the Galiano Land Conservancy but resigned in despair and sold their house. "When we were residents of Galiano we worked hard to work with the forest lot owners, but the extreme positions of the Conservancy precluded any such cooperative interaction," Paterson said in an affidavit given before leaving the island.

The soft-spoken Ken Millard, a Conservancy member who lives in his own house on a 20-acre plot, is considered by many to be a prime mover for the ecologists. "I do not bear anyone any ill will," he says. "A large change in land use has been accomplished and it's not uncommon that some hard feelings develop."

Community life in this small island of 900 permanent residents and a couple of thousand weekend and summer residents, is, indeed, sour. "It is a very sad indictment of a community when it can't solve its own differences and everyone who speaks up is taken to court. It is almost impossible to live and work here," says Barbara Geary.

It's not just property owners who are affected. "We are now initiating a fund for Barbara Littlejohn," Geary says. "She has no agenda, and doesn't own land." Barbara Littlejohn, who cleaned up the largest contaminated site in Gulf Islands history, is on medical leave, on the verge of bankruptcy and facing a slander suit because she persistently, and perhaps intemperately, questioned the actions of local activists.

Some observers in Canada and the United States see what is happening on Galiano as part of a pattern that crosses the entire continent, and is on the agenda of unregulated NGO's, non-governmental organizations. The most extreme among them (and many are not extreme) seek to reconfigure country life in its entirety.

Mary Adams mga@tdstelme.net of Maine, where -- in North America -- the agenda has progressed furthest, is an activist grandmother who started the "Common Sense" grassroots effort to fight the takeover of her state by the environmental movement. Like many others, she has watched the activity for decades and tracks them on her Web site, http://www.adamsreport.com .

"Have you heard of 'Smart Growth'?" she asks. "It's all part of the same thing, it's designed to move people out of rural areas into urban areas, it's in every state. It's insidious. It's all boilerplate stuff designed to carve up the ground under your feet so you can't do what you need to do to survive. The economic impact on the lives of rural people has been enormous and disastrous. The agenda is pro-nature, anti-people. They have no regard for the needs of people for peace and quiet and loveliness and they want to put them in urban areas, and clear out everyone in rural areas. They have some theory in their head, that nature needs to go back to pre-civilization days. The problem is it has captured the romantic notion of people, particularly wealthy people who pour money into these causes."

The forest lot owners seek to be stewards of their land. "We have made numerous offers to protect the land and limit residential use. But the trustees' main interest appears to be seizing our properties," says Jim Trueit, head of the Coalition of Concerned Citizens.

Borrowman appears to concur. "Many of the forest owners would clearly be superb stewards," says the former Islands Trust vice-chair. "The argument that the owner takes pride in his property I am prepared to agree with."

In fact, what is now becoming obvious everywhere in the countryside is that environmental organizations have set up "perverse incentives," which means that in many cases, the very system put in place to protect the countryside ends up encouraging only big developers, since they are the only ones who can afford to fight environmental groups. A farmer who finds an endangered species on his property will often destroy the habitat so he doesn't have phalanxes of activists demanding he freeze his land. Landowners, say farmers, are the best stewards, not conservancies, which are often made up of urbanites whose directives and financing far too often originate abroad.

To some observers, what has happened to the forest lot owners represents a pattern of obstruction that has led to the financial ruin of individuals. To others, it is merely a valiant attempt to preserve a significant biosphere. Collective rights are in full conflict with individual rights, with seemingly no reconciliation. The Islands Trust planner, Jerry Hamblin, says, "I'm aware on Galiano, we are getting down to a core philosophical debate."

Possibly, if this were not real life. It's more like a schoolyard battle, played with people's livelihoods and lives.