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Bridgepoint Market : an application of No Net Loss Brownlee, David C. 1992

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BRIDGEPOINT MARKET: AN APPLICATION OF NO NET LOSSbyDAVID C. BROWNLEEB.A. GeographyA THESIS SUBMITTED IN PARTIAL FULFILLMENT OFTHE REQUIREMENTS FOR THE DEGREE OFMASTER OF ARTS (PLANNING)inTHE FACULTY OF GRADUATE STUDIESSCHOOL OF COMMUNITY AND REGIONAL PLANNINGWe accept this thesis as conformingto the required standardTHE UNIVERSITY OF BRITISH COLUMBIAAPRIL 1992© David C. Brownlee, 1992In presenting this thesis in partial fulfilment of the requirements for an advanceddegree at the University of British Columbia, I agree that the Library shall make itfreely available for reference and study. I further agree that permission for extensivecopying of this thesis for scholarly purposes may be granted by the head of mydepartment or by his or her representatives. It is understood that copying orpublication of this thesis for financial gain shall not be allowed without my writtenpermission.(Signature)Department of  School of Community and Regional PlanningThe University of British ColumbiaVancouver, CanadaDate 13 April 1992DE-6 (2/88)ABSTRACTThis thesis undertakes an examination and assessment of the Department of Fisheries andOceans application of No Net Loss of Fish Habitat at the Bridgepoint Market Development inRichmond, British Columbia. Of specific interest is the process through which No Net Loss wasapplied.The approach used in this study is essentially empirical, drawing upon more than 120 documents,supplemented by interviews with ten individuals having direct knowledge of the case. Using thisinformation, a detailed descriptive account is provided of what occurred and in what context, whowas involved, and what the major outcomes were.An analytical framework based on Fisher and Ury's theory of Principled Negotiation is developedand used as a standard against which to assess the Bridgepoint case. Based on this assessment itwas concluded that although progress was made in achieving a number of significant agreementsover the four year exchange, it was also apparent that these outcomes were, for the most part,derived through concessions to positional bargaining rather than through the employment ofprinciples which have been shown to improve the likelihood of reaching a fair, equitable, andefficient agreement.Three key recommendations were made in the thesis. The first, is that the four principles ofseparating the people from the problem, inventing options for mutual gain, insisting on objectivecriteria, and focusing on interests not positions, should be employed in most negotiations over theapplication of No Net Loss of fish habitat. Second, consideration should be given to building intothe No Net Loss process, provisions to allow for qualified third party intervention to assist in thenegotiations. Third, DFO's hierarchy of preferences for evaluating development applicationsshould be replaced with a non-hierarchical system that permits rejection of proposals at an earlystage in the process.iiiTABLE OF CONTENTSABSTRACT^TABLE OF CONTENTS^ iiiLIST OF TABLES viLIST OF FIGURES viiACKNOWLEDGEMENT^ viiiDEDICATION^ ixCHAPTER ONEINTRODUCTION^ 11.1 OBJECTIVE AND PURPOSE OF THIS THESIS^ 21.2 METHODOLOGY 31.3 SCOPE AND LIMITATIONS^ 41.4 THESIS ORGANIZATION 5CHAPTER TWOTHE IMPORTANCE OF WETLAND HABITAT IN THE FRASER:ECOLOGICAL AND ECONOMIC CONSIDERATIONS^ 82.1 THE PURPOSE OF THIS CHAPTER^ 82.2 THE FRASER RIVER AND ITS ESTUARY: PHYSICAL ASPECTS^ 92.3 THE FRASER RIVER AND ITS ESTUARY: LIVING SYSTEMS 112.3.1 Usage by Fish Species^ 122.3.2 Usage by Bird Species 142.3.3 Usage by Other Species 152.3.4 Species Interactions^ 152.4 HUMAN INTERACTION WITH THE ESTUARY^ 162.4.1 Usage by Humans 162.4.2 Pressures Imposed by Humans^ 192.5 CHAPTER SUMMARY AND CONCLUSIONS^ 23CHAPTER THREELEGAL AND JURISDICTIONAL ASPECTS AFFECTINGFISH HABITAT MANAGEMENT AT BRIDGEPOINT^ 263.1 THE PURPOSE OF THIS CHAPTER^ 263.2 THE BROADER JURISDICTIONAL ASPECTS^ 263.2.1 Constitutional Considerations 263.2.2 Key Agencies and their Acts^ 293.2.2.1 Federal Jurisdiction 293.2.2.1.1 The Harbour Commissions 293.2.2.1.2 Environment Canada^ 303.2.2.1.3 Department of Fisheries and Oceans^ 343.2.2.2 Provincial Jurisdiction 353.2.2.2.1 B.C. Ministry of Environment 363.2.2.2.2 Municipal Government^ 373.3 THE DEPARTMENT OF FISHERIES AND OCEANS'NO NET LOSS PRINCIPLE 383.3.1 The Evolution of No Net Loss Within DFO^ 383.3.2 No Net Loss Within the Context ofDFO's Fish Habitat Management Policy  443.3.2.1 Procedural Steps to Achieving No Net Loss^  453.3.2.2 Hierarchy of Preferences^ 483.4 CHAPTER SUMMARY AND CONCLUSION 51ivCHAPTER FOURTHEORY - DEVELOPMENT OF AN ANALYTICAL FRAMEWORK^ 524.1 THE PURPOSE OF THIS CHAPTER^ 524.2 RATIONALIZING THE NEGOTIATION BASED APPROACH ASA BASIS FOR ANALYSIS^ 524.3 PRINCIPLED NEGOTIATION (NEGOTIATING ON THE MERITS)^ 544.3.1 Separate the People from the Problem^ 554.3.2 Focus on Interests, not Positions 574.3.3 Invent Options for Mutual Gain 594.3.4 Insist on Using Objective Criteria^ 624.4 RATIONALE FOR APPLYING PRINCIPLED NEGOTIATION ASAN ANALYTICAL FRAMEWORK 644.4.1 Utilization of Widely Accepted Concepts^  644.4.2 The Method Permits the Substitution of SpecificTechniques^  664.4.3 The Method is Transferable to a Wide Variety of Situations^  674.4.4 The Method has Been Widely Reviewed / It Offersa Prescriptive Approach^ 674.5 LIMITATIONS OF THE APPROACH^ 674.6 A FRAMEWORK FOR ANALYSIS OF THE BRIDGEPOINT CASE STUDY^ 694.6.1 Separating the People from the Problem 694.6.2 Focusing on Interests not Positions^ 704.6.3 Inventing Options for Mutual Gain 704.6.4 Insisting on Objective Criteria  704.7 THE RELATIONSHIP OF THE CASE STUDY ANALYSIS TOPLANNING THEORY^ 714.7.1 General Observations on Planning Theory^ 714.7.2 Linking the Case Study to Planning Theory 754.8 CHAPTER SUMMARY AND CONCLUSIONS 76CHAPTER FIVENO NET LOSS AT BRIDGEPOINTCASE STUDY EXAMINATION^ 785.1 PURPOSE OF THIS CHAPTER 785.2 FEATURES AND FACETS OF THE BRIDGEPOINT MARKET DEVELOPMENT^ 815.2.1 Land Use Issues^ 815.2.2 Environmental Issues 825.2.2.1 Marsh and Mudflat Related Issues^ 835.2.2.2 Zooplankton and Benthic Organisms 865.2.2.3 Fish^ 875.2.2.4 Birds and Wildlife^ 875.2.2.5 Species Relationships 905.2.3 Participant Involvement and Jurisdictional Issues^ 905.2.4 Economic and Social Issues^ 965.3 A CHRONOLOGICAL OVERVIEW OF EVENTS 975.3.1 1977-1983^  985.3.2 1984 995.3.3 1985  1095.3.4 1986^  1155.3.5 1987-1989  1165.4 CHAPTER SUMMARY AND CONCLUSIONS^ 116CHAPTER SIXBRIDGEPOINT NEGOTIATION ANALYSIS^ 1186.1 PURPOSE OF THIS CHAPTER^ 1186.2 GENERAL OBSERVATIONS 1186.2.1 The Relative Importance of Bridgepoint^  1186.2.1.1 Intrinsic Importance^ 1186.2.1.2 Broader Outcomes of the Case^ 1196.2.2 The Role of Negotiation at Bridgepoint 1206.2.3 Summary of Observations  1266.3 CASE STUDY ANALYSIS^ 1276.3.1 Focus on Interests not Positions 1276.3.1.1 The Proponent -- Bridgepoint Harbour Market Corporation andTheir Consultants^  1276.3.1.2 The North Fraser Harbour Commission (NFHC)^ 1296.3.1.3 The Department of Fisheries and Oceans^ 1316.3.1.4 The Other Environmental Agencies Involved  1326.3.1.5 Focus on Interests not Positions -- Summary and Conclusions^ 1336.3.2 Separate the People from the Problem^ 1386.3.2.1 Issues Related to Communication Concernsand Understanding Perceptions 1396.3.2.2 Reconciling Positions^ 1406.3.2.3 The Role of Emotions in the Negotiations^ 1426.3.2.4 Informing the Parties and Access to Relevant Information^ 1436.3.2.5 Separating the People from the Problem -- Summary and Conclusions^ 1456.3.3 Inventing Options for Mutual Gain^  1486.3.3.1 Generating and Choosing Between Alternative Solutions^ 1496.3.3.2 Mutually Beneficial Solutions and Compromised Positions 1516.3.3.3 Facilitating Other Parties in Making their Decisions  1546.3.3.4 Inventing Options for Mutual Gain -- Summary and Conclusions^  1556.3.4 Insist on Using Objective Criteria^  1576.3.4.1 The Development and Application of Objective Criteria^  1576.3.4.2 Fair Process at Bridgepoint  1586.3.4.3 Insist on Using Objective Criteria -- Summary and Conclusions^  1606.4 CONCLUSIONS AND RECOMMENDATIONS^ 1616.4.1 Focus on Interests not Positions^ 1646.4.2 Separate the People from the Problem 1656.4.3 Inventing Options for Mutual Gain 1686.4.4 Insisting on Objective Criteria^  1686.4.5 Conclusions and Recommendations Summary^ 171CHAPTER SEVENBRIDGEPOINT: THESIS OVERVIEW^ 173BIBLIOGRAPHYREFERENCES CITED^ 178INTERVIEW CONTACTS 184APPENDICESAPPENDIX ONE: BRIDGEPOINT PHOTOGRAPHS^ 185APPENDIX TWO: GLOSSARY OF TERMS AND ABBREVIATIONS^ 190APPENDIX THREE: SUBMISSION FOR ETHICAL REVIEW^ 193CERTIFICATE OF APPROVAL^ 194viLIST OF TABLESCHAPTER TWOTABLE 2.1 Major Habitat Zones in the Fraser^ 13CHAPTER FOURTABLE 4.1 The Principled Negotiation Method^ 56TABLE 4.2 "Ideas on Improving Negotiation" 65CHAPTER FIVETABLE 5.1 Species List of Fish Sampled at the Proposed Bridgeport Harbour MarketStudy Site: April and May, 1984^ 88TABLE 5.2 Species of Birds and Animals Observed During April and May 1984 atthe Bridgeport Harbour Market Study Site^ 89TABLE 5.3 Groups/Agencies Known to Have Been Involved Withthe Bridgepoint Development Process 92TABLE 5.4 Principal Agencies Involved With The Bridgepoint Development Process^ 94CHAPTER SIXTABLE 6.1 Negotiation Roles in the Bridgepoint Development^ 122TABLE 6.2 Selected Chronology of Events Related to the Bridgepoint Development^ 122TABLE 6.3a Interests of the Main Negotiating Parties^ 134TABLE 6.3b Interests of the Main Negotiating Parties 135TABLE 6.4 Analytical Summary^ 163LIST OF FIGURESCHAPTER TWOFIGURE 2.1 Fraser River Delta Simplified Food Web^  17CHAPTER THREEFIGURE 3.1 Environment Canada's Referral System^ 33FIGURE 3.2 Policy Chart for Fish Habitat Management in 1983^ 42FIGURE 3.3 Policy Framework for Fish Habitat Management as of 1986^ 43FIGURE 3.4 Procedural Steps to Achieving No Net Loss^ 46FIGURE 3.5 Reaches for the North Fraser Harbour 50CHAPTER FOURFIGURE 4.1 Circle Chart -- The Four Basic Steps in Inventing Options^ 60CHAPTER FIVEFIGURE 5.1 Bridgeport Harbour Market Development Site and Mitchell Island Marsh Site^ 79FIGURE 5.2 Location of Proposed Bridgeport Harbour Market^ 80FIGURE 5.3 Foreshore Vegetation Communities at the Bridgeport Harbour Market Site^ 84FIGURE 5.4 Bridgepoint Site Plan Map (1988)^  85FIGURE 5.5 A Simplified Food Web in the Fraser River Delta^ 91viiiACKNOWLEDGEMENTA good many people gave freely of their time and advice to help bring this project to fruition. Iam especially grateful to Tony Dorcey, my primary academic advisor, for his insightful commentsand probing criticism which helped to keep this project on track.The invaluable contribution of an objective perspective, and an endless supply of moral support arebut two of the many ways that Marga Betz, my external advisor, helped to make this projectdoable.Anne Brown, my close personal friend and confidant, always found both the time and the patienceto listen to yet another rendition of my work. A more steadfast supporter I doubt I could findanywhere.To each of you I am indebted for helping me along this portion of my journey through life.DEDICATIONThis Thesis is dedicated to my parents. Such a small return for thepatience, support, and love you've given me over the years.ixBRIDGEPOINT MARKET: AN APPLICATION OF NO NET LOSSCHAPTER ONEINTRODUCTIONIn the final report of the Commission on Pacific Fisheries Policy in 1982 a recommendation madeto the effect that the Department of Fisheries and Oceans' habitat policy should "ensure that thetotal fish production capacity in the region will not be diminished as a result of industrial and otheractivities that impinge upon fish habitat" (Pearse, 1982:24). It was further recommended that"identifiable and measurable harm to fish habitat should be tolerated for any particular developmentonly if the damage is fully compensated through expanded fish production capacity elsewhere"(Pearse, 1982:24). Within the Department of Fisheries and Oceans (DFO) these recommendationswere viewed as an embodiment of the No Net Loss Principle toward which the agency had beenworking (DFO, 1983a:1).Over the ensuing four years DFO continued to refine and develop its Fish Habitat policyincorporating No Net Loss (NNL) as one of its fundamental cornerstones. In April 1983 aworkshop was undertaken with the specific objective of developing "a common understanding andconsistent application of the concept of NNL and to clearly enunciate the implications of adopting aNNL Policy" (DFO, 1983b:3). Two years later in 1985, DFO released a "proposed policy andprocedures" paper with No Net Loss (NNL) as the suggested objective of the habitat policy.In conjunction with these developments Fisheries began applying No Net Loss to all waterfrontdevelopment proposals under their jurisdiction within the lower Fraser River region on BritishColumbia's west coast. One of the first and largest of these projects to that time was theBridgepoint Market Development in Richmond, British Columbia.2From a policy perspective Bridgepoint was instrumental in contributing to, and altering, the roleplayed by No Net Loss in DFO's national Fish Habitat Policy. From a procedural perspectiveBridgepoint established much of the ground work necessary for actually applying the policy tospecific developments. From both these perspectives Bridgepoint is of historical significance interms of the management of Canada's natural fish habitat resources. These perspectives alsoprovide a measure of justification for the examination and assessment of Bridgepoint as a casestudy for this thesis.1.1 OBJECTIVE AND PURPOSE OF THIS THESIS Given the apparent importance of the Bridgepoint Development to DFO's Fish Habitat Policy theprincipal objective of this thesis is to undertake, in a planning process context, an examination andassessment of the Bridgepoint Development as an application of No Net Loss. The purpose of thisobjective is two fold: the first is to examine issues of process in applying No Net Loss. Forexample; how No Net Loss was applied and in what context, who was involved, what were theresults, and how might the process have been improved. The second purpose, is to document keyaspects of the Bridgepoint development for their importance to the evolution of DFO's FishHabitat Policy and the management of a valuable natural resource.From the start of this project it was apparent that fulfilling the principal objective of this thesiswould require that three sub-objectives also be met. The first of these sub-objectives relates to thecontext within which No Net Loss was, and is, applied. Of specific interest are theecological/environmental, socio-economic, legal and jurisdictional issues that may impinge on themanagement of the fish habitat resource and No Net Loss. This necessary background serves notonly to establish the context within which NNL was applied at Bridgepoint, but also to strengthenthe appreciation for the complexity of the issues that were dealt with by the parties involved.The second sub-objective is associated with the intent of this research to provide an assessment ofthe Bridgepoint case in terms of the process that participants went through. A proper assessment3requires that a suitable analytical framework be developed and applied to the case. Ideally, theframework should provide an objective standard against which the case study can be compared sothat conclusions may be drawn from the case and prescriptions for improvement made.In order to achieve this second sub-objective, and to fill in some of the process details such as whowas involved, how No Net Loss was applied, and what the results were, the significant aspects ofthe Bridgepoint case study would have to be detailed. This is the third sub-objective of the thesis.The orientation of this thesis towards the primary objective and the three sub-objectives isessentially reflected in both the methodology used in the research and the organization of thisdocument.1.2 METHODOLOGY Involving both interviews with representatives from the key agencies involved, and reviews of theavailable documentation related to the Bridgepoint Development, the approach used for this thesisis essentially empirical.Twelve formal interviews were held with ten different individuals, most of whom had either beenpersonally involved in the process at one point or another, or had direct knowledge of the case.The questions posed in each of these interviews were drawn from the analytical frameworkdeveloped in Chapter Four of the thesis. The analytical framework itself, and a list of thequestions expected to be asked of the interviewees, were submitted for ethical review by theUniversity of British Columbia's Behavioral Sciences Screening Committee. A copy of thecommittee's Certificate of Approval appears in the Appendices.In total 128 individual documents related to the Bridgepoint project, DFO's Fish Habitat Policyand/or fish habitat management, were reviewed for this thesis. Of these documents,approximately 80% were specific to the Bridgepoint case. Documents collected and reviewed came4from a wide variety of sources and include; reports, memoranda, letters, meeting minutes,newspaper articles, workshop proceedings, legal documents, maps, North Fraser HarbourCommission (NFHC) site advertisements, and City of Richmond Council minutes. For workingpurposes these documents were sorted in chronological order and sourced to provide background onthe chronological sequence of events, and to yield some indication of what information each of theparties had. For reasons of confidentiality, the specific details of this work are not included in thisdocument and are mentioned here only to provide some background on the process used to aid inthe analysis. Representatives from a number of agencies involved were fundamental in providingaccess to much of the material reviewed for this thesis.Information from both the interviews, and the available documentation, were used to assess thecase study in terms of the analytical framework.1.3 SCOPE AND LIMITATIONS The negotiations over the application of No Net Loss at Bridgepoint took place primarily over afour year span from 1984 to 1988. During this period there were literally dozens of meetings,telephone conversations, letters, and memoranda being exchanged between the various partiesinvolved -- each of which contributed to the negotiation process. By shear volume alone, a detailedexamination of the technical aspects of each of these interactions lies well beyond the scope of thisthesis. Rather, the focus of this research on process allows it to draw upon this material for themore macro aspects in order to arrive at an understanding of what occurred and how, who wasinvolved, and what the results were. Since it is not the intent of this research to find fault withany one individual or group, but rather to seek out ways in which the process of applying No NetLoss might be improved, this lack of technical detail becomes largely insignificant.Somewhat more limiting is the fact that this research undertakes an examination of a single,albeit significant, empirical case from which conclusions are drawn and recommendations aremade for future applications of No Net Loss. Indeed, the focus is even narrower than this;5concentrating primarily on the involvement of the Department of Fisheries and Oceans (DF0),and the North Fraser Harbour Commission (NFHC) in the application. But far from being astraight forward application of a well established policy, the Bridgepoint Market proposal cameabout at a crucial time in the development of DFO's Fish Habitat Policy. Many matters relatingto the socio-economic implications of applying No Net Loss, inter-agency legal and jurisdictionaloverlaps, and especially the implications of physically applying No Net Loss to the environmentand the ecology of the area, were yet to be determined in any practical substantive manner whenthe Bridgepoint issue was first examined by the reviewing agencies. Each of these aspects addedtheir own dimensions to an already complex case with many players, and volumes of documentsfrom a number of different sources -- not all of which were readily accessible.Both the complexity of this case, and its potential wealth for what it could reveal about theapplication of No Net Loss, played a role in the decision to concentrate on the Bridgepoint case tothe exclusion of all others. Attempting to focus on more than this case would have, in the opinionof this researcher, resulted in an unacceptable dilution of both the significance of Bridgepoint andthe richness that the case offers to an understanding of the application of No Net Loss.Consequently, no apologies are offered for this limitation in the scope of the study -- only adeceivingly simple suggestion that another individual might consider using this research toundertake a comparative analysis with the results of a separate application of No Net Loss.1.4 THESIS ORGANIZATION Excluding this introductory chapter, this thesis consists of six chapters. Chapter Two, entitled"The Importance of Wetland Habitat in the Fraser: Ecological and Economic Considerations", is thefirst of two chapters designed to provide a measure of background on the broader regional issuesaffecting the application of No Net Loss at Bridgepoint and elsewhere in the Estuary. In Section2.3 of this chapter, the role played by wetland marsh habitats in the regional ecology is explored,while Section 2.4 examines the various pressures and economic considerations which accompanythe human interaction with these natural habitats.6Chapter Three, "Legal and Jurisdictional Aspects Affecting Fish Habitat Management atBridgepoint", again focuses on the broader issues involved in the application of No Net Loss. Inthis chapter the legal and jurisdictional framework which guides and controls the management offish habitat is explored through the agencies represented at Bridgepoint. Section 3.2 substantivelybegins the chapter by exploring both the broader constitutionally-based division of powers whichunderlie the seven main governing agencies involved in the Bridgepoint case, and a number of therelevant Acts that they administer.Section 3.3 takes a more focused look at the Department of Fisheries and Oceans' No Net LossPrinciple within the context of their policy for the management of fish habitat. Both the policyprescribed procedural steps to achieving No Net Loss, and the "hierarchy of preferences" used byDFO for evaluating project proposals affecting fish habitat, are described.As outlined above, both Chapters Two and Three contribute to the fulfillment of the first sub-objective described earlier.Chapter Four, entitled "Theory: Development of an Analytical Framework" serves two importantfunctions. The first part of the chapter draws upon a number of literary materials to develop ananalytical framework with which to assess the Bridgepoint case. The various strengths andweaknesses of the selected approach are also outlined in the discussion. The second part of thechapter discusses the relationship of the analytical framework, and this thesis, to planning theoryin general. This chapter thus provides the means through which the second sub-objective ofproviding an assessment of the Bridgepoint case in a planning context is achieved.Primarily descriptive in nature, Chapter Five, "No Net Loss at Bridgepoint: Case StudyExamination", works toward the thesis' third sub-objective to outline many of the process relateddetails of the case. Issues of land use, environmental, jurisdictional, economic, and social aspects7specific to the site are thus the focus of Section 5.2. This section also details who was involvedand what roles they played in the case. Section 5.3 narrows the focus somewhat, providing achronological overview of the significant events related to the case, and places many of theseevents in context with the development of DFO's Fish Habitat Policy.Drawing upon much of the groundwork established in previous chapters, Chapter Six "BridgepointNegotiation Analysis" represents the detailed analysis and assessment of the Bridgepoint case. Inthis, the Chapter is wholly oriented to fulfilling a significant portion of the primary objective of thethesis. The Chapter consists of three main sections. Section 6.2 offers a number of generalobservations about the case and its importance. Section 6.3 undertakes the structured analysis byapplying the analytical framework to the case. The final Section, 6.4, draws upon the manyobservations made in the previous two sections to formulate a number of conclusions about theapplication of No Net Loss at Bridgepoint and to offer several recommendations about how theprocess could be improved.The last chapter of this thesis "Bridgepoint: Thesis Overview" provides a retrospective overview ofthe different components of the thesis and raises a number implications about future applicationsof No Net Loss based on the observations of the Bridgepoint Market case.CHAPTER TWOTHE IMPORTANCE OF WETLAND HABITAT IN THE FRASER:ECOLOGICAL AND ECONOMIC CONSIDERATIONSThe white man must treat the beasts of this land as his brothers. I am a savage and Ido not understand any other way. I have seen a thousand rotting buffalo on theprairies, left by the white man who shot them from a passing train. I am a savageand I do not understand how the smoking iron horse can be more important than thebuffalo that we kill only to stay alive. What is man without the beasts? If all thebeasts were gone, man would die from great loneliness of spirit, for whatever happensto the beast also happens to the man. All things are connected. Whatever befalls theearth befalls the sons of the earth.[Excerpt from a letter to the president of the United States, written by Chief Seathl of theDuwamish tribe in the state of Washington (1855). (Childerhose and Trim, 1981:158)]2.1 THE PURPOSE OF THIS CHAPTER As explained in Chapter One, this is the first of two chapters which provide contextual backgroundinformation on issues affecting the management of the fish habitat resource and the application ofNo Net Loss in the Fraser Estuary. As its title suggests, this chapter focuses on two aspects;ecological and economic considerations.In order to appreciate the necessity of managing the fish habitat resources in the Fraser Estuary,some discussion is required on why these areas are important, what role they play in the region'secological and economic schemes, and what pressures they are being subjected to by direct andindirect human use. To this end, this chapter is divided into three parts. Section 2.2 draws upona range of literature to explore some of the physical characteristics of the Lower Fraser whichcollectively provide the underlying support structure for the various habitats of the Lower Fraser.Next, Section 2.3 explores aspects of the living natural systems which have evolved to takeadvantage of the unique physical conditions of the region. Various sources of literature are drawnupon to develop a sense of the variety and quantities of birds, fish, and other animals whichinhabit or make use of the Estuary. The interaction between these species and the connections tothe wetland marshes is made through a discussion on food chains and food webs attributed to theregion.aSection 2.4 focuses on the human interactions with the Estuary, discussing the human use of thearea over time as well as its significance to our economy. The discussion concludes with anexamination of the various pressures that human interaction with the region have placed on themarsh habitats.Although this chapter is designed to have a broad focus, an understanding of some of these basicsprovides some insights as to the issues considered by the environmental agencies responsible forthe management of the fish habitat resources in the Lower Fraser. It is of some interest thatvirtually all of the key issues discussed here arose in one form or another in the negotiations overthe application of No Net Loss at the Bridgepoint Market site.2.2 THE FRASER RIVER AND ITS ESTUARY: PHYSICAL ASPECTS Reaching 1378 kilometres (km) into the heart of British Columbia, the Fraser River drains some233,000 square kilometres (sq km) of the Province's coastal ranges and lower Fraser Valley plains(Kennett and McPhee, 1988:6) (Fox and Nowlan, 1978:5). As the beneficiary of a generousportion of the precipitation from the westerly airflow off the Pacific Ocean, runoff from theFraser's catchment results in an average discharge of about 3475 cubic metres per second (ems).In springtime this discharge increases substantially with the thawing of the accumulated snowfallswithin the Fraser's basin. Kennett and McPhee (1988:6) report that flows of up to 15000 cubicmetres per second (cms) have been recorded on the Fraser during this period.On its journey, the waters of the Fraser acquire a substantial sediment load of clays, sands, silts,stone fragments, and pebbles. Over a years time some 20 million metric tonnes of material aremoved by the Fraser's currents (Ward, 1980)(Kennett and McPhee, 1988:6). As the River'svelocity diminishes upon crossing the near level plains of the lower Fraser Valley, many of theheavier particles tend to settle out. The lighter particles of sand and silt, still buoyed by theriver's currents, are carried further downstream where they contribute about 2.5 metres (m) ayear to the Fraser delta's westward march (Ward, 1980). This continual deposition of sediments10over the past 8000 years is responsible for the formation of the Fraser Delta which now extendsabout 26km beyond New Westminster into the Strait of Georgia (Ward, 1980).While these facts and figures are of both geomorphological and climatological interest, they alsoreveal much about the underlying physical support structure that has created a habitableenvironment in the Fraser River Estuary. The productivity and diversity of the estuary's plantsand organisms, for example, owes much to the region's moderate climate and long growing season(Kennett and McPhee, 1988:6). Similarly, the relatively high oxygen content of the River'swaters, a result of the Fraser's whitewater journey through the mountains and the currents andeddies along its route, adds to the diversity by creating conditions amenable to fish and aquaticplants. Productivity is further enhanced by the continual deposition of both organic and inorganicnutrients carried downstream by the river.Changes in the Fraser's rate of flow over time have a direct and significant affect on the salinityof the River's lower reaches. Under low flow conditions salt water from the Strait of Georgia isable to move upstream against the river's current in response to tidal movements. In the mainarm of the Fraser, salt water has been recorded as far upstream as Annacis Island (Kennett andMcPhee, 1988:6). When the Fraser's flow rates are high, however, the salt wedge is pushed backso that it barely enters the River's mouth. Plants and organisms unable to adapt to these changesin salinity are effectively excluded from these areas. Much of the zonation of plant and, to alesser extent, animal species in the lower reaches of the Fraser Estuary are a direct result of thisrelationship. The main types of habitat zones in the Estuary, several of which reflect thedifferences in salinity by the plant species which grow there, are discussed in Section 2.3.The River's rate of flow also influences the size of particulates which are allowed to drop out ofsuspension. As suggested earlier, lower flows allow the finer sediments to settle out ofsuspension. As a result, the composition and texture of soils, both under and along the river, can11be significantly affected as flow conditions change. Ultimately, this factor also has an impact onthe types of plant species which can populate a particular site.Collectively, these physical attributes provide the underlying support network upon which theliving systems of the Fraser River and its Estuary depend for their survival. Changes in any ofthese attributes, whether naturally induced or man-made, can have far reaching repercussions forthe region's plant and animal species -- repercussions which must be taken into account whenattempting to manage the Fraser's habitats.2.3 THE FRASER RIVER AND IT ESTUARY: LIVING SYSTEMS A fundamental feature of the Fraser River and its Estuary is the dynamic nature of its physicalcomponents which vary over both time and space. The underlying importance of this fact isreflected in the temporal and spatial variations of the living systems which use and inhabit thearea. Habitats created at one location along the river may be fundamentally different from thosecreated further downstream as a result of a change in even one of the underlying physicalattributes. Changes in salinity, for example, can have a dramatic effect upon the variety of plantspecies which can inhabit a specific location. Similarly, plants and organisms which find aparticular site well suited to their survival needs at one point in time, may eventually die out asphysical parameters change and other species, more tolerant to the new conditions, move in.The Fraser River Estuary Study (1976) showed that ten major habitat zones could bedistinguished in the region; sandflats, mudflats, eelgrass beds, slat marsh, bulrush marsh,cattail/sedge marsh, freshwater marsh, riparian, bogs, and agricultural lands (Kennett andMcPhee, 1988:10). Each of these zones represents a different response to the combination ofphysical components and subsequent successional adjustments at those locations. Each one alsoindicates a different ability to support other organisms. The Salt Marsh zone, for example, iscapable of supporting salmon, shorebirds, and raptors. The predominant vegetation species in thiszone are Saltwort, Saltgrass, and Arrowgrass. The Freshwater Marsh, on the other hand,12exhibits a habitat capability not only for salmon, raptors and shorebirds, but also for waterfowl,mink, beaver, muskrats and otters. The Freshwater Marsh's dominant vegetation species alsodiffer from those of the Salt Marsh, with Cattails, Sedges and Bulrush species prevailing in thiszone (Kennett and McPhee, 1988:10). [For other comparisons refer to Table 2.11.Largely a reflection of the subtle changes in the physical conditions prevalents in the area, thediversity of these habitats, is a significant factor contributing to the astounding variety of animaland fish species that are drawn to the estuary. As the next few pages will show, the equallyastounding numbers of birds and animals supported provides ready testament to the productivitycapabilities of these habitats.2.3.1 Usage by Fish SpeciesOf the reported 80 species of fish using the estuary, 27 species are found in both the lowerreaches of the Fraser, and its tidal flats (Kennett and McPhee, 1988:7). Contained in thesenumbers are seven anadromous species including five species of salmon (Coho, Chinook, Pink,Sockeye, Chum), and two species of searun trout (Steelhead and Cutthroat) (DFO, undated-a:3-7).According to Fox and Nowlan, the Fraser's salmon run is one of the largest in the world (1978:8).Kennett and McPhee (1988:7) state that over a ten year period between 1977 and 1987 anaverage of four million adult salmon per year have returned to the Fraser to complete the final legof their lifecycle migration. As did the generations of salmon which preceded them, each of themigrants attempts to return to its original spawning grounds. For some of these salmon theirjourney will take them more than a thousand miles upstream from the Fraser's mouth to lay theireggs and die. The progeny of these spawners -- up to a billion fry -- will begin the cycle anew inthe following year, making their way downstream to the estuary and eventually out to sea (DFO,1989a).TABLE 2.1 MAJOR HABITAT ZONES IN THE FRASER(Kennett and McPhee, 1988:10)Major Zones DominantVegetationFlooding HabitatCapabilityLocationSandflats Benthic algae Permanent- dailySeals, Shellfish,Crabs, Shrimp,Salmon, ShorebirdsSturgeon & RobertsBanks, Boundary Bay,Semiahmoo BayMudflats Benthic algae Permanent- dailySalmon, Seals,Crabs, Shrimp,ShorebirdsSturgeon & RobertsBanks, Boundary Bay,Semiahmoo BayEelgrassBedsEelgrass Permanent Salmon, Herring,Crabs, Waterfowl,RaptorsTsawwassen Causeway,Roberts Bank, Boundary,Semiahmoo & Mud BaySalt Marsh Saltwort,Saltgrass,ArrowgrassFrequent- dailySalmon, Raptors,ShorebirdsBoundary Bay,Mud BayBulrush Bulrushes Frequent Salmon, Waterfowl Near dykesMarsh - daily Shorebirds, RaptorsCattail/SedgeMarshCattail,SedgeFrequent Salmon, Waterfowl,Shorebirds, RaptorsNear dykesFreshwaterMarshCattail, Sedge,BulrushFrequent Salmon, Waterfowl,Shorebirds, Raptors,Muskrats, Otter,Mink, BeaverFurther into riverRiparian Wet meadows,Tree/shrubFrequent Waterfowl, Otter,Mink, Muskrats,Beaver, SongbirdsDeas Island, LadnerMarsh Islands,Tilbury SloughBogs Spagnum,Labrador TeaFrequent- occasionalWaterfowl, RaptorsShorebirds, OttersMuskrats, Mink,Beaver, Bear, Deer,CoyotesBurns Bog, DouglasIsland, Surrey Bend,Derby ReachAgriculturalLandsCrops Seasonal Waterfowl,ShorebirdsFarmland in Delta& RichmondSource: Fraser River Estuary Study (1978).1314Although the exact nature of the Estuary's contribution to the salmon is still being studied, it isapparent that juvenile salmon make extensive use of these areas for feeding, avoiding predators,rearing, and as a transitional zone where they can undergo the physiological changes that willallow them to leave the fresh waters of the Fraser and enter the salt waters of the Pacific. Thereturning adults, on the other hand, spend little time in the estuary before moving up the FraserRiver.2.3.2 Usage by Bird SpeciesIn addition to supporting a vast number and variety of fish, the Fraser Estuary also providestemporary refuge to a large number of migratory birds. Indeed, the region is a major staging areaon the Pacific flyway with birds from three continents known to use the Fraser Estuary.During the migration season it is estimated that five million shorebirds, two million ducks, andthousands of other species pass through the Lower Fraser Valley region (Fox and Nowlan,1978:9), (Halladay and Harris, 1972), (DFO, 1982:8). The estuary itself receives more than onemillion migratory birds (Kennett and McPhee, 1988:8), (Dorcey, Hall, Levy, Yesaki, 1983:31)representing about 310 species (Butler and Campbell, 1987).About 27 species of birds remain in the area over the winter (Kennett and McPhee, 1988:8 citingLeach, 1982). Included in these are more than 200,000 ducks, 20,000 snow geese (Dorcey, Hall,Levy, Yesaki, 1983:31), and 1,000,000 shorebirds (Fox and Nowlan, 1978:9) As one mightexpect, the region also attracts a number of predatory bird species including hawks, eagles, andfalcons.Although the usage of habitat varies between species, it can be generally said that the area isused by the birds for resting, feeding, hiding, breeding and nesting. The abundance and diversityof bird species make this region one of North America's most important bird habitats.152.3.3 Usage by Other SpeciesIn addition to the much more celebrated fish and bird species mentioned earlier, the area alsosupports numerous species of invertebrates, mammals, amphibians, and reptiles. In all, morethan 300 taxonomic groups of invertebrates alone are reported to be present in the Estuary(Kennett and McPhee, 1988:8).A partial listing of other animals attracted to the various habitats of the estuary and/or the LowerFraser Valley includes the following: muskrats, beaver, mink, otters, a host of rodent species,bear, deer, coyotes, raccoons, foxes, skunks, killer whales, seals, "11 species of amphibians andfive species of reptiles" (Butler and Campbell, 1987) (Kennett and McPhee, 1988:9) (DFO, 1982:8).2.3.4 Species InteractionsThe previous paragraphs have shown that the Fraser Estuary and the lower Fraser valleysupport a vast array of flora and fauna. A fundamental point to understanding theinterconnectedness of these organisms, and the implications for managing fish habitats, is thesimple fact that none of these species exists in isolation. To better illustrate this observation,some basic concepts of ecology theory are useful.In most ecosystems, two food chain types, the grazing food chain and the detritus food chain,predominate (Miller, 1979:65). In grazing food chain relationships plants are eaten by organismsknown as herbivores, which themselves become the food for carnivores. In detritus food chainrelationships, decomposers such as invertebrates, bacteria, and fungi, play a much larger rolethan the herbivores in the food chain. These microconsumers effectively convert the dead plantand animal tissues into nutrients which can then be used by other organisms.Relationships in estuarine ecosystems, such as the Fraser's Estuary, are predominantly detritusbased (Seliskar and Gallagher, 1983:44), (Dorcey, Hall, Levy, Yesaki, 1983:19), (Ward, 1980),16resulting in food chains which are similar to the basic model described by Dorcey et al. for theTilbury Slough:sunlight- > plants- > detritus- > detritivores- > carnivores(Dorcey, Hall, Levy, Yesaki, 1983:19).When this base model is expanded to include species interactions, as in Butler and Campbell'ssimplified food web of the Fraser Delta shown in Figure 2.1, the beginnings of an understanding ofcomplexity and interconnectedness of the area's natural inhabitants is revealed. While therelationships portrayed by the food web diagram are vastly simplified from the reality, the modelnone-the-less serves to highlight the role of the various species in the predator-prey relationshipsbetween species utilizing the Fraser's estuary.The relationships and productivity of the region are all the more interesting when viewed with anappreciation of the fact that "only about 10 percent of the chemical energy available at one trophiclevel gets transferred and stored in usable form in the bodies of the organisms at the next trophiclevel" (Miller, 1979:65). As suggested earlier, the shear numbers and variety of species makinguse of the habitats in the Estuary provide a strong indication of the region's productivity. In fact,"some estuaries are twice as productive ecosystems as the richest farmland" (Ward, 1980).What should be clear from the above discussion, is that management of fish habitats in the FraserEstuary is an action which carries with it a good many implications for the ecology of the region.2.4 HUMAN INTERACTION WITH THE ESTUARY 2.4.1 Usage by HumansHuman use of the Fraser Estuary and its abundant resources dates back centuries to the NativeIndians who first made the area their home (Ward, 1980). Of particular interest to the Nativeswere the Fraser's tremendous salmon runs. The importance of the salmon to the coastal Natives►clamsRiverineNrientsEstuarinPlantsPhytoplank tonFlyingr^TerrestrialInsects^Insects/yarm crop)Swallows^TealRails^MallardsBlackbirds^Shoveleretc.^GadwallWigeonGeeseetc.DetritusBacteriaZooplank tonr garbage)Shorebirds FlounderSalmonCodHarbour SealOtterSea LionPeregrineKiller Whale011gochaetee-÷ShrImp---•Annelids^ setc.^culpins\ .., . Eulachon.,.1?Herringetc.ScaupScotersCrabs--P Glaucous-^Bald Eaglewinged GullNorthwesternCrow(Townsend's vole)Terns^ LoonsBonaparte^GrebesMew Gull Murreletetc^ etc.Great Blue iferon17FIGURE 2.1 FRASER RIVER DELTA SIMPLIFIED FOOD WEB(Butler and Campbell, 1987:12)1 CZis evident in that much of their ancient culture was centred around these fish. Even today, thefood fishery still supplies a significant portion of the B.C. coastal Native's diet.The arrival of European immigrants to the region placed new demands on the resources of theFraser and its Estuary. The first commercial exports of salmon were made from the Hudson'sBay Company Post near Langley in the 1830's with Asia and Hawaii among the destinations forthe salt-cured fish. With the introduction of the soldered tin can, the first cannery on the Fraserbegan production in 1870. Over the years this industry developed to the point whereby in 1986,the Fraser River estuary contributed over 224 million dollars (wholesale) worth of fish products tothe world's markets -- a total of 30 percent of the Province's total fish production (Kennett andMcPhee, 1988:12 citing the Ministry of Agriculture and Fisheries, Fisheries Production Statistics of B.C.).Of growing importance is the recreational fishing industry that is developing in the Straight ofGeorgia. According to the Department of Fisheries and Oceans (DFO) this fishery alone wasworth about 90 million dollars in 1986 (Kennett and McPhee, 1988:13). The capital investment inequipment to support the recreational fishery is believed to be approximately the same as thatneeded to support the commercial fishery (Pearse, 1982:189). Pearse (ibid:189) reports that in1979 the capital value of the Strait of Georgia sport fishery exceeded 600 million dollars.Coinciding with the beginnings of the commercial fishery in the early 1800's, farmers began todike and farm regions of the estuary. Many of these areas have since been displaced in favor ofresidential, commercial, and industrial developments. Not long after farmers began to work thedelta, manufacturing industries and commercial ventures were attracted to the area because ofthe ready access to river transportation. River transportation has since become an importantcomponent of the province's economy with the three active harbours -- the Fraser River Harbour,the North Fraser Harbour, and Roberts Bank Superport -- collectively adding more than 5 billiondollars of revenue to it each year (Kennett and McPhee, 1988:15). The North Arm of the Fraser19currently supports shallow draft coastal shipping, and log transportation. Its banks are heavilyused for storing the logs which supply the many pulp, paper, and sawmills along the Fraser. TheMain Arm of the Fraser River is used both by deep draft vessels making their way to ports nearNew Westminster, and by coastal shipping vessels.The population supporting all of this activity currently numbers almost one and a half millionindividuals and is steadily growing. Reflecting as much the degree of utility as the degree ofdependency, Kennett and McPhee (1988:11) suggest that the entirety of this population is, "oneway or another, touched by the estuary". It should be acknowledged that the reverse is also true.2.4.2 Pressures Imposed by HumansIt is clear, even from the limited examination offered to this point, that British Columbia hasbenefited greatly from the resources of the Fraser River Estuary. However, the accumulation ofhuman activities over the past 150 years have taken a toll on the region's natural habitats, andparticularly its wetland habitats -- a toll which has remained largely unaccounted for by oureconomic systems. Examples of these impacts are readily apparent.The diking and draining that was begun by the first farmers in the area was eventually extendedin order to control flooding and to create more developable land. Extending from the Chilliwackarea to the coast, the process of diking these regions has eliminated much of the original riparianvegetation which formerly lined its shoreline. Along the foreshore areas of the City of Richmond,for example, only about 30% of the original marshes have not been physically detached from theFraser by dikes (DFO, 1989a). For the estuary as a whole it is estimated that half of wetlandhabitats which were present in the estuary have been lost in the years since 1880 (Kennett andMcPhee, 1988:10). In quantitative terms, a 1983 estimate by Seliskar and Gallagher (1983:46)placed the amount of remaining marsh at 3563 hectares (8801 acres).9 0One of the immediate impacts to be incurred as a result of the diking was the removal of most ofthe larger trees and plants which bordered the river and the coastline. Leaf litter from thismacrophytic vegetation, an important source of food and nutrients for the marsh inhabitants, waseffectively lost. Studies by Levy and Northcote in 1981 concluded that since 'juvenile salmon usethe entire length of tidal channels ... diking even a portion of a marsh area can significantly reducethe estuary's capacity as a rearing ground" (Seliskar and Gallagher, 1983:50-51).Although most of the diking in the estuary has already taken place, habitat losses still occur as aresult of a number of other factors. Chief among these are pressures to develop waterfront areas.Mills along the river, for example, attempt to keep up to a 3 month supply of logs in storage areasalong the waterfront, particularly during spring freshet when transporting logs against thecurrents is more difficult. According to the Fraser Estuary Management Program (FREMP) some970 hectares (2397 acres) were being utilized as log storage areas in 1987. These sites wereprimarily in the Pitt River, the North Arm, and part of the Main Arm (Kennett and McPhee,1988:14 citing Fremp Log Management Activity Program 1987). Recognition of the damage thatgrounding storage logs can do to shoreline habitats have prompted the placement of protectivepilings which keep the stored logs moored away from the shoreline.In recent years, municipalities, such as Richmond, have attempted to restrict industrial usage oftheir waterfronts to specific areas thereby opening the remaining areas to recreational,commercial, and residential uses. The increased demand for waterfront developmentaccompanying the region's rapid population growth has resulted in greater incursion of theremaining waterfront habitats. At the Federal level, one of the key attempts to control thisincursion is the Department of Fisheries and Ocean's habitat management policy -- a policy whichincorporates as one of its cornerstones, the concept of No Net Loss of fish habitat.21If we consider diking and waterfront developments as activities which impose direct losses on thenatural habitats in the Fraser River Estuary, other activities such as waste disposal and dredgingcan be viewed as imposing indirect losses on these environmentally sensitive areas.With regard to waste disposal, three sewage treatment plants are situated in the Fraser Estuary;the Lulu Island plant, the Annacis Island plant, and the Iona Island plant. At present, all of theseplants are strictly primary level treatment facilities. In some of the older sections of themunicipalities which use these facilities, storm sewers are tied directly into the sanitary sewerlines leading to the treatment plants. As a result, particularly heavy rainfalls can force theoverburdened treatment plants to discharge the combined sewage/storm water without anytreatment whatsoever. In total, about 2% of the plant's total inflow passes to the receiving watersin this way each year. In addition, more than 200 storm sewers discharge "directly into the[Fraser] river without receiving any form of treatment" (Kennett and McPhee, 1988:23). Stormwater discharges from municipalities are known to contain "pathogenic organisms, suspendedsolids, nitrogen, oil and grease, aluminum, iron, copper, lead, zinc, and toxic organic compounds"(Kennett and McPhee, 1988:23).Adding to these discharges are industrial effluents from over 100 point sources -- half of whichdischarge into the Fraser's North Arm (Kennett and McPhee, 1988:22). Chemical agents such as"oil, grease, phenols, pesticides, chlorophenols, and metals" have all been detected in these outfalls.Leachates from landfill sites, along with agricultural runoffs of fertilizers and pesticides, are alsoadding to the Fraser's chemical mix. The implications for the marsh ecosystems that are therecipients of these chemicals has been succinctly spelled out by Anne Moody of AIM EcologicalConsultants Ltd.:The high annual productivity of intertidal marshes makes them a vital component ofmany food webs since all parts of the plants may be consumed by small mammals andwaterfowl. As the plants decay during the fall and winter, the resulting detritus isconsumed by bacteria, invertebrates and fish. Mercury and lead can accumulate inplant tissues and enter the food chain. Cadmium, copper and zinc may be toxic to theplants and can be passed on to other organisms. The fate of organic pollutants suchas PCB and PCP within the vegetation is poorly known. Heavy metals such asmercury have an affinity for organic particulates, so in many instances the organic99detritus becomes enriched with metals as it is washed around in the estuary or when itlies on contaminated substrates. (FREMP, 1988:60).Accumulations of metals such as zinc, copper, iron, and lead have been found in benthic organismsand sediments in each of the Lower Fraser's Arms. Although mostly in low concentration levels,both organic and inorganic compounds have been detected in areas such as Roberts Bank andSturgeon Bank.The second activity that imposes indirect losses on natural habitats is that of dredging. Dredgingof wharf areas, log ponds, and river channels are essential activities on the Fraser iftransportation channels are to be maintained. Collectively, almost 2,000,000 cubic metres ofmaterial are removed from the North and Main Arms of the river each year. Two concerns arisefrom the dredging activity in relation to habitats: the resuspension of toxic sediments into theriver flow, and the smothering of benthic organisms as resuspended materials settle.According to Pearse, the damage to habitat caused by activities such as those mentioned herehave "undoubtedly reduced the potential productive capacity of the environment" (Pearse, 1982:13).Commenting further on the implications for the fisheries specifically, he writes: "While overfishingis now the main constraint on stock recovery, if the habitat is degraded any rebuilding of the stockswill quickly press on its reduced carry capacity" (Pearse, 1982:14).One perspective on why we use our estuarine resources the way that we do has been offered byFox and Nowlan (1978) who write:Several characteristics of estuarine resources severely limit the capability of the marketsystem to allocate these resources wisely.First, estuarine waters, fisheries wildlife and some land resources tend to be treated ascommon property. No single organization or individual "owns" the resource so that itis subject to use by more than one user. One use may have effects on other uses - aswhen a toxic discharge adversely affects fishery uses....Second, for some economic activities based upon the use of estuarine resource,economics of scale are so great that it is uneconomic to have a number of competitiveenterprises. For example, it would be highly inefficient to have competitive navigationchannels, sewage facilities, water services and similar utilities. These are therefore23referred to as natural monopolies. If the prices placed on their services are to reflectsociety's values and if they are to meet acceptable standards of service, some substitutefor the market must be found to establish prices and regulate their performances.Third, some of the goods and services - the benefits - provided by estuarine resourcesare not priced by the market or else it is generally accepted that the market price doesnot adequately reflect their social value. ...Fourth, closely related to the third point above, the development and use of estuarineresources may have social and economic repercussions that are not reflected in theimmediate value of the resource product. (Fox and Nowlan, 1978:29-31) [The abovequotes are excerpts from the complete text.]Fox and Nowlan go on to explain that, unless great care is taken, the resource allocation decisionsthat are made by the governing political systems are subject to political expediency rather than aconsideration of the public's long term interests. When such decisions are made, Fox and Nowlansuggest, they may serve to increase the pressures brought to bear by a market system that isitself "motivated by short term profit" (Fox and Nowlan, 1978:31). At least in part, such situationsarise as a result of the considerable degree of uncertainty over future events. In any case, thefact that many of these allocation decisions are irreversible suggests that additional care iswarranted.Even when such efforts are made however, there are no guarantees that they will achieve theintended objectives when full economic pressures are brought into play. Seliskar and Gallagher(1983:57) write:Perhaps the most powerful tool to have recently received widespread acceptance insolving problems relating to tidal marsh use is the mitigation procedure. Althoughthe price of rehabilitating wetlands degraded in a previous era or converting upland tomarsh is high, the economic value of being able to destroy certain wetland sites during estuarine resource development is immense, and high mitigation cost can usually be ..astified economically. [Emphasis added.]2.5 CHAPTER SUMMARY AND CONCLUSIONS This chapter began with an examination of the physical characteristics which collectively providethe underlying support structure for the various habitats of the Fraser River Estuary system.Some discussion was provided on the temporal and spatial variations in the physical features ofthe region which give rise to similar variations in the plant and animal species inhabiting the area.94Next, Section 2.3 explored the living natural systems, and the links between their componentspecies, which have evolved to take advantage of the unique physical conditions of the region.Detritus food chain and food web diagrams were used to convey the interconnectedness of theinhabitants to the estuarine and lateral marshes of the Fraser -- considerations which, it wassuggested, must be taken into account in the management of the fish habitat resource.Section 2.4 showed that the intensity of land and natural resource use in the area has increasedconsiderably since the 1800's. Contemporary use of the area for commercial and recreationalfishing, transportation, shipping, and log storage activities, was shown to contribute substantialrevenues to the regional and provincial economies. The discussion also showed that, althoughlargely unacknowledged by our economic system, the intense usage of the area's resources has,and is resulting in a significant degradation of the Estuary's habitat. A number of sources werecited which showed that direct losses of habitat in the Estuary have resulted from activities suchas diking, land development, and log storage activities, while indirect losses are attributed toactivities such dredging, sewage disposal, and stormwater discharges.The discussion went on to consider four characteristics ascribed to estuarine resources by Fox andNowlan that, in their view, restrict the wise allocation of these resources. The characteristics aregeneralized as follows:• these resources are treated as common property;. very large economies of scale exist for some activities that make use of the resources;• the resources are undervalued by the market system;. social and economic repercussions are not reflected in the valuation of the productsfrom these resources.Finally, the points were made that both the political system, and the economic system are workingagainst efforts to preserve habitat or mitigate against habitat loss -- issues which have a directimpact on any application of No Net Loss in the Fraser Estuary.25Several conclusions are evident from the materials reviewed in this chapter. First, theproductivity and diversity of the resources offered by the Fraser River-Estuary system areimportant to large numbers of wildlife, many of which range far beyond what we consider to be itsnormal boundaries in our day to day use of the area. Second, contemporary use by humans hasintroduced a number of variables which are vastly in excess of the region's natural capabilities ofrecovery and resulting in significant habitat loss and degradation of the Fraser's living systems.Third, given the interconnections between species it must be concluded that these damages havealready had, and will continue to have, widespread repercussions for the natural living systemsdependent on the area's resources. Fourth, these repercussions include humans -- that which wastrue 137 years ago, remains true today; "All things are connected".These conclusions not only provide a basis justifying the management of the fish habitat resourcesin the region, but also serve to raise awareness of the ecological and economic implications fordoing so.In the next chapter, background is provided on the legal and jurisdictional framework within whichfish habitats are managed in Canada.26CHAPTER THREELEGAL AND JURISDICTIONAL ASPECTSAFFECTING FISH HABITAT MANAGEMENT AT BRIDGEPOINT3.1 THE PURPOSE OF THIS CHAPTER Phase Two of the Fraser River Estuary Study reports that more than seventy federal, provincial,regional and local government agencies and public institutions operate within the Fraser Estuary(Alexander, 1982:2). The document also states that, "most of these groups derive their mandate,task or responsibilities through either some ownership interest in land in and around the estuary, orfrom a legislative power derived from the British North America Act"  (Alexander, 1982:2). Becauseof their interests, many of these groups have a potential influence over the management of habitatin the Estuary. Although a detailed listing of the roles played by each of these groups is beyondthe scope and intent of this thesis, an examination of the broader jurisdictional aspects underlyingthe key agencies involved in the Bridgepoint Market proposal provides a useful background tounderstanding their involvement in the case. To this end, Section 3.2 begins with an overview ofthe Constitutional basis for the division of powers between the different levels of government, thendiscusses the broader jurisdictional responsibilities of the parent bodies whose subordinate agencieswere involved in the Bridgepoint Market Development. More specific interests held by each of thebranch agencies involved in the case are discussed in subsequent chapters.Section 3.3 focuses specifically on the Department of Fisheries and Oceans' (DFO) No Net LossPrinciple and its role in the Department's Fish Habitat Management Policy. This discussion isintended to provide some background on the emergence of the No Net Loss Principle within theagency, the Department's procedural steps for applying No Net Loss, and their 'hierarchy ofpreferences' for evaluating proposals involving potential alterations of fish habitat.3.2 THE BROADER JURISDICTIONAL ASPECTS 3.2.1 Constitutional ConsiderationsFor the purposes of this discussion the roots of the system of governance, and hence the authority27underlying most of the agencies involved in managing the Fraser Estuary, can be traced toCanada's British North American (BNA) Act 1867, or as it is now called the Constitution Act 1867. Briefly stated, this Act established the fundamental division of rights and responsibilitiesbetween the Federal Government and the four Provincial Governments of the time. Under theBNA arrangement the Federal Government's rights and responsibilities were set out in Section 91•of the Act, while Section 92 established the responsibilities and privileges of the ProvincialGovernments.An appreciation of how the rights and responsibilities assigned under the Constitution Act haveresulted in the current system of governance is gained with an understanding of three specificpoints. The first is that the rights assigned to one of the two levels of government, Provincial orFederal, are exclusive of those assigned to its counter-part. Thus, neither level has jurisdiction inan aspect for which the rights were assigned to the other level of Government. The second pointis that, under the Constitution Act, the two levels of Government are prohibited from transferringtheir constitutionally assigned authority to the other level of Government. In effect, each side istied to its assigned rights and responsibilities. Each level is, however, permitted to delegate itsauthority to "a subordinate body" -- this is the third point (Ince, 1984a:23). An example wherethis third point has occurred, and one with relevance to the management of fish habitat, is thedelegation of a large portion of the Provincial Government's authority to regulate land use to itsMunicipal Governments.While the basic tenets of this arrangement remain in effect today, both the size and nature ofgovernment have since become much more complicated. Mirroring these changes, oursocioeconomic and institutional systems have taken on complexities of their own, largely inresponse to increases in population and economic development.Meeting the challenges posed by these changes has resulted in a patchwork of amending formulasto the Constitution Act, and the evolution of an expansive and complex network of governing28agencies -- each of which administers some aspect of the constitutional responsibilities which wereinitially assigned to their respective parent legislatures.In this development, however, it has become increasingly evident that, despite the exclusivenature of the rights and responsibilities assigned by the Constitution Act, the general terminologyused in the Act's provisions have allowed for considerable overlap between the two primary levelsof Government. Ince (1984a:20) writes:... the actual division of powers created by the Constitution Act, 1867 is done in verygeneral terms, so that precise definition of federal and provincial authority is verydifficult. The wide powers given both levels of government often cause legislativeoverlapping, whereby both levels have authority to legislate with regard to a particularproblem. This tendency to overlapping is increased when the issue being legislated,such as the environment, is extensive in scope.This perception is also reflected in a statement by Dorcey (1986:43); "nowhere in the coastal zone -upland, foreshore, subtidal, land or water - is there clear undisputed basis for one government to bethe sole authority".Within the Fraser Estuary these characteristics are also evident. Alexander (1982:3) comments:... ownership of land adjacent to and under the waters of the estuary is partly in theCrown in the right of the Parliament of Canada, partly in the Crown in the right ofBritish Columbia, and some is privately owned. Legislative power over these landsdoes not follow the same division as ownership. The legislative control over theestuary is divided amongst all levels of government.What becomes apparent from this discussion is that the management of a natural resource suchas fish habitat, requires the involvement and cooperation of a great many agencies -- each ofwhich hold different interests with regard to the resource.From this perspective, the Bridgepoint case is a classic illustration of many of the points raisedhere. As subsequent chapters will show, a number of government agencies were involved in thecase, each bringing different interests and jurisdictional responsibilities to the negotiations. Themain parent agencies represented at Bridgepoint included the Harbour Commissions (through theNorth Fraser Harbour Commission), Environment Canada (through the Canadian Wildlife Service,29the Environmental Protection Branch, and the Inland Waters Directorate), the Department ofFisheries and Oceans, the British Columbia Ministry of Environment (through the B.C. Fish andWildlife Management Branch), and local government (through the Municipality of Richmond).In the next section the broader jurisdictional responsibilities of the parent bodies whosesubordinate agencies were involved in the Bridgepoint Market Development are discussed.3.2.2 Key Agencies and their Acts3.2.2.1 Federal Jurisdiction Three of the key agencies with representatives involved at Bridgepoint were Federal Governmentagencies: the Harbour Commissions, Environment Canada, and the Department of Fisheries andOceans (DFO). Their participation at Bridgepoint was, perhaps, to be expected, as Alexander(1982:3) and Duncan (1990) have indicated that these three stand out as the major Federalplayers with regard to environment and habitat issues in the Fraser.The following paragraphs outline the main jurisdictional aspects and relevant Acts administeredby these agencies and their subordinates.3.2.2.1.1 The Harbour Commissions Based on the Federal Government's constitutional rights over navigation and shipping, theHarbour Commissions Act provides the enabling legislation for the Harbour Commissions(Alexander, 1982:7). Under this Act the Harbour Commissions have a mandate to administer allfederally owned lands and waters in their respective harbours, as well as those portions of theEstuary deemed by the Federal Parliament to be within the harbour limits (Alexander, 1982:6-7).The Harbour Commissions' authority is generally described in Section 9 of the HarbourCommissions Act. As cited by Alexander (1982:7), the Section states:30Subject to this Act, a Commission shall regulate and control the use and developmentof all land, buildings, and other property within the limits of the harbour, and alldocks, wharves, and equipment erected or used in conjunction therewith.Alexander (1982:7) reports that as a result of agreements reached with the British ColumbiaMinistry of Lands Parks and Housing, the North Fraser Harbour Commission (NFHC) "has alease on all of the Crown Provincial foreshore in the North Arm". The agreement also provides theNFHC with powers of disposition over these lands -- powers which are normally superfluous to theregulatory authority assigned in the Harbour Commissions Act. Given the Bridgepoint Market'slocation on the North Arm of the Fraser River, this point provides some background into theNFHC's ownership rights.The Harbour Commissions Act also provides the Commissions with the ability to make bylawswithin their respective jurisdictions. Of particular interest to the management of fish habitat istheir ability to enact bylaws regarding "the regulation or prohibition of construction .. excavation,removal or deposit of materials" (Alexander, 1982:8). These bylaws are, however, subject to theapproval of the Minister of Transport whose department administers the Navigable Waters Protection Act -- an Act to which the Harbour Commissions are explicitly subject (Alexander,1982:8). Transport Canada's specific role with regard to fish habitat is essentially incidental to itsprimary mandate of shipping and navigation concerns. The North Fraser Harbour Commission's(NFHC) jurisdiction covers a geographic area 18 miles in length within the jurisdictionalMunicipalities of Richmond, New Westminster, Burnaby, and Vancouver (NFHC, The Working River, nd:9). According to the NFHC's (nd:9) brochure The Working River, "The harbour isbounded by the Strait of Georgia to the west, at the jurisdictional boundary of the Port of Vancouver,and to the east by the jurisdictional boundary of Fraser Port".3.2.2.1.2 Environment Canada Environment Canada (formerly known as The Department of Environment) was first establishedin 1971 by the legislation of the Government Organization Act (Ince, 1984a:61; also Alexander,1982:8). Ince (1984a:61) describes the Minister of the Environment's authority as follows:3 1... the Minister of Environment has jurisdiction with respect to the preservation andenhancement of the quality of the natural environment, including water, air and soilquality, renewable resources, meteorology, and the coordination of the policies andprograms of the government of Canada respecting the preservation and enhancementof the quality of the natural environment.Alexander (1982:8) notes that this jurisdiction is restricted to those environmental aspects"specifically not assigned to other ministries". This proviso dramatically restricts EnvironmentCanada's direct role in managing the fisheries or fish habitat -- aspects expressly assigned to theDepartment of Fisheries and Oceans (DFO). Through an agreement with DFO, however, theEnvironmental Protection Service of Environment Canada has also be provided with thejurisdiction to enforce Section 36.3 of the Fisheries Act (Ince 1984a:137). This Section regulatesagainst the deposition of substances harmful to fish into fish bearing waters (RSC, 1985:s36.3).Other Acts administered by Environment Canada, and having a potential impact on themanagement of fish habitat, include the Migratory Birds Convention Act, the Canada Water Act,the Clean Air Act, Environmental Contaminants Act, and the Ocean Dumping Control Act. Thelast three of these Acts, and portions of the Canada Water Act have recently been rolled into asingle Act, the Canadian Environmental Protection Act (CEPA, 1988), (Duncan, 1990). Whileeach of these additional Acts have components which could affect the management of fish habitatand may have been considered at Bridgepoint, they did not play a significant role in the case.From the Bridgepoint perspective, one particularly important function performed by EnvironmentCanada was the administration of a referral system through its Environmental Protection Service(EPS). This referral system was designed to "ensure that project proponents [were] made aware oftheir responsibilities under Federal environmental legislation and informed of conflicts with suchlegislation that [arose] from their proposals" (FRES 1982:20). The referral system was generallyapplied to project proposals within the Fraser River Estuary Study (FRES) area, and to the areaunder Environment Canada's Pacific Region administrative jurisdiction. Referrals to the systemcame from a variety of sources including; the Canadian Coastguard (Ministry of Transport), PublicWorks Canada, the Fraser River and North Fraser River Harbour Commissions, the Canadian3 9National Railway, Federal and Provincial government bodies, private companies and the generalpublic. (FRES, 1982: 19-20).At the time that the Bridgepoint project was put forward, the administrators of the referralsystem were using the land use designations assigned by the Area Designation Task Force underFRES (1981/1982) to make an initial determination of each project under review. Referrals wouldthen be made where a proposed land use differed from the designated use, or "in cases where theland [had] not been designated for use, especially if these lands were perceived to be sensitive to thetype of development being proposed" (FRES, 1982:18). It was under this latter category that theBridgepoint proposal was referred to the EPS by the Environment Canada's Canadian WildlifeService in November, 1984 (DFO, Nov 28, 1984; also Tretheway Jan 22, 1991).Routinely, once an application was received by the EPS coordinator, Federal and Provincialagencies expected to have an interest in the proposal would be contacted for comments. If theproject was then judged to have significant environmental impacts, the coordinator would forwardthe findings to the Regional Screening and Coordinating Committee (RSCC) -- a committee withrepresentatives from all the Federal environmental agencies (FRES, 1982:22). The RSCC wouldthen decide if more study was necessary and if so, either set up a Task Force to do this, or "in thecase of a Federally-initiated project, ... recommend to the originator that the project be referred to theFederal Environmental Assessment and Review Office for formal review under EARP" (FRES,1982:22). With this latter option, the referral system operated as the initial screening step priorto the Environmental Assessment and Review Process (EARP).Figure 3.1 shows Environment Canada's entire referral system in more detail. In the diagram theRSCC's role appears under the heading "significant impact" -- a point which reflects how thepotential impacts of the Bridgepoint proposal were viewed given that the case was referred to theRSCC, and that an RSCC Task Force subsequently formed.ProjectOriginatorProject lReferredIndian andNorthern AffairsCanadaB. C. ForestServiceEnergy,Mines and^I...Petroleum ResourcesI Fisheries andOceans Canada F--1 B. C. Fish andWildlife1 B. C.110E WaterMgmt. BranchB. C. ParksBr. and OutdoorRecreation Div.B. C. LandsBranchB. C. Heritage FoCons. BranchInland WatersDir. Env. CanadafrdPanelReportFederalMinister ofEnvironmentMajorFederal Project_1EARP)FEAROPant 133FIGURE 3.1 ENVIRONMENT CANADA'SREFERRAL SYSTEM(McDougall, 1982:19)CoordinatorReferral 6Liaison(Initiator)Referral Distribution•Discretionary^DiscretionaryDiscretionaly(CNR Projects Only)B. C. Ministryof EnvironmentAssess. 6 Plan.DivisionDiscretionary(All Projects)Fish and WildlifeBranch. L.M. Can. WildlifeServ. Env. CanadaArlAtmos. Env. Serv.Env. Canada0zen 06— 1 Lands Dir., Env. CanadaAgri. LandCommissionEnv. Prot. Serv.Env. CanadaCoordinatorReferralLiaison•Minor orModerate ImpactConflictsNon-Existent or ResolveSignificantImpactNoFurther StudyRSCCFurthe1 ^r StudyNeededbask ForceRe rtCoordinatorReferral andLiaisonRSCCApprovalResponse toProjectOriginator1Respon e toProject OriginatorResponse toProject Originator34The established procedure for an RSCC Task Force was that the Task Force members, afterreviewing the case, would bring the recommendations from their respective agencies to the TaskForce chairman who would write a report incorporating all the agencies' comments, andrecommendations. In this way each of the agencies' interests would be expressed andincorporated into the final recommendations to the RSCC. In the case of Bridgepoint a variationon this latter procedure was apparently made. The details of this aspect are discussed insubsequent chapters.It should be noted that many of the coordinating functions formerly handled under EnvironmentCanada's referral system in the Fraser Estuary are now dealt with under the Fraser RiverEstuary Management Program (FREMP). FREMP was established in 1985, just after the firstreviews of the Bridgepoint proposal had begun (Tretheway Jan 22, 1991).3.2.2.1.3 Department of Fisheries and Oceans Since its inception, the Department of Fisheries and Oceans (DFO) has undergone a number oforganizational changes. The current arrangement of the agency was formed in 1979 under theGovernment Organization Act (Pearse, 1982:30; also Ince, 1984a:64). The Department'sconstitutional basis stems from the Federal Government's rights over 'seacoast and inlandfisheries' (Ince, 1984a:64). Through Supreme Court rulings it has been established that theserights include the protection of fish habitat (Pearse, 1982:23). The key piece of Federal legislationthat embodies these rights, and which is administered predominantly by DFO, is the Canada Fisheries Act.The Inquiry on Federal Water Policy (1985) states that the Fisheries Act has three mechanismsthrough which it can protect fish habitat:First, it empowers the Minister of Fisheries to require anyone who builds anobstruction in a water way to build either a fishway around it or a hatchery tocompensate for damaged stocks.Second, it prohibits anyone from disturbing fish habitat except with the Minister'sapproval.35Third, it makes it an offense to deposit any "deleterious substance" of any type inwater frequented by fish.(Pearse, Bertrand, and MacLaren, 1985:67).Under Section 37.1 of the Fisheries Act, the Minister also has the right to review the plans andspecifications for any special projects prior to any work being done (RSC, 1985). When legislativeauthority is required to force compliance with an application of the No Net Loss Principle, it istypically one of these three points which provide the basis for enforcement.The No Net Loss Principle itself is not a statutory requirement, hence the reliance upon theprovisions within the Fisheries Act. A more detailed discussion on the No Net Loss Principle andits application are provided in Section 3.3 of this chapter.Given that virtually all coastal waterfront developments are subject to these regulations, theFisheries Act is potentially the most important and powerful pieces of legislation for managing thefish habitat resource. One of the fundamental criticisms of the Act, however, is that it ispredominantly 'reactive' by nature. In other words, some damage must be incurred before anycharges can be laid.One final point is that DFO shares the administration of some of sections of the Fisheries Act withEnvironment Canada's Environmental Protection Service, and British Columbia's Ministry ofEnvironment.3.2.2.2 Provincial Jurisdiction The Province's jurisdiction with regard to managing the fish habitat resource is drawn from fourconstitutional rights and responsibilities under Section 92 of the Constitution Act 1867. The firstthree of these are "the management and sale of public lands belonging to the Province" (RSC. 1867s92(5)), all aspects involving "municipal institutions" (RSC. 1867 s92(8)), and property rights(RSC. 1867 s92(13)). The fourth responsibility is essentially a catch-all provision assigning "allmatters of a merely local or private nature" (RSC. 1867 s92(16)) to the Province. Ince (1984b:7-8)36suggests that it is the latter two of these provisions which are at the heart of the Provinciallegislature's extensive control over land use within Provincial borders.With the exception of those instances where one level of Government acts on the behalf of theother level by agreement, all Provincial legislation involving fish habitat is rooted in one or more ofthe rights and responsibilities mentioned above. Translating these responsibilities into aninstitutional perspective within the Fraser Estuary, Alexander (1982:3) notes that "the BritishColumbia Ministry of Lands, Parks and Housing, and three regional districts and eleven of theirmember municipalities, are the major provincial actors in the making of decisions regarding land andwater use". The major Provincial bodies represented in the Bridgepoint Market case were; theBritish Columbia Ministry of Environment (through the British Columbia Fish and WildlifeManagement Branch), and Municipal Government (through the Municipality of Richmond).3.2.2.2.1 B.C. Ministry of Environment British Columbia's Ministry of Environment administers two Acts which, according to Kennett andMcPhee (1988:20), were "designed to protect fish and wildlife habitat". The Acts are the B.C.Wildlife Act, and the Fisheries Act.The B.C. Wildlife Act provides the Fish and Wildlife Branch of the Ministry with a mandate to"act in the interests of wildlife conservation" (Duncan, 1990). Reflecting the 'local' nature ofProvincial legislation, this Act is primarily directed toward the conservation of non-migratoryspecies. As discussed previously, a number of local animal and bird species are known to inhabitor frequent the waterfront habitats.As mentioned earlier, the Ministry also shares the administration of a portion of the Canada Fisheries Act with Environment Canada and DFO. Its specific responsibilities involve themanagement of non-migratory species of fish such as Char and Trout. Representatives from theB.C. Fish and Wildlife Management Branch indicated that their interests in the non-anadromous37fish species frequenting the site were a significant reason for the Agency's involvement inBridgepoint (L. Duncan, 1990).3.2.2.2.2 Municipal Government Regulated by the Municipal Act, Municipalities in British Columbia are responsible for much of thecontrol over land use within their boundaries -- a power delegated to them by the Provinciallegislature. Key aspects of the Municipalities' authority over land use are the provisions in theAct, regarding each community's Official Community Plan (OCP) and zoning for the use of land.The OCP is the mechanism which establishes the guiding policies to be followed by the respectiveMunicipality. Aspects such as the type of development, the amount of open space, policies for theconservation of natural and environmentally sensitive areas, and the intent to cooperate withspecific agencies in managing the foreshore, are all within the realm of possible OCP policies.Zoning by-laws are the primary means through which Municipalities enforce regulations overaspects such as the type, size, location, and use of land and developments.Together, these two aspects provide local Government considerable control over the use to whichland is placed. With regard to Bridgepoint, the Municipality of Richmond's formal role in dealingwith the proposal was to approve or reject the proponent's application for rezoning the site. Theapplication was made to rezone the site from "Industrial" uses to an appropriate zoningdesignation that would allow for the commercially oriented activities on the site's uplands, and themarina and pub activities on the site's foreshore. Eventually these were given the designations of"Automobile Oriented Commercial" and "Marina Districts 1 and 2". Aspects such as land use inthe surrounding area, potential traffic congestion and environmental impacts from thedevelopment, were all considered by Richmond Council during this process.3 8The specific interests of the representative agencies involved in Bridgepoint are detailed insubsequent chapters. The next section examines the No Net Loss Principle, and its role in DFO'sFish Habitat Policy.3.3 THE DEPARTMENT OF FISHERIES AND OCEANS' NO NET LOSS PRINCIPLE 3.3.1 The Evolution of The No Net Loss Principle Within DFOWhen fish habitat is lost or threatened, the fish stocks and species which depend uponit for food, protection and reproduction are similarly lost or threatened. In short, ifhabitat goes, so eventually do the fish ....(British Columbia Wildlife Federation as quoted in Pearse, 1982:19).By the late 1970's and the early 1980's the cumulative impacts upon fish habitat resulting fromactivities such as diking in the Fraser Estuary, logging in the mountain watersheds, hydro-electricprojects, agricultural practices, and a host of other upstream activities along the Fraser River,gave rise to concerns and fears such as those voiced in the British Columbia Wildlife Federation'sstatement. With the realization of a rapid increase in human impacts on fish habitat, and thepotential for further damage to Canada's most valuable coastal fisheries, the Federal Parliamentmoved to strengthening the habitat protection provisions of the Fisheries Act in 1972 and again in1977 (DFO, 1982:2). According to Pearse, the amendments to strengthen the Section dealingwith the protection of habitat from alteration or destruction (RSC, 1985:s35(1)), and the Section toprevent the deposit of "deleterious substances" (RSC, 1985:s36(3)), were "vigorously opposed" byindustry and the B.C. Provincial Government alike (Pearse, 1982:27). At the root of theopposition were concerns that the breadth of these provisions would be detrimental to developmentand the economy.In 1977, a joint Federal-Provincial study was begun with the purpose of developing acomprehensive management plan for the Fraser Estuary. The intent of the study was to "providea way to guide future changes in the estuary so that it is preserved and protected as a natural resourcewhile continuing to serve as a vital economic resource" (Canada and British Columbia:2).39According to a presentation given by Bird (DFO) at the No Net Loss Workshop in 1983, "theconcept of No Net Loss was spawned in 1977 in response to a requirement of the first Fraser RiverEstuary Management Plan report" (DFO, 1983b:3). Asked to report on their policies and practicesin the Estuary, Fisheries officials concluded that "in recognition of the past and present level ofhabitat loss and degradation, ... no further loss should be incurred" (DFO, 1983b:3).By 1981, both economic and natural conditions in the Pacific coastal fisheries were "at a crisispoint" (Pearse, 1982:vii), prompting the Governor General in Council of Canada to appoint Dr.Peter Pearse as sole Commissioner to undertake The Commission on Pacific Fisheries Policy.Included in the Commission's Terms of Reference was a mandate to "inquire and report upon ...the provisions for conservation, management, protection and development of the fish resources,including the protection of their tidal and non-tidal habitat..." (Pearse, 1982:267). In the PearseCommission's final report, Turning The Tide: A New Policy For Canada's Pacific Fisheries,Pearse devotes an entire chapter to habitat management in which he makes 23 habitat relatedrecommendations. Three of these recommendations are of particular relevance to the BridgepointDevelopment, and thus, central to this thesis.The first of Pearse's recommendations was for the Government of British Columbia and theGovernment of Canada to conduct a "comprehensive inventory of fish habitats in freshwater streamsand estuaries in British Columbia" (Pearse, 1982:23). The inventory was seen by Pearse as a firststep to collecting the essential information needed to achieve a better understanding of the impactsof future developments and policies. This information would thus serve as a basis for propermanagement and planning of the resource. Although Delaney reported in 1983 that severalgovernment agencies had conducted their own aquatic inventories in the Fraser Estuary, "thestatus of inventory [was, to that point,] inadequate and confusing" (DFO, 1983b:13).Communication and interactions between agencies were identified as the key problems. DFOattempted to address these problems by coordinating the inventory taking efforts of differentagencies (DFO, 1983b:13) through a formalized process. Reflecting to some degree this inter-40agency cooperation, a shoreline inventory of the North Arm of the Fraser River was completed inSeptember of 1986 as a result of agreements between the North Fraser Harbour Commission andThe Department of Fisheries and Oceans. This event took place midway into the BridgepointDevelopment (1984-1988).The second of Pearse's recommendations with relevance to No Net Loss was that theDepartment's policy should "ensure that the total fish production capacity in the region will not bediminished as a result of industrial and other activities that impinge upon fish habitat" (Pearse,1982:24). It is this recommendation which is considered to incorporate the "No Net Loss"Principle (DFO, 1983a:1). By 1984, all projects in the Fraser were subject to the No Net LossPrinciple -- Bridgepoint being one of the first applications.The third recommendation of note here was that DFO "should adopt an explicit policy for assessingproposed developments that threaten fish habitat and for determining compensation where required..."(Pearse, 1982:25). Pearse's intent was that the compensation policy was to ensure "that allfeasible measures will be taken to avail or minimize damage to fish habitat; only if these cannot fullypreserve its productive capacity should compensation be considered" (Pearse, 1982:24). As will beshown in subsequent chapters, the Bridgepoint Development established precedence with regard tothe details of compensation.In the years following the Pearse report the Department of Fisheries and Oceans beganformulating a national policy for the management of fish habitat. As part of this process a "NoNet Loss Workshop" was held in April 1983, followed by the release of a discussion paper entitledToward A Fish Habitat Management Policy For The Department Of Fisheries And Oceans  laterthat same year. In 1985 a proposed policy paper was released (DFO, 1986a:9). During thecourse of these events, No Net Loss underwent a series of metamorphoses which transformed itconceptually from being a goal in itself and contributing to the objective of "conservation,restoration, and development of fish habitat" (DFO, 1983c:10), to being a guiding principle for a4-1conservation goal in support of an overall objective of "net gain of productive capacity for fisheriesresources" (DFO, 1986a:15) The change in the role played by No Net Loss in DFO's evolvingHabitat Policy from 1983 to 1986 is evident in Figures 3.2 and 3.3. Figure 3.2 shows No NetLoss as a working principle in support of the agency's overall objective. Figure 3.3 shows thecurrent Policy with No Net Loss as a 'guiding principle' in support of the Fish HabitatConservation goal. The changes which took place over the three year interval, were mainly theresult of the feedback from the workshops and discussion papers, and DFO's experiences inapplying the concept to that point.During this process a number of issues and concerns became evident, some of which remainunresolved. One issue, for example, arose over habitat compensation when more than onecontrolling agency was involved. The dispute, as reported to the No Net Loss Workshop by JimWalker of the B.C. Ministry of Environment, occurred between B.C. Hydro (the proponent), theB.C. Ministry of Environment (as controllers of the water rights), and DFO (as habitat managers).In the dispute, the following question was raised: "Should federal Fisheries be compensated for themaximum capability of the Nechako to produce salmon and the Water Management Branchcompensated for the maximum potential for withdrawals for domestic purposes when those twoobjectives may be at least conflicting or even mutually exclusive?" (DFO, 1983b:10). Clearly, theissue of compensation was raising a number of questions with regard to its practical application.Another concern was the uncertainty over the valuation of habitat from an economics perspective.Intangible attributes, such as the indirect contribution that the fisheries makes to the maintenanceof traditional Native life-styles, still pose significant challenges for the economists. (DFO,1983b:24).FIGURE 3.2 POLICY FRAMEWORK FORFISH HABITAT MANAGEMENT IN 1983(DFO, 1983c:10)42MINISTERIALRESPONSIBILITIES Management offisheries and^___*administration ofhabitat provisions ofFisheries Act OBJECTIVE CONSERVATION,RESTORATION ANDDEVELOPMENT OPFISH HABITATWORKING PRINCIPLE NO NET LOSS OF PRODUCTIVECAPACITY OP HABITATSOVERALL GOVERN-MENT TARGETSMaintenance anddevelopment ofCanada'sfisheriesresource and im-proved economicand socialbenefits toCanadiansGoal 1 FISHHABITATCONSERVATIONGoal 2 FISHHABITATRESTORATIONGoal 3 FISHHABITATDEVELOPMENTFISH HABITAT MANAGEMENT STRATEGIES 1. Protection2. Cooperative Resource Planning3. Public Consultation4, Public Information and Community Involvement5.\ Restoration6. Development7. ResearchGUIDE TO APPLICATIONOPPORTUNITIES FOR IMPROVING FISH HABITAT MANAGEMENT 1. Socio-Economic Considerations2. Paying the Costs of Fish Habitat Assessment Studies3. Cash as Compensation for predicted Habitat Loss4. Fish Habitat Authorization Systems5. Increasing private Sector participation6. Improved Financing of Fish Habitat Initiatives7. Establishing Pish Habitat SanctuariesGUIDING PRINCIPLENO NET LOSS OF PRODUCTIVECAPACITY OF HABITATSGoalF 3HABITATDEVELOPMENTGoal 2FISHHABITATRESTORATIONGoal IFISHHABITATCONSERVATIONOBJECTIVENET GAIN OF PRODUCTIVE CAPACITY FOR FISHERIES RESOURCESIMPLEMENTATION STRATEGIESI. Protection and Compliance2. Integrated 'Resource Planning3. Research4. Public Consultation5. Public Information & Education6. Cooperative Action7. Improvement8. MonitoringFIGURE 3.3 POLICY FRAMEWORK FORFISH HABITAT MANAGEMENT AS OF 1986(DFO, 1986a:15)I INTEGRATED PLANNING FOR FISH HABITAT MANAGEMENT II PROCEDURES TO APPLY THE NO NET LOSS GUIDING PRINCIPLE4344A final issue to be considered here, although the documentation shows that there were many otherissues raised, was a concern over what constitutes 'fish habitat'. In his presentation to the NoNet Loss Workshop in 1983, Dr. Ian Birtwell made the following remarks:The definition [of fish habitat] demands that we know what fish habitat is.Numerous battles in court would indicate that we are far from knowing how fishdepend on their habitat in a quantitative way. The definition also implies, but doesnot state, that water is fish habitat. I consider that not naming water as habitat is aserious omission in the legislation. Just as the air we breathe is part of our habitat,so is the water which fish "breath" part of theirs, and contamination of either mediumis degradation of habitat.(DFO, 1983b:20).From these few examples it is clear that the function of No Net Loss within DFO's habitat policywas far from being a straight forward development. Biological uncertainties, socioeconomicuncertainties, and jurisdictional uncertainties were each present in the making of the No Net LossGuiding Principle as it appears in DFO's Fish Habitat Management Policy (1986). As theBridgepoint case study examination will show, many of these uncertainties were also reflected atthe policy application level.3.3.2 No Net Loss Within the Context of DFO's Fish Habitat Management PolicyThe "Policy Framework For Fish Habitat Management" that appears in Figure 3.3 shows the threeapproaches, or goals, through which DFO hopes to achieve its long term objective of Net Gain ofproductive capacity for fisheries resources. As stated in its 1986 Fish Habitat Policy the threegoals are; "the active conservation of the current productive capacity of habitats, the restoration ofdamaged fish habitats, and the development of habitats" (DFO, 1986a:12). The first of these threegoals, conservation of fish habitat, is guided by the principle of No Net Loss. DFO's HabitatPolicy document defines the No Net Loss Principle as follows:A working principle by which the department strives to balance unavoidable habitatlosses with habitat replacement on a project - by - project basis so that furtherreductions to Canada's fisheries resources due to habitat loss or damage may beprevented.(DFO, 1986a:30).Implicit in this definition is the Pearse Commission's notion of compensation for loss which thePolicy document states includes natural habitat replacement, productivity increases of existing45habitat, and artificial methods of maintaining fish production (DFO, 1986a:29). Under thedefinition, compensation takes effect where mitigation fails to maintain adequate habitats for thefisheries. Mitigation is defined as those "actions taken during the planning, design, constructionand operation of works and undertakings to alleviate potential adverse effects on the productivecapacity of fish habitat" (DFO, 1986a:30).It is clear from this series of definitions that the No Net Loss Principle has implications to allphases of new developments, from their earliest inception to well into their operational phases.These definitions also underscore the important limitation mentioned earlier that the No Net LossPrinciple is not a statutory requirement. It is only after habitat has been damaged that chargescan be brought to bear using the habitat sections of the Fisheries Act, its parent legislation.Enforcement is, therefore, reactionary. This aspect is also reflected in the procedural steps forapplying the No Net Loss Principle which shows that the laying of charges is literally the case oflast resort. In most instances, five steps precede such enforcement actions.3.3.2.1 Procedural Steps to Achieving No Net Loss Figure 3.4 shows DFO's conceptual diagram of the procedural steps to achieving No Net Loss. Inthe idealized case, the first step would involve notifying both the public, and agencies having apotential interest in the proposal at hand. Any information received at this stage contributes toDFO's second step -- examination.As the Figure 3.4 shows, during the initial stages of the examination step, an assessment is madeof the impacts which may arise out of the development. Potential impacts involving both chemicaland physical disruption may be assessed depending on the circumstances. In the latter portions ofthe examination step, alternative sites, mitigation options and compensation options are reviewed.Collectively, these options are referred to by DFO as a "hierarchy of preferences" (DFO, 1986a:26).The hierarchy of preferences represents the heart of the No Net Loss application and will bediscussed in greater detail later in this section.STEP 1NOTIFICATIONBY PROPONENTAND GOVERNMENTALSOURCESSin) WDECISIONSTEP VAUDIT'STEP VIENFORCEMENTFIGURE 3.4 PROCEDURAL STEPS TO ACHIEVING NO NET LOSS(DFO, 1986a:27).'CONSULT WITH 'PUBLIC,:TROPONENT AND OTHER:GOVERNMENT AGENCIESCONSULT WITHPROPONENT ANDINTERESTED PARTIESASSESS POTENTIAL IMPACTON FISHERIES AND HABITATADDITIONAL INFORMATION(IF REQUIRED)(SECTION 33.1 1 I)ASSESS ALTERNATIVE SITING OR OTHEROPTIONS AND DISCUSS WITH PROPONENTASSESS MITIGATION OPTIONSASSESS COMPENSATION OPTIONS(if compensation determined feasible)MAJOR POTENTIALIMPACTMINOR POTENTIALIMPACTSTEP IIEXAMINATIONBY FISHERIES& OCEANS, OFTENIN CONSULTATIONWITH OTHERAGENCIESSTEP DICONSULTATION46INFORMATION RECEIVEDON PROJECT47The third procedural step to achieve No Net Loss is public consultation. At the disci-etion of theMinister of Fisheries and Oceans', major or controversial issues will be open for public revieweither through established processes such as Environment Canada's Environmental Assessmentand Review Process (EARP) or through an independent review process funded by the FederalGovernment or jointly funded with the Provincial Government. Issues of a lesser magnitude aregenerally handled with only the proponent and those parties having an immediate interest in theissue.The fourth step involves the decisions made by DFO. Taking into account all of the informationgathered, including the consultations with the public, DFO makes a determination of the potentialnet loss of productive habitat. If net loss is anticipated, DFO assesses the adequacy of theproponent's plans to mitigate and compensate. Under DFO's habitat policy, compensation optionsfor chemical hazards are not permitted (DFO, 1986a:28). On the basis of these assessmentseither DFO or the Minister will make one of three recommendations:to permit the proposal to proceed as proposed (no harm expected to the productivecapacity of fish habitat);to permit the proposal to proceed with fixed conditions,... orto reject the proposal (potential losses to the fisheries judged unacceptable).(DFO, 1986a:28).The fifth step is the audit, or monitoring stage of the No Net Loss procedural steps. Acommitment to conduct studies to monitor the results of compensation and mitigative actions maybe required of proponents before any approvals are given by DFO. The results of such studiesthen become the basis for modifications, or adjustments to the development, or mitigationactivities. In addition to these activities, DFO may also conduct "project - related evaluations andeffects monitoring" on its own (DFO, 1986a:24).48As mentioned previously, the final step in the procedure to achieve No Net Loss, is enforcement.Where necessary, prosecutions would generally be carried out under the Canada Fisheries Act.All of the previous procedural steps ultimately rely upon the enforcement capabilities offeredunder the Act for compliance.3.3.2.2 Hierarchy of Preferences Under the procedural steps for achieving No Net Loss the task of assessing proposals that havethe potential to place habitat in jeopardy is conducted using the "hierarchy of preferences"mentioned earlier. The hierarchy consists of four sequential steps: prevention, mitigation,compensation, and rejection.Prevention, the first step in the hierarchy, is also DFO's first priority in assessing proposals. Inan effort to prevent both direct and indirect loss or damage to productive habitat requests aremade to the proponents during initial planning stages that the project be relocated or redesigned.Should these alternatives prove to be impractical because of physical or operational reasons DFO'ssecond priority, mitigation, comes into effect.The mitigation step of the hierarchy attempts to place conditions on the project's planning designand construction, its operations, or its nature, in order that loss of productive habitat is avoided.The addition of pollution control equipment, protective booms, rehabilitation of water quality, orrevisions to operational schedules, constitute potential examples of mitigating activities. The typeof mitigation will depend upon the specifics of the site and the nature of the proposal beingassessed.According to DFO's Habitat Policy the Department's third priority, that of compensation, is to beconsidered only after the avenues of prevention and mitigation have been exhausted. In suchcases, and where the decision is likely to be one of proceeding with a project despite imminenthabitat loss, compensation will be required by the Department. According to the Department's49Policy, the first preference for compensation is for on-site, or near-by replacement of productivehabitat. Failing this, off-site locations would then be considered. (DFO, 1986a:26).The North Fraser Harbour Environmental Plan  (1988), which was jointly developed by the NorthFraser Harbour Commission (NFHC) and the Department of Fisheries and Oceans (DFO), hassubsequently refined the replacement of lost habitat in the Fraser's North Arm with a "hierarchyof preferred compensatory options" (DFO and NFHC, 1988:11). Under the agreement thereplacement of lost habitat in the Harbour's jurisdiction is subject to the following hierarchy ofreplacement terms:1) "like" habitat on-site;2) "equally productive" habitat on-site;3) "like" habitat off-site but within the same reach;4) "equally productive" habitat off-site but within the same reach;5)^"like" or "equally productive" habitat outside of the impacted reach.(DFO and NFHC, 1988:11).Figure 3.5 shows the reaches for the North Fraser Harbour. The rationale for defining thereaches was to functionally recognize the physical variations which take place along the length ofthe North Arm. This is particularly important in areas affected by tidal action. Ideally, habitatreplacements would remain within the same reach as the original habitat to ensure similarenvironmental conditions.The fourth and final step in the 'hierarchy of preferences' calls for the rejection of the proposal.As the hierarchy suggests, this step is taken after the options for prevention, mitigation, andcompensation have been fully assessed. Typically, some element of risk and or ecologicaluncertainty will remain with the proposal forcing its rejection by DFO officials.50FIGURE 3.5 REACHES FOR THE NORTH FRASER HARBOUR(DFO and NFHC, 1988:25)513.4 CHAPTER SUMMARY AND CONCLUSION This chapter has detailed two important aspects which contribute to a background understandingof the basis for, and the implications of, the application of No Net Loss at Bridgepoint. The firstaspect was the jurisdictional framework behind the key agencies represented at Bridgepoint. Thesecond aspect was the policy framework through which No Net Loss is applied.Reflecting these aspects the chapter was divided into two parts. Section 3.2 first examined thebroader Constitutionally-based division of powers underlying the agencies represented atBridgepoint. The discussion on jurisdictional mandates and relevant Acts administered, includedthe following agencies: the Fraser's Harbour Commissions, Environment Canada, the Departmentof Fisheries and Oceans, the B.C. Ministry of Environment, Municipal government.After discussing the development of the No Net Loss Principle and its subsequent emergence intoDFO's national Habitat Policy, Section 3.3 then examined DFO's six procedural steps forachieving No Net Loss and the four hierarchical steps for assessing projects -- prevention,mitigation, compensation, and rejection. It was stated that, collectively, these steps form theworking heart of DFO's approach to the application of No Net Loss.To this point, this thesis has outlined the importance of the coastal wetland habitat, and examinedthe jurisdictional and procedural aspects involved in the application No Net Loss at Bridgepoint.The next chapter develops an analytical framework through which the specifics of the case may beevaluated.52CHAPTER FOURTHEORY -- DEVELOPMENT OF AN ANALYTICAL FRAMEWORK... many planners overlook one basic fact of life in planning: it is not about thedesigning of a better world from scratch. It can hardly ever be compared to building anew house. Rather, it is coordinating what is going to happen anyway, as I do indecisions about paint work and whether to call the plumber. It is making thingshappen without designing them from scratch, and often without carrying out the workinvolved oneself. Its essence lies in improving what is being done, and in this sense,of course, a better world is being sought. But this is done indirectly.(Faludi, 1987:2).4.1 THE PURPOSE OF THIS CHAPTER In many ways the quotation by Faludi is an appropriate characterization of this chapter, and tothis thesis as a whole. In describing planning as an activity that strives to improve what is beingdone, the statement says much about one of the fundamental objectives of this document with itsevaluative orientation. The intent here is not to begin from scratch, but to look at what is beingdone and consider how the process might be improved. In undertaking this task, this chapterdraws upon the work of others to establish a basis for an evaluative framework against which toassess the Bridgepoint Development as an application of No Net Loss.The chapter begins with a brief statement on this writer's reasons for choosing a negotiation basedapproach for an evaluative framework. Next, a detailed description is given of the theoreticalbasis from which the analytical framework was developed. Specifically, the discussion detailsFisher and Ury's general theory of negotiation known as "Principled Negotiation". The rationalefor selecting this particular method, along with an accounting of the apparent limitations of theapproach, follows this discussion. The chapter concludes with an outline of the analyticalframework itself, and a discussion of the relationship of this thesis to planning theory in general.4.2 RATIONALIZING THE NEGOTIATION BASED APPROACH AS A BASIS FOR ANALYSIS For a variety of reasons the selection of a particular analytical framework to apply to theBridgepoint case study was more difficult than the selection of the type of approach to be taken.53Questions such as 'how much marsh is required to support x number of fish?', or 'precisely howsuccessful a replacement marsh will be in compensating for one that is removed?', tend to definethe limits of the biological and ecological knowledge of the officials who work with these habitatson a daily basis. These are critical questions if one is attempting to gain some appreciation of howsuccessful projects such as Bridgepoint really are. Yet decisions about the management of these•habitats must still be made even without the answers to such questions. Any attempt to assessthe success or failure of an application of No Net Loss on this basis would be, at best, limited.Hence, another approach was needed.Having ruled out a biological/ecological approach, the selection of a negotiation-based approachwas made founded on an appreciation of two important aspects. First, that there exists a growingmovement away from authoritarian management of natural resources, particularly where issuesof common public concern are present. In large extent this is due to a growing desire on the partof the general public to be included in the decision making process. Lilley (1988:2) writes:In recent years, the public have become more aware of, and involved in, resourcemanagement matters and there has been a rapid democratization of decision making.In matters related to "public goods," such as preservation of heritage resources,protection of environmental quality and quality of life preservation of species orhabitats, and management of public lands, the public, as individuals or as groups,now want a direct influence on decisions that affect them.The second point is that settling difficult natural resource issues through the courts can be risky.Outcomes are rarely, if ever, completely predictable. By resorting to the courts the partiesinvolved must effectively turn over their ability to choose what the final agreement will be -- anaspect which many negotiating parties would prefer to avoid.From both of these perspectives, the negotiation-based approach becomes the operational key-word. Because of the above arguments, analysis on this basis makes sense. Choosing theparticular negotiation method for an analytic framework , however, was somewhat more difficultowing to the relative recency of the approach in resource management issues. The methodselected for this research, Principled Negotiation, is described below. In order that some of the54reasons for choosing the method might be better appreciated, the rationale for the choice appearsafter the description of the method.4.3 PRINCIPLED NEGOTIATION (NEGOTIATING ON THE MERITS) The technique of Principled Negotiation was developed at the Harvard Negotiation Project byRoger Fisher and William Ury as a general theory of negotiation. In developing their arguments,Fisher and Ury postulated that three basic criteria could be used as standards against which tojudge any method of negotiation: First, they suggest that "it should produce a wise agreement ifagreement is possible"; second, "it should be efficient"; third "it should improve or at least notdamage the relationship between the parties" (Fisher and Ury, 1981:4). Fisher and Ury (ibid:4)define a wise agreement as "... one which meets the legitimate interests of each side to the extentpossible, resolves conflicting interests fairly, is durable, and takes community interests into account".Fisher and Ury argue that positional bargaining, "the most common form of negotiation", fails tomeet these criteria (Fisher and Ury, 1981:4). The tendency to lock oneself into a position, theyargue, results in energies becoming focused on defensive strategies rather than concentrating onresolving the substantive issues in the dispute. The result is a process that is for all intents,inefficient. Agreements which are made under these conditions may simply be the result of "amechanical splitting of the difference between the final positions rather than a solution carefullycreated to meet the legitimate interests of the parties" (Fisher and Ury, 1981:5) with the strongprobability of generating unwise agreements. Finally, Fisher and Ury contend that positionalbargaining pits the opposing sides against each other in "a contest of wills" (Fisher and Ury,1981:6) where giving in or making concessions may result, not only in bad feelings, but may alsoplace ongoing relationships at risk.In contrast, the Principled Negotiation method was specifically designed to meet the three basiccriteria of "producing a wise agreement, efficiently and amicably" (Fisher and Ury, 1981:4). The55method, which appears in their book Getting to Yes: Negotiating Agreement Without Giving In (1981), consists of the four fundamental elements shown in Table 4.1.While it is not the intent of this thesis to describe in minute detail the Principled Negotiationmethod, some discussion of the basics of the method is essential to the analytical frameworkdeveloped later in the chapter.4.3.1 Separate the People from the ProblemIn any negotiation, both relationship interests (the way we deal with others), and substantiveinterests (the problems we are negotiating about), will exist. Fisher and Ury examine thisdistinction and suggest that in many negotiations "the parties' relationship tends to becomeentangled with their discussions of substance" (Fisher and Ury, 1981:20). They argue that whenthis occurs under positional bargaining, substantive interests and relationship interests areinexorably bartered off against each other. The alternative approach offered by the PrincipledNegotiation method is to negotiate on the merits of substantive interests and relationship interestsseparately. The 'people problems' which do arise should thus be dealt with directly, butindependently from the substantive issues at hand.Based on their research, Fisher and Ury have concluded that the majority of the people problemsthat occur during negotiations fall into one of three groups: perception, emotion, or communication.Perception issues are concerned with the differences that may exist between the way one side seesthe situation as opposed to how the other side sees it. Fisher and Ury write; "Each side in anegotiation may see only the merits of its case, and only the faults of the other side's" (Fisher andUry, 1981:23). Developing an appreciation of the other side's perceptions, and the force of theirconvictions are essential first steps to influencing, or revising, both the other side's views and yourown. Techniques for dealing with these concerns include; bringing perceptions out into the openfor discussion, ensuring that the other side is an active participant in the process, and allowing theother individual "to reconcile the stand he takes ... with his principles and with his past words and5 6TABLE 4.1(THE PRINCIPLED NEGOTIATION . METHOD)o Separate the PEOPLE fromthe Problemo Focus on INTERESTS, NotPositionso Invent OPTIONS for MutualGaino Insist on Using ObjectiveCRITERIASOURCE: Fisher, R. and W. Ury. 1981. Getting To Yes: Negotiating AgreementWithout Giving In. 57deeds" (Fisher and Ury, 1981:29). This last point is important in alleviating the appearance thatone side has had to back down.Issues of emotion understandably arise when participants enter into negotiations where theoutcomes are perceived to have considerable importance. Tensions, fear, and anger may bebrought to the negotiations by either side. Techniques proposed by Fisher and Ury for dealingwith such emotions include; making feelings explicit, providing opportunities for both sides toexpress their feelings in a controlled manner, and using symbolic gestures (for example:expressing honest sympathetic understanding to the other side's concerns).Succinctly stated by the authors; "without communication there is no negotiation" (Fisher and Ury,1981:33). Fisher and Ury point out that even when negotiations do take place, thecommunications can be impaired by misunderstandings, failure to talk to the other side in amanner that can be clearly understood, and the failure to hear and what is being said by the otherside (Fisher and Ury, 1981:33-34). The following techniques are offered by the authors as aids toovercoming such problems: the use of active listening, bringing into the open the aspects thateach side sees differently then working with the other side to devise joint solutions, openlydiscussing what the impacts are from your side's perspective, and speaking for a purpose; "knowwhat you want to communicate or find out, and know what purpose this information will serve"(Fisher and Ury, 1981:37).4.3.2 Focus on Interests, not PositionsThis second principle in the Principled Negotiation method is concerned with interests and theirreconciliation. By Fisher and Ury's definition, interests are the "needs, desires, concerns, andfears" (Fisher and Ury, 1981:42) held by each side in a negotiation. These interests are describedas the motivational forces behind many actions taken. The justification for concentrating oninterests instead of positions is two fold. First, most interests can usually be satisfied by morethan one solution, thereby offering a better chance of reaching a solution acceptable to both sides.58Second, in many situations the two sides will have a number of interests in common. Otherinterests may also exist that are complementary to those held by your own group. Thereforeresolving one set of these interests may also work to resolve its complement. Collectively, theseshared and complementary interests provide opportunities for joint resolution of each side'sconcerns and could ultimately lead to an agreement. However, the caveat noted by the authors inthis regard, is that in order to act on such interests one must first be able to identify both yourown interests, and the interests of your counterpart.The methodology proposed by Fisher and Ury to identify interests first examines the positionstaken by the one side and attempts to understand why that party decided on these particularactions. Similarly, attempts should be made to understand why alternative decisions were notmade. In the course of these examinations it should be acknowledged that multiple interests willexist on each side. Apart from explaining some of the anomalies which might be evident, this factmay also offer additional opportunities for negotiating. Knowing that several of the members ofthe other side hold interests which are not being expressed at the table, for example, might because for offering an option which addresses these interests and were not previously discussed.The inclusion of basic human needs in the assessment of interests is also stressed by Fisher andUry. Their importance is underscored by the authors who consider these needs to be "the mostpowerful interests" (Fisher and Ury, 1981:49) Proper attention to needs such as "security,economic well being, recognition, and a sense of belonging" (Fisher and Ury, 1981:50), it issuggested, will likely facilitate the formulation of an agreement and reduce the likelihood of abreakdown after the agreement is made.Once the various interests have been identified, the authors suggest that each of these be assessedfrom the other side's perspective  in terms of the consequences of agreeing or disagreeing with theoptions that you are offering to them. The insights provided by these examinations should assist59in forming a basis for meaningful discussions about each side's interests as well as permit anattack on the problem rather than on positions -- the key objective of focusing on interests.4.3.3 Invent Options for Mutual GainBy Fisher and Ury's account, the purpose of inventing options for mutual gain is to broaden thenumber of options available to both sides. By doing so, it is anticipated that the chances ofderiving a mutually acceptable solution will be significantly improved. In spite of that apparentlyobvious and natural approach, four aspects of human behavior will often create barriers to theprocess of inventing options. As listed by Fisher and Ury, they involve: making judgements tooearly; looking for a solitary solution; assuming that the range of options is fixed, and; anassumption that you are working to solve only your problem -- not theirs. The authors haveeduced four broad approaches designed to overcome these obstacles: separate inventing fromdeciding; broadening the options; looking for mutual gains, and; making their decision easy(Fisher and Ury, 1981:62).Separating the action of inventing options from the action of deciding on options is intended toovercome inhibitions to creative thinking. The approach is ostensibly characterized by techniquessuch as brainstorming. Participants in a brainstorming session initially generate ideas under therule that criticism of any of these ideas is not allowed. Later in the session, this collection of ideasis refined by the group and the best options are selected. The act of generating ideas is thuseffectively separated from the act of deciding amongst them.The discussion under broadening the options revolves around the generation of different ways oflooking at the problem in order to gain new insights and to further expand on the optionsavailable. To illustrate the underlying concept offered here, two of the techniques suggested bythe authors are examined. The first technique analytically separates the process of inventingoptions into four phases, each characterizing a different way of thinking about the problem (referto the Circle Chart diagram in Figure 4.1). By working through each of the four phases, ideas willWHAT IS WRONG WHAT MIGHT BE DONEStep I. ProblemWhat's wrong? What arecurrent symptoms? Whatare disliked facts contrastedwith a preferred situation?Step III. ApproachesWhat are possible strate-gies or prescriptions?What are some theorecticalcures? Generate broadideas about what might bedone.Step IV. Action IdeasWhat might be done? Whatspecific steps might betaken to deal with the pro-blem?INTHEORY^Step II. AnalysisDiagnose the problem:Sort symptoms into cate-gories. Suggest causes.Observe what is lacking.Note barriers to resolvingthe problem.IN THEREALWORLDFIGURE 4.1: THE FOUR BASIC STEPS ININVENTING OPTIONSADAPTED FROM: Fisher, R. and W. Ury. 1981. Getting To Yes: NegotiatingAgreement Without Givingin., P. 70.6061be generated which will often themselves become the seed for even more ideas. It is suggestedthat a portion of the chart could also be used in reverse. Starting with the action ideas phase, andworking backwards, would permit an examination of the "theoretical approach" behind the ideas(Fisher and Ury, 1981:71).The second technique involves an examination of the problem from the perspective of how otherdisciplines or professions might look at, and approach, the situation. A banker, for example,might look at a situation with an eye to the return on the investment, whereas an economistmight examine the multiplier impacts on the community. Viewing the issue from each expert'sperspective offers a different way of understanding the problem, and correspondingly, differentpotential solutions.`Looking for mutual gains' is the third approach designed to surmount the obstacles to inventingoptions. To illustrate the incentive for inventing options, Fisher and Ury make the followingstatement: "even apart from a shared interest in averting joint loss, there almost always exists thepossibility of joint gains" (Fisher and Ury, 1981:73). As discussed earlier, the first step is toidentify the interests involved. Those which appear to be held in common, represent opportunities.By stressing these shared interests in the negotiation you effectively put them to work.Differences between interests, too, can provide opportunities for mutual gains. As the authorspoint out -- most bargains are possible precisely because "each side wants different things" (Fisherand Ury, 1981:76). Searching for ways by which the two sides can utilize the differences to thegreatest advantage becomes the objective. Payments tied to performance, and compensation forrisks taken, provide examples where different interests are "dovetailed" to achieve mutuallyacceptable solutions. As a corollary statement on matching complementary interests, Fisher andUry write: "look for items that are of low cost to you and high benefit to them, and vice versa"(Fisher and Ury, 1981:79).E2The last of the four approaches designed to facilitate the invention of options is 'to make theirdecision easy'. At issue here are actions which you can take to assist the other side in making thedecision that will satisfy both their interests, and your own. The first step is to, once again,consider the issue from their side -- both for its merits and its pitfalls. If an option can be foundthat has the potential of meeting the interests of both sides, then the next step is to search out themeans to make their decision to accept the offer an easy one. One possibility is to provide theopposite side's representative with material or arguments that "she will need to persuade others togo along" (Fisher and Ury, 1981:80). Another possibility is to formulate an agreement that wouldbe easy for the other side to implement. Aspects which would assist in this endeavor include;making the solutions "right in terms of being fair, legal, honorable, and so forth" (Fisher and Ury,1981:81), and, where possible, relating the option to precedent. Building on precedent can be animportant standard from which the other side can measure the fairness of an option.4.3.4 Insist on Using Objective CriteriaMore than any of the other main components of the Principled Negotiation method, the strategy ofinsisting on objective criteria attempts to deal with situations where the interests of each sidesimply conflict. In such instances, the Principled Negotiation method advises that the parties turnto objective criteria against which options, procedures, and eventually agreements, can bemeasured.In discussing objective criteria, the authors differentiate between fair standards and fairprocedures. Their suggestion is that fair standards are utilized in dealing with issues ofsubstance, while fair procedures should be sought when dealing with conflicts of will.Fisher and Ury justify this approach on a number of bases. Their first argument is that usingobjective criteria removes the pressures which are generally imposed by a contest of wills.Neither side is forced to back down from a positional stance, as would be the case in such acontest. A second argument is that agreements based on objective criteria are more resistant to63attacks, increasingly so if based on precedent. Further, such agreements are likely to be morestable over the long run with proponents tending to adhere to the terms of the agreement. On thebasis of such arguments, the authors conclude that, overall, most agreements reached usingobjective criteria will have been efficient, reached on amicable terms, and, by the definition citedearlier, wise. A caveat to this latter point is that "ideally, ... objective criteria should be not onlyindependent of will but also both legitimate and practical" (Fisher and Ury, 1981:89).Examples of fair standards which might be used under different circumstances include marketvalue, precedent, professional standards, and reciprocity. (Fisher and Ury, 1981:89). Theauthors cite an eloquent example of a fair procedure where one child divides a piece of cake, andthe second child chooses. Both parties are compelled to concede that the procedure is fair.Fisher and Ury suggest that through activities such as asking the other side what criteria theyused in reaching their decisions, or offering suggestions for objective criteria of your own, apositional stance over issues will be transformed into "a joint search for objective criteria" (Fisherand Ury, 1981:91). In undertaking this search, however, both sides must be willing to giveconsideration to standards other than the ones that their side has proposed. In this regard, thekey point is that "one standard of legitimacy does not preclude the existence of others" (Fisher andUry, 1981:93). Criteria that your side feels are fair may not appear so to the other side and eachside must maintain an openness to other viewpoints for the process to operate effectively.The final point on the use of objective criteria is that you should yield only to principle " never ... topressure" (Fisher and Ury, 1981:95). In situations where pressure tactics are being used theresponse called for under the Principled Negotiation method is to "invite [the other side] to statetheir reasoning, suggest objective criteria [that] you think apply, and refuse to budge except on thisbasis" (Fisher and Ury, 1981:94-95). Should the other side refuse to justify their stance, thensome degree of re-evaluation is advised. One activity would be to re-examine the other side's offerto ensure that some crucial set of criteria hasn't been overlooked that would justify their position.64Failing this, their offer should be evaluated against your "best alternative to a negotiatedagreement" (Fisher and Ury, 1981:137). Making yourself aware of the consequences of rejectingtheir terms will subsequently allow a rational decision to be made between the remainingalternatives.The key elements of Fisher and Ury's method are summarized in a table produced for theAmerican Bar Association Journal (Sept. 1983: 1222). The table entitled "Ideas on ImprovingNegotiation" is reproduced in Table 4.2.4.4 RATIONALE FOR APPLYING PRINCIPLED NEGOTIATION AS AN ANALYTICAL FRAMEWORK Prior to selecting the Principled Negotiation method, a number of other works were examined aspotential frameworks for this analysis of the Bridgepoint Development. They include Nierenberg's"Need Theory of Negotiation" (1968), Raiffa's The Art and Science of Negotiation (1982), Strauss'Social Order Theory of Negotiation  (1984), and Lilley's "Principles for Alternative ConflictResolution" (1988). The selection of the Principled Negotiation method for this analysis was basedon five aspects which are not to be found collectively in any one of these approaches:the method utilizes many widely accepted concepts related to or developed for negotiation;it permits the substitution of specific techniques to match a given situation withoutsacrificing the overall objectives;the approach is transferable to a wide variety of situations;the method has been reviewed and used by people around the world;the method is prescriptive -- not simply descriptive.Each of the five aspects is spelled out in greater detail over the following paragraphs.4.4.1 Utilization of Widely Accepted ConceptsAccording to Fisher and Ury their method represents a conscious attempt to organize and applyconcepts which they characterize as "common sense and common experience". While thischaracterization may well be valid in a broad sense, a case can be made to suggest, however, thatit understates the strength and flexibility of the method.TABLE 4.2^ 6 5IDEAS ON IMPROVING NEGOTIATIONMany people consider negotiating like putting on their clothes: no need for theory, just do it. Butin negotiation, theory does help. Distinctions can make it easier to understand what is going on.Rules of thumb can provide guidance for most cases. Here are some examples:1. Distinguish between:people issues^ substantive issuesperception, emotion, specifications, terms, priceunderstanding, trustRules of thumb: Deal with both sets of issues concurrently, but separately. Do not try toimprove a relationship by making concessions or try to obtain concessions by threatening arelationship.2. Distinguish between:positions^ interestswhat the parties state^ their real concernsthey will or won't doRules of thumb: Arguing about positions tends to lock people in. Ignore positions except asevidence of underlying interests. Talk about interests.3. Distinguish between:inventing options^ making decisionsRules of thumb: First generate many possible ways of reconciling interests; decide later.4. Distinguish between:talking about what^talking about whatthe parties ought to do the parties will doRules of thumb: Insist on talking about what the parties ought to do. Seek agreement onappropriate principles for resolving that question.5. Distinguish between:developing the best alternative^ negotiating first -to a negotiated agreement then exploring other- then negotiating^ options only if necessaryRules of thumb: Before sitting down to negotiate, know realistically the best thing you can do ifyou decide to walk away.SOURCE: Fisher, R. 1983. 'What About Negotiation As A Specialty?' in  American BarAssociation Journal, Sept, Vol. 69. P. 1222.66The overview of Fisher and Ury's method provided earlier in this chapter, shows that each of themethod's four fundamental elements - separating the people from the problem, focusing on interestsnot positions, inventing options for mutual gain and, insisting on objective criteria - incorporates aconsiderable body of existing knowledge and research. The brainstorming technique described inthe discussion on 'inventing options for mutual gain', for example, had been developed and refinedby psychologists well before the Principled Negotiation method was formulated (refer to Wexleyand Yukl, 1977:133 for a discussion of the brainstorming technique).Similarly, Fisher and Ury draw upon previously developed theoretical knowledge in formulatingmany of their ideas. One example is evident in their reference to the role of needs as motivationalfactors in the discussion of 'focusing on needs rather than positions'. The importance of humanneeds as motivational forces is clearly reflected in work undertaken by Maslow (1954) whiledeveloping his theory of a Hierarchy of Needs (see Wexley and Yukl, 1977:77-79, or Weiten,1983). [Although the hierarchical ordering proposed by Maslow's theory has not been borne outby subsequent research, the motivational role of human needs remains an important and widelyaccepted concept.]. An early attempt to bridge between Maslow's work on the motivational role ofbasic human needs and negotiation strategies is evident in Nierenberg's postulate of a NeedTheory of Negotiation (1968).4.4.2 The Method Permits the Substitution of Specific TechniquesFlexibility is inherent in the method largely because of its ability to permit the substitution of onetechnique in place of another in response to a specific situation while, at the same time, remainingtrue to the principles involved. Selecting the circle chart technique over a brainstorming session,for example, may be an arbitrary choice providing that the underlying principle of inventingoptions for mutual gain is adhered to. Whichever is chosen the overall objective of producing wiseagreements, efficiently and amicably is maintained.674.4.3 The Method is Transferable to a Wide Variety of SituationsFlexibility is also evident in that the method is readily transferable to other situations. Asmentioned earlier, the method was designed as a general theory in order to apply "across theboard" (Fisher, 1983b:67). This endows the method with the capacity of adjusting to a widenumber of situations.4.4.4 The Method has Been Widely Reviewed / It Offers a Prescriptive ApproachSince its release in 1981, Getting to Yes has sold more than a million copies world wide, and assuch has been reviewed by a great many individuals. Although the specifics of the PrincipledNegotiation method are being refined on an ongoing basis (refer to Raiffa 1982, Fisher 1983a &1985, Fisher and Brown 1988), the fundamental concepts developed in Getting to Yes are stillbeing used by practitioners and theoreticians alike (see Dorcey 1986 & 1988, Lilley 1988). Thecontinued reference to Principled Negotiation strongly suggests the merit of applying the methodin natural resource negotiations. What gives the method additional appeal as an analyticalframework for this study is its prescriptive orientation. Rather than simply identifying problemareas in a negotiation, the method also points out the ways in which these shortcomings might beovercome.4.5 LIMITATIONS OF THE APPROACH Just as the Principled Negotiation method incorporates a number of traits that this researcherconsiders to be strengths, the method also incorporates a number of traits that can be consideredlimitations. Whether these traits can be deemed to be liabilities will depend upon thecircumstances under which they become a problem. For the purposes of this thesis they areraised merely as points to be aware of.The first, and perhaps most fundamental limitation, is that accepting the method implies anacceptance of the argument that the four fundamental elements of the method will collectively leadto agreements that are efficiently reached, amicable, and wise. Hence, accepting the methodology68implies accepting these criteria, yet little is said as to exactly what proportions each of these fourelements must be present to meet the criteria that Fisher and Ury spell out. It seems unlikelythat one would ever find a negotiation where all four of the fundamental elements are achievedtotally. Hence, this begs the question, 'at what point can we state that a principled negotiationhas occurred?' Without further clarification, this remains purely and simply a judgement call.In their book Getting Together, Fisher and Brown (1988) describe Principled Negotiation as amethod that focuses "on the negotiation of particular transactions" (1988:xiii). This is the secondlimitation of the method. The limitation exists in that the method may fail to examine the moreglobal considerations which may indirectly, but no less importantly, impinge upon the negotiationsor its outcomes.A third limitation is suggested by Fisher in his 1985 article entitled "Beyond Yes". Fishercomments that "Getting to Yes probably overstates the case against positional bargaining. The NewYork Stock Exchange demonstrates that thousands of transactions a day can successfully beconcluded without discussing interests and with little concern for ongoing relationships" (Fisher,1985:68). Clearly, these comments emphasize the need for sensibility to the needs of a givensituation as to whether or not the Principled Negotiation method should be engaged. Applying themethod to every transaction at the Stock Exchange, for example, would likely bring the system toa grinding halt.Closely related to the last point, the fourth limitation arises from the fact that the PrincipledNegotiation method was advanced as a "general theory" (Fisher, 1985:69). Drawing on analogy,Fisher writes: "A physicist advancing hypotheses about a general theory of matter does not denydifferences among the elements. Like such a physicist, we have been looking for common concepts anda common structure that apply across the board" (ibid:69). The implication is simply that everycontingency may not fall within the purview of the Principle Negotiation method.69The final limitation to be discussed here arises out of a criticism which has been repeatedlydirected at the method as described in Getting to Yes: "the discussion of power falls short of what isneeded" (Fisher, 1985:69). While this shortcoming is not anticipated to have an impact on theanalytical use to which this method is being put in this thesis, it is noted that Fisher hasattempted to address the concern in a 1983 article entitled "Negotiating Power: Getting and UsingInfluence" (Fisher, 1983a:149-166).4.6 A FRAMEWORK FOR ANALYSIS OF THE BRIDGEPOINT CASE STUDY Using the Principled Negotiation method as a theoretical base, an analytical framework wasdeveloped with which to assess the Bridgepoint case study. The framework, shown below, isdivided into four parts -- one for each of the fundamental elements of the Principled Negotiationmethod. Under each part is a list of questions which reflects the relevant aspects of thatparticular element. Each of the questions, or indicators, thus attempts to discover informationabout the case which relates directly back to the fundamental elements of the PrincipledNegotiation method. In the analysis that appears in Chapter Six, these indicators are used toassess the process of applying No Net Loss in the Bridgepoint case.4.6.1 Separating the People from the ProblemFisher and Ury's discussion of this principle focuses on separating relationship issues fromsubstantive issues. The authors suggested that when people problems arise they typically fall intoone of three groups; perception, emotion, and communication. The questions posed here attemptto use these Categories as indicators to gauge how effectively the process in the Bridgepoint casewas able to deal with the individual merits of the substantive issues, as opposed to the relationshipissues.Were there failings in communicating concerns, or difficulties understanding the otherparty's perceptions?Were the different parties allowed to reconcile their positions?Did emotions play a part in the negotiations, and if so how were these concerns dealt with?70Were all parties equally well informed, and did they have access to all the relevantinformation?4.6.2 Focusing on Interests not PositionsThe Principled Negotiation method requires that negotiators look beyond positional stances, toconcentrate on the interests of all involved. The analytical questions posed here attempt todetermine if each group's interests were identified, and if the process was able to reconcile theseinterests to the satisfaction of all concerned.Were the interests of all parties considered in the process, and how were these interestsrelayed?Was the process able to reconcile each group's interests?4.6.3 Inventing Options for Mutual GainThe third element of the Principled Negotiation method concentrates on the development ofmutually beneficial alternatives. The method suggests that the act of inventing alternatives beseparated from the act of deciding amongst them, and that techniques should be employed toexpand the pie before it is divided. It also suggests that alternatives be sought which would be ofbenefit to all parties, and that actions should be taken to make the other parties' decisions easy.The questions posed attempt to address these aspects in order to determine if this application ofthe No Net Loss policy had sufficient latitude to provide for mutually beneficial alternatives.How were alternative solutions generated, and how did you choose between them?Were specific attempts made to find solutions which would benefit all the parties, or werethe solutions largely compromises between the various positions?Were actions taken to facilitate the other parties in making their decisions?4.6.4 Insisting on Objective CriteriaThrough this last principle, the Principled Negotiation method attempts to ensure that agreementsreached were based on fair standards -- both on issues of substance, and on issues of process. Thequestions posed will attempt to determine if objective standards were used and, if so, how theywere applied.71Were the criteria used to achieve "No Net Loss" of habitat at Bridgepoint developed fairly,and how were they applied?Was the process used in achieving a "No Net Loss" of habitat fair?4.7 THE RELATIONSHIP OF THE CASE STUDY ANALYSIS TO PLANNING THEORY It is appropriate at this point to briefly discuss the relationship of the analytical approach, andthis thesis, to planning theory in general. While the following discussion is not intended to be afull treatise on planning theory, several points are raised which hopefully cast this work into itsproper perspective within the planning realm. Before commenting on the case study itself, thissection makes a number of general observational comments about planning theory, planningprocess, and planning practice.4.7.1 General Observations on Planning TheoryAlexander (1986) raises two crucial points with regard to planning theory, the first is that "thereis no 'general theory of planning"' (ibid:8). The second point is that "there is no single agreed upondefinition of planning theory, nor is there any consensus on what it includes" (ibid:4). Takentogether these two points would understandably cause even the most ardent of believers to take asecond look for 'the emperor's clothes'. What is revealed in this case, however, is the eclecticnature of a discipline which draws upon concepts from many fields.With regard to the first point, Friedmann (1987) suggests four traditions through which the manycontributions to planning theory can be classified -- social reform, policy analysis, social learning,and social mobilization. According to Friedmann the four traditions represent the predominantplanning streams which have evolved since the late 1700's. In general terms the social reformtradition focuses on the guidance of society through institutionalized planning processes andcontrols. The policy analysis tradition, on the other hand, focuses primarily upon decision, placinga heavy reliance on scientific and technical analysis to assess potential action alternatives. Thesocial learning tradition concentrates on active learning, or "learning by doing" (Friedmann,1987:13), with particular leanings toward "task-oriented action groups" (ibid:185). Finally, the7 9social mobilization tradition -- finding its roots in the writings of Marx, Fourier, Owen, Mao Tse-Tung, and the like -- focuses upon the liberation of the working class and other oppressed groups.Friedmann makes the suggestion that the inherent fallacies in each of these traditions, combinedwith the contradictions increasingly evident within the capitalist system, provides an opportunityfor radical planning as an emerging stream within the discipline. The orientation of the radicalapproach is towards the "self-empowerment" (Friedmann, 1987:14) of groups, communities, andregions so that they become more politically active and independent. (Self-empowerment here isseen as a mediated process based upon the concepts of social learning, making use of dialogue andmutual learning.)The common thread between each of Friedmann's streams is the link between knowledge andaction -- a link which is central to the planning discipline. Although the second point discussedearlier stated that there is no single agreed upon definition of planning theory, definitions such asthe two appearing below also reflect this link between knowledge and action.... planning is the deliberate social or organizational activity of developing an optimal strategyof future action to achieve a desired set of goals, for solving novel problems in complexcontexts, and attended by the power and intention to commit resources and to act as necessaryto implement the chosen strategy.(Alexander, 1986:43).Planning attempts to link scientific and technical knowledgeto actions in the public domain;to processes of societal guidance;to processes of social transformation.(modified from Friedmann, 1987:38).The planner's interest in the link between knowledge and action implies an underlyingfundamental interest in 'process'. As a consequence, aspects such as what is being planned, howit is being done, what practical alternatives exist, how the plans are to be implemented, and whois involved, become primary concerns in any planning issue -- the evaluation undertaken in thisthesis being no exception.73Because of the range and variety of situations in which planning takes place, an equally variedrange of planning models have been developed -- each emphasizing a slightly different aspect ofthe process involved in linking knowledge to action. Some perspectives on the nature of thedifferent planning models in use have been discussed by Alexander (1986:66) who discerns threeclasses of models; substantive models, instrumental models, and contextual models. Thesubstantive classification, which includes the areas of environmental and resources planning,social and economic planning, and physical planning, places emphasis on the sectoral-functionalareas and the substantive content of planning activities. According to Alexander, this focusstrongly reflects the organization of our social institutions.Instrumental models focus on the different tools and techniques which may be used to achieve theobjectives of a given plan. Regulatory planning (which relies on the power to regulate), allocativeplanning (which emphasizes the power to allocate resources), and indicative planning (which usesthe power of persuasion), represent three of the models which Alexander places under theInstrumental category.The final group of models in Alexander's classification scheme, are the contextual models.Alexander states that this grouping "relates different types of planning to different socio-politicalcontexts and ideologies" (Alexander, 1986:66). Some of the types of planning that Alexanderincludes under this category are advocacy planning, comprehensive planning, social planning,bureaucratic planning and radical planning (Alexander, 1986:78-79).In spite of the diversity of the planning models in use, Alexander (1986) suggests that a numberof planning process components are common to most of them. The major components, hesuggests, would include the following: an initial diagnosis of the problem at hand; the articulationof an objective or goal for the process; prediction and projection of future events "in order toestimate demand for facilities and services, and to assess our capacity to meet projected needs"(Alexander, 1986:48); the design of a number of alternative approaches for reaching the objective;74testing of the alternatives for consistency, and practical constraints; an evaluation of thosealternatives not already eliminated as impractical; and finally, implementation of the plan. Ateach stage of this sequence, feedback loops may exist with the other components allowingsuccessive reiterations to occur.Just as there may be variation in the models and techniques employed in bridging the gapbetween knowledge and action from one situation to another, the roles that planners undertake inany planning process will also vary -- in part due to the subtle differences between the situations,in part dependent upon the position being filled by the planner. Key roles that planners have beenknown to work under include those of technicians, administrators, mobilizers, mediators,advocates, and "guerrillas" (Alexander, 1986: 80-83). One point which cannot be separated fromthe notion of role playing, and one which may seem superficially obvious but remains never-the-less an important facet of planning and the planning process, is the simple fact that whicheverrole is undertaken, the planner brings his or her own personal biases, beliefs and skills to thepractice. These facts, as much as anything else, will affect the outcome of any plan'simplementation.The planning function is essentially prescriptive by nature. Alexander's outline of the planningprocess implicitly shows this trait in the evaluation of alternative approaches for reaching anobjective. It should be noted, however, that prescription does not necessarily imply making adecision. In fact, the final selection amongst proposed alternatives is usually left to others.One final overall observation is that the theoretical framework, the definitions of planning, therange of models in use and the different situations in which they are applied, and the roles playedby planners, portray not only the "historical and political-economic" (Forester, 1989:11) basis ofplanning, but also show the heavy and fundamental reliance of planning on communication. It isperhaps this singular reality which is the basis for a growing interest in the application ofnegotiation theory as a mechanism for linking knowledge to action.754.7.2 Linking the Case Study to Planning TheoryIn an earlier chapter it was stated that this thesis undertakes to evaluate the Bridgepointdevelopment as an application of DFO's principle of No Net Loss of fish habitat. From both anoperational and organizational standpoint, the thesis parallels a process described by Alexander(1986:8):The descriptive aspect of planning theory and its findings ("this is how it is") has topass through an evaluative filter ("I think it's fine" or "I think it's terrible") to arriveat normative prescriptions ("this is how it ought to be") of how planning is to be done.Reflecting the first part of the process described by Alexander, the initial chapters of thisdocument provide both descriptive and contextual background information on the origins and legalcontext of No Net Loss, the ecological and historic attributes and considerations of the Bridgepointsite, and the economic and social implications of the development.The "evaluative filter" described by Alexander is also paralleled in the thesis in that the theoreticalfoundations of Principled Negotiation initially advanced by Fisher and Ury (1981) are used both toinform the analysis and to outline a standard against which the process used in the Bridgepointcase may be compared.Rounding off the similarities with Alexander's process, normative prescriptions are also made inthis document. These prescriptions are based in large part upon the prescriptive orientation of thefour principles outlined in the Principled Negotiation theory. If followed, the principles suggestthat any agreements negotiated will be more likely to have been efficiently reached, be long lived,and either maintain or improve the relationships of the parties involved.In the larger sense, the issues at Bridgepoint can be classified as resource allocation / policymaking activities having implications for the area's ecology, economy, and community makeup.The selection of a negotiation based evaluative framework is arguably a logical choice given, aslater chapters will show, the extent of bargaining and negotiation that resulted from the conflict76over the site's use. From Alexander's perspective, the selection would probably be categorizedprimarily as an application of an instrumental model because of the Principled Negotiation'semphasis on the use of a range of tools and techniques to achieve the objectives.Although a complete genealogy of the Principled Negotiation theory would be required to properlyclassify the approach under Friedmann's traditions -- a task that goes well beyond the scope ofthis research -- the strong connections with decision making and decision theory would suggest aprobable link between the Principled Negotiation methodology and what Friedmann refers to asthe policy analysis tradition.With regard to the evaluation and the normative prescriptions presented in this research, theintent is not to supplant existing decision making mechanisms used by government, but rather, toshow by example how these activities might be supplemented to achieve wise and efficientresolutions that still allow relations to continue. The vision of planning presented here is thereforeone which is described by Forester (1989:182) as "an image of planning as a negotiation process".4.8 CHAPTER SUMMARY AND CONCLUSIONS A corollary statement about this chapter is that it attempts to describe and rationalize themethodology used to analyze and assess the Bridgepoint Development as an application of No NetLoss. The chapter began with the suggestion that gaps in both the biological and ecologicalknowledge about critical aspects of fish habitat would impose severe limitations as to what onewould be able to conclude in regard to the success or failure of the Bridgepoint case study usingthese perspectives. It was suggested that a negotiation-based approach would be justified as anappropriate means of assessing the case in view of the increasing demands for more public inputinto natural resources decision making processes, and the apparent movement by governmentagencies away from litigation proceedings.77The method selected as a theoretical base, Fisher and Ury's 'Principled Negotiation', wasdescribed and evaluated for appropriateness. Of fundamental importance were three basic criteriawhich the authors state act as standards for judging any method of negotiation, including theirown. To reiterate, any method of negotiation should; "produce a wise agreement if agreement ispossible", "be efficient", and "improve or at least not damage the relationship between the parties"(Fisher and Ury, 1981:4). The Principled Negotiation method, which was designed to meet thesecriteria, was shown to consist of four basic elements: separating the people from the problem,focusing on interests not positions, inventing options for mutual gain and, insisting on objectivecriteria.This writer's perspectives on both the strengths and limitations of the approach were alsodiscussed. An appreciation of these aspects is important since the analytical framework, beingbased on the theory, likely incorporates many of these same characteristics.The chapter also outlined the analytical framework that is used to assess the Bridgepointdevelopment. The framework as developed consists of four parts, one for each of the fundamentalprinciples in the parent theory -- Principled Negotiation. The questions in each of the parts weredesigned to act as indicators to determine the degree to which any of the four principles wereachieved in the case study. The answers to these questions will be drawn from documentsproduced over the course of events and through interviews with a number of the key participantsin the case. These results will be considered in relation to the three criteria posed by Fisher andUry. The final section of this chapter examined the relationship of this research and the casestudy, to planning theory in general.As a prelude to the actual analysis, historical details of the Bridgepoint development are outlinedin the next chapter.7gCHAPTER FIVENO NET LOSS AT BRIDGEPOINTCASE STUDY EXAMINATION5.1 PURPOSE OF THIS CHAPTER The Bridgepoint Market project began in 1983 as a proposal to construct a waterfront complexcontaining a market, retail shops, several restaurants, a hotel, office space, and a marina on a5.95 hectare (14.71 acre)(Richmond Planning Department. 1984:1) site in Richmond, B.C.adjacent to the North Arm cf the Fraser River (refer to Figures 5.1 & 5.2). Because the sitecontained several areas of riverine marsh, mudflats, and riparian vegetation which would beimpacted by the development, and would therefore affect the wildlife and fish that rely upon thosehabitats, environmental approvals were required prior to the project proceeding. Final approval ofthe project was only made possible after mitigation efforts were made and a compensationpackage was negotiated.The timing of the project was coincidental to a key step in the development of the Department ofFisheries and Oceans' (DFO) evolving policy for the management of fish habitat. This step wasthe incorporation and application of No Net Loss of fish habitat -- first as a policy in its own right,and subsequently as a guiding principle contributing to an overall goal of Net Gain of fish habitat.No Net Loss thus became an important aspect of the project's review and the subsequentnegotiations which took place, with many of the concerns that were raised by the agenciesinvolved focusing on this issue.Section 5.2 of this chapter thus begins to explore the Bridgepoint Harbour Market Developmentthrough a series of discussions on land use, environmental, jurisdictional, economic, and socialissues that were specific to the site, and to the proposal. Narrowing the focus even more, Section5.3 of this chapter provides a chronological overview of significant events affecting, or relating to,the application of No Net Loss of fish habitat to the Bridgepoint Harbour Market Developmentproposal.7 980815.2 FEATURES AND FACETS OF THE BRIDGEPOINT MARKET DEVELOPMENT 5.2.1 Land Use IssuesIn December of 1978, the North Fraser Harbour Commission (NFHC) acquired title to theBridgepoint site under a long term lease from B.C. Ministry of Lands, Parks and Housing (B.C.Ministry of the Attorney General, Land Titles Office, 1978). As recorded in the 1982 AreaDesignation Task Force (ADTF) report to the Fraser River Estuary Planning Committee, theNFHC's intent was to "preserve this last major parcel of land in the area for a water-orientedindustry(s)" (ADTF, 1982:246). As a financially self supporting operation, the NFHC was alsointerested in generating a long term source of income from the property (Pers. Comm. G.Colquhoun Dec. 11, 1990). Consequently, the site was advertised by the NFHC for water-relateddevelopment proposals under a sub-lease term of up to 60 years.In the NFHC's advertisement, the Bridgepoint site was portrayed as a consolidation of threevacant upland lots and two foreshore water lots lying in an area zoned by the Municipality ofRichmond as a "general manufacturing district" (NFHC 1981/1982?). Their advertisement statedthat this designation permitted activities such as "heavy industry, agriculture, auto towing andstorage" (NFHC 1981/1982?). With a dredgate disposal site and an active construction aggregatesbusiness to the west of Bridgepoint, a CPR V & LI branch rail line running along the property'ssouthern edge, and a number of light industrial businesses and warehouses to the east, the site'szoning designation was reflective of the surrounding land uses. Indeed, the B.C. Ministry of Fishand Wildlife characterized the immediate area as "a very heavily industrialized segment of the[Fraser River's] North Arm" (ADTF, 1982. 243). The land use zoning was also consistent withthe former uses of the site which had been the location of a sawmill operation and foreshore logstorage since 1927 (Williams, Villamere and Smith. 1984:33 citing Vladimir Playsic Group. 1984).Much of this background was raised by proponents of the Bridgepoint Development who, severalyears later, found themselves in a standoff with the government environmental agencies whoinitially felt that the project should not proceed because of the anticipated impacts on the wetlandhabitat, the fish and the wildlife.82In its 1981/1982 review of land use for the Fraser River Estuary Study, the Area DesignationTask Force (ADTF) attempted to come to a consensus on a designation for the future uses of theBridgepoint site. As a member of the Task Force, and as the lease holder of the property, theNFHC argued that the site should be designated for water-oriented industrial use, citing both theformer activities on the property and the Municipality's existing zoning (ADTF 1982:246). Fortheir part the forest industry participants to the ADTF review, cited the historic use of theforeshore area for log storage and the limited availability of similar storage areas along the NorthArm as justification for a log storage designation (ADTF 1982:243). Apparently unswayed bythese arguments the government environmental agencies involved (the Richmond HealthDepartment - Municipality of Richmond, the B.C. Ministry of Environment - Fish and WildlifeBranch, Environment Canada - Canadian Wildlife Service (CWS), and DFO) took issue with theNFHC and the participating wood-related businesses over the future uses of the site. Concernedwith the fate of the remnant habitat on the site these agencies argued that at least part, if not all,of the foreshore should be designated as conservation (ADTF 1982:243-246).The consequence of the participating ADTF agencies' inability to come to an agreement was thatthe designation was "unresolved" (ADTF 1982:246) and the property was labelled "undetermineduse". Today there is a general consensus among the agency representatives interviewed for thisthesis that the 'undetermined use' designation was a contributing factor to the difficulties atBridgepoint. From the NFHC's perspective, the designation signalled the beginning of theBridgepoint proposal since, in their view, the 'undetermined use' rating did not preventdevelopment from proceeding (G. Colquhoun, Pers. Comm. 1990).5.2.2 Environmental IssuesAlthough the earlier chapter on 'The Importance of Wetland Habitats' has discussed the role ofwetland habitats for their overall contribution to wildlife and fish -- issues which theenvironmental agencies reviewing the Bridgepoint proposal would have considered in their83assessment -- the characteristics particular to the site help to provide necessary background to themore specific concerns that the government's environmental agencies had with the proposal. Inthis context, several aspects will be discussed here.5.2.2.1 Marsh and Mudflat Related Issues Between April 17 and May 22, 1984 field studies were conducted by the proponent's consultantsat the Bridgepoint site to determine the potential environmental impacts and concerns whichwould be linked to the development (Williams, Villamere and Smith, 1984:7). Completed in July1984 their final report, An Environmental Assessment of the Proposed Bridgepoint Harbour Market Foreshore Development, was effectively rejected by the environmental agencies as"inadequate" (Richmond Health Dept., Oct 9 1984:2). Commenting on the assessment, a 1984report by the Richmond Health Department (Oct 9 1984:2) stated that the reviewing agencieswere particularly concerned with the in-river marina portion of the project, and suggested that theenvironmental report "understated the ecological importance of the mud/sand flat area that [would]have to be dredged". While mindful of its apparent shortcomings, portions of the environmentalassessment report do provide a 'snapshot' of the site's environmental characteristics andfunctional role prior to the development.The proponent's report shows that three species of marsh vegetation were dominant along thesite's foreshore; soft-stem bulrush (Scirpus validus), Lyngbye's sedge (Carex lyngbyei), andcattail (Typha latifolia) (Williams, Villamere and Smith, 1984:11). The latter of these was foundmainly in the shallow waters of the slough at the site's western edge, while the former two specieswere observed both inside and outside the slough area. Both the bulrush and the sedge have beenidentified by Butler and Campbell (1987:29) as being amongst the most important food items forwaterfowl such as the Green-winged Teal (Anas crecca carolinensis), and the Mallard (Anasplatyrhynchos) -- bird species commonly observed at Bridgepoint. Figure 5.3 shows theproponent's representation of the foreshore vegetation prior to development. For comparison,Figure 5.4 shows the proposed development site plan which was submitted to the Richmond8 485FIGURE 5_4: BRIDGEPOINT SITE PLAN MAP (1 968)i oQ t11.._^h. -g• e6.^= 1... .-- c 0 40k 0 a^0 m tooiti.5^a5 ^Ew Es 31C. e• t 8 2a' a 4‘) E8 ^S,• C. (r)cL3 E o -0 e 3s1-- a 0 It^im amo otab_o, 1^=I^t^I86Planning Department in 1988. While Fisheries and Oceans' were reportedly dissatisfied with thediagram shown in Figure 5.3 (Pers. Comm. G. Williams Jan. 15, 1991), suggesting that morevegetation coverage existed in the central and western areas of the site, it never-the-less providesa general indication of where the dominant species of marsh existed.The environmental impact assessment states that the marsh development along the easternportion of the foreshore was being restricted because of scouring from log booms stored there. Thereport also states that a channel had been eroded through the slough at the western portion of thesite as a result of the sand storage dewatering pipe which drained into it. Sand and silt wereapparently deposited into the slough "during heavy rainfalls or during storage of large volumes offresh dredgate material" at the sand storage site (Williams, Villamere and Smith, 1984:11).[Photographs 4 and 5 in the appendices show the marsh at the western edge as it currently exists.The drainage channel referred to in the environmental assessment report is clearly visible inPhotograph 5].Altogether, marsh vegetation originally covered about 1.5 hectares (3.7 acres) along the foreshore(Williams, Villamere and Smith, 1984:32) -- a fact of some significance in view of a 1986 reportthat estimated the total marsh area between the bifurcation of the North Arm of the Fraser (justto the west of Bridgepoint) and New Westminster to be only 10.4 hectares (25.8 acres) (Williams,1986:13). The entire intertidal area at Bridgepoint was reported by DFO to be approximately 4hectares (10 acres) (ADTF, 1982:244) much of which consisted of sand and mudflats according tothe proponent's environmental report (Williams, Villamere and Smith, 1984:32). As the next fewparagraphs will show, both the sand and the mudflat areas of the Bridgepoint site providedimportant habitats for creatures both large and small.5.2.2.2 Zooplankton and Benthic Organisms Field studies conducted at Bridgepoint as part of the environmental impact assessment examinedboth the presence and abundance of zooplankton and benthic organisms along the foreshore. Six87varieties of zooplankton were found in the samples; the most numerous of these beingHarpacticoid copepods (Williams, Villamere and Smith, 1984:21-22). Of the benthic organisms,six varieties were identified, the most prominent being oligochaetes and nematodes (Williams,Villamere and Smith, 1984:21-23). The significance of these organisms is effectively summarizedin the environmental assessment report which states: "the benthic and zooplankton data ... showthat potential food organisms for juvenile salmon exist at the study site, and several of theseorganisms were also found in stomachs of fish captured at the site" (Williams, Villamere and Smith,1984:29). From a fisheries perspective it is clear that fish species were utilizing the site for atleast part of their life cycle.5.2.2.3 Fish Table 5.1 shows that seven species of fish were discovered in the field samples taken at theBridgepoint site between April and May of 1984. Conversations with L. Duncan (Pers. Comm.,Feb 7, 1991) of the Fish and Wildlife Branch - B.C. Ministry of Environment, indicate that bothRainbow trout and Cutthroat trout (Salmo clarki) are also known to inhabit that part of the river.With more than 30 species of fish known to utilize the North Arm (Williams, Villamere andSmith, 1984:5 citing Northcote et al. 1978) it is likely that other fish species beyond thoseobserved in the field study would also have made direct use of the site at various times.Additionally, detrital outflow from the site would have provided at least a limited benefit todownstream organisms.5.2.2.4 Birds and Wildlife In five days of observations, the field study biologists recorded 15 species of birds and 1 animal atthe site. Table 5.2 shows the record of observations during the 1984 field study. Mallard ducksand a variety of shorebirds were reported in the largest numbers. As mentioned earlier, Mallardsare known to utilize marshes for feeding. Shorebirds such as the Killdeer (Charadrius vociferus),and Sandpipers (genus Calidris) frequent mud and sandflats for feeding purposes (Butler andCampbell, 1987:38-40). The solitary Great Blue Heron (Ardea herodias) observed at the site8 8TABLE 5.1: Species list of fish sampled at the proposed Bridgeport HarbourMarket study site, April and May, 1984common name^ scientific namechinook salmon Oncorhynchus tshawytsthachum salmon^ O. ketapink salmon acoutuwhathreespine stickleback^Gasterosteus aculeatuspeamouth chub Etychocheilus oregonensisstarry flounder^ Platichthys stellatusprickly sculpin Cottus asperSOURCE: Williams G., J. Villamere and G. Smith. 1984.  An Environmental Assessment Of TheProposed Bridgeport Harbour Market Foreshore Development, Richmond, B.C.  p. 20.8 9TABLE 5.2: Species of Birds and Animals Observed During April and May, 1984,at the Bridgeport Harbour Market Study Site..Date^Number^Common name^ Scientific nameApril 17^1^muskrat^ Ondatra zibethica4 common snipe capeilaaanago2^Canada goose^ Branta canadensisApril 18^40^mallard^ Anas platyrhynchos1 ring-necked pheasant^Phasianus colchicus1^red-winged blackbird Agelaius pboenicevs1 great blue heron^Ardea herodiasrobin^ Turdus migratoriuskilldeer Charadrius vociferuschickadee^ Parus sp. unidentified sparrowApril 25^50^mallards^ Anas platyrhynchos40^killdeer Charadrius vociferus4 Brewer's blackbird^Euptal gusc_y_ano_ceph&sa4^red-winged blackbird Agelaius phoeniceus1 great blue heron^Ardea herodias6^common merganser Mergus merganser2 common snipe^ Capeliagainagonumerous unidentified gullsMay 7^40^unidentified shorebirds (sandpipers)1 great blue heron^Ardea herodias1^unidentified hawkMay 22^1 ring-necked pheasant^Phasianus colchicus6^mallard^ AnaspJalytlaynchos1 great blue heron^Ardea herodiasSOURCE: Williams G., J. Villamere and G. Smith. 1984.  An Environmental Assessment Of The• • • • -d^• • - • • i ■- • • U - •r -^- • -v - • • II" I ; I 11 , 1 • p. 14.90would likely have been feeding on the Starry Flounder (Platichthys stellatus) and Prickly Scu1pin(Cottus asper) (Butler and Campbell, 1987:26-27) -- fish species observed in the field study andknown to be in the Heron's diet. The other species of birds would have been making similar use ofthe habitat provided by the marsh, sand and mudflats at the site.5.2.2.5 Species Relationships As will be recalled, an earlier chapter entitled 'The Importance Of Wetland Habitat In The Fraser'discussed the detrital-based nature of estuarine food chains in the Fraser delta, and showed asimplified food web diagram said to be representative of the area. The preceding paragraphs havepointed to at least some of the interconnections between the organisms and habitat observed at theBridgepoint site. Many other connections can be found simply by comparing the lists of organismsobserved in the proponent's field study and the simplified food web diagram which has beenreproduced for a second time in Figure 5.5. The broader characteristics ascribed to the FraserDelta in Chapter Two appear to be closely reflected even in a site specific case such asBridgepoint.From an environmental perspective it is clear that in proposals such as that for the Bridgepointsite, the issue is not simply the removal of a set quantity of marsh vegetation or mudflat, butinstead involves the potential disruption to a highly interconnected natural infrastructure --concerns which, while mindful of their respective agency's mandates and specific responsibilities,the environmental agencies reviewing the Bridgepoint proposal were well aware.5.2.3 Participant Involvement and Jurisdictional IssuesA review of the available reports, letters, and memorandums covering the period between March1982 and May 1989 show that more than 17 groups were involved in the Bridgepoint process atone time or another. Table 5.3 shows that these groups included private business, Municipal,Provincial, and Federal level government agencies. Where known, the table also provides someindication of the roles played by each group.RiverineN♦trientsEs uarinPlantsPhytoplank ton3Flying^TerrestrialInsects^Insects 7./ey•rm crop.)Swallows^TealRails^MallardsBlackbirds^Shoveleretc.^GadwallWigeonlitrhGeeseetc.DetritusBacteria(garbage)Crabs ---+ Glaucous- Bald EagleAnnelidstc. ItScuipinsEulachonHerringetc.FlounderSalmonCodScaupScotersShorebirdswinged GullNorthwesternCrowHarbour SealOtterSea LlonKiller WhaleTerns^ LoonsBonaparte^GrebesMew Gull Murreletetc^ etc.PeregrineGreat BlueHeron(Tow/mind's Vole)Zooplanktonclams91FIGURE 5.5: A SIMPLIFIED FOOD WEB IN THE FRASER RIVER DELTA9 2TABLE 5.3: Groups/Agencies Known to Have Been Involved with the BridgepointDevelopment Process.B.C. Ministry of Environment - Fish & Wildlife Management [RSCC participant]B.C. Ministry of Municipal Affairs - Development Services Branch [approval for new zoningcategory]Bridgepoint Developments Ltd [Playsic/Park Georgia - developers]Bridgeport Harbour Market Corporation [Playsic/First City - developers]Department of Fisheries & Oceans (DFO) - Head Office - OttawaDFO - Federal Minister of Fisheries & OceansDFO - Habitat Management Unit ( Fraser River, NBC, & Yukon Div.)[RSCC participant]Environment Canada - Environmental Protection Service [RSCC participant]Environment Canada - Canadian Wildlife Service [RSCC participant]Environment Canada - Inland Waters Directorate [RSCC participant]First City Development Corporation [development partner]Fraser River Pile and Dredge Ltd [contractor]G. Williams & Associates [environmental consultant]Hatfield Consultants [environmental consultants]North Fraser Harbour Commission [head leaseholder/manager]Michael Geller & Associates Limited [urban development consultant - Development Manager -Bridgeport Harbour Market Corporation]Moodie Consultants Ltd. [?]Park Georgia Realty [development partner]Public Works Canada [initial site environmental screening]Richmond Clerks Department [application processing]Richmond Council [municipal development application review/approval]Richmond Health & Environment Committee [dept. project review committee]Richmond Health Department [dept. project review/RSCC participant]Richmond Planning and Development Services Committee [dept. project review committee]Richmond Planning Department [dept. project review]Transport Canada Coast Guard [NWPA approval]Vladimir Playsic Group (a.k.a. Play Development Corporation) [architects/developer]SOURCE: This listing is based upon a review of just under 100 documents directly, or indirectly,related to the Bridgepoint Market Development, and on interviews with 10 representatives ofagencies/departments involved in the process.93Negotiations related to the application of No Net Loss were primarily conducted between thegroups listed in Table 5.4. The groups listed in the table under 'Regulatory Agencies Perspective'were all participants in the Regional Screening and Coordinating Committee (RSCC) Task Forcereview under Environment Canada's referral system which was described in the chapter on legaland jurisdictional issues.In 1984, field studies conducted by the proponent found several species of salmon in the waters atthe Bridgepoint site (refer to Table 5.1). The presence of salmon and its supporting habitat at thesite provided the basis for the Habitat Management Branch of the Department of Fisheries andOceans (DFO) to exercise its jurisdiction under the habitat provisions of the Fisheries Act.Sharing a joint jurisdiction in the region with DFO, the Fish and Wildlife Branch of the B.C.Ministry of Environment also had concerns for the habitat at the site (Pers. Comm. L. Duncan,Feb 7, 1991). Both Rainbow Trout and Cutthroat Trout (Salmo clarki), species for which theBranch has a managerial responsibility, were known to inhabit the area in the vicinity of theBridgepoint site (Pers. Comm. L. Duncan, Feb 7, 1991). In spite of the limited research timeframe, both species were observed at Bridgepoint during the field studies.For similar reasons, the Canadian Wildlife Service (CWS) became involved because the site wasbeing used by a resource (specifically, waterfowl) for which they were responsible (Pers. Comm. D.Tretheway, Jan 22, 1991). The Inland Waters Directorate's (IWD) primary concern with theproject involved the NFHC's compensation plan. Solid encroachments such as that proposed atMitchell Island were not supported by the Directorate because of the cumulative effects that thesestructures have on water levels in river channels (IWD, March 22, 1985).9 4TABLE 5.4: Principal Agencies Involved with the Bridgepoint DevelopmentProcess.PROPONENT'S PERSPECTIVEBridgepoint Developments Ltd. (Vladimir Playsic Group/Park Georgia Realty)Bridgeport Harbour Market Corporation (Vladimir Playsic Group/First City Development)G. Williams & Associates Ltd.Hatfield Consultants Ltd.North Fraser Harbour CommissionVladimir Playsic Group (a.k.a. Play Development Corporation)REGULATORY AGENCIES PERSPECTIVEB.C. Ministry of Environment - Fish & Wildlife Management BranchDepartment of Fisheries and Oceans - Habitat Management Unit - (Fraser River, NBC, & YukonDiv.)Environment Canada - Environmental Protection ServiceEnvironment Canada - Canadian Wildlife ServiceEnvironment Canada - Inland Waters DirectorateMunicipality of Richmond Health Department95In addition to its jurisdictional responsibilities for pollution control, the EnvironmentalProtection Service (EPS) was, at that time, responsible for coordination and liaison between thevarious interested government agencies. The EPS also provided comments andrecommendations pertaining to their jurisdiction regarding the proponent's application underthe Navigable Waters Protection Act (NWPA). While the NWPA is a jurisdictionalresponsibility of the Coast Guard (Transport Canada), interdepartmental channels apparentlyprovide avenues for other agencies to review and comment on such applications.The Municipality of Richmond had both land use and health related jurisdictionalresponsibilities at Bridgepoint. Their land use jurisdiction was based on their power to zone asprovided through the Municipal Act. Zoning became an issue as the development proposal forthe site required the introduction of four new Harbour Market District zones covering both theuplands and the water surfaces of the site. Subsequent designation of the site as a mandatorydevelopment permit area allowed the Municipality greater control over siting, and designaspects of the development. Apprised by the Health Department of the resistance of the otherenvironmental agencies to development at the site, considerable discussion arose within theMunicipality over the issue of incorporating external agencies' concerns into the Municipality'sdecision to allow or deny the rezoning application.Municipal level health related responsibilities had at least two components; the first being thehealth aspects of the types of businesses going into the market (food handling/restaurants,etc.), the second being the broader natural environment impacts involved (pollution, destructionof environmentally sensitive areas, etc.). Authority to administer these aspects are drawnfrom both the Municipal Act, and the Health Act. As an observing participant to the RSCCTask Force, the Health Department was in a position to provide input to both the Task Force ofthe Municipality's perspective, and to the Richmond Council on the concerns expressed by theTask Force.96Finally, the North Fraser Harbour Commission (NFHC) held both jurisdictional and ownership(as the head lease holder) responsibilities at the site. As the administrators of the property, theCommission's mandate under the Harbour Commissions Act provided it with the authority to"regulate and control the use and development" (Ince, 1984:61) under its jurisdiction. One of theNFHC's fundamental bargaining positions during the ongoing negotiations was that it had theright to develop the site.5.2.4 Economic and Social IssuesA letter from the Bridgeport Harbour Market Corporation to the NFHC in 1984 quotes PublicWorks Canada as follows:the Municipality will see economic benefit from the increased taxes and both retail andtourism activity; the project will also provide a stimulus to upgrade an older area inthe municipality; the general public will benefit from the development of open spacenear the shoreline and environmental awareness could result in a positive long-termenvironmental gain particularly if [increased] by a nature interpretation use.(Bridgeport Harbour Market Corporation 1984, citing Public Works Canada, June1983).Both economic and social implications are evident in the statement. More specific details on thepotential magnitude of the impacts are provided by press reports which appeared when phase oneof the project was nearing its completion, and again with the opening of the Market in May 1989.The Vancouver Sun (Aug. 16, 1989:D1), and The Richmond Times (Sept. 20, 1988:1), forexample, reported that cost estimates for the project's first phase, which included the marina, themarket and several restaurants, was on the order of 20 million dollars. The second phase of theproject (as yet incomplete), was to include a 140 room hotel, (Vancouver Sun, Aug. 16, 1989:D1),and an oriental treasure vessel housing more restaurants and a gift shop (The Richmond Review,Feb. 26, 1989:1). The total cost of both phases was estimated at 100 million dollars (Vancouver Sun, Dec 2, 1989:np). As reported in one local paper, project proponents estimated that once thedevelopment was completed the project would generate about 1600 jobs (The Richmond Times Sept. 16, 1988:2). Placed within the context of the weakened economic conditions of the day andthe effects of the 1981/82 recession still being felt, the project represented a potentially importanteconomic contribution to the region.97While a large portion of the construction costs described above can be broadly ascribed to the costof doing business, venture capital if you will, the costs associated with the mitigation andcompensation required by the environmental agencies were somewhat more controversial at thetime. An article in The Richmond Times (September 20, 1988:1) entitled "Habitat Policy CostlyProcess - Nearly Cripples Project" cited expenses of $750,000 for replacing the habitat lost atBridgepoint. The article was pointedly critical of both the NFHC and DFO for developing a 2 to 1replacement policy as compensation for lost marsh at Bridgepoint because of the extra costs thatthis placed on developers. Contrary to the estimate, reported by The Richmond Times, theenvironmental consultant for the NFHC estimated the costs to be in the area of a moreconservative $400,000 - 500,000 (Pers. Comm. G. Williams Jan. 15, 1991).5.3 A CHRONOLOGICAL OVERVIEW OF EVENTS To this point this chapter has provided a broad background on what the Bridgepoint proposal wasabout. It has outlined a number of the key issues in the cases including land use concerns,ecological aspects, agency involvement and jurisdictional interests, as well as economic and socialconsiderations of the project. This section places these and other significant events affecting, orrelated to, the Department of Fisheries and Ocean's (DFO's) application of No Net Loss of fishhabitat at the Bridgepoint Market Development into a chronological context in order fill in some ofthe details of the case and to provide links to some of the events which, strictly speaking, occurredoutside the case but were is some way related to the results of the case. The chronology thusincludes events affecting the process of negotiations over the Bridgepoint proposal, as well asspecific events in the evolution of No Net Loss within DFO.The material presented in this section is based upon written correspondence between and withinthe various organizations involved, reports produced by the proponent's consultants and thevarious government agencies, interviews with representatives from several of the key agencies9Rinvolved in the negotiations, newspaper articles, Municipal Council minutes, and publicadvertisements.5.3.1 1977-1983According to a presentation given by T. Bird to the 1983 No Net Loss Workshop, the concept ofNo Net Loss was first discussed within DFO in 1977 "in response to a requirement of the firstFraser River Estuary Management Plan report" (DFO, 1983:3). After reviewing the status of theremaining marsh areas in the Estuary, the agencies involved in phase one of the Fraser RiverEstuary Study (FRES, 1978) concluded that "no further net loss of wetlands [should occur] in theEstuary" (FRES Phase 2, 1982:24).With this premise an inter-agency Area Designation Task Force (ADTF) was struck in support ofFRES with the objective of identifying where disagreement existed amongst the various regulatoryagencies and land holder interests over the usage of specific waterfront properties. Wherepossible, the ADTF was to agree to and apply site-specific designations for each property's futureuse. As previously discussed, in their review of the Bridgepoint site, the Task Force agenciesbecame polarized and could not come to agreement over its future uses. After much heated debateand no solution at hand the site was given an undetermined use designation in their 1982 finalreport.In the mean time, DFO was working toward the development of a new habitat managementpolicy. As part of this process, DFO held a workshop in June 1981 to discuss the ramifications ofadopting a No Net Loss objective for their habitat policy. Two years later in January 1983, DFOreleased a discussion paper entitled Toward a Fish Habitat Management Policy For The Department Of Fisheries And Oceans (Draft 4) in which No Net Loss was the stated objective ofthe Policy. In April 1983 a second No Net Loss workshop was held to garner response to theconcept and again consider its implications.99About this time, the Vladimir Playsic Group entered into a 57 year lease agreement with theNFHC over the Bridgepoint site. The NFHC's advertisement shows that when the property wasput up for lease it was the NFHC's intention that the tenants "enhance the dyke and shorelineadjacent to the existing slough area ... [and] construct and maintain a modest public viewing platformin this area" (NFHC, 1981/82?:4).By June of 1983, Public Works Canada had conducted an initial environmental screening of thesite for the NFHC, and by September clearing and preloading of the upland portion of the propertyhad apparently begun (Richmond Health Department, 1983). At the end of 1983 the NFHCretained Hatfield Consultants Ltd. as the environmental consultants for the project, and anapplication for rezoning the site from "General Manufacturing to an appropriate zone to bedetermined" had been submitted to the Municipality of Richmond (Richmond Clerk's Department,1984).5.3.2 1984In the first part of 1984 the Richmond Health Department and the Richmond PlanningDepartment became involved in the review of the rezoning application for the Bridgepoint site.The Health Department submitted a report to the Planning Department outlining a number ofconcerns including the preservation of trees along the waterfront dike, the provision ofcontingencies to protect the western marsh from spills, and concerns related to the anticipatedimpacts from increased aircraft noise given the site's proximity to the Vancouver Airport'sproposed new parallel runway. In addition, the Department's report made the followingstatement: "the effectiveness of compensation measures such as creating habitat elsewhere (i.e. marshreplanting, etc.) is relatively unproven" (Richmond Health Dept. Feb. 13, 1984:1). The statementclearly indicates that, from their perspective, some doubts yet remained about the success of thetechnique.100From DFO's perspective, their formal involvement with the Bridgepoint proposal began on March28, 1984 when the first meeting between the developer's agents and the governmentenvironmental agencies took place and the proposal concept was presented. The meeting, whichincluded a site visit, was attended by representatives from the NFHC, Hatfield ConsultantsLtd.(HCL), the Vladimir Playsic Group, DFO, the Canadian Wildlife Service (CWS), theEnvironmental Protection Service (EPS), and the B.C. Fish & Wildlife Branch (Williams,Villamere, Smith 1984:6). The proposal put to the agencies included a waterfront marina andobservation pier to be located in the eastern and central foreshore areas respectively, a festivalmarket/entertainment/retail complex with restaurants, a pub, and cinemas in the upland area,and a hotel to be situated on pilings directly overtop a portion of the Duck Island slough in thewestern portion of the site.Environmental agencies attending the meeting stated that a formal review of the proposal wouldrequire an environmental study to be undertaken. According to DFO's documents, the proponent'srepresentatives were advised that the project could be rejected because of the perceived habitatvalue of the site. DFO records further state that the consultant was advised to focus onmitigation and compensation alternatives rather than the value of the site's habitat (DFO, March7, 1985:1). The documents also indicate that DFO was under the impression that they would becontacted to formulate the terms of reference for the environmental study required for the review(DFO, March 7, 1985:1). Instead, the terms of reference for the study were worked out betweenthe NFHC and their consultants, Hatfield Consultants Ltd. (Williams, Villamere, Smith 1984:6),apparently without consultation with the environmental agencies. The study proposal completedby the Hatfield group was submitted to the NFHC in early April, 1984.The NFHC's perspective on the events of the initial March 28, 1984 inter-agency meeting areapparent in correspondence to DFO a year later in March 1985 when the issue was again raised.In their letter, NFHC representative indicated that although the environmental agencies hadstated that there was little point in conducting involved fisheries or wildlife studies on the site,101DFO representatives had also suggested that the perceived significance of the area might berefuted through field studies (NFHC, March 7, 1985:2). Apparently based in part on thisperception, and also because of a lack of existing site specific environmental data for theBridgepoint site, the NFHC requested that its consultants undertake the environmental fieldstudies. Subsequently, the field studies were conducted between April 17 and May 22, 1984(Williams, Villamere, Smith 1984:7) and the final report was submitted to DFO in August laterthat year.While the environmental field studies were under way, considerably more contact took placebetween the Municipality of Richmond and the proponent's urban development consultant.Representatives from Richmond's Health Department, having been asked to review and commenton the proposal by the NFHC in May 1984, produced a summary of the environmentalconsiderations and concerns of the Department by late June, 1984.When subsequently contacted by Richmond Health Department in mid June 1984, both the B.C.Fish and Wildlife Branch, and the Environmental Protection Service (EPS) indicated that they hadnot had any further input on the project to that point. Neither agency had been provided theminutes from the initial March 28, 1984 meeting, nor any details on the proposal whichincorporated plans for mitigation/compensation.The 1984 report completed by Hatfield Consultants Ltd. entitled: An Environmental Assessment Of The Proposed Bridgeport Harbour Market Foreshore Development  placed much of its focus on adescriptive account of the field study observations at the site. Indeed, much of the detailed listingsof plant, animal, and fish species illustrated in Section 5.2 of this chapter were from the results ofthese field studies. The report also contains, however, a discussion on the relative importance ofthe site's marsh habitat. Citing a number of inhibiting factors to the habitat's productive capacity-- including foreshore log scouring, collecting log debris, and the discharges from the storm sewerand sand dewatering pipes which lead into the site's western marsh -- the authors' of the report102concluded that the site's fish and waterfowl habitat was "moderately important" (Williams,Villamere, Smith 1984:33). This conclusion was strongly contested by DFO representatives andthe other environmental agencies. As relayed by the Richmond Health Department to RichmondCouncil, the inter-agency group reviewing the report felt that "the proponent, through hisconsultant, [had] understated the ecological importance of the mud/ sand flat area" (Richmond HealthDept. Oct. 9, 1984:1).Another interesting aspect of the report is its orientation to No Net Loss. The North FraserHarbour Commission (NFHC), as a participant to the FRES process described earlier, and as asupporter of the general principle of No Net Loss, at the time encouraged the consultants and thedeveloper to incorporate the principle into the project proposal. According to the assessmentreport, however, DFO had not yet issued formal guidelines for applying the concept, so theconsultants adopted criteria used by the CN Rail Twin Tracking Steering Committee involved inan Environmental Assessment Review (EARP) over an independent project in B.C.'s coastalranges (Williams, Villamere, Smith 1984:32). Hence, the perspective taken by the Bridgepointconsultants was as follows:The 'no net loss' criteria most appropriate to the proposed Bridgeport Harbour Marketdevelopment is:"Encroachments which cause the loss of significant habitat required to maintainpresent fish production capacity based on the (collective) professional judgement andrecommendations of the TWG [Technical Working Group], will be compensated for bythe creation of habitat equivalent in productive capacity on a river system basis."(Williams, Villamere, Smith 1984:32).With this apparent guidance, the authors of the Bridgepoint environmental assessment concludedthat "several mitigation and or compensation alternatives could be carried out to ensure that no netloss of fish habitat would result from the developments" (Williams, Villamere, Smith 1984:33).Mitigative actions described in their report included; the relocation of the hotel from the westernmarsh area, the removal of log booms from the foreshore, and timing the construction to avoidsalmon migration periods. The compensation alternatives included the enhancement of the site'swestern marsh area, and the removal/relocation of the stormwater and sand storage dewateringpipes from the slough. As proposed, all of the compensation would have remained on-site.103In Richmond, the Municipal Council reviewed the rezoning application for the site on July 23,1984. The application was left somewhat vague in that the request was to rezone from industrialto a zoning category that would allow for the kinds of uses anticipated for the site, but which didnot yet exist in Richmond. Eventually, two 'Marina District' categories were created with theapproval of the B.C. Ministry of Municipal Affairs. After reviewing both the positive and negativeimpacts of the two options proposed by Municipal staff to either retain the site for industrial uses,or to "allow a specialized multiuse development" on the site, Richmond Council chose to giveapproval in principle for the multi-use concept (Richmond Clerk's Dept. July 24, 1984). Thedeveloper was, however, requested to submit detailed studies on the impacts to the area's trafficpatterns, and an environmental impact study related to the project's impacts on the foreshorebefore a final decision on the rezoning would be given.By late September, 1984 the reviewing agencies (i.e. EPS, CWS, DFO, B.C. Fish & WildlifeBranch) submitted detailed comments on the environmental assessment report to the VladimirPlaysic Group as attachments to a letter from DFO. As described earlier, the agencies' generalconsensus was that the proposal significantly underestimated the anticipated impacts on the site'shabitat. Because of this underestimation the agencies felt that efforts to mitigate would, ofconsequence, be "inadequate" (DFO September 27, 1984:1). The interpretation of No Net Lossdescribed in the report was also challenged by DFO staff who stated that "compensation to replacelost productive capacity should only be considered as a last resort once all mitigation alternatives areexhausted" (DFO September 27, 1984:1). Because of the perceived biological importance of thesite, the proponents were encouraged to "consider alternatives to the proposal which would avoidforeshore filling and dredging of these productive fish and wildlife habitat areas" (DFO September27, 1984:1).Citing its mandate to manage the North Fraser Harbour in a detailed letter to DFO, the NFHCdeclared its endorsement of the development of both the upland and foreshore areas for the uses104proposed in the project (NFHC, October 5, 1984:1). The letter went on to state that in addition tobeing "unequivocally supported by the North Fraser Harbour Commission" the proposal had also"received Approval-in-Principle from Richmond Municipal Council (NFHC October 5, 1984:1). Therelocation of the hotel away from the western slough and marsh was cited as a "significant designchange" to accommodate both mitigative efforts, and further, to provide for "a meaningfulcompensation program of marsh enhancement" (NFHC October 5, 1984:2). It was further stressedthat the comprehensive nature of the facility, incorporating both private commercial and publicuses, placed restrictions on where the components could be located on-site. Finally, the NFHCstated that it had been involved in the development of a foreshore improvement program, and thatthe NFHC "was committed to working with [DFO] to develop a responsible plan for the future of theriver" (NFHC October 5, 1984:3). The Bridgepoint project, it was suggested "must be consideredin light of [the NFHC's] previous accomplishments, as well as a longer term strategy for the future ofthe river" (NFHC October 5, 1984:3).On October 16, 1984 a closed meeting between representatives from DFO, the NFHC andHatfield Consultants Ltd. was held, allowing a number of issues and concerns of each of theparties to be discussed. At the meeting, the NFHC expressed its desire to have open water in thesite's east side. DFO, again citing the high biological value of the site, urged the proponents tolook for an alternative location for the development. In response, the NFHC informed DFO thatBridgepoint was the only viable location for such a development and several reasons wereapparently explained (DFO November 28, 1984). In addition to other aspects being discussed,DFO was asked to put its position on the proposal in writing along with comments on No Net Lossas they pertained to the development.By late October/early November 1984, with the construction deadline that would allow the facilityto be opened in time for Expo 86 quickly approaching, the proponents, their urban developmentconsultants, and the NFHC made appeals to Richmond's Municipal Council and to DFO to speed105the separate approval processes along. Richmond's Council was asked to allow the proposal toproceed to the required public hearing phase (The Richmond Review, October 28, 1984:1).A second site visit was held on November 2nd, 1984 with representatives from the NFHC, DFO,CWS, the Richmond Health Department, Hatfield Consultants Ltd., and the B.C. Fish and WildlifeBranch attending. Memoranda from the Richmond Health Department (November 2, 1984)indicate that although communications were perceived to be improving, mitigation andcompensation were still disputed issues. As a result, DFO informed the proponents during themeeting that they were not prepared to extend approval-in-principle to the project as proposed(DFO, November 28, 1984:1). However, aspects relating to compensation requirements werediscussed and both parties reportedly came away from the meeting with commitments to assesscompensation possibilities (DFO, March 7, 1985:3).In a letter to the NFHC on November 28, 1984, DFO fulfilled an earlier request to document theDepartment's position and provide relevant comments on No Net Loss. The document states thatDFO's position had, to that point, not changed from its refusal to extend approval-in-principle tothe project because of the sensitive nature of the site's habitat and the perceived shortcomings inthe mitigation and compensation aspects of the proposal. Drawing on DFO's report Toward A Fish Habitat Management Policy, the report's author detailed each of the four steps for assessingdevelopment proposals: prevention, mitigation, compensation, and rejection. In essence, DFO'sstated position was that before any approvals could be given, mitigation efforts would have to bestrengthened.Enhancement of the existing marsh at the site's western edge was ruled out as a compensationoption by DFO, and off-site compensation, it was pointed out, would have to be done either inadjacent or nearby sites because of the limited amount of productive habitat in that part of theriver. The NFHC was also informed that the proposal had now been registered with the Regional106Screening and Coordinating Committee (RSCC), the Federal Government's formal inter-agencyreview body.Having had, by this time, some practical experience with the problems of applying No Net Loss toseveral development applications in B.C., a number of concerns were raised internally by DFOstaff in late November/early December, 1984. A consistent theme was that the main objective ofthe proposed policy for the management of fish habitat should be upgraded to that of a 'net gain'policy (DFO, December 6, 1984:1; DFO, November 26, 1984:1; DFO, November 28, 1984:1) withNo Net Loss operating in support of this goal. A second concern in common was based on thedifficulty in discerning what the proposed policy meant by 'productive capacity', and about thelack of guidance as to its measurement. A third concern was raised over the hierarchical four stepassessment process (prevention, mitigation, compensation, rejection). In some cases, it wassuggested, the first two assessment steps have been given only rudimentary attention asproponents attempted to look toward compensation for solutions. The Bridgepoint Developmentwas cited as a case which generally conformed to this description in that, even though theproponent generally followed the "intent" of No Net Loss, the proponents quickly moved to thecompensation solutions after offering what were considered only modest mitigation measures andthen declaring that the site was the only viable location for the type of development beingproposed (DFO, December 6, 1984:3). A more equitable solution suggested by DFO staff was tolink the four assessment steps to a red, yellow, green coding system to guide developers to wheredevelopment proposals could proceed with fewest restrictions (DFO, December 6, 1984:3). [Theessence of this idea has since been implemented in the Fraser's North Arm through an agreementbetween DFO and the NFHC (refer to DFO and NFHC, September 1988).]In mid December 1984, a short list of 8 potential off-site compensation opportunities had beenidentified after investigations along the North Fraser. With this list, potential compensationoptions were broadened out from the initial on-site proposals. Potential sites were toured later inthe month by representatives from Hatfield consultants and RSCC members.107A letter from the Bridgeport Harbour Market Corporation to the NFHC in December 1984,reaffirmed their position that the Bridgepoint site was the only viable location for the type ofdevelopment proposed. The four mitigation measures put forward by DFO in their November28th letter were discussed, and some concessions were proposed through reductions in "foreshorefill and pile supported structures over intertidal marsh areas", and reductions in "the size andalignment of the marina" (Bridgeport Harbour Market Corporation, December 13, 1984:1). Othermitigation aspects such as reductions in dredging in the eastern portion of the site were rejectedby the Corporation because of marina/vessel draft requirements. Another concern from theirperspective was that millions of dollars would being placed at risk if the mudflats were allowed toremain adjacent to the development (Bridgeport Harbour Market Corporation, December 13,1984:1). A number of potential benefits mentioned in the Section 5.2 of this chapter were raised(i.e. job creation, financial injection, and upgrading of the area) along with a listing of themitigative activities already taken or proposed (i.e. relocating the hotel, minimizing the amount ofdredging, etc.). It was suggested that if these efforts were deemed insufficient, the Corporationexpected the NFHC "to reach agreement with Fisheries on other off-site compensation opportunities"(Bridgeport Harbour Market Corporation, December 13, 1984:2).On December 17 1984, the NFHC forwarded a revised plan to DFO incorporating, "as much aspossible" the suggestions in Fisheries' November 28th letter (NFHC, December 17, 1984:1). TheCommission's letter stated that further reductions to the proposed dredging or other modificationswould "make the project unrealizable" (NFHC, December 17, 1984:1).Included with the NFHC letter was the listing of potential off-site compensation opportunities anda reaffirmation of the Commission's commitment to replacing lost habitat through off-sitecompensation measures. Having given these assurances, the NFHC requested that DFO proceedquickly so that the environmental approvals would coincide with the resolution of the Municipalityof Richmond's mandatory Development Permit application (NFHC, December 17, 1984:2).108On the same day of the NFHC's letter to DFO, a public hearing on the proposal and theproponent's application for rezoning from industrial to Harbour Market Districts 1 through 4. Atthe hearings submissions were made by DFO, the NFHC, the Bridgeport Harbour MarketCorporation's Development Manager, and a couple of private citizens. The minutes from thecouncil meeting show a number of concerns on DFO's part. The economic conditions of the day,and the attendant possibility that "the project might not be carried through to its conclusion becauseof market conditions", leaving behind a damaged habitat was a fundamental concern from DFO'sperspective. A second concern is evident in the minutes reflected as a request for moreinformation, or at least a clarification of the proponent's position on exactly what impact thecurrent revision of the proposal would have on the habitat (Richmond Clerk's Department,December 20, 1984:157).Specific aspects of the proposal concerning DFO were stated at the hearing to be the marina, theobservation pier, and the boat docks. The upland portion of the proposal, however, did notconstitute a concern from their perspective. Finally, DFO's position, as given to Council, was thatit would not accept clean-up of other sites as a substitute for mitigation or compensation measures(Richmond Clerk's Department, December 20, 1984:158).In their submission, the NFHC told Richmond Council of their belief that the lost habitat could bereplaced at another location. The project's design had been altered to preserve about 50% of themudflat and marsh along the foreshore (Richmond Clerk's Department, December 20, 1984:159).Because of the potential economic and social benefits of the project, the NFHC stated that it wouldprovide other sites controlled by the Commission for habitat replacement subject to DFO'sconsideration. The NFHC also stated that they had been involved in a foreshore improvementprogram on the Fraser's North Arm in which they hoped DFO would become involved.109The Bridgeport Harbour Market Corporation's submission to Council made two key points. Thefirst was that the project's success was "very much dependent on the inter-relationships between avariety of different elements, which may or may not be viable on their own, but which in combination[were] supremely important to this development" (Richmond Clerk's Department, December 20,1984:160). The point apparently being that the upland portion of the project and the foreshoreportions of the project were, from a feasibility perspective, interdependent. The Corporation'ssecond point was that while Council's approval for the rezoning application would not "conferautomatic authority to proceed", it would be of benefit in receiving approvals from the otherreviewing government's agencies (Richmond Clerk's Department, December 20, 1984:160).After consideration of the arguments presented, as well as additional consultations with DFOrepresentatives to confirm that Council's decision would not erode DFO's position in thenegotiations, Richmond Council gave their approval in principle to the project and processed theBridgeport Harbour Market Corporation's rezoning application through three readings of theproposed bylaw 4389 on December 20, 1984 (Richmond Clerk's Department, December 20,1984:1).5.3.3 1985In the first two months of 1985, several meetings were held between DFO, the NFHC, and theconsultants. Five potential compensation sites were toured by the agencies for their suitability.Coincidental to these developments, DFO held another No Net Loss workshop at the beginning ofFebruary 1985. Although the discussions were generally oriented toward the national applicationof No Net Loss, a number of issues having a potential bearing on the Bridgepoint proposal werediscussed. Two of these issues included the questions of over-compensating to reflect therisks/uncertainties of a particular situation, and secondly, the question of what stage compensationshould occur in relation to the beginning of project construction. A consensus among theparticipants was reached that risk and uncertainty should be reflected in the compensationmultipliers selected, and that although specific circumstances may allow compensation to occur at110almost any stage of a development, compensation plans should be agreed to before constructionwas undertaken (DFO, February 5, 1985:2).By the mid to latter part of February 1985 DFO had made a decision on replacement ratios thatwould be required of the proponents as compensation for lost habitat. By February 22, 1985, boththe consultants and the NFHC were advised that compensation for lost marsh habitat would betwo times the marsh area lost, while compensation for lost mudflat habitat would be the samearea as mudflat destroyed (DFO, March 7, 1985:3). In addition, the NFHC was informed thatmonitoring of any replacement habitat would he required in the compensation proposal.On February 22, 1985 Vladimir Playsic representing the Vladimir Playsic Group wrote to theFederal Minister responsible for the Department of Fisheries and Oceans. Although the contentsof this letter were not made available for this thesis, and DFO's Habitat Management Branchstaff in New Westminster have stated that they did not receive any written Ministerialcorrespondence on the Bridgepoint file (Pers. Comm. B. Clark, January 29, 1991), a detailedchronology of events showing DFO's involvement in the case between March 28, 1984 andFebruary 22, 1985 was prepared on March 7, 1985 in response to the Playsic Group's letter,tangibly indicating at least some degree of involvement by the Minister's office.On March 7, 1985, the NFHC chronicled its own perspective on the history of negotiations overthe Bridgepoint site, including the ADTF 'undetermined use' classification, in a lengthy responseto the DFO/RSCC letter of late February 1985 which set out DFO's position on compensationrequirements. The NFHC's letter outlined the successive changes made to the original proposal inthe effort to achieve a mutually acceptable design. While conceding the importance of Duck Islandslough ( the slough in the western area of the site), particularly for waterfowl, the NFHCquestioned the requirement to compensate for the site's mudflat losses when an apparentabundance of mudflat existed along the river (NFHC, March 7, 1985:3). The letter states; "... Ihave difficulty in accepting the fact that compensation for mudflat must involve mudflat creation,111because at low tide there is considerable mudflat along the entire lower Fraser and the total foodproducing capacity of this habitat would, I suspect, more than adequately cover the fish foodrequirements" (NFHC, March 7, 1985:4). The final portion of the letter outlines a 'conceptual'compensation plan offered to DFO and the RSCC for their review. In brief, the three mainelements of the plan were as follows;replacement of lost intertidal marsh in proportions of 2 to 1 at the Mitchell Islandsite using existing plants at Bridgepoint as donor stock;establishment of a 5 year monitoring program involving both DFO and the NFHC;finally, as compensation for lost mudflat, and the undertaking of "a jointmanagement program ... to increase the overall productive capability of the NorthArm."(NFHC, March 7, 1985:5).The proposed program would involve the undertaking of a detailed habitat inventory of the NorthArm, the establishment of a marsh/foreshore clean-up program, and "measures to avoid habitatdegradation" in the future (NFHC, March 7, 1985:5).A meeting was subsequently held between DFO and the NFHC to discuss the compensationproposal further and a follow-up letter from DFO's Area Manager to the NFHC on March 25thindicates that the compensation proposal, while still not DFO's preferred alternative, representeda step forward (DFO, March 25, 1985:1). In view of the NFHC's compensation proposal, DFO'sArea Manager, on behalf of the Department, gave a conditional approval in principle to theproposal. The conditions set down included requests for detailed information on scheduling,procedures, and specifications of a number of activities related to the compensation proposal, andextension of the monitoring program to include "upgrading and remedial work should the worksprove unsuccessful during the specified 5-year program" (DFO, March 25, 1985:2), and furtherinformation on the NFHC's proposal for cleaning up the river, including the restoration andprotection of existing sites.On the same day as DFO's offer of conditional approval in principle, the Richmond MunicipalCouncil gave final approval and adoption of Bylaw 4389, allowing the rezoning of the Bridgepoint1 1 2site from industrial to four Harbour Market District zones. Council's approval was not, however,without some reservations. A local newspaper article commenting on the Council meeting showedthat, in spite of the pressure to push the application through the Municipal approval process, someof the Aldermen felt that the project could not be completed in time to benefit from Expo 86. OneAlderman also suggested that approval should be withheld until better assurances for the•protection of the area's marshes were obtained (The Richmond Review, March 27, 1985:1).In June 1985, the compensation proposal report entitled Outline of Habitat Compensation For Proposed Bridgeport Harbour Market Development, Richmond, B.C.  was completed for the NFHCby Hatfield Consultants Limited (HCL). In essence the report outlines a proposal for thecompensation of marsh and mudflat habitat losses that were expected to result from the proposeddevelopment at the Bridgepoint site. The compensation proposal was structured specifically tofulfill the conditions set out by DFO's conditional approval-in-principle of March 25, 1985. Thereport states that filling for the hotel, and dredging for the marina and the observation pier, wereexpected to result in the elimination of .77 hectares (1.9 acres) of intertidal marsh and 2.70hectares (6.68 acres) of mudflat (Hatfield Consultants Ltd., June 1985:1).Under the NFHC's proposal, marsh habitat at the Bridgepoint site would be compensated bydeveloping a 1.54 hectare (3.8 acre) intertidal marsh at a foreshore property owned by the NFHCon Mitchell Island, approximately 2.7 km upstream from Bridgepoint (Hatfield Consultants Ltd.June 1985:4) [refer to Compensation Site Map in Figure 5.1]. Both the fill material and the donorplants were to be taken from the Bridgepoint site and used at the Mitchell Island site to developthe new marsh (Hatfield Consultants Ltd., June 1985:6 and 11). As part of the marshcompensation package, a five year monitoring program was proposed that would be "developed incooperation with the Department of Fisheries and Oceans" (Hatfield Consultants Ltd., June1985:14). During the first two years, it was proposed, vegetation productivity would bemonitored, while the last three years of the program would concentrate on benthic productivity(Hatfield Consultants Ltd., June 1985:13). The proposal also made provisions in the event that113transplanted marsh plants failed to take hold. Under these circumstances, the NFHC would beresponsible for replanting the site. The proposal also stated that certain protection measures wereto be installed at the Mitchell Island site to prevent erosion by boat generated waves and rivercurrents. These measures included a 120 metre extension of an upstream storm sewer outlet, theinstallation of a protective log boom at the site's outer perimeter, placement of rip rap downstreamof the site, and the construction of a sloped area of fill extending into the river specifically toreduce current erosion (Hatfield Consultants Ltd., June 1985:8). Again the NFHC was to beresponsible for the maintenance of the structures.The 2 to 1 marsh replacement ratio required by DFO, and agreed to by the NFHC, was justifiedin the report for the following reasons:new marshes initially have lower productivity and it will require several years for themarsh to reach maturity;this type of habitat development has only been attempted in the lower Fraser on asmall scale and with varying success; andthe [original] marsh area at the Bridgeport Harbour Market site had the potential toexpand in size.(Hatfield Consultants Ltd., June 1985:4).To compensate for the anticipated loss of 2.70 hectares ( 6.68 acres) of mudflat at Bridgepoint, theNFHC proposed a program of log and debris cleanup or protection measures along specific sites onthe North Arm of the Fraser River (Hatfield Consultants Ltd., June 1985:1). Two sites werespecifically mentioned; Wood Island Slough -- a 1.13 hectare (2.8 acre) site located 5 kmdownstream of Bridgepoint, and the Genstar Riverine Marsh -- a .22 hectare (.54 acre) site about1 km downstream from Bridgepoint. At both locations the proposed cleanup was to involve theremoval of beached logs and wood debris from the intertidal marshes and the possible installationof shear booms to protect the sites from further damage (Hatfield Consultants Ltd., June1985:16). Through special agreement with DFO, cleanup of these marsh areas were valued asbeing worth twice the area of mudflat lost, hence the total area cleaned up being 1.35 hectares(3.34 acres) was worth 2.71 hectares (6.68 acres) -- slightly more than the area of mudflatexpected to be lost at the Bridgepoint site.114On July 24, 1985, having reviewed the NFHC's proposal for compensation, the Director Generalof the Department of Fisheries and Ocean's (DFO) granted approval to the compensation proposalsubject to modifications to three aspects of the plan. Modifications to the proposed protectionmeasures involved the replacement of the rip rap by a 10:1 slope on the fill material designed toprevent river current erosion. In addition, prevention of boat wave erosion was to be enhanced byextending the shear boom to the shoreline upstream of the new marsh site. Further, the proposedmonitoring of the site's physical aspects was to be expanded from 2 years to 5 years, with theNFHC being responsible for any remedial measures required over the full monitoring period.(DFO, July 24, 1985:1-2). The second modification was a requirement for the proponent to fundthe monitoring over 3 years, and for monitoring to include several more specific attributes of themarsh's productivity (i.e. growing density, stalk height, etc.). The third requirement was relatedto the shear boom at the Genstar Riverine Marsh which the NFHC proposal indicated would beinstalled "if practical" (Hatfield Consultants Ltd., June 1985:17). DFO approval of the plan madethis structure a mandatory requirement.In closing, DFO's approval letter suggested that the NFHC and DFO should work together "toinitiate a more detailed environmental plan for the area of the Fraser River under [NFHC]jurisdiction" (DFO, July 24, 1985:2). The willingness of both sides to do this eventually resultedin a 'Memorandum of Understanding' drawn up between DFO and the NFHC. The formalagreement, entitled An Environmental Management Plan For The North Fraser Harbour, wasfinalized by September 7, 1988.Having received approval from DFO, the proponents submitted their application for a developmentpermit to Richmond Council on August 8, 1985 and on September 25, 1985 a special pressconference was set up at the offices of the NFHC to formally announce the project's beginning andthe expectations for its opening in time for Expo 86. Covering the story, The Richmond Review (September 25, 1985:3) reported that at that point, Play Development and First City Development115were joint partners in the development. Expectations were that preloading of the upland portionof the site was to begin two days later and construction was to commence by November 1985.Meanwhile, the evolution of DFO's habitat policy continued and on October 4, 1985, a draft reportentitled A Net Gain Policy For Fish Habitat Management In Canada  was completed. Thetransition of No Net Loss from a primary policy objective to that of a working principlecontributing towards the broader goal of Net Gain of fish habitat was well under way.5.3.4 1986In mid January 1986 the NFHC submitted their modifications to the compensation proposal toDFO, formally meeting the approval conditions stated in DFO's letter of July 24, 1984. Laterthat year the NFHC released a report entitled North Fraser Harbour Shoreline Habitat Inventory (Williams, September 1986). Written by G. Williams and Associates for the NFHC, the reportintroduces and applies the red, yellow and green habitat classification scheme similar to thatdiscussed within DFO. The redirection of efforts towards this report also indicates that themomentum behind the Bridgepoint proposal at that time had temporarily faltered.By October 1986, DFO had finalized its changes to their habitat policy and officially released itsPolicy For The Management Of Fish Habitat making Net Gain of fish habitat the policy's primaryobjective, and the conservation, restoration, and development of fish habitat its supporting goals.No Net Loss was now considered to be a "guiding principle ... fundamental to the conservation goal"(DFO, October 1986:14).In spite of the optimistic projections by the proponents, the Bridgepoint Development was notcompleted in time for Expo 86 as financing the project proved to be a limiting factor. By earlyDecember 1986 First City Development, one of its backers, had pulled out of the venture to bereplaced initially by two other firms -- Park Georgia Investments, and Praxis (The Richmond 116Review?, December 3, 1986:np). Praxis later withdrew from the project leaving Park GeorgiaInvestments and Play Developments as partners in the development.5.3.5 1987-1989Articles in The Richmond Review on June 17, 1987 and December 13, 1987 showed that theproject's construction start date had been rescheduled several times because of financingdifficulties from mid summer 1986, to August of 1987, and finally to March of 1988 (TheRichmond Review June 17, 1987:1 and December 13, 1987:1). By late 1987, the project had re-emerged under a new name -- The -Bridgepoint Harbour Market. Construction plans were finallyput into motion and the compensation work at Mitchell Island was scheduled to be completed bythe end of March 1988.It was also during this period that the different cost estimates referred to earlier appeared in TheRichmond Times (September 20, 1988:1).  The Richmond Times article also reported thatcompensation costs incurred were fundamental considerations in the Play Development's decisionto sell out to Park Georgia Investments -- a transaction which apparently occurred in September1988 (The Richmond Times, September 16, 1988:2 and September 20, 1988:1).With the development's construction having been completed, and the fish habitat compensation inplace, the Bridgepoint Harbour Market officially opened on May 24, 1989.5.4 CHAPTER SUMMARY AND CONCLUSIONS In his book Bargaining In The Governance Of Pacific Coastal Resources: Research And Reform, Dorcey (1986) describes three characteristics of coastal resources which pose challenges to theirgovernance: increasing demands placed upon coastal resources as a result of population andeconomic growth; increasing complexity in the institutional and socioeconomic systems which aresuperimposed over already complex physical-chemical-biological systems; a growing awareness "ofthe uncertain knowledge of the systems involved" (Dorcey, 1986:37).117Sections 5.2 and 5.3 of this chapter have shown that all three of the characteristics described byDorcey were evident at Bridgepoint. The historic conflict between the NFHC and DFO over thesite's use designation and the polarized perspectives that carried into the proponent's multi-useproposal for the site reflect the increasing demands placed upon the land and fish habitatresources in the Fraser Estuary. Similarly, the food web diagram in Figure 5.4 and the field dataproduced for the Environmental Impact Assessment provide strong indications of the intricate andcomplex nature of the physical-chemical-biological systems at the site. A complexity which wasmirrored, and compounded by the complexity of the overlying institutional and socioeconomicsystems evident in the number of agencies having jurisdictional involvement in the case, as well asthrough the pressures imposed to meet the Expo 86 construction deadline, the potential creation ofsome 1600 jobs, and the promise of injecting millions of dollars into a weakened economy.The third characteristic described by Dorcey, that of uncertain knowledge, was reflected in severalaspects of the case. The Richmond Health Department's initial comments as to the unprovennature of the habitat replacement technique, by implication, reflects an uncertainty in our abilityto manipulate the natural conditions required to make such a project a success. Institutionaluncertainties were apparent in DFO staff's concerns regarding the specifics of applying No NetLoss and how 'productive capacity' should be measured. In the former aspect the uncertainty isone of how to apply institutionally developed policies, in the latter aspect the uncertainty is one ofhow to institutionally represent what we perceive to be occurring in the natural systems. A finalexample of uncertain knowledge is evident in the proponent's uncertainty regarding what neededto be done to reach an agreement yet still retain an economically viable and institutionallyacceptable project.The role and extensive use of negotiation in dealing with these challenges is evident throughoutmost of the chronological overview presented in this chapter. Assessing these negotiations andtheir contribution to the application of No Net Loss at Bridgepoint is the focus of the next chapter.118CHAPTER SIXBRIDGEPOINT NEGOTIATION ANALYSIS6.1 PURPOSE OF THIS CHAPTER In this chapter the analytical framework which was outlined in Chapter Four, is applied to theBridgepoint Harbour Market Development. The chapter is divided into three parts with Section6.2 detailing a number of general observations that provide a degree of context to the structuredanalysis which appears in Section 6.3. The final section draws a number of conclusions andmakes a number of recommendations based on the analysis in Sections 6.2 and 6.3.6.2 GENERAL OBSERVATIONS 6.2.1 The Relative Importance of BridgepointLooking back on the events surrounding the Bridgepoint case it is apparent that Bridgepoint wasimportant both for the intrinsic values of the site, and for the outcomes which have their origins inthe negotiations.6.2.1.1 Intrinsic Importance Some of the intrinsic values of the site, as revealed in the documentation and the interviews heldwith key participants to the case, include the following:. The biological diversity of both flora and fauna afforded by the physical features atthe site.The size and location of the habitat considered in the context within an area thatwas, and remains, the focus of considerable conservation efforts and which has hadmuch of the original marsh habitat removed as a result of development activity.119The site's inherent potential (i.e. its potential for further habitat growth, itspotential for enhancing and revitalizing an older region of Richmond, or itspotential for generating steady revenues if developed).While conceding the fact that some of the points listed here might have been disputed by some ofthe participants to the Bridgepoint negotiations, possibly even being considered as mutuallyexclusive, their importance as considered in the context of this thesis is not diminished.6.2.1.2 Broader Outcomes of the Case Bridgepoint is also important for outcomes which reached beyond the immediate scope of thenegotiations over the site. Some of the more significant of these outcomes are outlined below:Bridgepoint made both direct and indirect contributions to the development andrefinement of the Department of Fisheries and Oceans' (DFO's) national habitatpolicy. Documentation shows that some of the problems applying No Net Lossusing the steps for assessing proposals (particularly the tendency for proponents tojump toward compensation) were cited and considered by DFO staff in theirdiscussions of the habitat policy and the role of No Net Loss within it (DFO,December 6, 1984:1-3). Any applications of No Net Loss in the Fraser Estuary atthe time were important since much of the national habitat policy was developedlargely using coastal British Columbia as its testing grounds. As one of the firstapplications, Bridgepoint can thus be considered as a stepping stone in theevolution of DFO's habitat policy.The Bridgepoint negotiations resulted in an agreement between DFO and the NorthFraser Harbour Commission (NFHC) entitled the North Fraser Harbour Environmental Management Plan (DFO and NFHC, September 1988). Thisagreement endeavored to correct a number of weaknesses (many of which were120made visible through Bridgepoint) in the application of the national habitat policyand its project evaluation process. A key component of this agreement utilized ared/yellow/green color coding system to indicate which sites along the North Arm ofthe Fraser River could be developed and what degree of mitigation andcompensation efforts might be anticipated in developing a particular property. Thesuccess of this agreement has now made it a model which is being considered foruse in other Harbour jurisdictions.Bridgepoint also resulted in a detailed inventory of habitat types being conductedalong the foreshore of the North Ann of the Fraser. The results of the inventoryappear in the document produced by G.L. Williams and Associates for the NFHCentitled the North Fraser Harbour Shoreline Habitat Inventory_ (Williams,September 1986). This document served to fill a significant gap in the availableinformation about the remaining habitat along the Fraser's North Arm.A significant contribution of the Bridgepoint negotiations was a strengthenedappreciation of the "relative value" (DFO, 1989:3) of habitats in the estuary andthe formulation of a set of compensation ratios which attempted to take thesevaluations into account during the proposal's evaluation. The Bridgepointnegotiations forced consideration of the relative values of existing and transplantedmarsh habitat, mudflat and sand habitat, and degraded marsh habitat once cleanedup and protected.6.2.2 The Role of Negotiation at BridgepointAs implied in a number of the points raised in the previous paragraphs, negotiation played animportant role in reaching an agreement over development of the Bridgepoint site.121To deal with the development proposal, the Regional Screening and Coordinating Committee(RSCC) -- a standing committee composed of representatives from all of the federal environmentalagencies -- established a task force to review the proposal and gather information about the case.The task force had representatives from the Environmental Protection Service (EPS), the InlandWaters Directorate (IWD), the Canadian Wildlife Service (CWS), the B.C. Ministry ofEnvironment (BCMOE), and the Department of Fisheries and Oceans (DFO). In addition, the taskforce also received input from the Environmental Health Department of the Municipality ofRichmond. As holders of the most relevant legislation pertaining to the case, DFO representativesserved as the lead agency and chaired the task force.In reviewing the case, the RSCC Task Force dealt mainly with the North Fraser HarbourCommission (NFHC) as the head leaseholder and port managers, Hatfield Consultants Ltd. andlater G.L. Williams and Associates as and the environmental consultants for both the NFHC andthe proponent, and with Bridgepoint Developments Ltd. which was backed by the VladimirPlaysic Group and Park Georgia Realty as developers and proponents (note that in the earlystages the development group was named the Bridgeport Harbour Market Corp. and was backedby the Vladimir Playsic Group and First City Development). Table 6.1 outlines the roles andrelationships of these key agencies.Interviews with representatives for the Canadian Wildlife Service (CWS) indicated that under theRSCC review process, the RSCC standing committee was the normal decision making body withthe authority to negotiate terms for agreements (Tretheway, Jan 22, 1991). Decisions made bythe RSCC standing committee would routinely have been based upon a report andrecommendations put together by the RSCC Task Force. CWS representatives also noted,however, that this process was "not cast in stone" (Tretheway, Jan 22, 1991) and that any of theagencies with serious concerns about a project in light of their legislated mandates would havebeen within their legal rights to intercede in the process. In the case of Bridgepoint, negotiationsinvolved a mixture of these approaches with the RSCC Task Force members reviewing theTABLE 6.1: NEGOTIATION ROLES INTHE BRIDGEPOINT DEVELOPMENTNFHC. as head leaseholder. as port manager. as Jurisdictionallyresponsible agencyG. WILLIAMS & ASSOC./HATFIELD CONSULTANTS. as environmentalconsultants. as fact findersV. PLAVSIC GROUP/PARK GEORGIA REALTY. as proponents anddevelopersRSCC TASKFORCE^RSCC MAIN BODY. DFO as Lead Agency^. as standing. CWS as member^committee of. IWD as member representatives. EPS as member from all the. BCMOE as member^federalenvironmental. Richmond Health^agenciesDept. as^ . as decision makerscontributor butnot as memberBased on Interviews and Available DocumentationTABLE 6.2: SELECTED CHRONOLOGY OF EVENTSRELATED TO THE BRIDGEPOINT DEVELOPMENT122Dec 22 1978Mar^1982Jun^\ 1983Mar 28 '1984Dec 23 1984Feb 22 1985Feb 26 1985Mar 26 1985Mar 25 1985Jul 24 1985Jan 13 1986Oct^1986Dec 13 1987May 25 1989NFHC acquires registered title to the site.The ADTF Report is released.6th draft of DFO's Habitat Policy is released.Initial Bridgepoint site meeting takes place.Richmond Council gives approval-in-principle.Developer writes to DFO Minister.DFO Habitat Policy now incorporates Net Gain.Richmond gives final approval for rezoning.DFO gives conditional approval-in-principle.DFO gives final approval subject tomodifications to the compensation package.NFHC submits modified compensation package.DFO's Policy For The Management Of FishHabitat is officially released.Newspaper article: dredging to start in Jan 88Bridgepoint Market officially opens.123proposals put forward by the proponent, as well as being actively involved in site selection forcompensation efforts later on. Much of the detailed negotiation however, as evidenced by theavailable documentation and interviews, occurred between DFO representatives, the NFHC andtheir consultants, and the project proponents. In fact, conditional project approval was initiallysent to the NFHC by DFO's Area Manager for the Fraser River, Northern B.C. and YukonDivision (DFO, March 25, 1985), and subsequently by DFO's Director General of Fisheries -Pacific Region (July 24, 1985) rather than from the RSCC standing committee.In separate interviews, representatives from DFO, G.L. Williams and Associates, and the NFHCeach indicated that negotiations played an important role in the Bridgepoint case. Representativesof the latter of these agencies went so far as to state that, from their perspective, "it was allnegotiation" (Colquhoun, Dec 11, 1990).Using classifications described by Dorcey and Riek (1987:20-21) Bridgepoint can be categorized asa dispute involving both multiple use (i.e. habitat vs land development) and rights (i.e. proprietaryand jurisdictional rights) as opposed to being solely a project level dispute. The Bridgepointnegotiations resulted in both substantive agreements over the site's disposition, and proceduralagreements on dealing with future development proposals in the North Arm vis-a-vis the NorthFraser Harbour Environmental Management Plan  (1988).The available information sources also reveal much about how the Bridgepoint negotiations wereconducted. From the initial meeting between the NFHC, proponents and the environmentalagencies, in March of 1984, to the opening of the Market in May of 1989, negotiations wereconducted through informal on-site and off-site meetings, telephone conversations, memoranda,letters, and -- in a limited way-- through both the local newspaper and the formal political forumprovided by Richmond Council's public hearings. Many of the key issues, interests, and concernsraised will be discussed in the next section.124From the detailed chronology of events presented in Chapter Five some simple observations aboutthe process can be made. To aid in this discussion Table 6.2 outlines a number of the key eventsconcerning Bridgepoint.One observation is that at the time DFO first became involved with Bridgepoint in March 1984,No Net Loss was the overall objective of DFO's still evolving habitat policy. The organization wasin the early stages of applying the habitat policy and No Net Loss to all development projects inthe Fraser Estuary, with Bridgepoint being one of the earliest and one of the largest applications.The lack of any definitive plan for applying No Net Loss at the project level, coupled with the factthat many details were left to be worked out by staff, meant that a number of uncertaintiesexisted at the beginning of the negotiations. Some of these uncertainties included thedetermination of relative habitat values, compensation ratios for lost habitat, and details onmeasuring marsh productive capacity.A second observation, is that both the NFHC and DFO had been through a difficult and heateddebate, without resolution, over the designation and future uses of the Bridgepoint site under theADTF review just two years prior to the Bridgepoint meeting. This event effectively pre-conditioned both sides for a polarized debate over the site and its potential uses.A third observation that can be made from Table 6.2 is that from the point when DFO staff firstbecame involved with the development proposal in March 1984 to the date when the agencyprovided its first conditional approval in March 1985, one year had passed -- almost to the day.From the point when the NFHC submitted its final compensation package modifications to DFO inJanuary 1986, to the point when dredging was to begin in January of 1988, two years hadpassed. Delays in this latter period were apparently a result of financing difficulties rather thandelays in obtaining approvals from the environmental agencies.12 5A final observation is that, with the developer's February 1985 letter to the Minister responsiblefor Fisheries and Oceans, a political component existed to the case. Although DFO's NewWestminster staff have indicated that no written Ministerial instructions or orders concerning thecase appear in their files concerning Bridgepoint, it is interesting to note that in the July 24thletter from DFO's director general to the NFHC issuing the final conditional approval for theproject, ministerial correspondence to Ottawa is listed amongst those individuals and agencies toreceive copies of the document. In addition, at least one other document was produced by DFOstaff in March 1985 as a result of the proponent's letter to the Minister. This document, asdescribed earlier, detailed at length DFO's involvement in the case from the date of the initial on-site meeting to the date of the proponent's letter to the Minister.While the exact impact of the political component on the Bridgepoint negotiations is not clear fromthe available documentation, examination of a number of documents just prior to the proponent'sFebruary 23, 1985 letter to the Minister indicate that both sides had progressed to a point wherepotential compensation sites in locations other than the Bridgepoint site were actively beingexamined. In January 1985, DFO and the RSCC task force had made visits to five potentialcompensation sites proposed by the NFHC and gave their preference to three of these (DFO,March 7 1985:3). In addition, between January and February 1985, DFO had worked out apreliminary range for the compensation ratios required as replacement of lost marsh and mudflatand had conveyed these to the NFHC (ibid:3). In the period just prior to February 22, 1985 DFOwas reportedly waiting for the compensation plans to come from the NFHC (ibid:3). Theseactivities would appear to indicate that significant progress was being made just prior to theproponent's February 22, 1985 letter to the Minister of Fisheries. From this basis, while againacknowledging that the exact role and nature of the political presence cannot be conclusivelydetermined from the available documentation, it seems likely that an agreement would have soonbeen achieved between the parties given the stage they were at just prior to February 22, 1985 --irrespective of any political component.12 6From the date of the proponent's letter to the Minister, to the date of DFO's first letter ofconditional approval just over one month had passed. It is also noted that in a June 11, 1985letter from DFO (:1) to Hatfield Consultants DFO was prepared to accept "restoration andprotection works as compensation" for losses at the Bridgepoint site -- actions not normallyacceptable by Fisheries. The political role in either of these actions/decisions is again not indicatedin the available documentation. As such, they are stated here as general observations and pointsof speculation.6.2.3 Summary of ObservationsThis section discussed four general observations related to the Bridgepoint Development. Theseobservations were;. that Bridgepoint was important both for the intrinsic values of the site, and for anumber of outcomes that extended beyond the confines of the negotiations over thesite;that DFO's habitat policy was still evolving at the time that the agency becameinvolved in Bridgepoint and that both the NFHC and DFO were preconditioned as aresult of the ADTF results over the Bridgepoint site;. that delays to achieve environmental approvals appear to have taken less timethan the time needed to secure financing the project; and. that a political component was evident in the Bridgepoint Development -- althoughthe available documentation does not indicate what impacts this component had onthe overall outcome of the negotiations.127The next section undertakes a more structured analysis of the negotiations by applying theanalytical framework to the case.6.3 CASE STUDY ANALYSIS This section undertakes a detailed analysis of the Bridgepoint negotiations utilizing the analyticalframework developed from Fisher and Ury's theory of Principled Negotiations. Consistent withthe analytical chapter's description of the framework, the section has been composed with fourmain subsections: Focus On Interests Not Positions, Separating The People From The Problem,Inventing Options For Mutual Gain, and lastly, Insisting On Objective Criteria.6.3.1 Focus on Interests not PositionsUnder the analytical framework outlined in Chapter Four, three indicators were drawn fromFisher and Ury's work to aid in a determination of whether the process at the Bridgepointnegotiations focused on the interests involved, or instead, on the positions being stated. Theindicators were designed to examine if the interests of all the parties were considered in theprocess, how these interests were relayed to the other parties, and whether the process was ableto accommodate the parties' interests.Detailed examination of the available information on Bridgepoint indicates that both positionalbargaining and bartering were prominent, even acknowledged, aspects of the Bridgepointnegotiations -- particularly in the first stage of the process. The following paragraphs attempt tovalidate this statement by example, and to state the implications for the three indicators.Examples of positional arguments and concerns are stated for each of the main negotiating partiesinvolved and followed by a summary of the implications to the indicators.6.3.1.1 The Proponent -- Bridgeport Harbour Market Corporation and their Consultants From the environmental agencies' perspective one of the more controversial positions taken by theproponents and their consultants was their initial characterization of the site's habitat as1 9 8"moderately important" (Williams, Villamere, Smith, 1984:33) in their environmental report.Given the environmental agencies' unquestioning and unanimous view that the site contained veryimportant habitat that played a valuable role in the region's ecosystem, the proponent's valuationvirtually guaranteed confrontation between the parties over the use of the site's foreshore area.Concerns over the relative value of the site's habitat, particularly its mudflats, arose again inDecember 1984 when the proponent wrote the following statement to the NFHC: "Neither we, norour financial partner, can risk the investment of millions of dollars in a waterfront project whichessentially looks out over mudflats, with the related odour problems" (Bridgeport Harbour MarketCorp., December 13, 1984:1). Irrespective of whether this position is to be viewed solely as agenuine concern for the security of an investment, or instead as an attempt to discount theecological value of the site, the proponent's statement has the effect of trading off the naturalfeatures of the site against the economic costs of the development. The position is, once again,confrontational.Another position maintained by the proponent was that the viability of the project was in largemeasure dependent upon the links between the upland portions of the project (the market,restaurants, public space, etc.) and the waterfront portions of the project (the observation pier,marina, treasure vessel, etc.). This argument was also extended to the placement of the variouscomponents in the development. In conveying this position to DFO, the NFHC wrote; "The overallproposed development is a comprehensively planned facility which integrates and links a number ofpublic and private commercial uses. As such, there are many restrictions from a design point of viewwhich impact on the location of the various components of the development." (NFHC, Oct. 5, 1984:2).When DFO suggested that the proponent consider looking at other possible locations for theirdevelopment if they could not meet all of the required mitigative measures, the proponent wrote tothe NFHC "there is no other site in Richmond suitable for this type and size of development"129(Bridgeport Harbour Market Corp. December 13, 1984:1). This statement clearly signified apositional stance and a bottom line on the part of the proponent.6.3.1.2 The North Fraser Harbour Commission (NFHC) As detailed in Chapter Five, a consistent position put forward by the NFHC throughout theBridgepoint negotiations referred to the dispute over the site's use designation during the FRESstudy. NFHC representatives included the following paragraph in their March 7, 1985 letter toDFO:The "undetermined use" rating given the property during the Fraser River EstuaryStudy occurred because no agreement could be reached between the NFHC and theenvironmental agencies and is not a result of recognition by all parties involved thatthe area should be closed to foreshore development.(NFHC, March 7, 1985).From the NFHC's perspective, the ADTF designation did not preclude development of theBridgepoint site.The NFHC also expressed its opinion that it held both ownership and jurisdictional rights over thesite which therefore allowed the Commission to develop the property. The NFHC's March 7, 1985letter to DFO clearly expresses their position with regard to ownership rights and their belief intheir right to develop the site. The NFHC representatives wrote:The NFHC, as you know, participated in the Fraser River Estuary Study andacknowledges the fact that environmental conflicts exist in developing the property, butat the same time, the NFHC strongly believes that it, as the current owner of theproperty, has the right to develop the property.(NFHC, March 7, 1985).Similarly, the NFHC's position with regard to their jurisdictional authority and the development ofthe site is evident in their October 5, 1984 letter to DFO. The letter states:We are the federal agency responsible for the management of the North FraserHarbour, and as such, endorse the development of these uplands and foreshorefronting the Marpole Basin for the uses stated in the development plan.(NFHC, October 5, 1984).130While unwavering in the belief in their rights to develop the Bridgepoint site, the NFHC'sparticipation in the FRES process also provided the Commission with an awareness of the need toembody the concept of No Net Loss in their plans for the development of the harbour. TheNFHC's position at Bridgepoint in this regard was to encourage the developer of the site toincorporate No Net Loss into the development plan (Colquhoun, December 11, 1990). The NFHCalso manifestly expressed its commitment to compensate for lost fish and wildlife habitat resultingfrom the development of the site to both DFO (NFHC, December 17, 1984), and Richmond'sCouncil (Nov. 5, 1984). The commitment to Richmond Council was detailed in the followingstatement:As chairman, I wish to go on record to state our total commitment to provide whateverenvironmental compensation measures that may be required pursuant to the no netloss implementation principle of the Federal Fisheries Act, and the other relevantFederal and Provincial Acts and regulations as a result of this project.(NFHC, December 17, 1984:2).The October 5, 1984 letter by the NFHC to DFO expressed two additional positions of note here.The first is a strongly worded statement of support for the project, and one which wasunquestionably designed to place pressure on DFO. NFHC representatives wrote:You are, therefore, being asked to deal with a joint public/private developmentproposal that is unequivocally supported by the North Fraser Harbour Commission,and one that has received Approval-in-Principle from the Richmond MunicipalCouncil, particularly in light of the recreational opportunities for the public.(NFHC, October 5, 1984:1).The second statement reveals an attempt by the NFHC to link both past and future initiatives bythe Commission to the Bridgepoint site:Over the past 3 years, the North Fraser Harbour Commission has made significantimprovements to two developing marshes located downstream from the [Bridgepoint]site. As well, the Commission has initiated a "Foreshore Improvement" programwhich will in time involve all of its lessees. ... While recognizing its distinct mandate,the Commissioners and staff of the Commission are committed to working with yourofficials to develop a responsible plan for the future of the river. I would suggest thatthe review of this particular project must be considered in light of our previousaccomplishments, as well as a longer term strategy for the future of the river.(NFHC, October 5, 1984:1).Having by late December 1984 made as many concessions as they believed could be made whilestill maintaining the viability of the project, the NFHC reiterated and affirmed the proponent's131position that no further mitigation efforts could be made. The NFHC's letter to DFO states theirposition as follows:Firstly, I must advise that we have looked at other possible sites and support thedeveloper in stating that there is no other suitable site for this type of development.Secondly, the present plan represents the final layout and, as much as is possible,incorporates the comments of your last letter. Any further modifications or reductionof the foreshore components of the project would make the project unrealizable for thereasons outlined by the developer in his letter.(NFHC, December 17, 1984).6.3.1.3 The Department of Fisheries and Oceans Throughout the Bridgepoint negotiations DFO staff maintained the position that the Bridgepointforeshore contained sensitive fish habitat, considered to be of "very high value" (DFO, March 7,1985:1) (DFO Chronology of Events). As mentioned earlier, this valuation differed from thatsuggested by the proponents. This difference was undoubtedly a contributing factor to DFO'sconclusion that the proponent's Environmental Impact Assessment (EIA) "greatly underestimate[d]the impact of the proposal" (DFO, March 7, 1985:1).By late November 1984, a number of mitigation proposals had been put forward by the proponent.From DFO's standpoint, however, these proposals did not go far enough. DFO outlined theirposition to that time in a detailed letter dated November 28, 1984 to the NFHC. The letterattempted to clarify the intent of the four step procedure for assessing proposals (prevention,mitigation, compensation, and rejection) in conjunction with the No Net Loss working principle .The letter also included the following description of the on-site mitigation efforts which DFO feltwere required at the site.As discussed on site, it is our position that further mitigation and if necessarycompensation is required before we can grant the proposal approval in principal (sic).Such mitigation must include; 1) the reduction of foreshore fill and pile supportedstructures over intertidal marsh areas, 2) the reduction of the size or re-alignment ofthe marina such that marsh areas are minimally encroached upon, 3) the relocation orelimination of the public pier, and 4) the reductions of dredging such that thedisturbance to marsh areas are minimized.(DFO, Nov 28, 1984:2)Two additional positions put forward by DFO appear in the minutes of the December 17, 1984Richmond Council public hearings. The first was an expression of concern that the habitat132initiatives be completed in a manner unaffected by local economic conditions that would otherwiselikely impact on the completion of the development. The position is described in the minutes fromthe hearings as follows:Of particular concern was the possibility that the project might not be carried throughto its conclusion because of market conditions, after the works affecting the habitat arein place. (Richmond Council Minutes, December 17, 1984:157).The second position, was a response to a proposal by the NFHC that selected sites along the NorthArm could be cleaned up by removing debris along the foreshore in place of certain mitigationinitiatives. DFO's position as relayed in the minutes from the public hearing is as follows:The Department does not accept "clean-up" of an area in place of mitigation measures,and [DFO's representative] feels that the consultant's proposal is not adequate at thispoint, and perhaps something more creative can be designed in terms of a new marsh,which can be protected in one location, in perpetuity.(Richmond Council Minutes, December 17, 1984:158).6.3.1.4 The Other Environmental Agencies Involved During the FRES study the environmental agencies were unified in the position that the sitecontained valuable fish and wildlife habitat, and that a portion, or possibly all, of the site shouldhave been designated and set aside as conservation (ADTF, March 1982). This position was littlechanged as the agencies began their review of the Bridgepoint proposal. That the concerns of theenvironmental agencies with regard to the Bridgepoint proposal were similar to those held byDFO, was pointed out in an interview with a representative from the Canadian Wildlife Service(CWS) (Tretheway, Jan 22, 1991).With regard to the proponent's Environmental Impact Assessment, a report to Council by theRichmond Health Department dated October 9, 1984 outlines the environmental agencies'position. The report states:[The environmental agencies] feel the proponent, through his consultant, hadunderstated the ecological importance of the mud/sand flat area, one part of which willhave to be dredged and another part filled.(Richmond Health Dept., Oct. 9, 1984:1)In this, the environmental agencies appear to have been united.1336.3.1.5 Focus on Interests not Positions -- Summary and Conclusions From the examples cited here, it is clear that bargaining and bartering were both prominent andpervasive aspects of the Bridgepoint process. It is also apparent that, in the first stage of thenegotiations, the main negotiating parties directed a considerable amount of time and efforttoward stating their respective positions rather than focusing on interests. Indeed, both DFO(November 28, 1984) and the NFHC (March 7, 1985) produced letters specifically designed tostate their respective positions and respond to comments and demands from their counterparts.Both of these letters were notably drawn up after the October 16, 1984 meeting which is the onlyclear indication in the available documentation of a direct, albeit temporary, focus on the parties'interests. Summary notes of the meeting prepared by the NFHC state the following:Each party recognizes the interests of the other. The area is considered very importantto fisheries as fish [habitat]; yet to the developer the proposed dredging (i.e. removalof mud) is essential to the overall viability of the marketplace proposed on the adjacentuplands. The N.F.H.C.'s interest in the entire project is to see this upland site "facethe water" and to be an access point for the public. (NFHC, October 25, 1984:2)The difference between the perspectives (i.e. positions versus interests) is simply explained byFisher and Ury (1981:42). They write; "your position is something you have decided upon. Yourinterests are what caused you to decide." The link between stated positions and the underlyinginterests is clear. Similarly, the positions stated during the Bridgepoint negotiations, combinedwith information provided by the interviewees, provide some insight as to the main interests heldby the negotiating parties at Bridgepoint. A list of the interests that can be identified or inferredis shown in Tables 6.3a and 6.3b. Even from this limited listing, it is apparent that both sharedand compatible interests existed, particularly between the NFHC and DFO, which might havebeen explored to achieve a solution at an early stage in the process. The available documentation,however, fails to indicate that any sustained effort was made to deliberately consider whetherthese shared, compatible, or differing interests might have been explored to advantage in the firststage of the process. In fact, the examples cited instead appear to indicate an adherence topositional bargaining at that point. The conclusion which must therefore be made about the firstTABLE 6.3a: INTERESTS OF THEMAIN NEGOTIATING PARTIESNORTH FRASER HARBOUR COMMISSION (NFHC) INTERESTS• To generate a long term stable source of income for thecommission.• To preserve the water orientation of the site.• To develop a plan for managing the development along NorthArm and improve the condition of the foreshore.• To incorporate no net loss in their management program forthe river.• To create a showpiece for their harbour.• To develop an improved working relationship with theenvironmental agencies.• To uphold its jurisdictional mandate and responsibilitiesto manage the North Fraser Harbour.• Ownership interests as the head lease holders andadministrators of the Bridgepoint site.PROPONENT'S INTERESTS• To develop a viable multi-purpose facility including amarina, waterfront restaurants, festival-type marketplace and hotel at Bridgepoint.• The original intent was to complete the project in timefor Expo 86.• For a variety of reasons the proponent wanted to keepcosts and time factors within workable limits.134TABLE 6.3b: INTERESTS OF THEMAIN NEGOTIATING PARTIESDEPARTMENT OF FISHERIES AND OCEANS (DFO) INTERESTS• A jurisdictional mandate and responsibilities to managefish habitat.• To ensure that habitat replacement, mitigationcompensation efforts were not sacrificed to the economicfortunes of a particular project (i.e. if a project failsor is left incomplete the habitat efforts should beunimpaired).• DFO's interests for protecting and preserving habitat arelong term, therefore they had an interest in ensuring thatlong term managment provisions for compensation sites bein place.• To protect existing fish habitat particularly in criticalregions (i.e. where little habitat remains and inlocations where such habitat is important for migratingsalmon - Bridgepoint was considered to be one of theseimportant sites as little habitat remains in that portionof the North Arm).• To refine and apply the still evolving habitat policy toprojects in the estuary.OTHER ENVIRONMENTAL AGENCIES' INTERESTS• A range of jurisdictional mandates and responsibilitiesrelated to the protection of the fish, wildlife, andenvironmental connections to the site.• Interests in ensuring that compensation and mitigationefforts were successful over the long term.• In addition to the above two interests, the Municipalityof Richmond held specific interests related to the site'sdesign, and the economic/traffic/health impacts of theproposal.135136stage of the process is that the fixation on positions preempted the deliberate consideration of theinterests of the parties involved. In accordance with this first conclusion, the second conclusionwhich must be made is that the parties' various interests were only relayed in any consistentsense in that they were linked to the positional arguments.Drawing conclusions with regard to the second stage of the process when the parties beganmaking significant progress toward generating agreements, is not as clear cut. After months offrustration over unwavering positional stances, representatives from both DFO and the NFHCrealized that significant progress was not being made and began taking another look at the issues.Although agreements were subsequently made which suggest that various interests were beingtaken into account in the second stage of the process (i.e. a proposal to develop a managementplan for the harbour, agreements on off-site compensation, development of a monitoring period tobe undertaken by the NFHC and to include any remedial work necessary, etc.) there is againlittle, if any, evidence in the available information to suggest that these events came aboutthrough a deliberate evaluation of the interests involved. Interviews with both DFO and NFHCrepresentatives suggest, rather, that these agreements were more a product of concessions topositions taken. DFO, for example conceded to allowing habitat cleanup and restoration work tocount for credit for lost mudflat area. The NFHC on the other hand, conceded that off-sitecompensation was required when previously they felt that all the compensation work could bedone on-site.Conclusions drawn here would have to concede that interests were being considered -- but largelythrough concessions on positions. Positional stances were also used to relay the respectiveinterests instead of a undertaking a deliberate focus on interests in and of themselves.With regard to the reconciliation or accommodation of interests in the process, the negotiatingparties' initial focus on positions lends strong support to the general characterization of the firststage of the negotiations as a period when interests were not being accommodated in the proposals137for agreement. Characterization of the second stage, however, is again not as straight forward.An objective assessment of the interests ascribe'd to DFO and the NFHC in Tables 6.3a and 6.3bwould conclude that virtually all of these agencies' interests were accommodated, at least to somedegree. For at least two of the other groups, the proponent and the Canadian Wildlife Service(CWS), this was apparently not the case.The proponent's complaints that the high costs involved in compensation came close to cripplingthe Bridgepoint development (The Richmond Times, Sept. 20, 1988:1) clearly indicate a level ofdissatisfaction with the process and the degree to which his financial interests were met.Representatives from the CWS also qualified the degree to which their interests wereaccommodated in the final agreements raising two points of concern. The first concern was relatedto the real life difficulty of trying to reproduce what nature does so well. By way of example, itwas noted that a transplant site near Campbell River has, after six years, yet to attain the samelevel of productivity as that maintained by a nearby control marsh (Tretheway, Jan 22, 1991).From this perspective, transplanted habitat with its reduced productivity would have impacts onthe area's ecology which extend temporally into the medium term and potentially into the longterm. Given the CWS mandate, this would be an obvious point of concern.The second concern raised by the CWS was of a more immediate nature, and echoes a similarconcern noted by one of DFO's representatives. At issue was the loss of habitat at thecompensation site itself. In the case of the Mitchell Island compensation site, an existing fringemarsh and adjacent mudflat area were effectively replaced by the new marsh transplants fromthe Bridgepoint site. No accounting of this additional loss was ever made in the compensation.On both of the issues raised by the CWS, the final agreement apparently failed to fullyaccommodate the CWS interests. While acknowledging that multi-party agreements which fullysatisfy the interests of all the parties are probably the exception, the conclusion in the case of138Bridgepoint must still be that not all of the interests presented were fully accommodated throughthe process. Certainly in the first stage of the process few attempts were made to reconcile thevarious interests involved. The degree to which the interests were reconciled in the second stageclearly depends on which party is asked. The NFHC, for example, appears to have satisfied mostof their interests in the exchange. The proponent, on the other hand, apparently had severe•reservations about the costs imposed by the habitat policy. In short, the success of thereconciliation of interests at Bridgepoint was mixed.To reiterate, the evidence suggests that the primary means of conveying interests at Bridgepointwas through positional bargaining. The prominence of positional arguments also suggests that, atleast in the first stage of the negotiations, greater consideration was given to positions rather thaninterests. In the first stage of the negotiations, few attempts were made to reconcile interests inthe negotiations. Opinions on the degree to which these interests were accommodated in thesecond stage, while significantly improved, evidently varies between the parties involved.6.3.2 Separate the People from the ProblemThe analysis under this principle is intended to focus on the human elements integral tonegotiation. With this intent, the indicators developed as part of the analytical framework areused to probe into four areas of the Bridgepoint negotiations to determine;whether problems in communicating concerns or understanding perceptions existed in thenegotiations;whether the negotiating parties were able to save face by reconciling their positions withpast actions;whether emotions played a role in the exchange, and if so how this was dealt with; andfinally,whether the parties were provided access to all the relevant information.Each of these four aspects are examined below.1396.3.2.1 Issues Related to Communication Concerns and Understanding Perceptions One of the more significant misunderstandings in the Bridgepoint negotiations arose over whatwas actually required of the proponents in assessing the environmental impacts of the project.The misunderstanding appears to have occurred at the initial meeting between the environmentalagencies and the proponent on March 28, 1984. The critical event is characterized by the NFHCin a letter to DFO in which they wrote the following:During the [March 28, 1984] meeting, the environmental agencies made it clear thatelaborate fisheries/wildlife baseline studies were unwarranted, but they suggested thatsome [short]-term field work could be useful if only to provide "ammunition" to refutethe perceived importance of the area. (NFHC, March 7, 1985:2).As will be recalled from an earlier discussion, the consultant's valuation of the site as "moderatelyimportant" was vigorously challenged by the environmental agencies.DFO's perception of what was said at the March 28, 1984 meeting is recorded in an internal DFOmemorandum of March 7, 1985. The abbreviated notes record the following:Consultant advised that area is of high value to fisheries resource, and could resultin project rejection based on on-site values. Compensation is discussed andconsultant is advised not to attempt to study "relative value" of area but ratherconcentrate on mitigation/compensation alternatives. Consultant to contact DFO toagree on terms of reference.(DFO, 1985:1)Clearly some problems existed between what was said and intended, and what was understood.Interestingly, in the period immediately following the March 1984 meeting the consultants beganwork on the EIA without discussing the terms of reference with DFO. According to DFO's ownchronology of their involvement in the case, neither the consultants nor the proponent contactedthe agency between March 28 and August 8, 1984 to discuss the terms of reference for the EIA(DFO, March 7, 1985:1). One result was that from DFO's perspective, the final EIA report was"inadequate and biased in favour of the development" (DFO, 1989:2). Up to the date of theinterviews conducted for this thesis, both sides still dispute what was said and intended at theMarch 28, 1984 meeting with regard to this issue.140The first indications that both sides were willing to work around this particular dispute appears inthe October 5, 1984 NFHC letter to DFO cited earlier.We agree with your suggestion that rather than debate our respective views of therelative importance of the site in its current condition, in terms of fish habitat andproductivity we should focus our attention on identifying mitigation and compensationmeasures which will reduce or negate the impact of this development on the area(NFHC, October 5, 1984:2).Differences in perception are also evident in the previously discussed issue of the site's use. Theenvironmental agencies' perception of the foreshore as a "very important" area of functioninghabitat for fish and birds, was diametrically opposed to the proponent's perception of the odourladen mudflats which potentially placed the multi-million dollar venture at risk (BridgeportHarbour Market Corp., December 13, 1984:1). On this issue the two sides were effectively worldsapart.Another issue of note involves both the strong desire on the part of both the NFHC and theproponent to compensate for habitat losses. Their unwavering assurances to Richmond Counciland DFO that lost habitats would be fully reproduced elsewhere, reflects something of a differentperception of the ability to reconstruct natural habitat than that expressed by CWSrepresentatives (recall the CWS comments noted earlier on the slow development of the CampbellRiver replacement habitat).In both of the last two examples, differences in perceptions existed which appear to have persistedin at least some degree through to today.6.3.2.2 Reconciling Positions Whether by deliberate intent or simply an unplanned consequence of other decisions, a series ofstaff and negotiation role changes appears to have replaced much of the need to reconcile thepositions of the key parties involved at Bridgepoint. The NFHC, for example, made a key changein negotiation roles midway into the process by shifting many of the negotiating responsibilities141from one of their contract agents to an aquatic biologist working with their environmentalconsultants. By doing so, the Commission resolved two pending problems. The first problem wasa growing number of professional and personality differences between DFO staff on one side, theNFHC's contract representative and the consultant's engineering staff on the other side. Thesecond problem was an apparent impasse in which the two sides became entrenched in theirpositions and little real progress was being made.Roles also varied to some extent amongst DFO staff during the negotiations with different playersbeing involved at different periods. Over the course of the Bridgepoint negotiations, there were atleast three different Ministers responsible for the Department of Fisheries and Oceans -- each onerepresenting a different style of management and direction for the Department as a whole. At thehands-on level, there are indications from the interviewees that personality conflicts between DFOstaff, the NFHC's representative, and the proponent resulted in at least some role changes in theearlier stages of the negotiations.Another action taken by DFO and the environmental agencies involved which had the result ofbuffering the need to reconcile positions was that a number of critical decisions were made at ahigher level. The most prominent examples of this are the two letters of conditional approval inprinciple, both of which originated with management at a level apart from the level ofnegotiations.Aside from the actions cited above, the available documentation fails to show any deliberateactions by any of the parties to facilitate or accommodate the reconciliation of another party'spositions with their past actions and statements. Although the existence of such actions is notentirely ruled out by the documentation, the employment of other mechanisms such as theadjustment of staff roles in the negotiations and the displacement of decision making on criticalissues likely precluded many circumstances where reconciliation might have been employed.1426.3.2.3 The Role of Emotions in the Negotiations A number of emotional issues were evident in the Bridgepoint negotiations -- although theperception of the overall importance of these issues varies between participants. A furthercomplication is that a temporal aspect is also evident in the negotiations with the earlier stageshowing more problems involving emotional issues than are evident in the latter portion of thediscussions. Certainly there were a number of significant catalysts on both sides which likelycontributed to the heightened emotional states of the participants. On the environmental agencies'side, a significant factor was the knowledge that few marsh habitat areas remained in a criticalreach of the Fraser's North Arm. On the proponent's side financing pressures, compoundedinitially by the fast approaching target deadline of Expo 86, both contributed significantly to theproponent's emotional sensitivities in the negotiations. As a result, a number of heated exchangesoccurred between DFO staff and the proponent over the course of the negotiations, resulting in adegree of animosity between several of the participants involved (Runyan, August 12, 1990, andLanger, November 27, 1990). The proponent reportedly felt that DFO's demands were too greatand inflexible (Runyan, August 12, 1990). The proponent's letter to the Minister of Fisheries andOceans was likely an attempt to work around these apparent obstacles.Personality conflicts also existed between DFO staff and the project's environmental consultants inthe early stage of the negotiations. From DFO's perspective the consultants were approaching theproject solely from an engineering viewpoint, paying little attention to the issue of habitatprotection and the ecological/biological aspects involved. The lack of communication such asoccurred over setting the terms of reference for the Environmental Impact Assessment (EIA), nodoubt contributed to the difficulties initially faced by the two sides.Personality conflicts were also reported between the NFHC's representative and DFO staff in thefirst half of the negotiations. Fisher and Ury (1981:21) note in their book Getting To Yes: Negotiating Agreement Without Giving In, that positional bargaining works to trade off thenegotiator's interests in substance against his interests in a good relationship. The tactic of143trading off the ongoing relationship and the substantive issue at hand are clearly evident in thepreviously cited October 5, 1984 letter from the NFHC representative to DFO. The author states;I would suggest that the review of this particular project must be considered in light ofour previous accomplishments as well as a longer term strategy for the future of theriver. (NFHC, October 5, 1984:3)Many of the phrases used in this particular document were interpreted by DFO, andacknowledged by current NFHC staff, as attempts to apply pressure on DFO (Langer, November27, 1990 and Colquhoun, December 11, 1990). Such tactics likely did little to enhance a sense ofcooperation between the two parties.Clearly a number of emotional issues arose over the Bridgepoint development. Interestingly,many of these issues were, to some extent, resolved by assigning a more prominent role in thenegotiations to G.L. Williams -- an aquatic biologist who was initially employed by the NFHC'senvironmental consultants, Hatfield Consultants Ltd. Williams eventually took on much of thedialogue between DFO, the environmental agencies and the proponent. His role could effectivelybe categorized as a facilitator and an information gatherer and probably came close to being athird party intervener as can be found in the case. Although not all of the emotional issues wereresolved with this change, it is noteworthy that subsequent relations between the parties began toimprove.6.3.2.4 Informing the Parties and Access to Relevant Information As a general statement on the negotiations, the available information shows that the key partieswere not equally well informed about the relevant issues involved, and particularly about theapplication of No Net Loss. During interviews for this thesis, a NFHC representative stated thatalthough the Commission knew that they wanted to incorporate No Net Loss into the Bridgepointdevelopment, at the time they did not have any idea of how to go about doing so (Colquhoun,December 11, 1990). As a result they hired Hatfield Consultants Ltd. as their environmentalconsultants to work with both the NFHC and the proponent. By not discussing the terms ofreference for the EIA with DFO, however, the proponent and their consultant's failed to take144advantage of DFO's expertise to raise their own level of knowledge about what was required forFisheries and Oceans to be able to properly assess the proposal.Another observation is that there appears to have been a preference on the part of the NFHCrepresentative involved to deal solely with DFO until a compensation package had been workedout. In a NFHC summary of an October 16, 1984 meeting between DFO representatives, theNFHC, Hatfield Consultants Ltd., and the proponent's agent, the following statement is made asif it were an agreed to fact:With the exception of immediate staff superiors, the details of the proposed mitigationand compensation measures will be treated in confidence until a mutually agreed topackage is prepared (NFHC, October 16, 1984:2).DFO staff rejected this suggestion stating that the other environmental agencies would also haveto be included in the process. Had the NFHC's suggestion been carried out, the effect would havebeen to restrict both the access and level of input to the process by the other environmentalagencies.Difficulties in accessing pertinent information by the parties involved can be discerned from anumber of incidents. One of these is evident in the December 1984 public hearings held byRichmond Council. During the meeting, DFO's representative indicated that some ambiguityexisted over the expected impact of the project. Because of this, as recorded in the meetingminutes, DFO representatives expressed a desire "to see a definite package outlining just how muchof the habitat [would] be replaced, and what [would] be lost on the River" (Richmond CouncilMinutes, December 17, 1984:157). Documentation shows that new conceptual plans weresubmitted to DFO by the NFHC on December 17, 1984, and again on March 7, 1985. Further,interviews with representatives from the NFHC, DFO and the CWS each indicated that the siteplans were changed or modified many times over the course of the negotiations -- often withoutconsultation with the environmental agencies or, for that matter, with the NFHC. It is likely thatmaking so many changes to these plans actually worked against the project's progress by leavingthe reviewing agencies not only with an unending series of "new" projects to review, but also with145an apparent uncertainty as to what the true impacts would be. Placed in the larger context,DFO's Pacific Region Habitat Division receives between 10,000 and 20,000 development referralseach year (Delaney, September 21, 1990). Reiterations of the Bridgepoint plans would havecertainly placed an additional burden on DFO's staff.A second incident of note is apparent in the after-the-fact commentary by the proponent in a localnewspaper. The article, which was cited in Chapter Five, showed that there were differencesbetween the NFHC and the proponent in the cost estimates of the habitat compensation forBridgepoint. A third estimate of approximately $500,000 was provided by the project'senvironmental consultant who also pointed out that these costs were probably much lower thanwould have been the case if the dredged material had been dumped at sea (Williams, January 15,1991).From the examples provided here, it is clear that there were a number of areas in which theparties were not equally well informed, or that access to all the relevant information could havebeen improved -- particularly in the earlier period of the negotiations. From a point of analysis,focusing on these aspects of the negotiation would likely have improved the process.6.3.2.5 Separating the People from the Problem -- Summary and Conclusions This section has attempted to examine the Bridgepoint case in terms of Fisher and Ury's principleof "separating the people from the problem". Four broad indicators were used in the analysis togain some insights about the case in terms of this principle. The indicators explored the followingaspects of the case:failings in communicating concerns, and difficulties understanding the perceptionsof other participants;whether the parties were able to reconcile their positions with their past actionsand statements;. the role of emotions in the negotiations and how these were dealt with, and finally;146. whether all the parties were equally well informed and had access to all therelevant information.With regard to the first of these four indicators, a number of examples were cited which show thatdifficulties were experienced in communicating concerns and understanding other parties'perceptions -- particularly in the first half of the process. The misunderstandings over what wassaid and intended at the initial March 28, 1984 meeting, and the noted lack of discussion betweenthe NFHC and DFO over the terms of reference for the Environmental Impact Assessment, bothshowed how communications between the individuals involved had failed. During the interviews,interviewees gave strong indications that such problems went beyond simple technical aspects ofcommunication and were instead significantly rooted in the personalities and positional stances ofthe individuals involved.Difficulty in understanding the other parties' perceptions were indicated by two examples in theanalysis. The first issue involved a difference of opinion over the valuation of site's habitatbetween the proponent's consultant and the environmental agencies. Extremes of opinion wereevident on both sides, with the proponent arguing the incompatibility of an odour laden mudflatand the proposed foreshore development, and some of the environmental agencies stating that nodevelopment should have occurred on the foreshore because of its perceived value. To somedegree, the differences of opinion in this issue appear to remain even today. The relative value ofthe mudflats themselves, however, was largely resolved when an inventory of the quantity ofmudflat in the North Arm was conducted in the latter stage of the process.Perceptual differences were also evident with regard to the degree to which people can reconstructnature through compensation efforts. The NFHC's repeated commitments to compensation forhabitat losses stand in contrast to the CWS citations of the Campbell River project which had aftersix years failed to reach the same level of production of the control site.Accommodation of other parties' positions with their past actions and statements was not a notedfacet of the Bridgepoint negotiations. The analysis suggested that much of the utility of such147actions was effectively removed by mechanisms such as changes in personnel, or in the changes inthe roles played in the negotiations, and by displacement of key decisions to individuals at levelsremoved from the day to day operations at hand.It was suggested that over the course of the project a number of catalysts, including monetaryconsiderations, the Expo 86 deadline and a vastly diminished inventory of suitable habitatremaining in the vicinity of the site, each served to increase the pressures on the individualsinvolved. The outward expression of these pressures resulted in a number of heated exchanges --particularly between DFO staff and the proponent. In the first stages of the negotiations, a casebook example of what Fisher and Ury describe as a tradeoff of relationship interests againstsubstantive interests was evident wherein the acting agent for the NFHC suggested to DFO thatthe project should be considered from the perspective of their previous accomplishments and inview of their other proposed actions in the North Arm -- an approach which was met with someindignation by DFO staff. The discussion on emotions also noted that the situation wascomplicated by professional and personality differences which existed between DFO staff and theproponent's consultants. Significantly, many of the problems cited were either resolved or workedaround in the later stages of the project when much of the coordinating, and negotiation effortswere assigned to an aquatic biologist working for the NFHC and the proponent.On the last of the four indicators, the analysis concluded that the key parties were not equallywell informed about a number of the relevant issues involved -- particularly in the early stage ofthe negotiations. The NFHC's acknowledgment of their unfamiliarity with how No Net Loss couldbe incorporated into their plans for the River clearly showed the position that the agency was in atthe beginning of the project. The failure of the proponent and their consultants to discuss theterms of reference for the EIA with DFO served to inhibit the understanding of what was requiredby the reviewing agencies and, from DFO's perspective, contributed to a biased view of the site'svaluation.148The analysis also noted an example from the documentation where the NFHC's agent suggestedthat the review of the compensation package should be restricted to only DFO until the detailswere worked out. The proposal to exclude access to the other environmental agencies was rejectedby DFO staff who felt that all the agencies should be involved.An example where problems accessing information actually took place was evident in DFO'sDecember 1984 request for a definitive package from the proponent outlining exactly how muchhabitat was expected to be removed from the site. This situation was no doubt aided by thenumber of different plans which were produced by the proponent, each one of which posing newconcerns for the reviewing agencies to consider, and often without consultation before hand.Taken collectively the four indicators used in this analysis show that the Bridgepoint negotiationsexperienced significant difficulty in separating the people problems from the substantive problemsat hand -- particularly in the earlier stages of the process. During this period there were failuresin communication between the parties, difficulties in understanding the other parties' perceptions,difficulties in accessing relevant information, and no apparent efforts to facilitate the reconciliationof positions.Although a number of these problems persisted throughout the entire negotiating process, thelatter stages of the negotiations, by all indications, saw significant improvements.Communications were noted to have improved between the parties and personality andprofessional differences were effectively set aside by changes in personnel and negotiating roles --notably the expanded role of an aquatic biologist on the NFHC's consulting staff.6.3.3 Inventing Options for Mutual GainThe focus of this portion of the analysis is on Fisher and Ury's principle of inventing options formutual gain. As explained earlier, the intent of this principle is to explore ways in which theoptions to the problem at hand can be broadened to the benefit of both sides before a commitment149is given to a particular solution. To explore this aspect in terms of the Bridgepoint case study, thetheory chapter laid out three indicators with which to assess the negotiations. To reiterate, therelevant indicators were as follows:How were alternative solutions generated, and how did you choose between them?Were specific attempts made to find solutions which would benefit all the parties, or werethe solutions largely compromises between the various positions?Were actions taken to facilitate the other parties in making their decisions?6.3.3.1. Generating and Choosing Between Alternative Solutions Because of limited staff numbers and the large volume of development applications beingprocessed by each of the environmental agencies, the usual procedure was that the developmentapplicants bore most of the responsibility for generating alternative solutions for a given project.This was generally true of the Bridgepoint development with the added component that theNFHC, although not a true partner in the project, held an interest in seeing the project developedand therefore participated in generating alternative solutions.As will be recalled from the discussion in Chapter Five, the proponent and the NFHC weredirected through DFO's application review process. It was during this period that the mostsignificant alternatives were generated. Initially, the environmental agencies asked theproponent/NFHC to consider alternative sites for the project instead of the Bridgepoint location.After examining a number of other locations, both the proponent and the NFHC concluded thatthis was a unique project with special requirements that could not be met at any other location inthe harbour (Bridgeport Harbour Market Corp. December 13, 1984:1).By late November 1984, while still suggesting that an alternative site was preferred, DFOinformed the proponent and the NFHC of the minimum mitigation measures required on the sitefor the proposal to be considered (refer to the mitigation measures listed in the case studychapter). With DFO's letter, the project effectively moved into the mitigation stage of DFO'sreview process. Subsequently, the proponent produced a number of modifications to the original150plan -- some of which were reportedly made without consultation with either the NFHC or DFO(Colquhoun, December 11, 1990). Each new modification was subject to review by each of thereviewing environmental agencies according to their own mandates and criteria, with theirsuggestions and recommendations being forwarded to the RSCC Task Force chair (DFO). Whilethis series of iterations was under way, preliminary work was being undertaken in December1984 to identify possible locations for off-site compensation to replace the habitat lost on-site.After conducting an inventory of the harbour, some 17 sites had been identified by mid December,with 8 of these short-listed for further review (Bridgeport Harbour Market Corp. December 13,1984:2). The RSCC Task Force members played an important role in reviewing these sites withthe Harbour Commission and their consultants.By March 7, 1985, both the proponent and the NFHC felt that the project proposal had, in theirview, incorporated as many of the concerns of the environmental agencies as possible "withoutdestroying the original development concept" (NFHC:3). Their letter of the same date, formallystates their shift in emphasis from further mitigation efforts to compensation for the anticipatedhabitat losses. Requesting an initial response from DFO, the letter also proposed an overallcompensation plan. Consisting of three main components, the plan proposed that the MitchellIsland site be used for compensation and that the Bridgepoint site supply the donor plant stock;that a joint DFO NFHC five year monitoring program be established to ensure the compensationsite's success; and that as compensation for the lost mudflat area, a joint DFO NFHCmanagement program be established for the Harbour. The proposed management program wouldinclude the undertaking of a detailed habitat inventory to identify foreshore areas requiringprotection from development, measures to prevent habitat degradation within the harbour in thefuture, and a more active cleanup program along the North Arm's foreshore (NFHC, March 7,1985:5-6).From the perspective of this analysis, what is important about the sequence of events outlinedabove is that the generation of alternative solutions appears to be more closely related to the151activity of bartering than to a systematic and deliberate search for alternatives. In effect, oneside makes a proposal and the other side either accepts, rejects, or suggests a counter proposalpossibly incorporating portions of the original proposal but never-the-less starting another round ofthe process. There is virtually no indication of a consistent and focused inter-agency attempt toseparate inventing from deciding as described by Fisher and Ury (1981:62) (i.e. brainstorming,game simulation, etc.).The process detailed above does show limited application of 'broadening the options' beforedeciding. The generation of the 17 potential off-site compensation sites that were subsequentlyshort-listed to 8 options, certainly reflects something of the theory. It is interesting to note,however, that even in this case the attempt to broaden the options did not occur until the originalproposal to provide all the compensation on-site was rejected by DFO and the environmentalagencies.One other aspect of generating solutions that is not readily apparent in the process as outlinedabove, was a tendency to search for precedence in order to refine the details of a solution once thegeneral aspects were agreed to. A key example, and one which will be discussed in more detail inrelation to objective criteria, was the use of the Campbell River data to derive the 2 for 1 marshhabitat compensation ratio.6.3.3.2 Mutually Beneficial Solutions and Compromised Positions As with many of the other issues discussed to this point, the attempts to find solutions beneficialto all parties appears to have been more pronounced in the latter stages of the negotiations than inthe earlier stages. Even then, many of the solutions were largely compromises according toNFHC staff (Colquhoun, December 11, 1990).An example where compromise was incorporated into the final compensation package can be foundin DFO's acceptance of "restoration and protection works ... as compensation for lost mudflat" at152Bridgepoint (DFO, July 24, 1985:2). During the December 17, 1984 public hearings, DFOinformed Richmond Council that area 'clean-up' was not acceptable to the Department as analternative to mitigation measures (Council Minutes, December 17, 1985:158). Just over 7months later in the letter of conditional approval DFO officials accepted the NFHC clean-upproposal stating that "it was in the best interests of the resource to compensate by restoring areas thathad been degraded" (DFO, July 24, 1985:2). As part of the compromise DFO also required that ashear boom be installed at the Genstar riverine marsh clean-up site similar to the one the NFHChad proposed for the Wood Island Slough site.Another compromise is apparent in the agreement over the monitoring of the replacement habitatat the Mitchell Island site. The NFHC's initial proposal of March 7, 1985 called for the NFHCand DFO to work jointly a marsh monitoring program of up to 5 years (NFHC:5). Their plan alsocalled for a 2 year monitoring of the site's physical aspects. The monitoring issue had been raisedpreviously by DFO but no details had been worked out. In the final agreement, DFO settled on a3 year -- proponent funded -- marsh monitoring program and a 5 year physical monitoringprogram of the site.The two examples above show both compromise and fine tuning of positions and proposals offeredin the final agreements. Other compromise examples can be found in the case study chapter.With the gradual movement away from strictly positional stances in the latter stages of thenegotiations more consideration appears to have been given to finding solutions which wouldbenefit both sides in the negotiations. One attempt was a joint search by DFO staff and theNFHC's environmental consultant to find a suitable model for the relative values of the differenthabitat types found on the site. The researchers located a model that had been used in Oregon forover 10 years to evaluate habitats, and modified it for application on the Fraser. According to theNFHC's consultant, in the end DFO's staff disagreed with the format of the new model and153eventually rejected in favour of the present system of compensation ratios (Williams, January 15,1991).Irrespective of the success or failure, the search for a workable model of relative habitat valuesshows at least some attempt to find mutually beneficial solutions to the problem at hand.Although not directly related to this issue, it is noteworthy that the example also reveals that theNo Net Loss application was truly in its infancy -- with many aspects not fully worked out and noprocedures in place for actually applying, in a detailed way, what the policy had spelled out inmuch broader terms.A second example where the two sides sought a mutually beneficial solution can be found in thedevelopment of the North Fraser Harbour Environmental Management Plan  (1988). While theplan was not in the strictest sense part of the Bridgepoint development, the Bridgepointnegotiations were the initiating catalyst to the mutually beneficial memorandum of understandingbetween DFO and the NFHC. The intent is described in the plan as follows:The purpose of this memorandum is to describe an environmental management planfor the North Fraser Harbour intended to facilitate a pro-active approach toward portdevelopment and environmental management by:(a) establishing a shoreline rating or classification system to assist portadministrators and habitat managers in maintaining an economically andenvironmentally viable harbour;(b) developing a more detailed project review and assessment process, which willbe integrated with existing Fraser River Estuary Management Program(FREMP) coordinated project review procedures;(c) creating a habitat compensation banking system to facilitate compensation forindustrial, port, commercial, or recreational developments where on-sitemitigation or compensation would be impractical or inadequate and where off.site compensation would be considered acceptable;(d) establishing a cooperative management program designed to make fishmanagement and fish habitat concerns an integral component of Harbouroperations and development planning processes.(DFO and NFHC, September 1988:4)154This agreement proved beneficial to both parties in that, at a minimum, the plan helped to;provide a resolution to the Bridgepoint proposal;it helped to avoid another similar problem from arising by pre-designating sites fordevelopment potential and the degree of mitigation efforts required;it incorporated a habitat banking system eliminating future location problems forreplacement habitat, and;it allowed the two agencies to maintain and exercise their mandates whileestablishing a basis for a continuing working relationship.Both of the above examples occurred in the latter half of the negotiations, once again lendingsupport to the argument that greater consideration of the other side's needs appears to haveoccurred in that half of the negotiations than in the earlier half.6.3.3.3 Facilitating Other Parties in Making their Decisions The last issue to be examined under the principle of inventing options for mutual gain, waswhether any of the parties took specific actions to facilitate the other parties in making theirdecisions.According to the theory described in Getting To Yes, a number of actions can be taken to assistthe other side in making favourable choices. Some examples of such actions include analyzing theother side's perceived choices and devising new more favourable options that will change theirdecisions, or creating an agreement that is easily implemented (Fisher and Ury, 1981:79-83).None of the documentation researched for this thesis show any indication that these, or any othersimilar actions were taken by the participating parties with an intent to facilitate the decisions ofanother party. Similarly, none of the interviews provided any indication of such actions havingoccurred.155Indeed, the most prominent attempt by one party to directly influence another party's decisionsduring the negotiations was the previously discussed incident when the NFHC's representativetried to pressure DFO agents into viewing the Bridgepoint development "in light of various othermatters of mutual concern relating to the river" (NFHC, October 5, 1984:2). That incident wasperceived more as an attempt to force a decision preferable to the NFHC than one attempting tofacilitate a favourable choice from amongst the available options.6.3.3.4 Inventing Options for Mutual Gain -- Summary and Conclusions This section used three indicators to determine if options were invented for mutual gain during theBridgepoint negotiations. Generally, these indicators examined how alternative solutions weregenerated and how the solutions were selected, whether there were overt attempts to generatemutually beneficial solutions, and finally, whether specific actions were made by any party tofacilitate the decisions made by another party.Working through the description of the No Net Loss project evaluation process as applied toBridgepoint, the first indicator showed that different solutions were generated at different stagesof the evaluation process. It also showed that, as with other unrelated proposals, the developmentapplicants bore most of the responsibility for generating alternative solutions. The examinationalso noted that not all of modifications to the proposals were made in consultation with either theNFHC, or DFO. The solutions generated were subsequently evaluated by each of the reviewingagencies and changes or modifications were requested essentially through a process of barteringbetween the agencies.No consistent and focused attempts to separate the act of inventing solutions from the act ofdeciding were apparent in either the documentation or the interview responses. In the later halfof the negotiations, however, there were indications of attempts to broadening the options beforedeciding. Examples cited in support of this latter issue included the listing of the 17 potential off-site compensation sites and the proposal for a comprehensive management program (i.e. the156detailed habitat inventory, prevention of further habitat degradation in the harbour, and thedevelopment of a clean-up program for the North Arm).The specific focus on generating mutually beneficial solutions showed that many of the solutionswere largely compromises between positions. Examples such as the issue of accepting clean-up ascompensation for lost mudflat, and the length of the marsh and physical monitoring programs,were cited as instances where compromise appeared prominent. In comparison to the first half ofthe negotiations, however, more efforts were made in the second half to produce solutions whichwould be beneficial to both sides. Two examples were cited in support of this contention. The firstwas the joint research by DFO staff and the NFHC's environmental consultant to modify andapply an Oregon model for comparing the relative values of the different habitat types to theFraser region. The second example was the development of the North Fraser Harbour Environmental Management Plan (1988) which was shown to yield a number of beneficial resultsto both DFO and the NFHC.The final indicator focused specifically on attempts by the participants to facilitate other parties inmaking their decisions. Although the possibility that such activities did occur, there was noindication in either the available documentation or the interview responses that it did. Thestrongest indication of an attempt to directly influence another party's decision was the NFHCrepresentative's attempt to tie the decision over the Bridgepoint development to other issues onthe River.Collectively, the three indicators failed to show any indication that the parties involved in theBridgepoint negotiations deliberately attempted to invent options for mutual gain in the first halfof the negotiations. During the second half of the negotiations there were at least some attemptsto broaden the options and seek solutions which would provide benefits to both sides and it is likelythat these actions played an important role in resolving the Bridgepoint issue.1576.3.4 Insist on Using Objective CriteriaFisher and Ury's final principle, "insist on using objective criteria" is the focus of this part of theanalysis. Reflecting much of the core of the Getting To Yes foundations, Fisher and Ury describethe approach as a commitment "to reaching a solution based on principle, not pressure" (Fisher andUry, 1981:86). According to the authors, this objective is achieved by taking objective standardsinto account in the proposed agreements. Objective criteria as considered by Fisher and Uryincludes both fair standards and fair procedures. From this basis, the two questions posed inChapter Four on theory were intended to provide some indication of whether the issues of fairstandards and fair procedures were addressed in the Bridgepoint negotiations. Once again, thetwo indicator questions outlined in the theory chapter examined:whether the criteria used to achieve No Net Loss of habitat at Bridgepoint were developedand applied fairly, and;whether the process used in achieving No Net Loss at Bridgepoint was fair.6.3.4.1 The Development and Application of Objective Criteria As characterized in the previous discussions, the initial stages of the Bridgepoint negotiations werepredominantly positional in nature and largely void of consideration toward objective standards.During later discussions, however, objective standards were used in at least two significantinstances to assist the progress of the negotiations. The first of these was the development andapplication of the habitat compensation ratio.As will be recalled from the case study examination, lost marsh habitat was replaced at a ratio of2 to 1. The ratio was based on observations of the productivity of marsh plantings at theCampbell River, British Columbia site. According to DFO staff, the Campbell River datasuggested that reaching full productivity in the replacement marsh would require between 8 and10 years of growth (Langer, November 27, 1990). To reach full productivity in 4 years theCampbell River data suggested that twice as much replacement marsh would be required. Hence,the 2:1 compensation ratio for lost marsh habitat was applied to the Bridgepoint development(Langer, November 27, 1990).158The case study chapter outlined the justifications described by the NFHC for adopting the ratio atBridgepoint. The NFHC's own research found that in California ratios were as high as 7 and 10to 1 (Colquhoun, December 11. 1990). Although the compensation marsh still posed a possiblerisk for the NFHC since they were responsible for any remedial measures if the transplants didnot take, the 2:1 ratio was accepted by the NFHC as a fair standard -- particularly in light of theratios used elsewhere. Agreement was not initially reached on the issue of compensation for lostmudflat as the NFHC raised concerns as to the need for compensation of mudflat in the area.DFO's request was that lost mudflat be replaced on a 1:1 basis. The NFHC conducted aninventory on the North Arm and determined that 50% of the 8.75 km shoreline study areaconsisted of mudflat or natural intertidal areas. Since the amount of mudflat was evidently not alimiting factor with regard to fish food requirements in the area (NFHC March 7, 1985:4), theNFHC questioned DFO's request for 1:1 replacement of the lost mudflat. This appeal to theobjective measures provided by the NFHC's inventory eventually allowed DFO to accept part ofthe NFHC's alternative proposal whereby clean-up and protection measures at several sites in theNorth Arm were credited as compensation for lost mudflat.These examples show that in the latter half of the negotiations attempts were made to utilizeobjective standards as a means of resolving specific issues.6.3.4.2 Fair Process at Bridgepoint The last issue to be addressed in this analysis is whether fair processes were used in applying NoNet Loss to the Bridgepoint development. On this issue a number of viewpoints were expressed.One of the more interesting of these comes from DFO staff. During 1984 No Net Loss was beingproposed as the "cornerstone" of the Habitat Policy (DFO, December 6, 1984:1). Having gained byDecember of 1984 a considerable degree of experience with how proponents, both at Bridgepointand elsewhere, were reacting to the application of No Net Loss DFO staff at the operations level159suggested that the habitat policy should concentrate on Net Gain of fish habitat, with No Net Losssupporting that objective. One of their strongest concerns focused specifically on the four levelassessment process. From their observations they concluded that "many parties ignore or providewindow dressing to 1) prevention and 2) mitigation and immediately resort to compensation" (DFO,December 6, 1984:2). Reflecting what had happened in the negotiations to that point, Bridgepointwas cited as a case in point.Interestingly, the North Fraser Harbour Environmental Management Plan  was, in part, anattempt to compensate for some of the perceived weaknesses in the application of No Net Loss inthe Harbour.By implication, this example strongly suggests that DFO operational staff increasingly saw theapplication process as inequitable to at least some degree, and biased in favour of the developer.The hierarchical application of the review served both to prolong the process and to makerejection, the fourth level of the review, difficult to impose after going through the first threelevels. On the positive side, DFO's own 1989 evaluation of the case stated that Bridgepointresulted in a "better definition of the process for negotiating NNL" (DFO, 1989:3).From the perspective of the NFHC and their consultant G.L. Williams and Associates, the actualprocess was basically fair (Colquhoun, December 11, 1990 and Williams, December 14, 1991). Ofparticular note was the fact that the RSCC Task Force 'listened' to the arguments presented andthis, it was felt, made a difference (December 14, 1991). Both the NFHC representative andWilliams also suggested that what allowed the process to work at Bridgepoint was the fact thatDFO could count on the NFHC being around in the long term to deal with any required remedialmeasures necessary. Specific concerns raised with the process were that it was very drawn out,and that firmer -- scientifically based -- evaluative criteria would have improved the biologicaljustification of the compensation efforts.160Although the focus of this thesis is oriented towards the No Net Loss negotiations between theNFHC and DFO, some impressions of the developer's perspective about the fairness of the processcan be inferred from the available documentation. In their December 1984 letter to the NFHC thedeveloper, being concerned about delays, comments that "it is absolutely essential that decisions bemade timely since otherwise, the future of this project could be seriously jeopardized" (BridgeportHarbour Market Corp., December 13, 1984:2). Perceived delays in the review process were acontinuing concern with the developer -- and one which was apparently expressed in his February1985 letter to the Minister of Fisheries and Oceans. DFO operational staff, placed on thedefensive, argued that the project review had not delayed the project but rather the schedule wasvery tight given the Expo 86 construction deadline. DFO staff further stated that because of thatschedule the project had been given a high priority (DFO, March 7, 1985:3-4).DFO staff also had to respond to a suggestion that the "goal posts" were moving (DFO, March 7,1985:3). From their perspective, this was not the case. Instead, they stated, the proponent hadbeen informed that if the project went ahead "mitigation at the site would be inadequate andrequired off-site compensation would be expensive" (DFO, March 7, 1985:3).One other commentary on the developer's perspective of the process is apparent in The Richmond Times article "Habitat Policy Costly Process: Nearly Cripples Project" (The Richmond Times,September 20, 1988). Citing the high cost of compensation, and the burden of the 2:1replacement ratio, Playsic told the Times that the policy was "asking too much of developers".Collectively, these examples show at least some degree of dissatisfaction with the process by theproponent.6.3.4.3 Insist on Using Objective Criteria -- Summary and Conclusions On the issue of objective standards, the analysis found little evidence of any reliance on suchstandards in the first stages of the negotiations. The latter stages, however, showed at least some161examples where objective standards were used (i.e. compensation ratios, mudflat inventory of theNorth Arm). Judging by the acceptance of the final agreement between the NFHC and DFO, it islikely that the use of these standards contributed greatly to the outcome.Analysis on the question of fair process at Bridgepoint showed that a multitude of viewpoints existon this issue. The concerns raised by DFO staff about the No Net Loss project evaluation process,and the development of the North Fraser Harbour Environmental Management Plan  suggest that,at least in this instance, the application of No Net Loss as prescribed by the Habitat Policy wasnot perceived by DFO staff at the level of operations as equitable largely because of the inabilityto reject the proposal outright.From the NFHC's perspective the process was fair, but drawn out and somewhat lacking inscientific rigor with regard to some of the standards applied.Finally, from the proponent's perspective, the high costs of compensation, the burden of the 2:1compensation ratio, and the perceived series of delays, placed the No Net Loss policy beyond whatdevelopers could afford.Collectively, the results on the question of fair process are mixed. Between the two mainnegotiating parties, the NFHC and DFO, many issues and problems with the application of NoNet Loss appear to have been resolved to their mutual satisfaction in the final agreements.Recognizing the limitations imposed by the Fisheries legislation and the No Net Loss policy, thequestion of how much latitude either side actually had in seeking out alternative and moreequitable solutions would likely have to be considered had they ventured much beyond theprocesses they were working with.6.4 CONCLUSIONS AND RECOMMENDATIONS In the discussion on theory in Chapter Four , Fisher and Ury's three basic criteria for judging any162method of negotiation were outlined. The criteria stated that the method of negotiation "shouldproduce a wise agreement, ... it should be efficient", ... and "it should improve or at least not damagethe relationship between the parties" (Fisher and Ury, 1981:4). Viewed from this perspective, thischapter's discussion regarding the final negotiated agreements for Bridgepoint strongly suggeststhat a wise and durable agreement was reached in this case. Allowing for some difference ofopinion amongst the various parties involved, the agreements could be said to have improved therelationships between them. Where Bridgepoint appears to have fallen short is over the issue ofefficiency.Some insights as to the strengths and weaknesses of the Bridgepoint negotiations were madeapparent in this Chapter's assessment of the case from the perspective of the four principles ofFisher and Ury's Principled Negotiation method -- a method which attempts to fulfill the threecriteria stated above.In this section, the many observations made in Sections 6.2 and 6.3 are distilled into a number ofkey points from which recommendations pertaining to future No Net Loss negotiations are made.For the discussion which follows, a visual interpretation of the results of the case study analysis isprovided in Table 6.4. Each bar in the Table shows the degree to which the intent of each ofFisher and Ury's four principles were reflected in the Bridgepoint negotiations. Shaded cells left ofcentre indicate that the respective principle was only weakly reflected, or non-existent in thenegotiations. Shadings to the right of centre indicated that aspects of the principle were eitherevident or very strongly reflected in the negotiations. Shadings in the centre of the bar indicatemixed observations.A notable feature of the Table is the shift over time toward an overall improvement in the latterstages of the negotiations. In a broad sense this shift appears to reflect a movement towards amore 'principled' negotiating approach, as defined by Fisher and Ury. Considering the latterstages of the negotiations when the interests of the various parties were considered to at leastO163^. ^I)U c)UC.) ,•F•i^(1.)^(1)1,11Q.);-4.u'v0Q)00cr)UU 0:14 •.a,c.)0^(3.).r4 :191.) 0• (/)C.)^C.)(1.)^(1)0. a,(i)U ctU co+9 749+.) a)cd+-) Q•(1) "Z:1CdC.)C.)4—.0C.)C.) -t)^c•..1 ^ete04-4^(1)U 4+.)U 0tzt(/)ccSa) -0164some extent, and when attempts were made to search for solutions with mutual gains, this couldbe argued to be generally true. The detailed analysis reveals, however, that these events havecome about primarily as a result of a negotiation process which more closely resembled abartering exchange than an attempt to adhere to the principles prescribed by the PrincipledNegotiation method. From this perspective, the key conclusions drawn from this thesis'application of Fisher and Ury's four principles are examined in turn.6.4.1 Focus on Interests not PositionsAs reflected in Table 6.4, the analysis showed that in the early stages of the Bridgepointnegotiations there is little evidence of any consistent attempts by the negotiating parties involvedto focus on interests as a means of finding solutions to the problems at hand. Rather, this periodin the negotiations was characterized in the analysis as being highly positional in nature, andreminiscent of bartering in practice. The latter stages, while much improved with many interestsincorporated into the final agreements, failed to indicate that these results were anything morethan the result of concessions to the bartering process. Some reservations had also been raised bythe CWS representatives and the proponent as to whether their interests were fullyaccommodated in the process. Certainly this can be said to have been the case with regard to thepublic's interests, which were only directly considered through the Municipality of Richmond'spublic review process for the proponent's rezoning application. These mixed observations in theanalysis are thus reflected in the relevant second bar in Table 6.4.The analysis strongly suggests that a focused joint examination of each party's interests in theearly stages of the negotiations would have improved both the efficiency and the quality of thenegotiations. By identifying both shared and compatible interests from a listing such as the onespresented in Tables 6.3a and 6.3b, a good deal of the positional posturing could have been avoidedas alternative solutions and considerations would have become evident at an earlier stage. Byway of example, early identification of DFO's interest in ensuring that long term managementprovisions be in place, independent of the prevailing economic conditions, would have indicated the165need for the NFHC's strengthened and continued role in any agreement to be reached. Similarly,recognition of the NFHC's interest in developing a management plan for the North Arm,incorporating the application of No Net Loss, along with the recognition that the NFHCrepresentatives had very few ideas on how to go about this in the early stages of the negotiations,would have suggested the possibility. of joint workshops to explore how a management plan couldfunction. Workshops would have also served to allow the parties to focus on generating solutions,rather than developing positional arguments. In this context, Bridgepoint might well have beensuggested as a first application for their ideas.In effect, what is being recommended here is that the various interests of the parties involvedshould have been made explicit so that they could have been more directly explored for alternativesolutions and approaches to the problems at hand. Had this been done, the quality of thenegotiations would have been improved by focusing directly on the interests involved and themotivations behind them, rather than on the smoke and mirrors of each side's positional stance.The process could also have been made more efficient by providing all the parties with a clearerunderstanding of the various needs which had to be accommodated in the final agreements. Thiswould have had the effect of making the search for potential solutions more direct andcomprehensive from the start.6.4.2 Separate the People from the ProblemAs reflected in Table 6.4, the analysis indicates that Fisher and Ury's principle of separating thepeople from the problem was not strongly evident in the early stages of the Bridgepointnegotiation process. The analysis showed that during these early stages the process sufferedsignificantly from misunderstandings between the parties, failures to communicate over criticalissues, differences in how well the parties were informed, and eruptions of human emotionsaccentuated by a range of catalysts, including construction deadlines for Expo 86, and the virtualelimination of most of the foreshore marsh habitat in the immediate vicinity.166Table 6.4 also indicates that, in the latter stages of the negotiations, actions which showed theintent of separating the people from the problem were much more prevalent than in the first partof the negotiations. Some of the activities which served to improve the situation included: strongercommitments to keeping all the parties informed; deliberate attempts to mediate exchangesbetween the environmental agencies and the proponent; and changes in personnel and/or theirroles in the exchange. Two important changes in the participant's roles involved: a much strongerpresence of the NFHC Port Manager, who was willing to take a new look at the issue; and theassignment of a more significant role in the negotiations to an Aquatic Biologist working with boththe NFHC and the proponent.When examined from Fisher and Ury's perspective, each of the people problems identified in thefirst stage of the negotiations fell within the three basic categories described in their book Getting To Yes: Negotiating Agreement Without Giving In. The three basic categories describe were:"perception, emotion, and communication" (Fisher and Ury, 1981:22). As general prescriptions forsuch problems Fisher and Ury wrote the following:Where perceptions are inaccurate, you can look for ways to educate. If emotions runhigh, you can find ways for each person involved to let off steam. Wheremisunderstanding exists, you can work to improve communication.(Fisher and Ury, 1981:22).In the case of Bridgepoint there are examples in the negotiations where such actions wereemployed. The November 28, 1984 letter from DFO to the NFHC clarifying the No Net Lossproject evaluation process and its intent provides a clear example of an attempt to overcomemisperceptions through education. Similarly, both sides eventually took significant steps toimprove communications by strengthening the working relationships between the parties. Finally,the joint search by the NFHC and the RSCC Task Force for suitable off-site compensation areasnot only provides an example of broadening the options, but also of the improved communicationsin the latter stages of the process. Each of these actions no doubt served to overcome the peopleproblems which plagued the negotiations.167Had measures similar to those mentioned above been made in the initial stages of thenegotiations, the entire process would have functioned with much less difficulty. An argument forthis statement is that both the communication and education aspects of the process would havebeen better served had the minutes of the initial March 28, 1984 meeting been circulated soonafter the meeting. Accompanying the minutes with detailed information on exactly what No NetLoss entailed and how the evaluation process was anticipated to operate would have furtherstrengthened the process by providing all the parties with an equal understanding of what wasinvolved. Given the newness of the No Net Loss Policy, the misunderstandings andmisinterpretations of what was required should have been anticipated. In Fisher and Ury'swords, the operational phrase is "prevention works best" (Fisher and Ury, 1981:38).Among Fisher and Ury's recommendations for coming to grips with perceptual differences, is theidea of considering the issues from "their shoes" (Fisher and Ury, 1981:23). A recommendationthat would have allowed both sides to do this would have been for the proponent to present theenvironmental agencies with all of the parameters that they were dealing with and then ask theagencies how they would design the foreshore portions of the project. In addition to forcing theproponent to consider fully all of the parameters involved with the project, at least from theirperspective, the results of this interaction would have provided some insights as to how theproponents perceived the project and what their considerations were. DFO representatives haveindicated that since the Bridgepoint project, their staff have designed at least one foreshorecompensation site for a proponent (Langer, 1990).Another approach would have been for the proponent to consider and show the environmentalagencies how their design was consistent with the No Net Loss Principle and/or precedentsestablished by applications of No Net Loss in other parts of the world. Such an examinationwould have shown the proponent how the project's design might have been altered to make it moreacceptable to the environmental agencies.1686.4.3 Inventing Options for Mutual GainTable 6.4 shows that the analysis found very little evidence of any concerted effort to inventoptions for mutual gain in the first portion of the Bridgeport negotiations. The analysis once againfound that solutions generated during this period were more the products of a bartering processthan of a deliberate and systematic search for an optimal solution to the problems at hand. Noevidence of any joint efforts to separate inventing from deciding, as through brainstorming orgame simulations, was found. The one clear action where one side deliberately attempted toinfluence the decision of the other was amazingly similar to what Fisher and Ury describe as anattempt to trade off substantive interests against relationship interests -- an action characteristicof positional bargaining.The latter stages of the negotiations showed much stronger indications of Fisher and Ury'sprinciple of inventing options for mutual gain. It was during this period, for example, that theparties attempted to broaden the options available for compensation sites by developing a list ofeighteen candidate sites. Two of the parties also undertook a joint search for suitable habitatevaluation models which might have been applied to the Fraser's North Arm. Additionally, thefirst steps toward the development of the North Fraser Environmental Management Plan weremade by the NFHC and DFO during this period.Although it is unlikely that any of the examples from the latter stages could have been started inthe earlier stages of the negotiations, searching for mutually beneficial solutions at an earlierperiod in the negotiations would have been a vast improvement over the confrontational nature ofpositional bargaining which was prominent from the beginning. All of the parties would havebenefited had they jointly `scoped' the issue out prior to any work being done.6.4.4 Insisting on Objective CriteriaThe analysis examined the Bridgepoint case on the basis of both fair standards and fairprocedures, reflecting the divisions used in Fisher and Ury's Principled Negotiation theory.169During the initial stage of the negotiations only a limited reliance on objective standards wasevident as the arguments tended to be largely positional in nature. On the issue of fair process,the analysis noted that by early December 1984, DFO's 'front lines' staff were voicing concernsover the No Net Loss evaluation process. The hierarchical nature of the process, it was stated,allowed proponents to "ignore or provide window dressing to prevention and mitigation thenimmediately resort to compensation" (DFO, December 6, 1984:2). From the memoranda producedin December 1984, it is clear that DFO staff felt that the process provided the developers with anunfair advantage in the negotiation process.The post December 1984 indicator in Table 6.4 reflects the stronger reliance on objective criteriaby the parties that is apparent in the analysis. Issues of fair standards were addressed in thesearch for acceptable habitat compensation ratios, and in the discussions over the necessity ofcompensation for lost mudflat. Analysis on the issue of fair processes on the other hand, revealeda greater variation in the views held by the various parties involved. In their own analysis of theBridgepoint case, DFO staff felt that Bridgepoint helped to provide a better definition of theprocess -- a function no doubt strengthened with the development of the North Fraser HarbourEnvironmental Management Plan. For their part, NFHC staff were appreciative of thewillingness of the RSCC Task Force members to listen to concerns raised over the course of thenegotiations. Less positive perspectives were evident, however, in the proponent's comments tothe local press over the costs imposed by the compensation requirements of the habitat policy.Concerns were also voiced by Canadian Wildlife representatives on the environmental impacts leftunaccounted for in the process. Table 6.4 acknowledges these variations by indicating lightlyshaded tones around the solid marker.While there remains uncertainty about every detail which was discussed over the course of theBridgepoint negotiations, from this researcher's perspective, it would be fair to suggest that adiscussion of fair standards which could have been applied to the problems involved did not occurin the early stages of the negotiations. One indication of this is that the need to develop a1 70compensation formula for lost habitat was not definitively raised until the meeting of November30, 1984. If this example was typical of the eients of the initial stages of the negotiations, thenthe parties involved could have used their time more efficiently by jointly identifying thesubstantive issues involved and then discussing possible standards which could be practicallyapplied.With regard to the issue of fair procedures, this analysis would be remiss if attention was notgiven to the issue of the hierarchical project evaluation procedure. The concerns raised by DFOstaff about this procedure, and the development of the North Fraser Harbour Environmental Management Plan (1988) to avoid similar problems in the future, provide strong arguments forDFO to reassess their approach. The likelihood that a developer will simply drop a project afterhaving gone through an evaluation procedure which first tells him to look for another location,then asks for a design that incorporates mitigation, and later adds compensation requirements tothe plan, only to have the proposal rejected in the end, becomes quite unlikely. The process seemsgeared to generate confrontation. In contrast, the merit of the Environmental Management Planis that it provides potential developers with some indication of what they would be getting intoshould they attempt to develop a particular site -- before they become too deeply involved. Thisplan evolved as an agreement between two key governing agencies responsible for the NorthFraser Harbour. Where such agreements have not yet been worked out, an alternative approachwould be for Fisheries to evaluate new proposals on a point system which considers the degree towhich mitigation and compensation efforts are incorporated in the design and weights theseaspects by the environmental sensitivity of the site. The results of this evaluation would permitthe reviewing body to reject a proposal from the start -- something which is evidently difficultunder the current process. Another benefit would be that proponents with projects not meetingrequirements for approval would be able to determine from the reviewing agencies'recommendations which aspects of the proposal would have to be improved, or in fact if furtherwork was worth the effort and costs. At a minimum such a process would help to eliminateaccusations that 'the goal posts are moving'.1 71Whether or not such an alternative is employed, the experiences at Bridgepoint strongly point tothe need to rethink the evaluation procedures employed.6.4.5 Conclusions and Recommendations SummaryIn this section a number of specific conclusions and recommendations have been made about theapplication of No Net Loss at Bridgepoint based on the analysis provided in Sections 6.2 and 6.3of this chapter. The discussion began by assessing the Bridgepoint negotiations against Fisherand Ury's three criteria of what any negotiation method should do. The analysis indicated that,against these standards, the full potential of the Bridgepoint negotiations was only partiallyreached. In support of this premise, and to provide specific examples on how the negotiationsshould have been improved, a synthesis of the analysis under each of the four principles wasmade.The synthesis provided in this section supports the contention that the Bridgepoint negotiationswould have benefited by applying the principles of Fisher and Ury's Principled Negotiationsmethod.The specific recommendations made, such as having Fisheries evaluate new proposals on a pointsystem rather than the hierarchical approach now in use and the development of workshops todiscuss individual projects in terms of what No Net Loss implies to its design, are based onobservations of weaknesses evident in the process as applied at Bridgepoint. The intent in offeringthese specific recommendations is to show that other practical alternatives exist, and to affirm theconsiderable degree of flexibility afforded by the Principled Negotiation method in achievingsolutions to a problem. As such these recommendations should be viewed as catalysts to furtherdiscussions about resolving the weakness of the No Net Loss process.1 79In the concluding chapter an overview of the material covered in this thesis is provided togetherwith a number of comments on the implications of the Bridgepoint analysis for future applicationsof No Net Loss and the management of the fish habitat resource.173CHAPTER SEVENBRIDGEPOINT: THESIS OVERVIEWThe main objective of this thesis was to examine and assess the Bridgepoint Market Developmentin Richmond, British Columbia as an application of the Department of Fisheries and Oceans'principle of No Net Loss. As a planning thesis, the specific focus of this research was on theprocess aspects of the case.After reviewing a number of different potential approaches, Fisher ana Ury's PrincipledNegotiation Theory was selected as a basis for developing an analytical framework with which toassess the Bridgepoint case study. The assessment was essentially empirical, relying upon anextensive range of documentation, supplemented by interviews with ten individuals, to provideinformation about the case.The thesis was laid out in five major chapters. Chapter Two, "The Importance of Wetland Habitatin the Fraser: Ecological and Economic Considerations", and Chapter Three, "Legal andJurisdictional Issues Affecting Fish Habitat Management at Bridgepoint", provided backgroundinformation necessary to an understanding of some of the key issues which arose in theBridgepoint negotiations.Chapter Four, "Theory: Development of an Analytical Framework", outlined the theoretical basis forthe analytical framework used to assess the Bridgepoint case. The fundamental principles,Separate the People From the Problem, Focus on Interest, Not Positions, Invent Options for MutualGain, and Insist on Using Objective Criteria, as outlined in Fisher and Ury's book Getting To Yes (1981), were discussed in detail and an analytical framework was developed on this basis.Concluding the Chapter, this researcher's perspectives on the relationship of this research toPlanning Theory were stated.174Chapter Five, "No Net Loss at Bridgepoint: Case Study Examination", outlined the events whichtook place in connection with the Bridgepoint Market Development. Included in the discussion wasa listing of the key parties involved and the roles that they played, specific issues which arose inthe negotiations, and a chronological overview of the events.Chapter Six, "Bridgepoint Negotiation Analysis", applied the analytical framework developed inChapter Four to the Bridgepoint case in order to provide some insights on the strengths andweaknesses of the negotiation process. In the Chapter a number of observations, conclusions, andrecommendations were made based on the analysis. Some of the more prominent ones are listedbelow.One easily made conclusion was that negotiation was an integral part of the application of No NetLoss at Bridgepoint. This conclusion is supported not only by documentation, but also throughinterviews with several of the participants to the negotiations.The Bridgepoint case was shown to have made a number of important contributions to DFO's FishHabitat Policy and its application. Direct contributions include a refinement of the process ofapplying No Net Loss, and the development of compensation ratios for different habitat types.Other important products which have evolved from the Bridgepoint negotiations include theEnvironmental Management Plan For The North Fraser Harbour  (1988), and the North Fraser Harbour Shoreline Habitat Inventory (1986). Each of these aspects adds to the significance of theBridgepoint case.The analysis showed that over the four year period from 1984 to 1988, a number ofimprovements in the negotiation process occurred. One particular improvement commented on byparticipants from both sides, was the stronger hands-on involvement of the NFHC's Port Managermidway into the negotiations. His involvement provided an opportunity to take another look atthe case. A second improvement of note, was the more prominent role assigned to an aquatic175biologist working for the NFHC and the proponent. This individual's function included aspectssuch as fact finding and mediation. His role was the closest approximation to a third partyintervention that appears in the Bridgepoint case. That this function contributed to the resolutionof many aspects of the case, provides a strong basis for the inclusion of qualified third partyintervention to be built into DFO's process for applying No Net Loss.While acknowledging these more positive aspects of the Bridgepoint negotiations, the analysis alsoindicated, that the negotiation process was more reflective of positional bargaining and barteringthan of an application of the kind of principles which have been shown to make negotiations workwell (i.e. Fisher and Ury's four principles). For example, the analysis on the principle of Focusingon Interests Not Positions showed that in the first stages of the negotiations a considerable amountof time and effort was spent by the opposing sides on stating their respective positions. Theprinciple suggests that their concerns would have been better served by exploring for shared orcompatible interests which might have lead to solutions to the problems at hand. Many of theinterests in the case were conveyed through the various bargaining positions, rather than aspecific focusing on them. Even in the latter stages, when progress was being made towardagreements, the evidence failed to indicate that these agreements were anything more thanproducts of concessions to the positions taken.Analysis on the principle of Separating the People From the Problem revealed a number ofsignificant problems in the process at Bridgepoint. Included in these problems were; failures tocommunicate key aspects of the case in the early stages of the negotiations - notably a lack ofcommunication over the terms of reference for the site's environmental study; difficulties inunderstanding the other side's perceptions -- particularly over the issue of habitat values versusthe economic success of the project; and, attempts to trade off relationship interests againstsubstantive interest by tying the decision over Bridgepoint to other issues on the River. Theanalysis also showed that at various times it was apparent that the parties were not equally well176informed. An example presented was DFO's request of the NFHC during the Richmond Council'spublic hearings in December 1984, as to how much habitat was expected to be lost.Regarding the principle of Inventing Options for Mutual Gain, the analysis showed that in the firststages of the negotiations, there were few attempts to joint problem solve, or employ techniquesthat would separate the invention of ideas from the act of deciding between them. The mostnotable attempt to facilitate the decisions of another party occurred over the issue of viewingBridgepoint in light of the other issues on the Fraser.On the fourth principle, Insisting on Objective Criteria, the analysis found that only in the latterstages of the negotiations was any evidence of a reliance on objective standards apparent. Twoexamples provided, were the use of compensation results from Campbell River to developcompensation ratios for Bridgepoint, and the taking of an inventory on the quantity of mudflatremaining along the Fraser's North Arm to show whether there was in fact a need to compensatefor losses of this type of habitat. On the issue of fair process the analysis showed multipleviewpoints existed among the participants. Notably, DFO staff voiced general concerns over theevaluation process, suggesting that it was biased in favour of the developers. The NFHCrepresentatives, on the other hand, felt that the process as applied to Bridgepoint was fair butquite drawn out. The proponent publicly voiced concerns over the costs involved in thecompensation requirements, and over the delays the process had caused.A general conclusion based on the Bridgepoint analysis is that significant improvements in theprocess of applying No Net Loss would have been realized by employing the principles indicated bythe Principled Negotiation method. In making this recommendation, it is noted that support forthe broader application of negotiation techniques in resolving environmental conservation andeconomic development disputes has been similarly voiced by The Report of the British ColumbiaTask Force on Environment and Economy (1989:32). The role of negotiation and mediation inreaching consensus over such disputes is explored in even greater detail in the report by The177British Columbia Round Table on the Environment and the Economy (1991) entitled ReachingAgreement: Consensus Processes in British Columbia.One final point evident from the Bridgepoint analysis was that DFO's hierarchical four stepapproach for evaluating projects - i.e. prevention, mitigation, compensation and rejection - is gearedfor confrontation. The farther along a proponent is in the process, the less likely he will be tosimply drop a project. The suggestion was made that a preferred approach would be to implementa system which provided for a qualified rejection from the start, in order to reduce the potentialfor conflict.In conclusion, the examination and analysis of the Bridgepoint Market Development as anapplication of No Net Loss, has provided a number of insights as to how the process would beimproved through an adherence to the four basic principles for negotiation; i.e. Separating thePeople from the Problem, Focusing on Interests, not Positions, Inventing Options for Mutual Gain,and Insisting on Using Objective Criteria. Arguably, the strengthening of this key component ofthe Department of Fisheries and Oceans' Policy for the Management of Fish Habitat  would alsoserve to strengthen the national objectives for managing the resource.178BIBLIOGRAPHYREFERENCES CITEDAlexander, E. 1986. Approaches To Planning: Introducing Current Planning Theories, Concepts, and Issues.Alexander, L.J. 1982. 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Organizational Behavior and Personnel Psychology.Williams G., Aquatic Ecologist, Gary Williams and .eksociates. Personal communication,Jan 15, 1991.Williams G., J. Villamere and G. Smith. 1984. An Environmental Assessment of the Proposed Bridgepoint Harbour Market Foreshore Development.183184INTERVIEW CONTACTS1. Ian Chang, Community Planner, Municipality of Richmond.2. Craig Runyan, Environmental Control Officer, Municipality of Richmond.3. Alex Jamieson, Special Projects Planner, Municipality of Richmond.4. Peter Delaney, Senior Program Biologist, Habitat Management Division, Department ofFisheries and Oceans.^ •5. Otto Langer, Habitat Management Division, Department of Fisheries and Oceans.6. Ken Bennett, Public Health Inspector, Municipality of Richmond.7. George Colquhoun, Port Manager, North Fraser Harbour Commission.10. Gary Williams, Aquatic Ecologist, G.L. Williams & Associates.11. Don Tretheway, Canadian Wildlife Service, Environment Canada.12. Linda Duncan, B.C. Fish and Wildlife Management Branch.APPENDICESAPPENDIX ONE185BRIDGEPOINT PHOTOGRAPHSPHOTO 1:BRIDGEPOINT MARKET 'S MAIN BUILOtNG186187PHOTO 2:THIS VIEW SHOWS THE MAIN MARKET BUILDING, AND THEWATERFRONT MARINA.PHOTO 3:A CLOSE UP VIEW SHOWING THE REMAINING MARSHSITUATED BEHIND THE MARINA'S OBSERVATION PIER,_^•^7rPHOTO 5:LOOKING ovro THE PRESERVED MARSH AT LOW TIDE.188PHOTO 4:LOOKING INTO THE FRONT OF THE PRESERVED MARSHAT HIGH TIDE.189PHOTO a:A PORTION OF THE^THE WATERFRONTPUB / RESTAURANT.PHOTO 7:LOG STORAGE ON THE OUTSIDE EDGE OF THE MARSH.APPENDIX TWO190GLOSSARY OF TERMS AND ABBREVIATIONS191APPENDIX TWO: GLOSSARY OF TERMS AND ABBREVIATIONSANADROMOUS:^"Fish that migrate from freshwater to the sea" (Ince,1984a:64).CEPA:^ The Canadian Environmental Protection Act.COMPENSATION FOR LOSS:^includes natural habitat replacement, productivity increasesof existing habitat, and artificial methods of maintaining fishproduction (DFO, 1986a:29).CWS:^ Canadian Wildlife Service (Environment Canada).DELETERIOUS SUBSTANCE:DEPOSIT:(partial definition) "any substance that, if added to any water,would degrade or alter or form part of a process of degradingor alteration of the quality of that water so that it is renderedor is likely to be rendered deleterious to fish or fish habitat orto the use by man of fish that frequent that water ..." (RSC,Fisheries Act, 1985:s34(1))."any discharging, spraying, releasing, spilling, leaking,seeping, pouring, emitting, emptying, throwing, dumping orplacing" (RSC, Fisheries Act, 1985:s34(1)).DFO:^ The Federal Department of Fisheries and Oceans.ECOSYSTEM:FISH:FISH HABITAT:FOOD CHAIN:"A community of living things interacting with one anotherand with their physical environment ... an ecosystem alwayshas two manor parts or components: nonliving and living.The nonliving, or abiotic, part includes an outside energysource (usually the sun), various physical factors such as windand heat, and all of the chemicals essential for life. Theliving, or biotic, portion of an ecosystem can be divided intofood producers (plants) and food consumers. Consumers areusually further divided into macroconsumers (animals) anddecomposers, or microconsumers, (chiefly bacteria and fungi)"(Miller, 1979:43)."includes shellfish, crustaceans, marine animals and the eggs,spawn, spat and juvenile stages of fish, shellfish, crustaceansand marine animals" (RSC, Fisheries Act, 1985:s2)."spawning grounds and nursery, rearing, food supply andmigration areas on which fish depend directly or indirectly inorder to carry out their life processes" (RSC, Fisheries Act,1985:s34(1))."sequence of transfers of energy in the form of food fromorganisms in one trophic level to those in another when oneorganism eats or decomposes another" (Miller, 1979:A10).FOOD WEB:^ "complex, interlocking series of food chains" (Miller,1979:A10).FRES:^ Fraser River Estuary Study.192MITIGATION:^ "actions taken during the planning, design, construction andoperation of works and undertakings to alleviate potentialadverse effects on the productive capacity of fish habitat"(DFO, 1986a:30).NFHC:^ The North Fraser Harbour Commission.NET GAIN: "An increase in habitats for selected fisheries brought about bydetermined government and public efforts to conserve, restoreand develop habitats". (DFO. 1985. Proposed Policy andProcedures for Fish Habitat Management:27).NO NET LOSS PRINCIPLE:^"A working principle by which the department strives tobalance unavoidable habitat losses with habitat replacement ona project - by - project basis so that further reductions toCanada's fisheries resources due to habitat loss or damagemay be prevented" (DFO, 1986a:30).PRODUCTIVE CAPACITY:^"The quantity of fish that is normally produced by unimpairedhabitats under natural conditions." (DFO. 1985. Proposed Policy and Procedures for Fish Habitat Management:27).RSCC:^ Regional Screening and Coordinating Committee.RIPARIAN VEGETATION:TROPHIC LEVEL:"the trees and shrubs growing along the bank of a naturalwatercourse or at the edge of a lake or a tidewater" (Dorcey,Hall, Levy, and Yesaki. 1983:52)."level where energy in the form of food is transferred from oneorganism to another in a food chain or food web" (Miller,1979:A18).APPENDIX THREESUBMISSION FOR ETHICAL REVIEW193CERTIFICATE OF APPROVAL 194The University of British Columbia^B90-310Office of Research ServicesBEHAVIOURAL SCIENCES SCREENING COMMITTEE FOR RESEARCHAND OTHER STUDIES INVOLVING HUMAN SUBJECTSCERTIFICATE^of APPROVALINVESTIGATOR: Dorsey, T.UBC DEPT:^Comm/Regional PlanningINSTITUTION:^Private OfficesTITLE:^The Brid9epoint Development - Anapplication of no net loss in the FraserEstuaryNUMBER:^B90-310CO-INVEST:^Brownlee, D.APPROVED:^OCT 2 6 1920The protocol describing the above-named project has beenreviewed by the Committee and the experimental procedures werefound to be acceptable on ethical grounds for researchinvolving human subjects.THIS CERTIFICATE OF APPROVAL IS VALID FOR THREE YEARSFROM THE ABOVE APPROVAL DATE PROVIDED THERE IS NOCHANGE IN THE EXPERIMENTAL PROCEDURES

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