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British Columbia parks and mines in conflict : an evaluation of resolution processes Marcy, Norman Karl 1985

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BRITISH COLUMBIA PARKS AND MINES IN CONFLICT: AN EVALUATION OF RESOLUTION PROCESSES by NORMAN KARL MARCY B.Sc. The U n i v e r s i t y o-f V i c t o r i a , 1980 A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF SCIENCE in THE FACULTY OF GRADUATE STUDIES (School o-f Community and Regional Planning) We accept t h i s t h e s i s as con-forming to the r e q u i r e d standard THE UNIVERSITY OF BRITISH COLUMBIA 1985 © Norman K a r l Marcy, 1985 In presenting t h i s thesis i n p a r t i a l f u l f i l m e n t of the requirements for an advanced degree at the University of B r i t i s h Columbia, I agree that the Library s h a l l make i t f r e e l y available for reference and study. I further agree that permission for extensive copying of t h i s thesis for scholarly purposes may be granted by the head of my department or by h i s or her representatives. I t i s understood that copying or publication of t h i s thesis for f i n a n c i a l gain s h a l l not be allowed without my written permission. S c h o o l of Community and R e g i o n a l P l a n n i n g Department of The University of B r i t i s h Columbia 1956 M a i n M a l l Vancouver, Canada V6T 1Y3 Date ? Abstract The purpose of t h i s t h e s i s i s to evaluate a l t e r n a t i v e processes f o r r e s o l v i n g c o n f l i c t s between mineral development, and park p r e s e r v a t i o n i n t e r e s t s i n B r i t i s h Columbia. The p e c u l i a r i t i e s and v a r i a t i o n w i t h i n the generic c o n f l i c t i l l u s t r a t e the divergence between two main i n t e r e s t groups, and the r e p r e s e n t a t i v e p r o v i n c i a l resource agencies. A b r i e f examination of eight cases demonstrates the c o n f l i c t i s manifest with d i f f e r e n t i n t e n s i t i e s , over a wide time range, and with geographic v a r i e t y . By comparing the supposed weakness of the l i t i g a t i o n model and the claimed advantages of the bargaining model f o r processing of c o n f l i c t to r e s o l u t i o n , f i v e c r i t e r i a f o r e f f i c i e n c y are developed: time and delay; c o s t ; c a p a c i t y f o r t e c h n i c a l issues; opportunity f o r p a r t i c i p a t i o n ; and f l e x i b i l i t y of outcomes. Examples of c o n f l i c t dialogue i l l u s t r a t e c o g n i t i v e , value, i n t e r e s t and behavioral c o n f l i c t i n the parks / mines s i t u a t i o n with the aim that the reader and the researcher can have a communality of experience and t o o l s f o r understanding i n assessing the d e t a i l e d case evidence. D e t a i l e d examination of the Wells Gray P r o v i n c i a l Park case and C h i l k o Lake Wilderness Park Proposal i l l u s t r a t e strong B r i t i s h Columbia examples of both l i t i g a t i o n and bargaining models under the same time and p o l i t i c a l circumstance. Not a l l of the a l l e g a t i o n s of strength or weakness are s u b s t a n t i a t e d i n e i t h e r case. The promise demonstrated i n the unstructured v e r s i o n of bargaining found i n the C h i l k o example may be improved through innovation and commitment. TABLE OF CONTENTS page Abstract i i Table of Contents i i i L i s t of Figures v L i s t o-f Appendices v Acknowledgments , v i CHAPTER 1 Int r o d u c t i o n 1 Recognition o-f the Problem 2 Goal 3 Obj e c t i v e s 3 Methods 4 Data 5 CHAPTER 2 The Parks / Mines Con-flict i n B r i t i s h Columbia 6 H i s t o r i c Phases o-f Parks / Mines Decision Making Environments 7 D i f f i c u l t y of Resources Inventory and Assessment 20 The I n e v i t a b l e Rise of C o n f l i c t 24 Short Cases of Parks / Mines C o n f l i c t 26 C h i l k o Lake Park Proposal 26 South Moresby Wilderness Proposal 29 V a l h a l l a Wilderness Park 31 Kwadacha Wilderness Park 34 Strathcona P r o v i n c i a l Park 35 Tweedsmuir P r o v i n c i a l Park 37 Wells Gray P r o v i n c i a l Park 39 A t l i n P r o v i n c i a l Park 41 Summary 42 CHAPTER 3 Bargaining vs. L i t i g a t i o n 45 Concepts of C o n f l i c t 46 C o n f l i c t R e s o l u t i o n i n Canada and the United States 48 Weakness of L i t i g a t i o n 49 Research Question 54 Claimed Advantages of Bargaining 55 L i m i t a t i o n 58 Tools f o r Understanding 60 Summary 74 i i i page CHAPTER 4 Two Cases of Parks / Mines C o n f l i c t : Wells Gray P r o v i n c i a l Park and C h i l k o Lake Park Proposal 75 In Depth D e s c r i p t i o n of Two Cases 76 Wells Gray P r o v i n c i a l Park 77 C h i l k o Lake Wilderness Park Proposal 86 CHAPTER 5 Assessment of the Case Evidence 102 Time and Delay 103 Cost 106 Capacity f o r Technical Issues „ 108 Opportunity f o r P a r t i c i p a t i o n 110 F l e x i b i l i t y of Outcomes 113 Summary 115 CHAPTER 6 Conclusions 116 Conclusions 117 Recommendations 120 References C i t e d 124 Personal Interviews and Communications 132 Appendices 134 i v L i s t of Figures page Figure I Phases of Parks / Mines Decision Making Environment 9 Figure I I Designation P e r i o d s , Number of Parks and M i l l i o n s of Acres - P r o v i n c i a l Park Land i n B r i t i s h Columbia 12 Figure I I I C l a s s i f i c a t i o n of Mineral Reserves and Resources 24 Figure IV B r i t i s h Columbia Parks / Mines C o n f l i c t L ocations 27 L i s t of Appendices Appendix 1 Chronological L i s t of Newspaper A r t i c l e s 132 Appendix 2 Parks / Mines Decision Making Environment Phases 138 Appendix 3 Case S e l e c t i o n Factors A n a l y s i s 141 Appendix 4 Chronology of Events Wells Gray P r o v i n c i a l Park 148 Appendix 5 Chronology of Events C h i l k o Lake Wilderness Proposal 151 v Acknowledgements Without the s p e c i a l support of Terry and my -family t h i s t h e s i s would not be w r i t t e n . As my a d v i s o r s , Tony Dorcey and Norman Dale have provided a balance of r i g o r and u n f a i l i n g commitment to c r i t i c i s m with c o n s u l t a t i o n and c o n s t r u c t i v e advice. Lengthy and repeated meetings have allowed the time to explore a v a r i e t y of avenues f o r research and development of the t h e s i s . S p e c i a l thanks to P h i l i p Dearden f o r agreeing to be my e x t e r n a l examiner. To those who allowed me the p r i v i l e g e of i n t e r v i e w s and d i s c u s s i o n s of the parks / mines c o n f l i c t I am g r a t e f u l . I f u l l y recognize my r e s p o n s i b i l i t y f o r any m i s i n t e r p r e t a t i o n of m a t e r i a l s , erroneous statements or omissions made i n the t h e s i s . To the many f r i e n d s and f e l l o w students who l i s t e n e d to the hours of d i s c u s s i o n of t h i s work I thank you a l l f o r a l l o w i n g my indulgence. A number of d i s t i n c t i v e quotations represent some of the thoughts and f e e l i n g s that have been encountered i n preparation of t h i s t h e s i s : Misunderstandings don't e x i s t ; only the f a i l u r e to communicate e x i s t s . Senegalese proverb. Oh gold! gold! thou d a z z l i n g demon, what anguish thou cost me ... Why was I not content? Cariboo S e n t i n e l October 10, 1867. ...Wilderness i s a r e l a t i v e c o n d i t i o n . As a form of land use i t cannot be a r i d g i d e n t i t y of unchanging content, e x c l u s i v e of a l l other forms. On the c o n t r a r y , i t must be a f l e x i b l e t h i n g , accommodating i t s e l f to other forms and blending with them i n that h i g h l y l o c a l i z e d give-and-take scheme of land planning which employ the concept of highest use... Aldo Leopold as c i t e d by Ian McTaggart Cowan 1968. Mining, most c o l o r f u l most misunderstood. A bumper s t i c k e r seen i n Northwest B r i t i s h Columbia. v i C H A P T E R 1 INTRODUCTION A recent newspaper a r t i c l e exclaims b r a s h l y , "Law opens way •for mining i n park" (Bonn, 1985a). A Supreme Court of Canada d e c i s i o n on May 9, 1985 has forced the province of B r i t i s h Columbia to allow mineral c l a i m development to be continued i n Wells Gray P r o v i n c i a l Park. Not s i n c e 1973 had the p r o v i n c i a l laws allowed the e x p l o r a t i o n and development of mineral resources w i t h i n designated park land. The court r u l i n g has been the r e s u l t of a long and c o n t i n u i n g divergence between p a r t i e s i n favour of mineral e x p l o r a t i o n and development i n park and proposed park areas, and p a r t i e s supporting the establishment and maintenance of park land i n the province. The r e s u l t s of l i t i g a t i o n model c o n f l i c t r e s o l u t i o n processes are seen as l e s s than s a t i s f a c t o r y by p a r t i e s on both s i d e s of the i s s u e . Mining i n t e r e s t s continue to be u n c e r t a i n about the s e c u r i t y with which r i g h t s to minerals are held, while park proponents maintain a s k e p t i c i s m that park designations w i l l remain as areas of conservation and o p p o r t u n i t i e s f o r outdoor r e c r e a t i o n . Government agencies involved i n the dispute are faced with a complex n a t u r a l resources management s i t u a t i o n that w i l l cause both a d m i n i s t r a t i v e and f i n a n c i a l burdens. The Wells Gray case, mentioned above, i s the culmination of at l e a s t seven years of l e g a l a c t i o n and 15 years of sporadic attempts at c o n f l i c t r e s o l u t i o n . A v a r i e t y of other s i m i l a r and r e l a t e d cases form an array of parks / mines land use c o n f l i c t i n B r i t i s h Columbia. I t i s t h i s continued c o n f l i c t over land use a l t e r n a t i v e s that i s addressed i n t h i s t h e s i s . A v a r i e t y of approaches to r e s o l v i n g t h i s divergence have been put forward by 2 government agencies and i n t e r e s t e d p a r t i e s . In a d d i t i o n to the Wells Gray s i t u a t i o n , a r e l a t e d and somewhat inte r t w i n e d example o-f t h i s c o n f l i c t i s found i n the circumstance and a c t i o n s comprised i n the C h i l k o Lake Wilderness Park Proposal. An examination of these two cases forms the e m p i r i c a l component f o r t h i s t h e s i s i n v e s t i g a t i o n . The purpose of t h i s t h e s i s i s to evaluate a l t e r n a t i v e processes f o r r e s o l v i n g c o n f l i c t s between minerals development and park p r e s e r v a t i o n i n t e r e s t s i n B r i t i s h Columbia. QJaj.ectiv.£s A number of o b j e c t i v e s need be achieved i n order to reach the goal that has been s e t . These o b j e c t i v e s can be d i v i d e d i n t o three p a r t s . In the f i r s t p art, the o b j e c t i v e s are: 1. To introduce the parks / mines c o n f l i c t . 2. To j u s t i f y that there i s a s i g n i f i c a n t problem i n B r i t i s h Columbia, worthy of i n v e s t i g a t i o n . 3 . To f a m i l i a r i z e the reader with the s o c i a l , economic and p o l i t i c a l s t r e s s e s w i t h i n which the parks / mines c o n f l i c t d e c i s i o n making i s conducted. In the second par t , the o b j e c t i v e s are: 4. To e x p l a i n the l i t i g a t i o n and bargaining models of c o n f l i c t p rocessi ng. 5. To e x p l a i n a typology of c o n f l i c t causes with i l l u s t r a t i o n s of g e n e r a l i z e d park / mines examples, thus developing a communality of understanding between the reader and the 3 researcher. In the t h i r d p a r t , the o b j e c t i v e s are: 6. To d e s c r i b e , i n d e t a i l , two cases of c o n f l i c t i n l i g h t of the models and c r i t e r i a developed i n the second part. 7. To evaluate p r a c t i c e d c o n f l i c t r e s o l u t i o n processes. 8. To p r e s c r i b e c o n f l i c t r e s o l u t i o n process improvements. Method Chapter 2 describes development of both the parks and mines s e c t o r s and d i f f i c u l t i e s of resources management and c o n f l i c t s i t u a t i o n s as ex e m p l i f i e d i n the B r i t i s h Columbia s i t u a t i o n . In p a r t i c u l a r through the examination of eight separate parks / mines c o n f l i c t examples, the reader w i l l become f a m i l i a r with the general concept involved i n the generic c o n f l i c t . Chapter 3 examines and c l a r i f i e s the a l l e g e d weaknesses of the l i t i g a t i o n model i n processing c o n f l i c t and the claimed advantages of the bargaining model f o r c o n f l i c t r e s o l u t i o n . A d d i t i o n a l l y , a c o n f l i c t cause typology i s i l l u s t r a t e d with examples such that the researcher and the reader w i l l develop some understanding of the t o o l and d i r e c t i o n s that have been taken i n t h i s research. Chapter 4 gives an i n depth d e s c r i p t i o n of two cases of parks / mines c o n f l i c t and r e s o l u t i o n approaches, thus p r o v i d i n g a b a s i s f o r a n a l y s i s of the l i t i g a t i o n and bargaining models as used i n B r i t i s h Columbia. Chapter 5 i s an e v a l u a t i o n of each example using the claimed advantages and disadvantages as a framework f o r a n a l y s i s . In c o n c l u s i o n , Chapter 6 br i n g s forward a summary of f i n d i n g s and proposes innovations to e x i s t i n g c o n f l i c t processing 4 p r a c t i c e s that might r e s u l t i n improved e-f-ficiency and s a t i s f a c t i o n f o r a l l p a r t i c i p a n t s . Data Information that has been used i n the preparation of t h i s t h e s i s has been gathered from the f o l l o w i n g sources: 1. Relevant l i t e r a t u r e on c o n f l i c t , n a t u r a l resources management, l i t i g a t i o n , n e g o t i a t i o n and mediation. 2. Extensive newspaper coverage of parks / mines c o n f l i c t , as w e l l as background l i t e r a t u r e on park and mining a c t i v i t i e s and s i g n i f i c a n c e i n B r i t i s h Columbia. A l i s t of the newspaper a r t i c l e s i s included i n Appendix 1 r e f l e c t i n g the v a l u a b l e information gained i n developing a c h r o n o l o g i c a l understanding of the parks / mines c o n f l i c t i n B r i t i s h Columbia; 3. Case s p e c i f i c p u b l i c documents p e r t a i n i n g to v a r i o u s parks / mines c o n f l i c t s ; 4. Court and l e g a l documents p a r t i c u l a r to the Wells Gray P r o v i n c i a l Park case; 5. Personal i n t e r v i e w s with government o f f i c i a l s , mineral industry r e p r e s e n t a t i v e s , park and wilderness proponents conducted i n the main during A p r i l and May 1985, these are augmented by p r i o r and subsequent communications. 5 CHAPTER 2 THE PARKS / MINES CONFLICT IN BRITISH COLUMBIA 6 The parks / mines c o n f l i c t i n B r i t i s h Columbia i s worthy of i n v e s t i g a t i o n . Both the mining sector and the parks r e l a t e d sector play important r o l e s i n the h i s t o r y and economic development of B r i t i s h Columbia. When involved i n land use c o n f l i c t , the progress and c o n t r i b u t i o n of each i s impeded. Four phases of the d e c i s i o n making environment w i t h i n which the h i s t o r y of the parks / mines c o n f l i c t has t r a n s p i r e d w i l l form a b a s i s f o r the reader's understanding of the a c t i o n s taken by p a r t i e s involved. The c o n f l i c t can be shown to be both g e o g r a p h i c a l l y d i v e r s e and v a r i e d i n p o l i t i c a l i n t e n s i t y . The b r i e f case examples that f o l l o w w i l l i l l u s t r a t e two parks / mines c o n f l i c t c a t e g o r i e s : f i r s t , a s i t u a t i o n where park land i s the p r i o r or e x i s t i n g use designation and mineral i n t e r e s t s are seeking access, and second, where mineral land use designations are e s t a b l i s h e d p r i o r to park i n t e r e s t s p u r s u i t of conservation land designation. Before examining cases of parks / mines c o n f l i c t i n B r i t i s h Columbia, we w i l l need an understanding of the four phases of the d e c i s i o n making environment as they form the context w i t h i n which the s p e c i f i c a c t i o n s of resource managers, l o b b y i s t s and p o l i t i c i a n s have taken place. This d e s c r i p t i o n i s made with the assumption that to some extent, the province wide, n a t i o n a l and i n t e r n a t i o n a l p o l i t i c a l and economic trends have an e f f e c t on the d e c i s i o n making environment i n which the parks / mines c o n f l i c t occurs. The four general eras or phases can be i d e n t i f i e d i n the 7 -following way. F i r s t , the period p r i o r to 1972, can be thought o-f as r e l a t i v e l y s t a b l e i n the dynamics o-f the c o n f l i c t . Second, the period o-f 1972 to 1975 i s dominated by the polar s h i f t i n p o l i c i e s and a d m i n i s t r a t i o n as the r e s u l t of the New Democratic Par t y ' s e l e c t i o n . T h i r d , a period of p r o s p e r i t y and a c t i v i t y accompanied by a r e t u r n of the S o c i a l C r e d i t Party from 1976 through 1980. Fourth and f i n a l l y , from 1981 onward, the phase that has been dominated by the s t r e s s e s of economic recession and a r i s e i n r i g h t of center p o l i c i e s . Figure I o u t l i n e s the chronology and major c h a r a c t e r i s t i c s of each of the d e c i s i o n making environment phases that have been experienced i n r e s o l u t i o n of the B r i t i s h Columbia parks / mines c o n f l i c t . A more d e t a i l e d examination of the development and c h a r a c t e r i s t i c s of each of these d e c i s i o n environment phases f a l l o w s . 8 FIGURE I PHASES OF PARKS / MINES DECISION MAKING ENVIRONMENT NOTE: a d e t a i l e d chronology of events i s -found i n Appendix 2. 1930 - 1971 - e x p l o r a t i o n and claims allowed i n parks - r i s e i n environmental ism -strong economic c o n d i t i o n s - s t a b l e pro mineral development government 1972 - 1975 -new government with conservation stance -planning of resource management adopted -mineral e x p l o r a t i o n banned i n a l l parks -claims i n parks are considered f o r purchase 1976 - 1980 -pro mining and development government returned - p o l i c y on mineral a c t i v i t y reconsidered -park planning continues -economic growth and mineral industry prosper 1981 - PRESENT -sharp economic down turn - r e - e l e c t i o n of pro business government - r e s t r a i n t in government agencies and planning - p o l i t i c a l demands f o r parks j u s t i f i c a t i o n Foundation Phase In the Foundation Phase of the parks / mines c o n f l i c t r e s o l u t i o n environment both minerals and park resources were f i r s t recognized and developed. Though coal was the f i r s t mineral of s i g n i f i c a n c e to be mined , major development began with the lower Fraser River gold rush of 1858. Subsequent gold rushes through the Cariboo area, the S t i k i n e and Peace r i v e r s , then on to the Kootenays by 1865, saw much D f the province i n f i l t r a t e d by "freeminers" i n search of resources. A r e s u l t of t h i s i n f l u x , combined with settlement and demands f o r f o r e s t FOUNDATION PHASE REVOLUTION PHASE PROSPERITY PHASE RECESSION PHASE resources and a g r i c u l t u r e , saw a quick development o-f transport routes and t r a d i n g arrangements. In a d d i t i o n , a quick assessment of the vast resources and p o t e n t i a l to be r e a l i z e d i n the province was s t i m u l a t e d . (Ramsey, 1957; Ramsey, 1969; Gunn, 1978) Fo l l o w i n g the placer gold miners and leading through the turn of the century and on to World War I, load gold, and subsequently s i l v e r , lead and z i n c , became important minerals produced i n B r i t i s h Columbia. World War I brought an intense search i n the province f o r 'war metals' - chromium, molybdenum, mercury and tungsten. These same minerals were sought and produced again during World War I I . The passage of time has brought a major s h i f t i n the technology used f o r mining p a r t i c u l a r l y a move toward the c a p i t a l i z a t i o n of the mining i n d u s t r y . The labor i n t e n s i v e mine of e a r l y times was replaced by the use of b u l l d o z e r s , power shovels, and large t r u c k s . The key to t h i s change was the increased use of petroleum f u e l s . Throughout t h i s time period the mineral industry i n B r i t i s h Columbia was but m a r g i n a l l y surpassed by the f o r e s t sector i n the d o l l a r value of resources produced. (Fry, 1966) Parks i n B r i t i s h Columbia were f i r s t created i n response to the conservation movement conceived i n the United States and r e f l e c t e d i n Canada by the Commission of Conservation through the beginning of the 190C*s. During the e a r l y part of the province's h i s t o r y i t was the government's p o l i c y to g r a d u a l l y e s t a b l i s h a park system throughout the province.(Thompson, pers. comm., March 11, 1983) The period 1939 to 1945 was a time of continued gradual growth i n both the number and area included i n p r o v i n c i a l 10 parks. ( B r i t i s h Columbia, 1980) A r a p i d period o-f park development came a-fter World War I I i n response to an increased m o b i l i t y and demand -for l e i s u r e and r e c r e a t i o n . (Youds, 1978) The large p r o v i n c i a l parks o-f the wilderness type are unevenly d i s t r i b u t e d i n r e l a t i o n to the population centers o-f the province. At the same time, not a l l landscapes and ecosystems •found i n the province have been represented. (Nelson, 1974) The - f i r s t parks to be created were l a t e r under heavy pressure -for •forestry, mining, power and i n the case o-f a park i n the L i a r d b a s i n , e l i m i n a t i o n . (Olcay, 1980) These a c t i o n s r e s u l t e d i n a steady reduction i n the area, though not the number o-f parks designated i n B r i t i s h Columbia.(Youds 1978, B r i t i s h Columbia, 1980) (See Figure I I . ) 11 FIGURE I I DESIGNATION PERIODS, NUMBER OF PARKS AND MILLIONS OF ACRES - PROVINCIAL PARK LAND IN BRITISH COLUMBIA. (adapted and modi-fied -from Youds 1978). updated data •from B. C. P r o c i n c i a l Parks Data Handbooks. PERIOD OF DESIGNATION 1 2 3 ! i ! i ! 1900 1920 1940 1960 1980 YEARS ACREAGE - NUMBER OF PARKS During the formative years of the parks / mines c o n f l i c t i n B r i t i s h Columbia, government l o n g e v i t y , through c o a l i t i o n s from 1941 to 1953 followed by a 20 year r e i g n of the S o c i a l C r e d i t Party, r e s u l t e d i n an economically and p o l i t i c a l l y s t a b l e period a l l o w i n g the development of government p o l i c i e s i n response to lobby i n t e r e s t s on both s i d e s of the parks / mines issue. Stable and pro-development government was a f a c t o r i n maintaining mineral industry i n t e r e s t s i n a t r a d i t i o n a l l y unencumbered s t a t e . Through t h i s phase, mineral e x p l o r a t i o n and cl a i m s t a k i n g was allowed i n p r o v i n c i a l parks. R e l a t i v e l y low metal p r i c e s i n the 1950's and i960's kept the l e v e l of mineral e x p l o r a t i o n a c t i v i t y correspondingly low. Growing strength i n the environmental movement led to questioning of the e x i s t i n g park land use p o l i c i e s . The f i r s t exception to the dominance of mineral i n t e r e s t s was the 1964 e l i m i n a t i o n of mineral industry a c t i v i t y in parks of l e s s than 5,000 acres. This a c t i o n was the f i r s t impingement on an open door p o l i c y that had been e s t a b l i s h e d i n 1919. The t i g h t e n i n g of r e g u l a t i o n s covering the a c t i o n s of the mineral industry responded to the growing environmental movement and the demand f o r conservation that accompanied i t during the 1960*s. However, the t r a d i t i o n a l lobby strength of the mining industry i n company with other pro business and mining i n t e r e s t s prevented wholesale changes i n the r e g u l a t i o n of mineral industry a c t i v i t y on crown lands i n c l u d i n g parks.(Anon. 1965,) Changes i n the Park Act of 1965 l i m i t e d the s t a k i n g of mineral claims i n parks by r e q u i r i n g the approval of the m i n i s t e r . This approval was granted f r e q u e n t l y and with leniency through the 1960's.(Anon 1967b, Anon 1968) Mineral land use r e g u l a t i o n s at t h i s time were a l s o poorly developed. The e f f e c t of any a c t i o n s with p o t e n t i a l to a l i e n a t e park lands from mineral industry a c t i v i t i e s was minimal. This impotence, however, was cause f o r a considerable storm of p o l i t i c a l controversy between 1968 and 1972, which formed the b a s i s on which much of the i n t e r e s t and momentum f o r p o l i t i c a l and r e g u l a t o r y change i n the f o l l o w i n g phase was based. Though some concessions to the pressure from the c o n s e r v a t i o n i s t s ' l o b b y were made, i n c l u d i n g mineral land reclamation r e g u l a t i o n s , the government maintained a resources 13 development posture toward park land.(Olcay, 1980) Youds (1977) suggests that the development of park and r e c r e a t i o n resources r e f l e c t s a maturation of B r i t i s h Columbia a f t e r the mineral resources formed part of the e a r l y b a s i s f o r development. Revolution Phase I w i l l c a l l the second c o n f l i c t r e s o l u t i o n environment the Revolution Phase. The second phase b u i l d s on the r i s e i n environmentalism and outdoor r e c r e a t i o n that was begun and accelerated toward the l a t t e r part of the f i r s t phase. Beginning with the e l e c t i o n of the New Democratic Party i n the f a l l of 1972, a short period of three years followed i n which s i g n i f i c a n t changes occurred i n the a d m i n i s t r a t i o n of nat u r a l resources and, in p a r t i c u l a r , i n the processes of management and c o n f l i c t r e s o l u t i o n . The e l e c t i o n of the New Democratic Party was the key event which f a c i l i t a t e d s w i f t changes i n the long e s t a b l i s h e d parks / mines d e c i s i o n making schema. These a c t i o n s were taken i n an era of strong economic c o n d i t i o n s , e s p e c i a l l y i n the mining s e c t o r , with the opening and p r o f i t a b l e operation of many mines, producing copper and molybdenum. The growth r a t e s of 5-7 %, or greater, experienced i n western economies during the 1950*5 -1970's had given r i s e to great expectations. There was a perception among the newly formed government that the strength of the mining sector could withstand considerable t a x a t i o n and r e g u l a t i o n . E l e c t e d on a platform that encompassed many strong pro-environmental and conservation planks, the New Democratic Party were obliged to make s i g n i f i c a n t changes. F i r s t , no f u r t h e r 14 mineral claims were granted i n p r o v i n c i a l parks. This was accompanied by changes i n both the Park Act and the Mineral Act. These a c t i o n s can be seen to be the end r e s u l t a-f s i g n i f i c a n t pressure i n the parks / mines d e c i s i o n making environment that was t r a n s l a t e d i n t o the p o l i t i c a l arena as changes i n government and l e g i s l a t i o n . In a d d i t i o n to e l i m i n a t i o n of e x p l o r a t i o n and mineral c l a i m s t a k i n g i n parks, there would be a strengthening of the e x i s t i n g park designations by changing them from orders i n c o u n c i l to being incorporated i n t o the new Parks Act l e g i s l a t i o n . To strengthen and r a t i o n a l i z e the resources management d e c i s i o n making process, the Environment and Land Use Committee of cabinet was augmented by a research S e c r e t a r i a t e . This m u l t i d i s c i p l i n a r y group r e f l e c t e d the strong planning o r i e n t a t i o n that was a part of the New Democratic Party's p h i l o s o p h i c a l underpinnings. In f a c t , t h i s phase of the parks / mines c o n f l i c t r e s o l u t i o n environment could be c a l l e d the era of planning. P u b l i c lobby i n t e r e s t s were incorporated i n t o the d e c i s i o n making process through p u b l i c p a r t i c i p a t i o n programs as an i n t e g r a l part of the planning process. The S e c r e t a r i a t e i n i t i a t e d and d i r e c t e d many of the planning a c t i v i t i e s that were needed f o r the accumulation and dissemination of information associated with the parks / mines c o n f l i c t as i t developed through the 1970's. The e f f e c t of the emphasis on planning continued a f t e r the New Democratic Party was defeated and a f t e r the Environment and Land Use Committee had been disbanded. Though the New Democratic Party imposed sharp tax measures on the mining i n d u s t r y , i n combination with more r e s t r i c t i v e land use r e g u l a t i o n s , value of mineral production would not d e c l i n e . ( B r i t i s h Columbia, 1979) 15 The economy i n general would continue to be productive and enjoy growth. P r o s p e r i t y Phase The t h i r d d e c i s i o n making era can be described as the P r o s p e r i t y Phase. The underlying f a c t o r that most co n t r i b u t e d to the nature o-f the d e c i s i o n making environment between the r e - e l e c t i o n o-f the S o c i a l C r e d i t government i n 1975 and the onset a recessionary trend i n both the p r o v i n c i a l and world economies i n 1981, was the strength and growth o-f the economy. R i s i n g metal p r i c e s i n the l a t t e r h a l f of the 1970's caused a resurgence of e x p l o r a t i o n a c t i v i t y throughout B r i t i s h Columbia as formerly uneconomic mineral deposits became more v i a b l e . Advances i n the economy were accompanied by i n c r e a s i n g l e i s u r e a c t i v i t y and the r i s i n g demand f o r a e s t h e t i c and outdoor resources. Of p a r t i c u l a r i n t e r e s t i n B r i t i s h Columbia has been the promotion of the "Super N a t u r a l " f e a t u r e s of the province as a d e s t i n a t i o n f o r t o u r i s t s and r e s i d e n t s seeking an outdoor r e c r e a t i o n a l experience.(Dorcey, 1984a) Consequently, p r o v i n c i a l tourism, as p a r t i a l l y supported by the a t t r a c t i o n s i n parks, has become an i n c r e a s i n g l y important component of the economy. Over the past decade the tourism sec t o r has seen a near doubling of revenues.(Stubbs, 1984) During t h i s period world metal p r i c e s were very high, with new records being set i n precious metals the most notable of which was gold. The strength of demand f o r resources r e s u l t e d i n the operation of a large number of mines throughout the province and a strong i n t e r e s t i n mineral deposits that had, before the advance i n p r i c e s , been sub-economic. As a large number of mineral deposits can, under strong economic c o n d i t i o n s , be 16 e x p l o i t e d p r o f i t a b l y , the pressure f o r access to park lands f o r mineral e x p l o r a t i o n was s l i g h t . High metal p r i c e s would s t i m u l a t e mineral e x p l o r a t i o n a c t i v i t y , but the u n c e r t a i n t i e s of e x p l o r i n g i n park lands or proposed park lands would be enough of an encumbrance that i t would l a r g e l y be avoided. Enough mineral resources outside of park areas would show promise under these c o n d i t i o n s that pressure f o r access would be diminished. The mining i n d u s t r i e s ' perception during periods of strong metal p r i c e s would be that l i t t l e or nothing i s p o t e n t i a l l y l o s t by e x i s t i n g park designations. However, new park designations would not be viewed any l e s s c r i t i c a l l y . There i s l i t t l e demand f o r new resource lands as the known mineral deposits are able to f i l l market demand. This s i t u a t i o n may seem to be contrary to what one might expect, however, the long lead time f o r mineral production to begin on any s i n g l e p r o j e c t r e s t r i c t s the supply of a growing market to resources that have been known and developing f o r many years. This economic s i t u a t i o n c o n t r i b u t e d e x t e n s i v e l y to a low l e v e l of p o l i t i c a l s t r e s s i n the d e c i s i o n making environment and l i t t l e i n c e n t i v e or a c t i v i t y toward r e s o l u t i o n of the parks /mines c o n f l i c t . Recession Phase The current d e c i s i o n making environment, dominated by economic concerns, i s labeled as the Recession Phase. The a n t i t h e s i s of the p r o s p e r i t y phase c h a r a c t e r i z e s the current resources d e c i s i o n making environment. As demand f o r B r i t i s h Columbia's n a t u r a l resources has diminished i n response to world supply g l u t s r e s u l t i n g i n lower p r i c e s , increased c o s t s of 17 production have caused many mines to become uneconomic. The drop i n metal p r i c e s , as i s usual, s i g n a l e d a reduction i n the l e v e l o-f mineral e x p l o r a t i o n a c t i v i t y throughout B r i t i s h Columbia. (Rose, 1985) However, the mineral industry has been forced to search -for r i c h e r deposits and more cost e-f-fective methods o-f production, to compensate -for c h a r a c t e r i s t i c v a r i a t i o n s i n earnings, as a r e s u l t o-f -fluctuation i n i n t e r n a t i o n a l metal and money markets. (Mining A s s o c i a t i o n o-f B.C., 1983) Mineral resource generated government revenues have -fallen (Joyce 1984). Government has been under pressure to reduce encumbrances on a l l i n d u s t r i e s i n c l u d i n g the mineral i n d u s t r y i n an attempt to re v i v e the economy. Among the measures that have been taken include a •further examination o-f mineral industry access to park land -for e x p l o r a t i o n and development. Tourism during t h i s phase became the t h i r d l a r g e s t i n d u s t r y , r i v a l i n g the mining and -forestry s e c t o r s . (Farrow, 1983) However, the economic emphasis o-f government forced the M i n i s t r y of Lands, Parks and Housing to adapt i t s d e c i s i o n making process and park designation c r i t e r i a to incorporate the associated opportunity c o s t s . The r e s u l t of both mineral industry lobby f o r access to parks, and d i r e c t i v e s from the parks m i n i s t r y f o r more p o l i t i c a l l y acceptable resource land a l l o c a t i o n , has been a r i s e i n s t r e s s i n the parks / mines c o n f l i c t r e s o l u t i o n environment. R e - e l e c t i o n of the S o c i a l C r e d i t Party, brought a new order to the p o l i t i c a l r e a l i t y of the parks / mines c o n f l i c t . An increased importance was placed on the economic impact of a l l resources management d e c i s i o n s , i n c l u d i n g the designation of parks. The 1983 p r o v i n c i a l budget, and the events that f o l l o w e d , 18 caused an i n t e n s i f i c a t i o n of the s t r e s s e s i n the parks / mines c o n f l i c t r e s o l u t i o n d e c i s i o n making environment. As reduced funding and s t a f f i n g increased s t r e s s , so a l s o did the urgency of a c t i o n s designed to r e l i e v e i t . I n s t i t u t i o n a l i z e d planning and d e c i s i o n making processes such as the Regional Resource Management committees were abolished. Changes were made i n the park land designations that s i m p l i f i e d the choices that are a v a i l a b l e f o r conservation of r e c r e a t i o n lands. Only Class "A" and Recreation Area designations are now a v a i l a b l e . ( B r i t i s h Columbia, 1984b) The consequence of budget c o n s t r a i n t s and p o l i c y changes has been a s i t u a t i o n i n which the r e s o l u t i o n of c o n f l i c t serves to a l l e v i a t e s t r e s s f o r p o l i t i c i a n s and p r o v i n c i a l n a t u r a l resources l i n e agencies as w e l l as the p a r t i e s lobbying f o r park c r e a t i o n and mineral industry access to e x i s t i n g park land. Questions of p r i o r i t y between mineral development and other economic a c t i v i t i e s , e s p e c i a l l y tourism, continue to surface.(Stubbs, 1984) I t i s when p a r t i e s wishing d i f f e r e n t land uses converge on the same land that the d i f f i c u l t i e s occur. We might summarize the development of each phase of the parks / mines c o n f l i c t r e s o l u t i o n environment by p r o j e c t i n g p o s s i b l e f u t u r e s . F i r s t , metal p r i c e s w i l l continue to f l u c t u a t e causing f l u c t u a t i o n i n the demand f o r mineral resources and e x p l o r a t i o n lands. Accompanying these f l u c t u a t i o n s w i l l be recessionary periods i n the world and p r o v i n c i a l economies. F i n a l l y , the demand f o r outdoor r e c r e a t i o n and a e s t h e t i c resources, r i s i n g through each of the phases, shows no i n d i c a t i o n of abating. 19 The d i f f i c u l t i e s of d e f i n i n g and v a l u i n g resources associated with parks as w e l l as minerals c o n t r i b u t e f u r t h e r to the parks / mines c o n f l i c t . Two quotations can be used to h i g h l i g h t these problems: "Do Economists know about lu p i n e s ? " Aldo Leopold (1925) "Subsurface mineral p o s s i b i l i t i e s are enigmatic to the planners. U n t i l they are discovered they cannot be a n t i c i p a t e d . " E. Fred B i r d a l l and Jay M i t c h e l l (1984) Both Leopold and B i r d a l l and M i t c h e l l recognize the d i f f i c u l t y of inventory and e v a l u a t i n g n a t u r a l resources involved i n the parks / mines c o n f l i c t . Whereas r e c r e a t i o n and a e s t h e t i c f e a t u r e s associated with parks are d i f f i c u l t to q u a n t i f y and value, minerals are d i f f i c u l t to f i n d and compare w i t h i n a changing economic environment. I t i s to t h i s problem that we now t u r n . There are three primary ways of i n v e n t o r y i n g a t t r i b u t e s of park land. A r e c r e a t i o n resource inventory can count the b i o p h y s i c a l f e a t u r e s that w i l l c o n t r i b u t e to the s u i t a b i l i t y of lands f o r park use. A use inventory w i l l provide information about the extent to which the land i s used by those who v i s i t i t . F i n a l l y , a user inventory w i l l gather data on the needs and d e s i r e s of p o t e n t i a l land users. D e t a i l e d d i s c u s s i o n of these processes can be found i n chapters 4, 6 and 7 of Brockman and Merriam(1979). As with any s c i e n t i f i c survey, each of these processes b r i n g s i t s own d i f f i c u l t i e s and degree of r e l i a b i l i t y . 20 These measures can provide information on the supply, q u a l i t y , a c c e s s i b i l i t y , and perception of opportunity to use park land. However, measures of the option and existence values of park land are not addressed. These non-price parameters of park land make inventory and e v a l u a t i o n a d i f f i c u l t problem. In a d d i t i o n , the uniqueness of each park land resource makes comparisons and p r i o r i z a t i o n d i f f i c u l t , i f not impossible. However, some economists have made attempts at v a l u i n g the non-price nature of r e c r e a t i o n and park resources through measurement of the w i l l i n g n e s s to pay, consumer s u r p l u s , and t r a v e l cost expenditure by users who p a r t i c i p a t e i n s p e c i f i c a c t i v i t i e s . (Pearse, 1968; K r u t i l l a and F i s h e r , 1975; Sinden and Worrel, 1979; and King and Davis, 1980) These measures are again d i f f i c u l t to judge r e l a t i v e to other resources or to other measures, as the f a c t o r s examined are those of associated c o s t s . E v a l u a t i o n of the a c t u a l resource worth has not been achieved. A d e t a i l e d examination of the economic impact of parks was prepared by the Canadian Outdoor Recreation Research Committee (1975). A f t e r summarizing general points made by many researchers, the advantages of a number of economic b e n e f i t s are e x t o l l e d . Furthermore, conclusions are advanced concerning the secondary and l o c a l b e n e f i t s through m u l t i p l i e r s associated with park land use. As with park resources, mineral resources too present d i f f i c u l t i e s f o r natural resources managers and planners. In a s i m i l a r way problems a r i s e with uniqueness, randomness and p h y s i c a l a c c e s s i b i l i t y . Concentrations of minerals such that t h e i r e x t r a c t i o n i s f e a s i b l e are rare.(Cloud, 1968) In f a c t , of 21 the -few concentrations of minerals that have been discovered many have become as famous as have d i s t i n c t i v e park lands. Gold i n South A f r i c a , Yukon and Hemlo, Copper i n Zambia, C h i l i , Montana and Highland V a l l e y e x h i b i t the character of these d i s t i n c t i v e c oncentrations of minerals and mining a c t i v i t y . However, the random d i s t r i b u t i o n of minerals i n combination with t h e i r hidden nature make inventory even more u n c e r t a i n . The true extent of minerals contained i n the earth's c r u s t i s not known u n t i l they have been e x t r a c t e d . F i n d i n g the l o c a t i o n of concentrations of minerals i s i n c r e a s i n g l y a r i s k y p r o p o s i t i o n as many of the best and e a s i e s t to f i n d deposits are already known and e s t a b l i s h e d . This b r i n g s us to the f i n a l component of inv e n t o r y i n g mineral resources, that of changing a c c e s s i b i l i t y or technology. As g e o l o g i c a l t h e o r i e s are developed, d i f f e r e n t areas of the earth's c r u s t become d e s i r a b l e l o c a t i o n s f o r mineral e x p l o r a t i o n . As the technology f o r e x t r a c t i n g minerals from the earth's c r u s t improves, d i f f e r e n t mineral deposits w i l l become economically v i a b l e . S i m i l a r l y , as changing economic c o n d i t i o n s d i c t a t e , d i f f e r e n t minerals are i n l e s s e r or greater demand, thus b r i n g i n g d i f f e r e n t lands i n t o greater demand f o r mineral land use. The u n c e r t a i n t y of the s i t u a t i o n that we have described here can be summarized i n Figure I I I (Smith, 1979; S t e i n h a r t , 1980). Of a l l the mineral resources i n the earth's c r u s t , only a small p o r t i o n are i d e n t i f i e d , t e c h n i c a l l y recoverable, and economically f e a s i b l e to e x t r a c t . Consequently, the few mineral occurances that have been discovered to have economic p o t e n t i a l are very much more valuable r e l a t i v e to the surrounding lands and are the r e f o r e eagerly sought by mineral industry i n t e r e s t s . S i m i l a r 22 d i s c u s s i o n s i n a concise -form regarding mineral resource p o t e n t i a l , information and misunderstanding can be found i n Zwartendyk ( i 9 7 2 ) . More s p e c i f i c frameworks of a n a l y s i s f o r the B r i t i s h Columbia case are developed by Northcote (1981) and the South Moresby Planning Team (1983). The d i f f i c u l t y of inventorying each resource i n the parks / mines c o n f l i c t i s q u i c k l y evident i n the s i t u a t i o n that i s described above. Furthermore, the nature of one as a non-price good and the other as an economic good make comparison extremely d i f f i c u l t . As we have seen, attempts have been made to p r i c e r e c r e a t i o n and a e s t h e t i c goods by Pearse and others. Further, the e v a l u a t i o n of mineral resources i s wrought with unusually high u n c e r t a i n t i e s , compared to other resources. I t has been the experience of at l e a s t one c o n f l i c t r e s o l u t i o n planning process where parks and mineral concerns were divergent that the a p p l i c a b i l i t y and p r a c t i c a l i t y of such methods was brought i n t o question.(South Moresby Resource Planning Team, 1983) 23 I d e n t i f i e d Undiscovered t i I L I I I I I A I I I ! I R! Proved ! Probable I P o s s i b l e i ! ! e: : : i i : c i L i i i ! o! i ! E v! ! i c e! • I o r! i ! n a! Reserves ! ! o b i ! i m 1 i ! i i e * ! i c : i F M! i e a! i a r i i s g! ! i i ! Resources ! b n i ! i a! ! 1 1 i ! i i ! t _ i i y • < Degree of C e r t a i n t y < A FIGURE I I I C l a s s i f i c a t i o n of Mineral Reserves and Resources A f t e r S t e i n h a r t (1980) Ih£_Ia£v.itab.l£_FiiS£_Q£_CDa£lict We can summarize that the s i t u a t i o n as has been described above has led i n e v i t a b l y to a land use c o n f l i c t . The long standing h i s t o r y and the t r a d i t i o n of the f r e e miner i n the mineral e x p l o r a t i o n and development industry has i n s t i l l e d i n the minds of many the r i g h t of access and of winning resources from the land. In the same h i s t o r i c a l sense, the parks i n t e r e s t s have been f o s t e r e d and developed through a growth i n acceptance of conservation and an a c c u l t u r a t i o n of r e c r e a t i o n and 24 outdoor a c t i v i t y . As the demand has grown -for both of these land uses i t has been i n e v i t a b l e that there would be a r i s e of c o n f l i c t as the a v a i l a b l e land base has been diminished. The recent trends i n both the mining sector and the parks sector have a l s o c o n t r i b u t e d to the c o n f l i c t s i t u a t i o n . On the one hand, the dominance of the mining i n d u s t r y ' s r e l a t i v e p o s i t i o n i n the economy has been challenged, thus f o r c i n g a defensive p o s i t i o n to which the p a r t i e s are unaccustomed. The r a p i d r i s e of the parks r e l a t e d s e c t o r s has r a i s e d an expectation of gains that may or may not be r e a l i s t i c . A s i t u a t i o n has been created where the mining industry may be forced to defend a t r a d i t i o n a l l y held p o s i t i o n , while parks proponents may pursue d e d i c a t i o n of park land while the economic stren g t h of tourism and r e c r e a t i o n may support such d e c i s i o n s by government. Both t h i s unfami 1 i a r i t y with the s i t u a t i o n as i t i s presented and the i n c r e a s i n g pressure of the lobbying by both s i d e s has tended to accentuate the impassive nature of the c o n f l i c t and r e s u l t e d i n some measure of e s c a l a t i o n . F i n a l l y , the d i f f i c u l t i e s of natural resources d e f i n i t i o n on both s i d e s of the c o n f l i c t have led to i t s continued r i s e . D ecisions based on fragmentary data present a s i g n i f i c a n t dilemma. I f an area were recommended f o r wilderness or park, s i g n i f i c a n t mineral p o t e n t i a l might never be recognized; e q u a l l y , mineral e x t r a c t i o n p r o j e c t s could destroy the very f e a t u r e s that provide park p o t e n t i a l . At the same time, the d i f f i c u l t y of inventory procedures f o r both minerals and park land has been shown. Not only are the data u n a v a i l a b l e or u n r e l i a b l e , but the v a l u a t i o n of e i t h e r resource base may be unachievable. The 25 optimal s i t u a t i o n of being able to compare l i k e u n i t s of value or worth can not be enjoyed. This s e c t i o n w i l l show that the c o n f l i c t examined i n t h i s t h e s i s i s one of wide ranging d i s t r i b u t i o n and v a r i a t i o n throughout the province of B r i t i s h Columbia. Furthermore, r e l a t i v e stages of development and concern expressed i n each c o n f l i c t w i l l be i l l u s t r a t e d . Some c o n f l i c t s w i l l be shown as current and a c t i v e while others are dormant or lay unapproached and unresolved. Each case i n t h i s s e c t i o n w i l l be comprised of three components. F i r s t a reference to Figure IV, showing the r e l a t i v e case l o c a t i o n s of s e l e c t e d parks / mines c o n f l i c t s i n B r i t i s h Columbia. The second component i s a b r i e f d e s c r i p t i o n of the case p a r t i c u l a r s , i n c l u d i n g : the p a r t i e s involved, and the timing of t h e i r involvement. The current s t a t u s of the c o n f l i c t w i l l be e s t a b l i s h e d i n the f i n a l component. C h i l k o Lake Park Proposal C h i l k o Lake and i t s environs i s located i n the southern Coast and C h i l c o t i n Mountains at the headwaters of the C h i l c o t i n River system. Access i s gained by 200 kms. of road southwest of Will i a m s Lake. The area under c o n s i d e r a t i o n f o r park includes much of C h i l k o Lake, Nemaia V a l l e y , Tchaikazan V a l l e y and adjacent Taseko Lakes. (See Figure IV.) This land i s now held under a deferred planning area s t a t u s by the M i n i s t r y of Forests. The C h i l k o Lake Park Proposal grew out of p u b l i c concern during the mid-1970's over the f u t u r e of the southern C h i l c o t i n 26 FIGURE IV BRITISH COLUMBIA PARKS / MINES CONFLICT LOCATIONS LAMBERT CON FORMAL CONICAL PROJECTION STATUTE 100 200 MILES KILOMETRES 100 0 100 200 300 KILOMETRES A t l i n P r o v i n c i a l >ark South Moresby Wilderness Proposal C h i l k o Lake__ Park Proposal Kwadacha Wilderness Park r Tweedsmui r P r o v i n c i a l Park Wells Gray P r o v i n c i a l Park Strathcona P r o v i n c i a l Park V a l h a l l a Wilderness Park 27 Mountains. In 1976, the C h i l c o t i n Parks Study was prepared by the M i n i s t r y of Lands, Parks and Housing (Outdoor Recreation Council o-f B r i t i s h Columbia, 1976). A c o a l i t i o n of environmental concerns was -formed b r i e - f l y to encourage the pr e s e r v a t i o n o-f t h i s area but was disbanded i n 1981. The M i n i s t r y o-f Forests has adopted a management plan f o r the area. The M i n i s t r y of Lands, Parks and Housing has conducted a park p o t e n t i a l study. Beginning i n 1981, the Federated Mountain Clubs of B r i t i s h Columbia took up the cause of t h i s park proposal through the auspices of the Outdoor Recreation Council of B r i t i s h Columbia. (Federated Mountain Clubs of B r i t i s h Columbia, undated) This park proposal has a l s o been of i n t e r e s t at the n a t i o n a l l e v e l through Parks Canada.(Dearden, pers. comm., September 26, 1985) There are at l e a s t three major mineral prospects located w i t h i n the C h i l k o Lake Park Proposal. However, the o v e r a l l mineral production p o t e n t i a l as developed by the M i n i s t r y o-f Energy, Mines and Petroleum Resources i s l a r g e l y c l a s s 3 and 4, i n d i c a t i n g that the g e o l o g i c a l environment i s favourable though no s i g n i f i c a n t deposits are known and that f u r t h e r e x p l o r a t i o n i s p o s s i b l e . Of note here i s that the mineral p o t e n t i a l mapping i s conducted on a f i v e c l a s s s c a l e that i s h i g h l y s u b j e c t i v e . C l a s s i f i c a t i o n i s based on the e x i s t i n g data a v a i l a b l e to the M i n i s t r y of Energy, Mines and Petroleum Resources, and an i n t u i t i v e judgment i s made by a g e o l o g i s t with considerable knowledge and experience. Judgements as to the e f f e c t i v n e s s of t h i s process i s d i f f i c u l t as the combination of metal p r i c e chages and advances i n t e c n o l o g i c a l c a p a b i l i t y are c o n s t a n t l y a l t e r i n g the c r i t e r i a upon which the mineral p o t e n t i a l 28 c l a s s i f i c a t i o n s are made. Mining claims have been e s t a b l i s h e d i n the C h i l k o area s i n c e at l e a s t 1935 when prospectors recovered some gold from the Lord River area. During the 1940's mineral development a c t i v i t y increased s i g n i f i c a n t l y . At l e a s t one prospect was e x t e n s i v e l y explored by diamond d r i l l and t u n n e l i n g (Farrow, 1978). Through the 1950's and 1960's r e l a t i v e l y low metal p r i c e s kept mineral development a c t i v i t y to a minimum. However, many mineral claims have been maintained on the best prospects. R i s i n g metal p r i c e s i n the 1970's caused a resurgence of a c t i v i t y i n the area as formerly uneconomic deposits became more promising. The current s t a t u s of the C h i l k o Lake Park Proposal might be categorized as one of a holding p a t t e r n . The park proponents are unable to muster an a c c e l e r a t e d lobby e f f o r t , and the mining industry i s faced with a downturn i n the economic prospects f o r unextraordinary deposits. South Moresby Wilderness Proposal The South Moresby area i s located i n the southern p o r t i o n of the Queen C h a r l o t t e Islands. The area includes a large p o r t i o n of Moresby Island and numerous adjacent i s l a n d s . Comprising about 145,000 hectares of upland, the proposal a l s o includes shore lands and marine components. (See Figure IV.) General p u b l i c concern f o r p r e s e r v a t i o n of the South Moresby area grew throughout the 1960's and 1970's. In 1971 the P r o v i n c i a l Parks Branch i d e n t i f i e d a core p o r t i o n of the i s l a n d as a prime candidate f o r a c l a s s A p r o v i n c i a l park, and i n d i c a t e d t h i s i n t e r e s t by e s t a b l i s h i n g a mineral reserve. S h o r t l y 29 t h e r e a f t e r , the whole of South Moresby became the subject o-f a much broader land a l l o c a t i o n controversy, and no park s t a t u s was implemented (South Moresby Resource Planning Team, 1983). Further c o n f l i c t began i n October 1974 with the permission to log p o r t i o n s of the area. The Skidegate Band Council objected to t h i s plan with the p o s i t i o n that a l l of the Queen C h a r l o t t e Islands are Haida land. At the same time, an environmentalist group which was to become known as the Islands P r o t e c t i o n Society was formed. These two groups would d r a f t what was to become the South Moresby Wilderness Proposal. The Environment and Land Use Committee S e c r e t a r i a t , through 1975 and 1976, conducted an overview study of South Moresby. Information and submissions were i n v i t e d from the p u b l i c and the v a r i o u s l i n e agencies, i n c l u d i n g an assessment of mineral p o t e n t i a l by the M i n i s t r y of Energy, Mines and Petroleum Resources. Parks Canada a l s o commissioned a study of the area's n a t u r a l h i s t o r y as i t f e l t that South Moresby was a Natural Area of Canadian S i g n i f i c a n c e . Through 1977 and 1978 concern f o r the area grew, but was concentrated around the f o r e s t industry / wilderness proposal c o n f l i c t . The s i t u a t i o n was f u r t h e r complicated by the i n t r o d u c t i o n of an e c o l o g i c a l reserve proposal to encompass a p o r t i o n of lands already contested. The Environment and Land Use Committee S e c r e t a r i a t ' s study r e s u l t e d i n recommendation of a f u r t h e r f i v e year m u l t i p l e land use planning program to r e s o l v e the c o n f l i c t and a two year study of the e c o l o g i c a l reserve proposal. The M i n i s t r y of F o r e s t s was s e l e c t e d to lead the planning program that r e s u l t e d i n the South 30 Moresby Resource Planning Team and i t s report of 1983. However, a d e c i s i o n on the f u t u r e of the South Moresby has not yet been reached. Though s p e c i f i c r e p o r t s and research were prepared (Northcote, 1981) and p a r t i c i p a t i o n by a v a r i e t y of government and p r i v a t e i n d u s t r y r e p r e s e n t a t i v e s was assured throughout, the M i n i s t r y of Energy, Mines and Petroleum Resources presented a mi n o r i t y opinion i n the planning team's rep o r t . I t was f e l t that none of the options presented by the team members met mineral p o l i c y o b j e c t i v e s of e v a l u a t i o n and determination of mineral resources before any a l i e n a t i o n of the land base.(Rate1, 1985) E x i s t i n g mineral claims on the east s i d e of Moresby Island have been shown to be good prospects f o r gold production. At the height of the gold p r i c e surge of the l a t e 1970*5, Consolidated S i n o l a S i n d i c a t e created a considerable s t i r i n the f i n a n c i a l community of Vancouver with strong r e s u l t s i n an extended e x p l o r a t i o n and development program. The comments of some p a r t i c i p a n t s i n the South Moresby Resource Planning Team point d i r e c t l y to the d i f f i c u l t y of r e s o l v i n g the c o n f l i c t between wilderness conservation resource users and mining i n t e r e s t s . The d i f f i c u l t y of d e a l i n g with the M i n i s t r y of Energy, Mines and Petroleum Resources' concerns and the mineral claims w i t h i n the wilderness proposal may be a key stumbling block i n the r e s o l u t i o n of t h i s planning process.(Dow, pers. comm., December 1984; Lang, 1984). V a l h a l l a Wilderness Park The most recent major p r o v i n c i a l park i n B r i t i s h Columbia was designated on February 16, 1983. V a l h a l l a P r o v i n c i a l Park i s located on the east s i d e of Slocan Lake, 100 kms. north of Nelson 31 on the western edge of the Kootenays. (See Figure IV.) The V a l h a l l a park proposal o r i g i n a t e d with the Kootenay Mountaineering Club i n 1970. The o r i g i n a l concept was to encompass a small p o r t i o n o-f what was to e v e n t u a l l y become the park. F o l l o w i n g the 1974 Slocan V a l l e y Forest Management Study, the o r i g i n a l proposal was expanded by Ave Eweson, a l o c a l b i o l o g i s t , to include much of the west s i d e of Slocan Lake. In the same year, the V a l h a l l a Wilderness S o c i e t y was formed and key members of the o r g a n i z a t i o n were i d e n t i f i e d , i n c l u d i n g the chairman Colleen McCrory. The o b j e c t i v e of t h i s o r g a n i z a t i o n was to promote the expanded proposal and pursue i t s designation as a park. In 1975, with increased concern over the d e c i s i o n to be made on the V a l h a l l a ' s case, a moratorium was placed on a l l logging a c t i v i t y and mineral r i g h t s were reserved from f u r t h e r s t a k i n g . At the time there were a number of mineral claims over two or three known mineral deposits w i t h i n the proposed park area. Furthermore, we should note the s i g n i f i c a n t h i s t o r i c a l importance of the Slocan V a l l e y as an area of s i l v e r , lead and z i n c production. Throughout t h i s f i r s t phase of the c o n f l i c t , the Environment and Land Use Committee S e c r e t a r i a t had played an important r o l e i n f a c i l i t a t i n g d i s c u s s i o n and c o o r d i n a t i n g s t u d i e s p e r t a i n i n g to the V a l h a l l a problem; however, i t was disbanded i n 1980. The Slocan V a l l e y Planning Study was i n i t i a t e d i n 1980, with a broad mandate to i n v e s t i g a t e the i n t e r r e l a t e d issues of the park proposal, mining and f o r e s t r y land use, and settlement of the e n t i r e v a l l e y . Representatives of the M i n i s t r y of Municipal A f f a i r s , the M i n i s t r y of Environment and the Regional D i s t r i c t of 32 C e n t r a l Kootenay , as we l l as r e s i d e n t s , were to p a r t i c i p a t e . At the second set of hearings held at the end of 1981, the issue of mining was f o r m a l l y recognized. However, the issue of sub-surface versus surface r i g h t s was i d e n t i f i e d as a l e g a l problem of P r o v i n c i a l scope that could not be solved through the l o c a l planning process. Though mineral p o t e n t i a l and development o p p o r t u n i t i e s would be recognized i n the planning process, the perceived shortcomings of the fundamental framework would have to be addressed by the Province.(Regional D i s t r i c t of Central Kootenay, 1982) Through the t h i r d set of hearings i n May 1982, four options had been i d e n t i f i e d as a l t e r n a t i v e s i n the V a l h a l l a a l l o c a t i o n d e c i s i o n making process. These options c o n s i s t e d of two v a r i a t i o n s on each of the dominant pr e s e r v a t i o n and dominant resource e x t r a c t i o n themes. (Kootenay Resource Management Committee and Regional D i s t r i c t of Central Kooteney, 1982) F i n a l l y , on February 16, 1983 the Environment and Land Use Committee of the p r o v i n c i a l government reached a d e c i s i o n that the V a l h a l l a Wilderness Park would be created. However, what i s s u r e l y a v i c t o r y f o r the V a l h a l l a Wilderness S o c i e t y has been met with continued mixed f e e l i n g s by some r e s i d e n t s and concerned i n t e r e s t s of the community. Most notable of the d i s s e n t o r s are the mining and f o r e s t r y concerns represented by the Chamber of Mines of Eastern B r i t i s h Columbia and the l o c a l f o r e s t products* manufacturers. (Sherrod S.LJL. a l * , 1984) The 1983 park designation was the culmination of a long crusade led by a group of Kootenay r e s i d e n t s to have the 49,600 hectare s i t e declared a park, preserving i t from f o r e s t r y and mining i n t e r e s t s . However, i t must be noted that the d e c i s i o n to 33 create the park was one taken a f t e r a planning process that addressed a v a r i e t y of issues besides that of parks / mines c o n f l i c t . In f a c t , as noted, the key issue i n the parks / mines c o n f l i c t was deferred to the p r o v i n c i a l government as a l e g a l matter. Kwadacha Wildernes Park Kwadacha i s one of the l e s s e r known p r o v i n c i a l parks. Created in 1973, Kwadacha i s located i n the north east sector of the province i n the Rocky Mountains. I t i s on the east s i d e of the Rocky Mountain trench, north of the W i l l i s t e n Lake Hydro Power Reservo i r , and approximately 170 kms. southwest of Fort Nelson. The park s t r a d d l e s the Rocky Mountain Divide between the Kwadacha and Muskwa R i v e r s . The park encompasses approximately 165,600 hectares. (Statutes of B r i t i s h Columbia, 1973) (See Figure IV.) At the time that a park was proposed f o r the Kwadacha area and a study completed i n 1972, there were no mineral claims w i t h i n the proposed boundaries. A reserve against the l o c a t i o n of mineral claims had been approved under the Mineral and P l a c e r Mining Acts by Order-in-Counci1, October 21, 1971 ( B r i t i s h Columbia, 1972). However, s i n c e that time mineral e x p l o r a t i o n i s t s have shown considerable i n t e r e s t i n the contact zone between the i n t e r i o r plateau and the metamorphosed sedimentaries of the eastern c o r d i l l e r a n . A s e r i e s of mineral deposits have been discovered along the Rocky Mountain Trench, perhaps the most notable of which i s the Circue deposit south of Kwadacha held by C o r d i l l e r a n Engineering. In conducting a search f o r minerals i n the mid 1970's, 34 e x p l o r a t i o n i s t s traced what appears to be a s i g n i f i c a n t b a r i t e deposit to the border of Kwadacha Park. Upon f u r t h e r i n v e s t i g a t i o n i t appears that the deposit s t r a d d l e s the park boundary. B a r i t e i s an i n d u s t r i a l mineral used f o r the preparation of d r i l l i n g a d d i t i v e s f o r petroleum and mineral e x p l o r a t i o n . R e l a t i v e l y rare and p r e s e n t l y without a producing Canadian source, the p o t e n t i a l s i g n i f i c a n c e of such a deposit was c l e a r . C o n t r i b u t i n g to the mineral i n t e r e s t s * concerns i s the f a c t that the nature of such b a r i t e d eposits make them very e a s i l y i d e n t i f i a b l e . However, the presence of the park prevents the s t a k i n g of claims and c o n t i n u a t i o n of the development process. Strathcona P r o v i n c i a l Park The parks / mines c o n f l i c t i n Strathcona P r o v i n c i a l Park i s perhaps the most advanced and complex of a l l the cases examined in t h i s s e c t i o n . C e r t a i n l y the mineral development process i s the most advanced with the current operation of a copper mine w i t h i n the boundaries of the park. Strathcona P r o v i n c i a l Park i s located i n the Vancouver Is l a n d mountains and i t encompasses the highest p o i n t s of the mountain range. (See Figure IV.) E s t a b l i s h e d i n 1911, Strathcona P r o v i n c i a l Park i s the o l d e s t of the p r o v i n c i a l parks. I t has f r e q u e n t l y been the focus of c o n f l i c t between c o n s e r v a t i o n i s t s and na t u r a l resources development i n t e r e s t s . The most notable of these c o n f l i c t s was the f l o o d i n g of B u t t l e Lake f o r hydro e l e c t r i c generation i n 1952.(Tatreau and Tatreau, 1973) By 1965, the c o n f l i c t between mineral and park concerns over 35 Strathcona Park was r e c e i v i n g increased p u b l i c attention.(James, 1965) At t h i s time, s t a k i n g of mineral claims was allowed i n p r o v i n c i a l parks l a r g e r than 2,000 hectares. In 1960 Western Mines had purchased claims i n the park over land that had o r i g i n a l l y been staked i n the 1920's. Further s t a k i n g was a l s o completed. Permission to proceed with mine development was given with l i t t l e debate and the c o n s t r u c t i o n of the mine was f u l l y underway by 1965. Included i n the o r i g i n a l plan was the c o n s t r u c t i o n of a townsite w i t h i n the park to s e r v i c e the mine s i t e . However, a f t e r s i g n i f i c a n t study (Williams, 1966), t h i s component of the development was abandoned i n favour of a commuting op t i o n . With c o n s t r u c t i o n c o n t i n u i n g i n 1967, the p u b l i c awareness of the Strathcona Park development, the proposed development of other claims w i t h i n the park (Anon, 1967b) and the s t a k i n g of f u r t h e r claims i n other parks, created a major p o l i t i c a l i ssue. This issue was to continue as a major focus of p u b l i c concern throughout the 1960*s and i n t o the 1970*s r i d i n g on a wave of the environmental movement. The c a t a l y s t provided by the Strathcona parks / mining c o n f l i c t would c o n t r i b u t e s i g n i f i c a n t l y to the subsequent change i n government and l e g i s l a t i o n p e r t a i n i n g to park land use. In 1974, a f t e r considerable study, the p r o v i n c i a l government decided to a l t e r the park boundaries, e f f e c t i v e l y removing park designation from the mine s i t e to allow continued development. I t was decided that where lands were taken away, they would be augmented by the a d d i t i o n of a l t e r n a t e lands to the park. A f t e r another change of government i n 1976, newspaper r e p o r t s continue to r a i s e there was some f u r t h e r d i s c u s s i o n of the Strathcona 36 c o n f l i c t , but no changes were made i n the e x i s t i n g r e g u l a t o r y regime. The l a t e s t development i n the h i s t o r y of parks / mines c o n f l i c t i n B r i t i s h Columbia a l s o concerns mineral claims i n Strathcona P r o v i n c i a l Park. The holders of mineral claims staked in 1964, 1965, and 1966, who were granted a park use permit i n 1967, have now i n i t i a t e d a law s u i t against the p r o v i n c i a l government f o r the r i g h t to develop those claims.(Bohn, 1935b) Such a s u i t , i f s u c c e s s f u l , w i l l e s t a b l i s h a precedent f o r many of the 700 other cases of claims to minerals i n p r o v i n c i a l parks. Tweedsmuir P r o v i n c i a l Park Tweedsmuir P r o v i n c i a l Park now extends from Ootsa Lake south along the Coast mountains, i n c l u d i n g an area s t r a d d l i n g Highway 20 between Wil l i a m s Lake and B e l l a Coola. (See Figure IV.) Tweedsmuir P r o v i n c i a l Park has had a long and arguably unstable h i s t o r y . Designated i n 1936 , and named a f t e r Lady Tweedsmuir of E l s f i e l d (Tweedsmuir, 1938) the o r i g i n a l park boundaries encompassed a s e r i e s of nat u r a l lakes that formed a route s u i t a b l e f o r canoe and small boat t r a v e l . Then, i n 1950 the p r o v i n c i a l government, under the I n d u s t r i a l Development Act, allowed the Aluminium Company of Canada to develop hydro e l e c t r i c power s u p p l i e s using the v a l l e y s of Tweedsmuir Park as the r e s e r v o i r (Anon., 1950). This necessitated a change i n the c o n f i g u r a t i o n of the park. Now, rather than a c i r c u i t o u s p a t t e r n , the park was extended southward along the mountains to compensate f o r the l o s s . However, the s u b s t i t u t i o n of mountains f o r a lake system was seen as questionable i n terms of equity. 37 Mineral claims e x i s t e d i n Tweedsmuir Park before i t s i n c e p t i o n . I n i t i a l l y crown granted claims and then regular mineral claims were located before the park was designated. The remote nature of the claims and t h e i r r e l a t i v e lack of ric h n e s s i n comparison to others d i d not lead to f u r t h e r development though. This was to remain as a r e l a t i v e l y s t a t i c s i t u a t i o n u n t i l 1967, at which time the member of the l e g i s l a t u r e f o r the area became involved i n lobbying f o r the renewed mineral e x p l o r a t i o n of park land. To some extent the lobbying of the government must have been s u c c e s s f u l as permission f o r the s t a k i n g of mineral claims i n the park was granted sometime i n 1967. Two hundred and f i f t y claims had been staked and the designation of a northern p o r t i o n of the park had been changed to create a nature conservancy area thereby d e f i n i n g the p o r t i o n of the park that was d e f i n i t e l y o f f l i m i t s to the mineral e x p l o r a t i o n i s t s , and thus p r o v i d i n g some s e c u r i t y of tenure to those claims. I t was a l l e g e d at the time that these a c t i o n s amounted to boundary changes to allow f o r the development of the mineral claims (Anon., 1968). This case has involved a l i m i t e d number of a c t o r s . The government of the day and i t s m i n i s t e r s , i n c l u d i n g the member of the l e g i s l a t u r e f o r Omenica, can be i d e n t i f i e d with the mineral c l a i m holders, o r i g i n a l l y Phelps Dodge and subsequently Meteor Mining. The t h i r d group of act o r s i n the c o n f l i c t , as i t t r a n s p i r e d i n 1968, was the o f f i c i a l o p p o s i t i o n of the p r o v i n c i a l l e g i s l a t u r e . The events of 1968 have not been followed by any s i g n i f i c a n t moves by any party with s p e c i f i c i n t e n t i o n s toward the Tweedsmuir 38 Park case. Some mineral occurences are s t i l l known w i t h i n the boundaries of the park, however, and are o c c a s i o n a l l y discussed by mineral industry r e p r e s e n t a t i v e s when parks / mines c o n f l i c t i s discussed. We can s t a t e that the Tweedsmuir Park c o n f l i c t has assumed a dormant s t a t u s , but i s one that has the p o t e n t i a l of f u r t h e r development. Wells Gray P r o v i n c i a l Park Wells Gray P r o v i n c i a l Park i s a 521,200 hectare park located i n east c e n t r a l B r i t i s h Columbia encompassing a large part of the headwaters of the Thompson R i v e r . (Statutes of B r i t i s h Columbia, 1973) The park includes many large lakes, i s q u i t e mountainous, and has many v o l c a n i c formations. (Tatreau and Tatreau, 1973) (See Figure IV.) In 1939 Wells Gray Park was designated i n the B r i t i s h Columbia Gazette. During t h i s era of the h i s t o r y of B r i t i s h Columbia, i t was government p o l i c y to move slowly toward e s t a b l i s h i n g a park system (Thompson, pers. comm., March 11, 1983). As a consequence, the park and the l e g a l t i t l e to the land was not e s t a b l i s h e d d e f i n i t i v e l y , nor were e x i s t i n g r i g h t s w i t h i n the area expropriated or otherwise acquired by the crown. In 1937, a consortium of i n v e s t o r s , i n c l u d i n g the f a t h e r of Mr. David Tener, received i n d e f e a s i b l e t i t l e to 16 Crown granted mineral claims on lands that are now included i n the northwest p o r t i o n of Wells Gray Park. Under the Mineral and Park Acts the holder of these claims was e n t i t l e d to use the surface of the claims to work and win the minerals contained i n the subsurface. The younger Tener i n h e r i t e d these r i g h t s from h i s f a t h e r ' s e s t a t e . However, under the amended Mineral Act of 1960, claims 39 such as Tener's could not be developed except as authorized by the Lieutenant Governor i n C o u n c i l . In 1973, with f u r t h e r amendments to the Park Act, Wells Gray Park was changed from a c l a s s B to a c l a s s A park. This new designation placed f u r t h e r r e s t r i c t i o n s on Tener's a b i l i t y to develop h i s claims. Under t h i s new designation a park use permit could only be issued i f i t was necessary f o r the pre s e r v a t i o n or maintenance of the r e c r e a t i o n values of the park. The 1973 amendment i n e f f e c t removed the r i g h t of development from Tener. Foll o w i n g attempts i n 1973 and 1974 by Tener to obtain a park use permit, Tener exchanged a s e r i e s of l e t t e r s and communications with the parks branch. The New Democratic Party Government's pro parks p o l i c y stance ran against a l l o w i n g Tener's request. Tener p e r s i s t e d with requests i n 1975, 1976, and 1977. A change of government i n 1976 d i d not lessen the c o n f l i c t nor b r i n g a change of p o l i c y . In a 1978 l e t t e r to Tener from the D i r e c t o r of the Parks Branch, i t was c l e a r that any f u r t h e r attempts to e x p l o i t mineral claims i n the park would be denied. With t h i s knowledge a w r i t was f i l e d by Tener seeking compensation f o r c o s t s , expenditures and l o s t opportunity. A f t e r l o s i n g the f i r s t case, an appeal was made to the B r i t i s h Columbia Court of Appeal. This higher court found that the e x i s t i n g l e g i s l a t i o n to deal with e x p r o p r i a t i o n d i d not apply to t h i s case where there was an i n j u r y to Tener's r i g h t to land. The government could not take the r i g h t s to the p h y s i c a l land away but could make i t impossible f o r the holder to e x e r c i s e those r i g h t s . The r e f u s a l of the Parks Branch to grant a park use permit a f t e r repeated e f f o r t s created a r i g h t to compensation 40 (Tener v. R. , 1982). If the c o n f l i c t i n g p a r t i e s , the government and Tener, could not agree on the amount o-f compensation, the d e c i s i o n would be r e f e r r e d to b i n d i n g a r b i t r a t i o n (Anon., 1982a). However, no compensation has been paid and an a r b i t r a t i o n process has not been pursued. Rather, the p r o v i n c i a l government made an appeal to the Supreme Court of Canada, With the reasons f o r the co u r t s r u l i n g being handed down i n May 1985, i n Tener's favour, the p r o v i n c i a l government has been forced to ammend e x i s t i n g l e g i s l a t i o n to allow mining access to the crown granted mineral claims(Bohn, 1985a) or pay compensation f o r l o s s of r i g h t s . The parks / mines c o n f l i c t as ex e m p l i f i e d by t h i s case i s one of long standing and one where attempts to r e s o l v e i t have led to l i t i g a t i o n i n the p r o v i n c i a l and f e d e r a l c o u r t s . The Tener case as i t has become known i s one watched with i n t e r e s t by the mining f r a t e r n i t y f o r i t s p o t e n t i a l as a precedent i n s e t t l i n g similar- c o n f l i c t s that occur throughout the province. Of note i s the s i m i l a r i t y between the Tener case and the s i t u a t i o n encountered i n the Tweedsmuir P r o v i n c i a l Park case. A t l i n P r o v i n c i a l Park A t l i n P r o v i n c i a l Park i s located on the southern end of A t l i n Lake on the eastern slopes of the Coast Mountains. The park encompasses some 230,000 hectares. This park was designated in 1973. (Statutes of B r i t i s h Columbia, 1973) (See Figure IV.) At the beginning of the 1970's, the Parks Branch of the p r o v i n c i a l government undertook s t u d i e s of the A t l i n area with designs to create a new park. Included i n the study was a statement of the geology of the area, i n c l u d i n g the mineral 41 p o t e n t i a l and e x i s t i n g mineral claims ( B r i t i s h Columbia, 1973). Studies conducted by the M i n i s t r y o-f Energy, Mines and Petroleum Resources i n d i c a t e d a moderately high mineral p o t e n t i a l -for a v a r i e t y o-f elements. Thorough e x p l o r a t i o n o-f the area was made di - f - f i c u l t by the s i g n i f i c a n t g l a c i a l covering o-f much of the park. A number of mining claims were located w i t h i n the park boundaries holding l e g a l r i g h t s over at l e a s t 11 mineral deposits. D r i l l i n g on some of the p r o p e r t i e s had i n d i c a t e d s i g n i f i c a n t d eposits of copper and low grade molybdenum. Today the park i s i n place and the s i m i l a r i t y with the s i t u a t i o n found in Wells Gray Park i s evident. The mineral claims are held i n limbo and the c o n f l i c t remains dormant. This s i t u a t i o n may have been d i f f e r e n t i f the minerals located i n the park were more d e s i r a b l e and commanding a higher p r i c e as a r e s u l t of t h e i r r a r i t y , however the current abundance of these minerals and the low demand as a r e s u l t of t e c h n o l o g i c a l s h i f t s away from copper r e s u l t i n l e s s pressure being developed i n t h i s c o n f l i c t s i t u a t i o n . Summany. The l i s t i n g of c o n f l i c t s presented here i s i n no way exhaustive, but i s i l l u s t r a t i v e of the v a r i e t y w i t h i n the generic parks / mines c o n f l i c t . Cases of parks / mines c o n f l i c t are not uncommon or g e o g r a p h i c a l l y i s o l a t e d i n c i d e n t s . The degree of p u b l i c involvement or media exposure vary i n both number and i n t e n s i t y . The timing of events i n the c o n f l i c t s v a r i e s g r e a t l y . Approaches to r e s o l u t i o n of the c o n f l i c t s range from non e x i s t e n t to complex. However, these cases can be d i v i d e d between two kinds of parks / mines c o n f l i c t . The 42 d i s t i n c t i o n can be made using the land use s t r a t e g y o-f the proponent as the d e c i s i o n -factor. The - f i r s t grouping o-f c o n f l i c t s i s defined as those park proposals where minerals are suspected. The second group i s c h a r a c t e r i z e d by a s s e r t i o n s of mineral development access where park land i s already designated. Each i n d i v i d u a l case w i l l have s p e c i a l c o n s i d e r a t i o n s f o r the resources planner and the land use environmental d e c i s i o n maker involved i n the r e s o l u t i o n process. In a subsequent chapter we w i l l examine i n f u r t h e r d e t a i l a case from each category i n an attempt to evaluate the e x i s t i n g c o n f l i c t r e s o l u t i o n processes used and allow the p r e s c r i p t i o n of appropriate a l t e r n a t e or modified approaches. Throughout t h i s chapter I have endeavored to answer the question: What i s the s i g n i f i c a n c e of studying the c o n f l i c t between park and mining land use proponents? I have shown that both mining and park a c t i v i t i e s have co n t r i b u t e d to the h i s t o r i c and economic development of B r i t i s h Columbia. Though recent trends do not bode w e l l f o r mining i n the immediate f u t u r e , i t s s i g n i f i c a n c e can not be overlooked. The d i f f i c u l t y of cat a l o g u i n g resources f o r land use d e c i s i o n making c o n t r i b u t e s to c o n f l i c t of a p a r t i c u l a r l y d i f f i c u l t nature. As evidence of the wide ranging nature of the parks / mines c o n f l i c t , a number of cases have been described. The h i s t o r y and case d e s c r i p t i o n s i n t h i s chapter recount a c o n f l i c t that has been developing and c o n t i n u i n g i n the p u b l i c sphere of a t t e n t i o n f o r three decades. The d i f f i c u l t i e s expressed by p a r t i e s on both s i d e s of the c o n f l i c t are no l e s s diminished now than they ever were. The approaches f o r r e s o l v i n g c o n f l i c t 43 o-f t h i s nature appear, a-fter a p r e l i m i n a r y review, not to have been s u c c e s s f u l . The concerns of p a r t i e s to the c o n f l i c t appear to recur through each of the c o n f l i c t s . 44 CHAPTER 3 BARGAINING versus LITIGATION 45 In t h i s chapter I w i l l develop the concepts o-f c o n - f l i c t that w i l l be used i n the t h e s i s . Throughout, the d i s c u s s i o n , the assumption i s made that e-f-fective, e-f-ficient c o n - f l i c t r e s o l u t i o n i s d e s i r a b l e . In Canada and the United States d i f f e r e n t c o n f l i c t r e s o l u t i o n approaches have come to be prominent. In Canada, unstructured bargaining i s conducted w i t h i n the framework and procedures of the b u r e a u c r a t i c and p o l i t i c a l systems. The American experience i s dominated by the use of l i t i g a t i o n i n r e s o l u t i o n of c o n f l i c t . There are advantages to both the bargaining model and the l i t i g a t i o n model. Fi v e f a c t o r s i n which these advantages and disadvantages have been claimed, w i l l be examine more c l o s e l y . The d i s c u s s i o n w i l l provide the b a s i s f o r examination of d e t a i l e d e m p i r i c a l evidence of both the bargaining and l i t i g a t i o n models as they are manifest i n the parks / mines c o n f l i c t i n B r i t i s h Columbia. To f u r t h e r a i d the reader i n understanding the c o m p l e x i t i e s of the socio-economic and p o l i t i c a l regimes that i n f l u e n c e the events of the d e t a i l e d case s t u d i e s , a typology of c o n f l i c t causes i s discussed. In the previous chapter we have shown that c o n f l i c t i s i n e v i t a b l e i n the parks / mines s i t u a t i o n in B r i t i s h Columbia. In the same way, c o n f l i c t i s an i n e v i t a b l e and i n t e g r a l part of d e c i s i o n making throughout s o c i e t y . ( C o s e r , 1967; Deutsh, 1973) C o n f l i c t i s a r e f l e c t i o n of d i f f e r e n c e s between i n d i v i d u a l s and groups as part of d i f f e r e n t s o c i a l c l a s s e s and / or d i f f e r e n t economic goals and d e s i r e s . ( F e l s t i n e r , 1983; B e r c o v i t c h , 1984) Simmel (1955) wrote: " ( c ) o n f l i c t i s designed to r e s o l v e 46 divergent dualisms; i t i s a way o-f achieving some kind o-f unity...". C o n f l i c t then i s an important catalyst -for change in society. C o n f l i c t may contribute to change in any number o-f areas: change in a presently accepted paradigm or s c i e n t i f i c theory; change in the current d i s t r i b u t i o n o-f power of money; change in the exis t i n g d i s t r i b u t i o n of land or resources. C o n f l i c t can be manifest in combat, p o l i t i c s , bargaining and arguments, each one a possible approach to resolution. Each of these c o n f l i c t s has i t s associated costs and benefits. Injury and death, loss of power, prestige, opportunity and f i n a n c i a l losses are among the costs. Benefits of c o n f l i c t may accrue in the achievement of decisions that are just and r e f l e c t the desires of as many of the parties in competition for resources as possible. Benefits are reflected through the saving of l i f e , time and f i n a n c i a l wealth, gain of prestige, and development of opportunities. The resolution of c o n f l i c t i s desirable. Wehr (1979b) states " ( i ) n limited amounts and by regulated modes, i t provides for s o c i e t a l s e l f correction...". Resolution of c o n f l i c t can be expressed as the movement of a chord from dissonant to consonant. As in music, a variety of processes or actions can be taken to achieve t h i s . C o n f l i c t i s resolved when divergent parties are w i l l i n g to accept some position as status,..quiP.- (Boulding, 1962) C o n f l i c t , when i t i s resolved, allows society to function with a heightened e f f i c i e n c y . However, the resolution that i s less costly provides a greater degree of e f f i c i e n c y than the c o n f l i c t resolution that i s extended in either time or resources.(Susskind and Weinstein, 1980) Clearly, an e f f i c i e n t resolution of 47 c o n f l i c t i s d e s i r a b l e . (Schuck, 1979) If we can learn or devise ways in which the e m p i r i c a l cases can be de a l t with more e f f i c i e n t l y , improvements are p o s s i b l e i n the processing of c o n f l i c t r e s o l u t i o n . As st a t e d i n chapter 1, the purpose of t h i s t h e s i s i s to evaluate a l t e r n a t i v e s t r a t e g i e s f o r r e s o l v i n g c o n f l i c t s between mineral resources development i n t e r e s t s and park pre s e r v a t i o n i n t e r e s t s i n B r i t i s h Columbia. I t i s time now to describe the models of c o n f l i c t r e s o l u t i o n . £ o n £ l l c l . J 3 £ s j a l u l i a n ^ n - £ a ^ There are, i n the North American experience, two main approaches to c o n f l i c t r e s o l u t i o n . One can think of a spectrum running from pure a d j u d i c a t i o n by an independent t r i b u n a l , to pure bargaining between opposing i n t e r e s t s . ( F u l l e r , 1978; Schuck 1979) In the United St a t e s , c o n f l i c t r e s o l u t i o n i s dominated by use of the co u r t s . (Cormick, 1982) The l i t i g a t i o n model as Schuck (1979) describes i t i s a group of a d v e r s a r i a l approaches c l u s t e r e d near the a d j u d i c a t i o n end of the c o n f l i c t r e s o l u t i o n spectrum. Many names and nomenclatures have been developed by va r i o u s authors to describe and discus s the l i t i g a t i o n model. For each set of s o c i o - p o l i t i c a l circumstances the p r e c i s e options under the model w i l l change. However, the f o l l o w i n g are some that w i l l be encountered: a r b i t r a t i o n ; a d m i n i s t r a t i o n ; judging; c o u r t s ; a d j u d i c a t i o n . The use of l i t i g a t i o n to determine which of the divergent p a r t i e s i s r i g h t has a wide acceptance and appeal.(Eckhoff, 1967) With a long h i s t o r y , l i t i g a t i o n has developed a strength of moral le g i t i m a c y r e l y i n g 48 on precedent, deduction -from p r i n c i p l e s , and r a t i o n a l d e c i s i o n c r i t e r i a . ( S c h u c k , 1979) The Canadian c o n - f l i c t r e s o l u t i o n experience r e l i e s l e s s on the c o u r t s and more on in-formal and unstructured bargaining associated with lobbying and p o l i t i c a l a c t i v i t y . (Dorcey and Thompson, 1983) Though more s t r u c t u r e d and d e l i b e r a t e bargaining i s -found at the extreme o-f the spectrum, I w i l l denote as the bargaining model the p r a c t i c e d Canadian equivalent rather than that i d e a l . The bargaining model includes consensual approaches o-f mutual accommodation and r e l i e s on the c o n f l i c t i n g p a r t i e s ' voluntary c o n t r o l o-f the processes. (Susskind 1981; Schuck 1979; Cormick 1982; Susskind and Weinstein, 1981) Once again a number o-f names have been used to describe a range o-f c o n - f l i c t r e s o l u t i o n processes at the bargaining end of the spectrum. The f o l l o w i n g are a sampling: environmental mediation; n e g o t i a t i o n ; c o n c i l i a t i o n ; c o n f l i c t avoidance. Researchers, p r i m a r i l y i n the United S t a t e s , have h i g h l i g h t e d the inadequacies of court processes that are used f o r c o n f l i c t r e s o l u t i o n . Questions about the proper l i m i t s of the l i t i g a t i o n model, i n i t s v a r i o u s forms, have long been asked as new problems and a l t e r n a t i v e s are posed ( F u l l e r , 1978). "The growing use of court remedies f o r personal as w e l l as business or governmental c o n f l i c t i s part of the quarrelsome nature of American society"(Cormick, 1982). As l i t i g a t i o n i s used i n attempts to r e s o l v e a wider v a r i e t y of c o n f l i c t s new questions are asked about i t s appropriateness f o r the task. The f o l l o w i n g 49 are -five categories in which d e f i c i e n c i e s of the l i t i g a t i o n model have been recognized: delay and time; costs; capacity for technical issues; opportunities for pa r t i c i p a t i o n ; and f l e x i b i l i t y of outcomes. Delay and Time "American courts are doing too much,"(Cavanagh and Sarat, 1980), with the result of backlogs and delays. As one c r i t e r i a for (judging c o n f l i c t resolution processes, Susskind and McCreary (1985) state that "a good outcome should be reached quickly." The l i t i g a t i o n of c o n f l i c t s i s time consuming.(Ognibene, 1983) As the courts are ca l l e d upon to process a greater number of cases in addition to criminal cases, the resources available for the administration of a l l j u s t i c e are stressed.(Sarat and Grossman, 1978) A broader "... scope of j u d i c i a l r e s p o n s i b i l i t y accounts for some of the growing pressure on the j u d i c i a r y and the increased work load of the courts (Ford Foundation, 1978b)." Furthermore, the b u i l t - i n delays of the l i t i g a t i o n model have been exaggerated by the increasingly crowded nature of the court calendar, especially in the United States.(Cormick, 1982) Among the areas of greatest growth are public law cases that include the most complex type of so c i a l policy 1itigation.(Cavanagh and Sarat, 1980) " ( L ) i t i g a t i o n - p a r t i c u l a r l y the public law variety - can pose awesome problems of implementation, in part from the continued intransigence of a losing party(Schuck, 1978)." Administrative and regulative adjustments compelled as a result of l i t i g a t i o n require additional time for implementation after the decision has been made. "Pressure (on the courts) arises from the growth in population and transactions, and from changes 50 in technology, the economy, and in s o c i a l patterns(Ford Foundation, 1978b)." Among the changes are the growth o-f the environmental movement and the increases in outdoor recreation demands -for wilderness. Costs The obvious c o r o l l a r y of time e f f i c i e n c y , i s that of cost. Comparisons are d i f f i c u l t and proof of e f f i c i e n c y i s unlikely. "Adjudication may be too costly for some kinds of cases(Ford Foundation, 1978b)." Any processes that w i l l reduce the cost of l i t i g a t i o n would be welcomed by the participants. Reduction of the time and resources taken up in preparation and presentation of cases i s a move to reduction of costs. The adversarial component of the l i t i g a t i o n model enforces added costs of the delays and evasive t a c t i c s that are employed by diverging parties. Appeals of e a r l i e r decisions, c a l l s for new arguments to be brought forward, and adjournments for any number of reasons increase the costs that are born f i r s t by the parties to the c o n f l i c t , and second by the public in maintaining the system and in enforcing i t s decisions. Further costs are generated when the f i r s t decision r e s u l t s in long term increases in l i t i g a t i o n or the need for additional government regulation and administration of circumstances that resulted in the c o n f l i c t . In periods of poor economic performance, the costs of c o n f l i c t become an esp e c i a l l y unwanted burden to a l l protagonists. Costs of the l i t i g a t i o n process may become a factor in decision making processes of the individual parties who i n i t i a t e projects or pursue resolution of conf1ict.(Susskind and Weinstein, 1980) 51 There must be some accounting o-f the degree to which the projected legal costs w i l l affect the overall d e s i r a b i l i t y of the proposal. Capacity for Technical Issues The c a p a b i l i t y of the courts to deal with complex and technical issues i s suspect. "(T)he adversarial t a c t i c s , in conjunction with technical rules for admission of evidence and testimony at t r i a l , assure that p o t e n t i a l l y useful information w i l l be eliminated from consideration(Susskind and Weinstein, 1980)." There i s a trend in l i t i g a t i o n for the courts to narrow the focus of the issues to be judged, to an extent that they are manageable, rather than to necessarily address the issues that forms the basis for the l i t i g a n t s 'actions. "Sound decision-making requires access to highly specialized bodies of s c i e n t i f i c or technical data(Ford Foundation, 1978b). If the parties to the c o n f l i c t are able to bring technical and complex issues before the court, there i s a question as to the a b i l i t y of the adjudicator to understand the s i g n i f i c a n c e of the material before him. This deficiency i s especially important in "(e)nvironmental disputes, . . . ( t h a t ) . . . are characterized by their s c i e n t i f i c and technical content(Susskind and Weinstein, 1980)." Opportunity for P a r t i c i p a t i o n The b i l a t e r a l character of the l i t i g a t i o n model r e s t r i c t s the p l u r a l i s t i c w i l l of society by including only two parties in any one c o n f l i c t resolution process. The l i t i g a t i o n model has d i f f i c u l t y addressing "polycentric" c o n f l i c t s e n t a i l i n g a variety of i n t e r r e l a t i o n s h i p s between a number of concerned 52 p a r t i e s . ( F u l l e r , 1978) "Not only are the issues involved in such (public) l i t i g a t i o n o-f ten polycentric; they are also problems for which no s a t i s f a c t o r y solutions may be at hand (within the legal structure)(Schuck, 1978)." Though conceptually every c o n f l i c t i s polycentric, the p r a c t i c a l t i e s through l e g i s l a t i o n , partnerships and associations of s i m i l a r l y interested parties may not always be obvious or of concern to the adjudicator. Consequently, resolution of c o n f l i c t in t h i s way may set precedents for decision making on other points of concern to parties that may not be direct participants in the l i t i g a t i o n . Solutions handed down by the courts in t h i s way are c r i t i c i z e d by a wider constituency than was represented in the system. Thus, related parties are c r i t i c a l of the apparent i n j u s t i c e that has been done and c r i t i c a l of the l i t i g a t i o n model for c o n f l i c t resolution. F l e x i b i l i t y of Outcomes "The adjudicative technique tends to i s o l a t e a s p e c i f i c incident leading to dispute, thus making i t d i f f i c u l t to take into account a l l the dimensions of the controversy. (T)he adversary nature of the proceedings and i t s winner-take-all aspect can exacerbate tension between the parties and leave the underlying problems to fester(Ford Foundation, 1978b)." The l i t i g a t i o n model, through i t s t r a d i t i o n a l , structured and antagonistic approach, does not provide a forum in which the d i s p a r i t i e s between parties can be overcome. With only two parties involved in the divergent l i t i g a t i o n system of c o n f l i c t resolution, each with an adversarial view of the desirable resolution, the job of the judge i s one of choosing between the alternatives presented. There i s no room in the course of 53 l i t i g a t i o n to invent new options for c o n f l i c t resolution. In fact, i f the questions to be judged are broad and of a more general nature, the adjudicator w i l l often l i m i t the discussion and finding of the court to a limited point of divergence. In t h i s way the tasks undertaken in the l i t i g a t i o n model are s i m p l i f i e d and r e s t r i c t e d such that they conform to the mechanics of the j u d i c i a r y and the p r i n c i p l e s of law and precedent.(Amy, 1983b) Once again d i s s a t i s f a c t i o n i s generated among the l i t i g a n t s as the c o n f l i c t that has been brought before the courts has been manipulated to f i t the process being used for resolut ion. Given the purpose of t h i s thesis, questions ari s e about the s u i t a b i l i t y of the Canadian courts for resolving c o n f l i c t s . Does the Canadian experience r e f l e c t the same weaknesses that have been i d e n t i f i e d in the American l i t i g a t i o n model? The companion question remains, how well does the unstructured bargaining practiced in Canada redress these issues? The parks / mines c o n f l i c t w i l l provide a pair of B r i t i s h Columbian cases that employ the respective c o n f l i c t resolution models, and share the same socio-economic and p o l i t i c a l conditions for decision making. In the past, some commentators have compared the best examples of environmental c o n f l i c t resolution under the bargaining model with the worst attributes under the l i t i g a t i o n model. I am fortunate in t h i s study to have two cases that provide arguably good examples, in the Canadian context, of each model. In the following chapter, w i l l describe in d e t a i l the cases in question. 54 Chapter 5 w i l l examine the evidence in each case in li g h t of the •five issues discussed here. £laim£d._Adi(ian .ta9es_Q£_Ear :3ainia3 We w i l l examine the advantages of bargaining as they have been proposed by a selection of commentators, through the same f i v e categories as were used in describing the weakness of the l i t i g a t i o n model for c o n f l i c t resolution. Delay and Time The bargaining model w i l l often be more time e f f i c i e n t in the resolution of c o n f l i c t . The delays that are found integral in the l i t i g a t i o n model are not present. The parties, being voluntary participants, are thought to be more inclined to s t r i v e p o s i t i v e l y toward resolution. The bargaining model, having adequate representation, should be able to provide a resolution that w i l l not require further c l a r i f i c a t i o n as various constituencies in the polycentric web of decision making adjust to the new administrative environment that r e s u l t s . Time delays w i l l often be found when changes in regulation, inspection and other procedures are required at the completion of a court proceedings. Consensual approaches, should decrease delay in the implementation phase by allowing the parties involved to anticipate the requirements of a forthcoming resolution of co n f 1 i c t . Costs "Most ... resource management c o n f l i c t s either end up in court or persist u n t i l one of the parties gives up. Obviously i t would be desirable <and less costly) to avoid l i t i g a t i o n i f 55 equally s a t i s f a c t o r y (or better) outcomes could be reached without it(Susskind and McCreary, 1985)." It i s "... costs that encourage the parties involved to negotiate in good f a i t h and reach a f a i r agreement(Amy, 1983b)." Three areas of cost reduction are i d e n t i f i e d in the bargaining model. F i r s t , the costs to the participants d i r e c t l y w i l l be reduced by a savings in legal costs. This may be especially the case for participants who from a legal standpoint are in a weaker position. Parties that perceive some strength in their p a r t i c i p a t i o n in bargaining w i l l also identify the potential savings over equivalent court proceedings.(Amy, 1983a) Second, at the conclusion of bargaining processes, the cost of further appeal proceedings i s an unlikely consideration. Penalizing costs to the losing participant of the court decisions are also avoided. Third, the costs of providing court f a c i l i t i e s and other services provided by government through taxation and rents can be avoided to a greater extent. Though there are several d i f f i c u l t i e s in c a l c u l a t i n g the actual costs of the bargaining model, (Susskind and Weinstein, 1980)the r e l a t i v e perceived costs in comparison to the l i t i g a t i o n model over the long term are the important c r i t e r i a for judgement. The reduced costs of bargaining are"... based on the r e a l i z a t i o n that there i s more to making policy e f f i c i e n t l y than simply making decisions expeditiously... (Amy, 1983b)." Capacity for Technical Issues The mediation model, through i t s reliance on the direct and sometimes mediated processes of c o n f l i c t resolution, has the c a p a b i l i t y to deal strongly with the technical issues of concern 56 in many environmental and resources c o n f l i c t s . "Because most environmental disputes involve complex legal, economic and s c i e n t i f i c issues, e f f e c t i v e negotiating usually requires access to expertise in those areas(Amy, 1983a)." With direct negotiation, the parties can each educate each other in ways that produce j o i n t understanding of the complexities of the c o n f l i c t . The c o n f l i c t that i s resolved with the assistance of a t h i r d party in the bargaining model w i l l require the services of an individual- or team of mediators that are knowledgeable and able to f a c i l i t a t e rational discussion in an e f f o r t to reach consensus. "Bargaining stimulates the flow of information between parties (information relevant to their preferences, even i f not to the applicable legal rules (Schuck, 1978)." Opportunity for P a r t i c i p a t i o n The bargaining model "... advances p a r t i c i p a t i o n by those the decisions affect(Schuck, 1978)." There are numerous advantages to f u l l p a r t i c i p a t i o n of a l l affected parties in the c o n f l i c t . The polycentric nature of most c o n f l i c t s enforces the assertion that a l l parties wishing to participate should be represented.(Fuller, 1978) (B)argaining can help participants to develop a better appreciation of the perspectives of their adversaries ... (and) may reduce h o s t i l i t y , soften positions previously taken, and ... tends to expose the true i n t e n s i t i e s of the participants preferences,...(Schuck, 1978)." Without opportunities for such completeness, any c o n f l i c t resolution process w i l l be open to c r i t i c i s m from excluded parties. "Agreement ... minimizes the r i s k s of extended c o n f l i c t (and) p o t e n t i a l l y adverse p u b l i c i t y ...(Susskind and Weinstein, 1980)." 57 Additional gains -from -full and voluntary p a r t i c i p a t i o n in bargaining are gained through the creation of a "strong impression o-f competency and capable leadership (Susskind and Weinstein, 1980)." F l e x i b i l i t y o-f Outcomes The bargaining model i s capable o-f producing an open agenda on which a l l parties to the c o n f l i c t are able to bring possible solutions and to develop innovations. "...(Opponents in mediation attempts often bring to the bargaining table a whole history of antagonistic relationships, misperceptions, and miscommunications that must be dealt with i f serious and straightforward negotiations over the substantive issues are to take place(Amy, 1983a)." "(T)he directness and informality of the discussions involved in environmental mediation (bargaining) leave the participants free to address the central issues of the controversy and perhaps resolve them (Amy, 1983b)." An array of arrangements are open for development and consideration within the bargaining model. "The bargaining exemplifies the virtues of a l l adversary processes: i t encourages d i v e r s i t y , stimulates the parties to develop relevant information about facts and values, extreme positions that would be asserted in l i t i g a t i o n (Schuck, 1979)." L i m i t a t i o n Before continuing, several q u a l i f i c a t i o n s must be placed on the d i s t i n c t i o n s in the preceding arguement. The l i t e r a t u r e c ited here in c r i t i c i s m of the l i t i g a t i o n model i s based on the 58 extremes of the United States experience. Likewise, many o-f the claimed advantages of the bargaining model are predicated on examples of structured and deliberate bargaining. Use of courts for c o n f l i c t resolution, though growing in Canada, i s not pursued with the same enthusiasm. The bargaining undertaken in Canada, though unstructured, i s conducted within e x i s t i n g administrative forms and conventions, and does not emulate the extreme at the c o n c i l i a t o r y end of the spectrum. There are strengths to be found in each model that should be retained for use in particular c o n f l i c t s i t u a t i o n s . The highly stuctured, time tested and decisive q u a l i t i e s of l i t i g a t i o n (Kriesberg, 1979) give "... active voice to extraordinary d i v e r s i t y of p o l i t i c a l , economic, s o c i a l and other interests...(Schuck, 1979)" ; i t demands a finding of facts and assertion of values, and can work to the advantage of the weaker party in c o n f l i c t by reducing established power relationships. (Schuck, 1979; Susskind and Weinstein, 1980) "Actual or threatened l i t i g a t i o n i s often a necessary prerequisite to the willingness of a party ... to negotiate; i t i s the source of power and influence that brings the parties to the table... (Cormick, 1982)" and to bargaining. There are variations on each model of c o n f l i c t resolution. P r a c t i t i o n e r s of each s t r i v e to develop the perceived strengths and to reduce the instances that show weakness. Though there are weaknesses in the l i t i g a t i o n process, i t i s not closed to modification and innovation that w i l l accomodate a variety of circumstance.(Cavanagh and Sarat, 1980) Informal rule-making and fact finding processes prescribed by some courts, though s t i l l e xhibiting some of the weaknesses that are found in the basic 59 l i t i g a t i o n model, are attempts at improvement (Schuck, 1979). Other possible adaptations o-f the l i t i g a t i o n model include ideas such as the science court (Kantrowitz, 1977) and masters o-f the topic appointed by a judge to provide advice and technical expertise. Each modification to l i t i g a t i o n or adaptation of bargaining to further accomodate the resolution of c o n f l i c t recognizes the d i v e r s i t y of c o n f l i c t and the variety of processes that need be considered. l Q Q l s_£Qr . _ U n l e n s t a n i l i n 3 In researching and developing the information necessary for t h i s thesis, a typology of c o n f l i c t causes has been used and found to be helpful for understanding some of the motivations and p e c u l i a r i t i e s of c o n f l i c t as i t occurs in the B r i t i s h Columbia parks / mines c o n f l i c t s i t u a t i o n . With the c o l o r f u l and often misunderstood character of mining, and as few examinations of the parks / mines c o n f l i c t have been undertaken, the following discussion i s included in the thesis for c l a r i f i c a t i o n . If c o n f l i c t i s definde as: the incompatibility between parties whose behavior and / or cognitions, interests, values diverge; then, each c o n f l i c t component in the d e f i n i t i o n can be viewed as a cause of c o n f l i c t . Together, these causes can be taken as a typology. This typology of c o n f l i c t has been proposed by Wehr (1979a) and Lord a l - (1979). Wehr and Lord both discuss the 'non - r e a l i s t i c ' nature of some c o n f l i c t . However, Dorcey (1934b) c a r r i e s forward the notion of behavior and e x p l i c i t l y includes i t as a cause of c o n f l i c t in natural resources management issues. In the following section I w i l l describe each type of c o n f l i c t 60 and develop examples, within the thesis context, as a means o-f c l a r i f i c a t i o n o-f the concepts set -forth by these authors. Scenarios w i l l be invented that r e f l e c t each c o n f l i c t cause as an aid to developing the framework of understanding. The key purpose of these scenarios i s to i l l u s t r a t e the meaning of each of the types of c o n f l i c t with examples that might occur in the parks / mines c o n f l i c t case. Resolution of each successive type of c o n f l i c t cause w i l l be, for i l l u s t r a t i v e purposes, a step toward the next type. In empirical cases there may be some mix of the four c o n f l i c t types. It w i l l be possible to distinguish actual causes of c o n f l i c t using the four part typology. With these d i s t i n c t i o n s , the reader can appreciate the process of development that the researcher has undertaken in preparation of the thesis as a whole. To bring c l a r i t y to the situations, I w i l l use f i c t i t i o u s dialogues. The s i t u a t i o n common to a l l dialogues w i l l be a personal meeting where two individuals represent parties in a parks / mines c o n f l i c t . It i s thought that by keeping with the same scenario, the 'pure' c o n f l i c t types w i l l be more eas i l y recognized. The parks proponent may represent a single group or a c o a l i t i o n concerned with advancing a park land use designation on the land in question. The mining advocate may represent a single enterprise or an association of mineral interests, with a goal of forwarding exploration and development options. Either party could represent a government line agency. As observer, I w i l l be the third party in the dialogue. My comments w i l l be in explanation and w i l l f a c i l i t a t e t r a n s i t i o n from one c o n f l i c t scene to another. 61 We should note that t h i s 'conversation' need not , in real l i f e , take place in a person to person manner but may transpire through various media including: radio, video, press, or through thi r d party information. The c o n f l i c t dialogue may be comprised of a variety of media messages. I w i l l write the dialogues for t h i s i l l u s t r a t i o n in the s t y l e of a t h e a t r i c a l play. Each actor's statement w i l l be labelled in turn: P - Park Proponent M - Mining Proponent The two participants have come to discuss the mineral deposit exploration and mine development processes set forth in M's documents. Each has had an opportunity to read and study the proposal. In b r i e f , the mining concern wants to continue with exploration, d r i l l i n g , sampling, development construction, operation, and reclamation. Each successive a c t i v i t y would be conducted as investment, market conditions and mineralization of the deposit dictate. The park interest wants a park designation to include the same lands proposed for mineral industry a c t i v i t y , thereby assuring use of the land for conservation and recreation purposes. Cognitive C o n f l i c t Dialogue Cognitive c o n f l i c t i s based on d i f f e r e n t understandings and perceptions of fact involved in the c o n f l i c t . The parties are both making an appeal to the facts to support their case, in t h i s instance for a particular land use. However, the parties disagree because of the way that they perceive the fact s . A c h a r a c t e r i s t i c dialogue might transpire as follows: 62 ti Do you understand that our proposal i s a six phase program leading -from exploration through development to production of minerals? P Yes, I understand that there are six phases to your proposed mining a c t i v i t i e s . M It i s correct that there are six phases, but I must correct your assumption that a l l six phases are mining. P Certainly a l l the phases are mining! Is i t not true that you w i l l be using diamond d r i l l s and even bulldozers to complete most phases of the proposal. M Our program i s to c a r e f u l l y explore and develop t h i s mineral property during the f i r s t four phases, as outlined in the proposal. Not u n t i l the f i f t h phase, closely followed by reclamation, does mining take place. P If you are allowed to continue, your crews w i l l be disturbing many tens of hectares, moving tonnes of rocks and processing them to extract the minerals they contain. Is that not true? M Yes we w i l l be taking rock from the property. However, we are only sampling small amounts of rock from a wide variety of locations, distributed over the entire s i t e . Disturbance w i l l be limited to only a hectare or two. Samples w i l l be analyzed to assess the amount of mineral that i t may produce. This i s not mining. P What may appear to be small amounts to you w i l l severely impair the entire core lands proposed for park. The valley in which your claims are situated, w i l l be changed beyond repair or usefulness. M Certainly within a year or two one would hardly notice that we had been doing work in the valley. Very l i t t l e disturbance w i l l be created. P A l l of these proposals w i l l change the land, making i t unsuitable for park. The damage w i l l not be diminished over time to allow the features of the park land to be f u l l y represented. The two parties appear to agree on some of the facts but perceive d i f f e r e n t outcomes or r e s u l t s from the proposal. Whereas the mining proponent envisages a series of development phases, the park lobbyist perceives six phases of negative 63 environmental impact. There appear to be three main areas of contention regarding -facts as set forth in M's proposals. F i r s t , a d e f i n i t i o n of what mining r e a l l y i s . The actors do not have the same a c t i v i t i e s in mind when mineral industry a c t i v i t i e s are discussed. Secondly, the area and tonnage of materials to be moved in exploring for minerals has not been agreed upon. Whereas the park proponent may count a l l potential movement of surface s o i l s and subsurface materials, the mineral interest may only perceive the rock that i s important for analysis as that which w i l l be disturbed and removed. Consequently, the number of hectares that w i l l be sustain impact by the proposal may be s i g n i f i c a n t l y d i f f e r e n t in the minds of each actor. The t h i r d issue in t h i s cognitive c o n f l i c t dialogue i s that of time, s p e c i f i c a l l y the time i t w i l l take for any disturbances to the landscape to recover to the former state. The perception of future state by each of the actors i s the key to c o n f l i c t . Where one might envisage a t o t a l devastation of the landscape, the other party has perceptions of mild and acceptable disturbance. The park proponent may view changes as t o t a l l y unacceptable while the mineral developer accepts wilderness as lands that may have f e l t some influence of human a c t i v i t y . This kind of s i t u a t i o n can be found in parks / mines c o n f l i c t s in B r i t i s h Columbia such as that of Kwadacha Provincial Park. The essential component contributing to c o n f l i c t i s that the information, or lack of i t , in the decision making process has led to major differences in the perceptions of the actors. In t h i s case a park has been established without a survey of mineral occurrences. Subsequently, mineral explorationists have 64 traced a promising mineral deposit to the boundary and into the park. The c o n f l i c t then arises as to what would be the impact of changing the park l i m i t s to allow further exploration of the deposit. Could the i n i t i a l boundaries have been established to avoid a deposit of high economic potential? Would doing so then or now compromise the features of the park that are designated for conservation? This c o n f l i c t continues unresolved because of a lack of agreement on the facts of the matter. Our dialogue case above i l l u s t r a t e s a variety of possible manifestations of cognitive c o n f l i c t between park and mineral proponents. What i s needed for resolution of t h i s type of case i s a process for c l a r i f y i n g or contributing to the facts so that the parties to the c o n f l i c t can reach some level of agreement. Perhaps some form of study or conferencing could be used to establish the fa c t s . However, once t h i s i s done there may be some residual c o n f l i c t . F a i l u r e to resolve the greater portion of the c o n f l i c t may indicate the presence of a value c o n f l i c t . Value C o n f l i c t Dialogue Value c o n f l i c t stems from d i f f e r i n g assessments of the d e s i r a b i l i t y or acc e p t a b i l i t y of actions and re s u l t s . "Value c o n f l i c t i s almost always present, not only because d i f f e r i n g s o c i a l i z a t i o n creates d i f f e r i n g values between people, but because we so readily r a t i o n a l i z e our immediate interests by creating and adapting a value structure which supports and legitimizes those interests (Lord, e t . a l . 1979)." Value type c o n f l i c t i s a disagreement over evaluations of alternatives. C o n f l i c t i n g parties can disagree over the r e l a t i v e importance of developing mineral occurrences or designating park 65 land. This then i s a dialogue concerned with d i f f e r i n g opinions o-f what actions are worth taking. P The damage to t h i s potential park land would surely be enormous i-f you were to continue. It would ce r t a i n l y not be as worthy o-f park status. M I-f we don't continue with our assessment of t h i s mineral deposit then we w i l l not be able to get the geological information that we need. These lands have to be held open for mineral exploration. P We would l i k e to see these lands held undisturbed so that they may be enjoyed for the conservation of natural features that they encompass. M Minerals are where you f i n d them, and only rarely are the concentrations of minerals adequate such that the cost of recovery and the proximity to markets make a project economically viable. P Park land too i s rare and unique. Each landscape has i t s own climate, f l o r a and fauna to be conserved for education and for recreation. M Surely there i s enough park land in B r i t i s h Columbia without adding t h i s particular area. Five percent i s a considerable designation to be withheld from mineral exploration and other a c t i v i t i e s . P The present park system i s but a portion of what i s needed to represent the natural features of the province and provide opportunities for recreation. M I don't care i f we haven't enough park land for conserving wild flowers and black bears. Just go out in the bush and you w i l l f i n d more than anyone needs. This dialogue i s an example of how a value c o n f l i c t can often seem to be about or concerned with the f a c t s the way that a cognitive c o n f l i c t might be. The way that t h i s dialogue has transpired i s typ i c a l of many arguments between park proponents and the mineral industry in B r i t i s h Columbia. Though much i s made of the information and facts of the case, the underpinnings of the c o n f l i c t are the divergent value structures inherent in the parties' views. The debate here i l l u s t r a t e s the great 66 difference in values attached to the land in question by the c o n f l i c t i n g parties. Amidst the cognitive components of the argument concerned with the amount of recreation land that i s actually needed, the basic value positions of the actors surfaces. Each holds the value of land use for their purpose as more desirable to society than the other. In fact, the comments of the mineral proponent b e l i t t l e the importance of his r i v a l ' s values. Values in t h i s sense are not monetary values but the values of the parties as they r e f l e c t any p a r t i c u l a r world view. It must be noted that value in t h i s instance i s not monetary values, rather more prominent i s the s o c i e t a l value positions of the c o n f l i c t i n g parties. Some value c o n f l i c t s w i l l be commensurable in monetary form and others w i l l not. Sometimes the non- monetary values can be translated through some estimation of surrogates. Those values that w i l l not by their nature be given a monitary equivalent w i l l require the use of more innovative c o n f l i c t resolution processes. It i s often assumed that in situations of value c o n f l i c t , an impasse i s inevitable and that some a r b i t r a t i o n need be imposed. In fact, trade-offs might be possible when both sides are unsure of gaining their objectives. When one side or the other perceives that they may be in a win / lose s i t u a t i o n , i t may be advantageous to them to negotiate the best alternative, thereby minimizing losses. It i s possible that a win / win s i t u a t i o n might be created. It i s l i k e l y that the wider the d i s p a r i t y between the parties in the value c o n f l i c t , the greater the d e s i r a b i l i t y of s t r i k i n g some compromise point in valuation alternatives. This w i l l e s pecially be the case when the parties 67 to the c o n f l i c t appear to be quite evenly matched in the power that they command in the decision making process. Though the monetary element i s evident in the short case examples that we have examined to t h i s point, the value cause -for c o n f l i c t i s also an integral part. The V a l h a l l a Wilderness Park, having considerable cause for c o n f l i c t in the r e l a t i v e economic merit of park or forest land uses may be a case where the proponents of mineral values have a lesser impact. In such a s i t u a t i o n , the value nature of the parks / mines c o n f l i c t may be more apparent. Many local residents value the V a l h a l l a area for i t s c h a r a c t e r i s t i c s as wilderness and for the tranquil nature that i t contributes to l i v i n g in the community. At the same time residents who have mineral claims in the area argue that those same values touted by park proponents w i l l not be disturbed by mineral development a c t i v i t i e s . The parties diverge as to the extent that the V a l h a l l a area must remain p r i s t i n e to provide the wilderness q u a l i t i e s that each value highly. Value c o n f l i c t resolution requires measures to f a c i l i t a t e an appreciation of alternative values by both parties. Through such action, an understanding of the opposing value position may lead to some form of unity. Though values may not converge, the divergence along a spectrum may be considerably narrowed such that appropriate trade-offs are possible. Interest C o n f l i c t Dialogue Interest c o n f l i c t describes disagreement over the d i s t r i b u t i o n of costs and benefits associated with the use of scarce resources. In short, the c o n f l i c t i s over who should pay. 68 An interest c o n f l i c t p i t s the interests of one party against those of another. Such a c o n f l i c t i s characterized when the interests of one party, i f advanced, w i l l have a negative impact on those of another party. The interest c o n f l i c t does not have a potential Pareto optimal option. In the case of land use the interest type c o n f l i c t i s one of a zero-sum concept, where the advances of one side in the resolution w i l l be equally matched by the losses of the other. However, in many cases of interest c o n f l i c t , one party's gain i s not equal to the other party's loss. The si t u a t i o n i s summarized by R a i f f a (1982) as one where there are no net gains to be found. Interest type c o n f l i c t i s usually and most e a s i l y reflected in a monetary form. The decision to be made in resolving an interest c o n f l i c t i s who w i l l pay the costs and who w i l l reap the benefits of any action. A dialogue exemplifying t h i s type of c o n f l i c t could proceed thus: M We have established and registered a claim to the minerals held under these lands. P Your continuing with t h i s project w i l l jeopardize the natural features we want to preserve. li Our f i n a n c i a l backers have invested a considerable amount of money and our geologists have t o i l e d long hours toward advancing t h i s project. P We believe t h i s potential park land i s of great recreational value. M We can not afford to abandon t h i s project without some return. P The great economic e f f e c t s , through the investment m u l t i p l i e r , of recreation land and associated f a c i l i t i e s must be recognized, preserved and developed. ti Not only have we spent a considerable sum on the development of t h i s property already, but the minerals in the ground w i l l contribute greatly to the investors return i f they are recovered. 69 This dialogue i l l u s t r a t e s the d i s t r i b u t i o n a l nature o-f the interest type c o n f l i c t . The regional interests promoted by the park proponent are decidedly in c o n f l i c t with the private and i n d u s t r i a l interests of the mineral development proponent. The gain of either party in t h i s s i t u a t i o n w i l l be decidedly at the expense of the other's loss. The mineral development proponent continues to stress that his interests and those of his f i n a n c i a l backers must be met. Resolution of such a c o n f l i c t w i l l turn on which party i s w i l l i n g to offer or accept some compensation in monetary or other terms for the loss of opportunity associated with the land under any preferred use option. Once one party or the other has decided to offer some compensation and the other has agreed to t h i s form of resolution, the negotiations or bargaining can be concentrated on the amount of money or land or resources that w i l l be necessary for interests to be relinquished. Though t h i s appears to be simple, many interest c o n f l i c t s are not resolved. The required trade off i s never made. A key to t h i s lack of success i s often that there i s no market or other forum in which the interests of the divergent parties can be expressed. Precisely t h i s s i t u a t i o n has occurred in B r i t i s h Columbia already. In the Tener case, as the Wells Gray Provincial Park si t u a t i o n has come to be known, both the mineral claim holder and the parks ministry are committed to retaining their interest in land. Legal arguments on both sides in the courts of both the province and the Supreme Court of Canada over a number of years focus on the compensation issue. The question asked the court i s 70 whether the government must compensate Tener's loss of interest in land and minerals. After an prolonged hearing, a ru l i n g in Tener's -favour has -forced the government to compensate, or allow the -further development o-f the mineral claims in question. The di-f-ficulty o-f determining an appropriate amount and perceived high costs o-f compensation have -forced an exception to be made in the l e g i s l a t i o n prohibiting mineral exploration in Class A parks. Behavioral Con-flict Dialogue There are a m u l t i p l i c i t y o-f ways in which c o n f l i c t can become a behavioral type. Behavioral con-flict goes beyond divergent cognitions, values or interests o-f the parties, to some non-rational or non-substantive s t a r t i n g point. A breakdown in the o b j e c t i v i t y and c l a r i t y o-f discussions may occur. Chie-f factors in the c o n f l i c t might include the personalities, physical circumstances, or quality of communications. Incompatible individual personalities may stymie c o n f l i c t resolution when other types of c o n f l i c t have not yet been addressed, or seem to have been overcome. The c o n f l i c t confrontation may occur (as i s th i s writer's experience) when each i s trying to cope with d i f f i c u l t physical conditions, such as inclement weather while meeting on the actual land in question. This may lead to i r r a t i o n a l comments or behavior. In the same manner, moving f i n a l approval of a resolution to an unfamiliar setting may spark anxieties for those in c o n f l i c t . Communications , especially through media or second hand (perhaps unreliable) sources may further contribute to a non-rational exchange by causing intended messages to be misunderstood. The following dialogue embodies some of the parameters that could typify a behavioral c o n f l i c t : 71 li I am c e r t a i n l y pleased that we have come to a reasonable arrangement over our -first points o-f con-flict and that we can close our resolve here at the le g i s l a t u r e with the ministers' approval. P Yes, -finally park land i s getting the recognition i t has long deserved. li Well, would you l i k e the whole province to be a park? P You know the more you say things l i k e that, the more uneasy I become with t h i s agreement. li The -feeling i s mutual, believe me. P I knew from the star t that we couldn't trust you miners to negotiate in good f a i t h . You have probably been cooking up some hidden agenda a l l along. li So now you are lumping me in with a l l miners as untrustworthy and devious. Perhaps your- own motivations should be examined. P The mere thought of a devoted environmentalist compromising his values to accommodate an i n d u s t r i a l development i s preposterous. I w i l l not stand here and l i s t e n to these personal affronts. li I can assume then that we do not have an agreement after a l l t h i s . It c e r t a i n l y seemed too good to l a s t . Wehr (1979a) would describe t h i s c o n f l i c t dialogue as non-r e a l i s t i c . We can see that each proponent i s reacting to the concerns or allegations of the other in a stereotypical manner. Rather than the individual merits of arguments and concerns being addressed by the actors in the dialogue, the notions and fears and long established stereotypes of both miner and environmentalist have been adopted by the actors in the c o n f l i c t . Perhaps the individuals are reacting to the underlying stress of the c o n f l i c t s that they have already agreed to resolve. Perhaps the unfamiliar s i t u a t i o n of being in the p o l i t i c a l spotlight of the government ministers i s contributing to the stress. A 72 scenario such as t h i s may occur where there has been l i t t l e previous contact or where the c o n f l i c t resolution process has been protracted or f r u s t r a t i n g , leading to a loss of r a t i o n a l i t y in the exchange. Though in our explanation of the previous three types of c o n f l i c t an example from the short case examinations has been highlighted, I have not in the eight parks / mines c o n f l i c t s , i d e n t i f i e d behavioral c o n f l i c t . This deficiency may be due in part to the s u r f i c i a l extent that the cases have been investigated to t h i s point. More in depth research and discussion in the next chapter may reveal more indications of behavioral, non-rational c o n f l i c t . Resolution of behavioral c o n f l i c t may best be conducted through a c t i v i t i e s in the processes that avoid the stumbling blocks that have been suggested. By breaking down the stereotypes and potential personality differences to allow a clear understanding of the issues and the views of the parties behavioral c o n f l i c t may be avoided. Further, careful planning to establish s i t u ations, conditions and meeting places that are conducive to productive discussion i s important. A c t i v i t i e s that w i l l modify the factors that contribute to behavior c o n f l i c t include measures such as understanding emotions or using symbolic gestures, suggested by Fisher and Ury (1981), that address the people problems apart from the other problems in the c o n f l i c t . 73 An appreciation of the i d e n t i f i e d weaknesses of the l i t i g a t i o n model and claimed advantages of the bargaining model of c o n f l i c t resolution, contributes to our understanding of the theoretical concepts that underpin t h i s thesis. Both l i t i g a t i o n and bargaining are resolution processes that are basics upon which innovation and adaptation can be established. The four part typology of c o n f l i c t establishes a communality of understanding between the reader and the researcher in preparation for the detailed description of the Weils Gray Provincial Park l i t i g a t i o n model experience and the Chilko Lake Wilderness Proposal bargaining model experience to follow. 74 C H A P T E R 4 T W O C A S E S O F P A R K S / M I N E S C O N F L I C T : W E L L S G R A Y P R O V I N C I A L P A R K A N D C H I L K O L A K E P A R K P R O P O S A L 75 This chapter w i l l examine more closely two cases of parks / mines c o n f l i c t . This component of the thesis i s designed to accomplish two goals. F i r s t , I am endeavoring to establish the chronology of s i g n i f i c a n t events in the two cases chosen. Second, in so describing the cases, learn the manifestations of the l i t i g a t i o n and bargaining processes of decision making that have been used in attempts to resolve the parks / mines c o n f l i c t in B r i t i s h Columbia. This w i l l allow us, in Chapter 5, to use the c r i t e r i a for evaluation that have been established in Chapter 3 in analysis and preparation of recommendations. The framework provided by phases of the decision making environment, established in Chapter 2, w i l l lead to an understanding of the v a r i e t i e s of organizational and individual actor roles, and c o n f l i c t resolution processes. This information i s required to evaluate the ex i s t i n g c o n f l i c t resolution processes. In choosing the cases of Wells Gray Park and the Chilko Lake Proposal, I have unknowingly made a choice of what appears to be becoming an intertwined story of c o n f l i c t resolution processes as they develop. (Further rationale for the selection of the Wells Gray and Chilko cases from those that have been described in Chapter 2 i s presented in Appendix 3.) Phases of the decision making environment w i l l form the framework for analysis. It has been revealed that the Wells Gray s i t u a t i o n i s now one to be learned from and avoided. With at least 650 v a l i d mineral claims within provincial parks of B r i t i s h Columbia, the ramifications of a positive result for the claim holder are many for the exis t i n g 76 administration o-f the parks / mines conf1ict.(Heycek, 1985) Si m i l a r l y , the early components o-f the Chilko Lake case are looked at as obsolete, and a new order model -for parks / mines c o n f l i c t resolution i s now in evolution. (Col l i n s , pers. comm., Apr i l 28, 1985) The current decision making environment and c o n f l i c t resolution processes have grown from each of the phases that precedes i t . Further evidence of t h i s phasing of the parks / mines c o n f l i c t resolution environment w i l l be evident as the following case studies are examined within the four phase framework. It i s to t h i s task that we now turn. Thus the order of the case descriptions presented below. Wells_Snay_EnDiiinc.ial_Eank_C.ase Though the number of actors in t h i s case are few, the number of processes and actions taken by the parties and the protracted nature of the c o n f l i c t resolution process are quite complex. A digest of the case i s presented in Appendix 4 as a chronology of events. Foundation Phase Between 1934 and 1937, a consortium of investors, including the predecessor in t i t l e of Mr. David Tener, received indefeasible t i t l e to 16 Crown granted mineral claims on the lands that are now included in the northeast portion of Wells Gray Provincial Park. In 1939, the park was designated by the provincial government. The period 1938 to 1945 was a time of continued gradual growth in both the number of, and area included in, provincial parks ( B r i t i s h Columbia, 1980). Under the Mineral and Park Acts of the day, the holders of these mineral claims 77 were e n t i t l e d to use the surface o-f the claims to work and win the minerals contained in the subsurface. In addition, entitlement was given to take and use a right of way to the claims to extract the minerals they may contain. As we have seen, during t h i s phase of the parks / mines decision making environment, there was v i r t u a l l y no c o n f l i c t . However, as the environmental movement became stronger, r e s t r i c t i o n s would begin to appear. The Park Act, 1965 (B.C.), c. 31 now R.S.B.C. 1979 c. 309 section 9, as amended, prohibited the development of any mineral claims except under a park use permit. At t h i s time Wells Gray Provincial Park was a class B park, therefore a permit to allow development could be granted i f i t was not detrimental to the recreation values of the park. Tener had applied for such permits as required before further exploration and development work could take place, however, these were never granted. As time passed, the r e s t r i c t i o n s on development of mineral claims within parks became more constraining. Under the Mineral Act, R.S.B.C. i960, c. 244 now R.S.B.C. 1979, c. 259 section 7, as amended, claims such as Tener's could not be developed except as authorized by the Lieutenant Governor in Council. Revolution Phase In 1973, in conformity with environmental and conservation platforms of the newly elected government, the Park Act was amended. The policy of the New Democratic Party to ban mineral exploration from parks, reflected a change in the value structure of the government toward the values of parks proponents and toward strengthening the power of the Parks Branch.(McNelly, 78 19^3) Exerpts from" the statements o-f the then Minister o-f Resources, Bob Williams read as -follows: "The govenment also intends to bring in l e g i s l a t i o n t h i s session bringing a l l provincial parks under statute. ... ...the -former Social Credit government was responsible for the greatest retardation o-f park preservation anywhere in the world over the past 20 years. ... ... exploitation o-f natural resources in parks i s almost / always detrimental to recreational values." (McNelly, 19S3) Wells Gray Park was changed -from a class B to a c l a s s A Park. This higher designation placed -further r e s t r i c t i o n s on Tener's a b i l i t y to develop his claims. A use permit can only be issued in a class A park, i-f i t was necessary -for the preservation or maintenance o-f the recreational values o-f the park. Upon r e f l e c t i o n , the 1973 action of the provincial government in ef f e c t removed the right of development from Tener, even though he s t i l l held the mineral rights. In 1973 Tener once again sought a park use permit. Written permission was given by the Parks Branch for helicopter f l i g h t s into and out of the claims for the purpose of that work. However, no park use permit was granted. Tener engaged in a plethora of l e t t e r s , phone c a l l s and personal meetings with the director of the Parks Branch. Excerpts from two l e t t e r s in 1974 from the Parks Branch to Tener read in part as follows: June, 1974. ... As you know, the construction of nine miles of i n d u s t r i a l road access across Park land to the Summit Claims i s in c o n f l i c t with Section 9 (b) of the Park Act. We have sought instructions from the Government as to whether, in view of t h i s c o n f l i c t , we should proceed with valuation appraisals through the Department of Mines with the intention of negotiation the purchase of these claims, or issue the necessary authorizations for you to conduct your operations in 79 view of the fact that the mineral claims predate the Class "A" Park. September, 1974. Action towards resolving the question of permitting you to proceed with the operation of Mineral Claims (L5001 - L5016) in Wells Gray Park should be concluded by the t h i r d week in October i f not sooner. (Tener and Tener __ B., 1982) A park use permit was not issued in 1974. It appeared that the Parks Branch was s t a l l i n g . The r i s e in environmentalism and the demand for outdoor recreation was reflected in considerable controversy over mining in provincial parks. The New Democratic Party could not part from p o l i c i e s of park preservation developed while in opposition. Though some mineral rights within provincial parks were purchased from claim holders, by the government, Tener's case did not attract s u f f i c i e n t p o l i t i c a l attention to resolve the c o n f l i c t . Annually requested, park use permits were not granted in 1975, 1976 or 1977. Mining in parks continued to be a d i f f i c u l t p o l i t i c a l issue. Mr. Justice J.D. Lambert stated in 1982 of the s i t u a t i o n , "... the government procrastinated because mining in parks was a d i f f i c u l t p o l i t i c a l issue(Anon, 1982)." Prosperity Phase A return of a pro-development government in 1976 did not lessen the c o n f l i c t or change the p o l i c i e s regarding mineral claims in parks or the issue of mineral industry access to park land for exploration purposes. Economic growth in a l l sectors of the economy was enjoyed by government, the mining industry and conservation and outdoor recreation interests. Prosperous times tended to reduce the intensity of c o n f l i c t as s a t i s f a c t i o n with 80 e x i s t i n g resource a l l o c a t i o n s , especially on the mining side o-f the con-flict, was the norm. Such corn-fort and complacency in government would not provide the -flux needed for i n i t i a t i o n o-f d e f i n i t i v e con-flict resolution actions. In 1978 a l e t t e r , o-f which the following i s a portion, was sent to Tener by the Parks Branch Director: ...the whole subject of mineral claims in Provincial Parks i s very complex and has been under investigation for a considerable time. Under the present Parks Branch policy respecting mineral claims, we regret to advise that no new exploration or development work may be authorized within a Provincial Park. Not withstanding the above, would you kindly quote us an itemized quit claim price, showing a comprehensive breakdown of expenditures incurred respecting the Summit Group of claims for our records and consideration.(Tener and Tener __ B-» 1982) This l e t t e r was taken by Tener as the denial of any further opportunity to exploit the mineral claims. This l e t t e r also signals the end of unstructured negotiation c o n f l i c t resolution process within which Tener i s attempting to gain access to park land for mineral exploration through government administrative processes. In t h i s communication, i s also the f i r s t action of the government toward compensation of the loss of a b i l i t y to access the park land for mineral exploration. It i s at t h i s point that d i r e c t and s p e c i f i c negotiation between the parties could have been begun. However, on advice from his lawyer, Tener i n i t i a t e d a court action against the Crown. It now seems that the crown, at t h i s point s t i l l enjoying the prosperity phase decision making environment, was not w i l l i n g to proceed substantively toward resolution of the Tener c o n f l i c t . The writ f i l e d by Tener o u t l i n i n g a claim for compensation, stated the following costs and expenditures: 81 - i n i t i a l acquisition cost $100,000 plus interest; - present values of the h i s t o r i c a l expenditures approximately * 1.5 m i l l i o n ; - present value o-f loss o-f opportunity approximately $ 3 mi 11 ion. Though the loss o-f opportunity value may vary greatly with fluctuations in gold and s i l v e r metal prices the figures indicated in the writ were never challenged. The engineering report by W.T Irvine (1978) was never brought into question. It was estimated in 1978 that the tot a l value, or quit claim price of the claim could be * 5.2 m i l l i o n . Current estimates could fluctuate depending on the metal prices used to upwards of * 12 m i l l i o n . The Minister of Mines during t h i s same time period offered a compensation of $100,000 (Tener, pers. comm., Ap r i l 26, 1985). It appears that the wide discrepancy between the government offer and the expectations forwarded in the court documents may be the main reason why direct negotiation was never undertaken. The second stage of the c o n f l i c t resolution process was that of adjudication in the l i t i g a t i o n model. It i s the example of the l i t i g a t i o n model that i s most important in demonstrating the weaknesses and possible strengths for c o n f l i c t resolution. Pitted in an antagonistic framework, the two parties to the c o n f l i c t were now asking an adjudicator to rule on the right of Tener to compensation in l i e u of access to the mineral claims that were held in the Wells Gray Provincial Park. A digest of the case arguments appears in Tener and Tener v. R. (B.C.C.A.) March 2, 1982. Further complete Supreme Court of Canada documentation from both the appellants and respondents 82 has been made available to t h i s researcher by David Tener and his lawyer. What i s important to t h i s discussion are the sequence of events that have been completed in t h i s c o n f l i c t resolution process. Both the importance of the issue to each of the parties and the prolonging nature of l i t i g a t i o n are c l e a r l y demonstrated. Recession Phase The Tener case was f i r s t heard before the B r i t i s h Columbia Supreme Court in 1980, two years after the legal action was i n i t i a t e d . In t h i s action the j u s t i c e rejected Tener's claim for compensation. Tener was not s a t i s f i e d . In times of economic stress, both Tener and the government were w i l l i n g to pursue t h i s issue beyond the o r i g i n a l court action. With the considerable lead time required for development of mineral resources, and the cost of c o n f l i c t resolution, potential parks / mines c o n f l i c t s were avoided during the prosperity phase of the decision making environment in favour of known and less encumbered deposits. It was the opinion of Tener's lawyer that the j u s t i c e had not understood the arguments of the p l a i n t i f f and therefore recommended appealing the r u l i n g to the B r i t i s h Columbia Court of Appeals.(Martin, 1983) This action was started immediately. The Court of Appeals decision in favour of Tener was brought down on March 2, 1982. Following the r u l i n g , Tener was to meet with the government to discuss the amount of compensation due. If the two parties could not agree on the amount, the decision would go before binding a r b i t r a t i o n (Anon., 1982). No meeting took place however. The Crown rejected the decision of the B r i t i s h Columbia Court of Appeal and raised the 83 case be-fore the Supreme Court o-f Canada. At the end o-f December 1982 the documents of the c o n f l i c t i n g parties were f i l e d in the highest court. ( f i . in Right of B r i t i s h Columbia a; B. in Right of B r i t i s h Columbia b) The case was not heard to completion in May 1983 as Tener had expected at that time. Due to the withdrawal of one of the Supreme Court Justices because of i l l n e s s , the case was delayed and had to be heard again before a new assembly. This odd turn of events further contributed to the delay and also increased the cost of legal fees to both of the c o n f l i c t i n g parties. One more delay b e f e l l the passage of t h i s case throughout the legal system. Once the court had heard the f i r s t arguments of the parties, they requested further submissions based on the legal arguments that had been brought forward in the lower court. These were f i n a l l y presented in November 1984.(B. in Right of B r i t i s h Columbia c; (B. in Right of B r i t i s h Columbia d; (B. in Right of B r i t i s h Columbia e) Until November 1984, four years had passed in the j u d i c i a l attempt at resolving the case between Tener and the Crown. Reasons of the Supreme Court of Canada, in Tener"s favour, were handed down May 9, 1985.(Supreme Court of Canada, 1985) At least 15 years had passed since the c o n f l i c t had become active. It has been 45 years since the potential land use c o n f l i c t was created by the designation of Wells Gray Provincial Park without the removal of individual rights to minerals within i t s boundaries. Each of the parties to the c o n f l i c t has had to shoulder a considerable f i n a n c i a l burden to mount his case in the courts. David Tener alone has spent some * 300,000 in legal fees and other expenses(Tener, pers.comm., Ap r i l 1985). Such a f i n a n c i a l 84 burden has caused considerable losses -for both he and his business. Added costs have been born -for legal -fees by the provincial government. Further, losses o-f taxation revenue and costs o-f j u d i c i a l administration combined with those o-f l e g i s l a t i v e review, contribute to a s i g n i f i c a n t expense incurred in the Wells Gray Provincial Park l i t i g a t i o n . Further action toward the a l l e v i a t i o n of t h i s case has been a choice between two options. Either the provincial government can compensate Tener as i s set by the court, or the group of mineral claims can be declared a recreation area within the provincial park, therefore allowing for mineral exploration and development to continue. The second option, which allows Tener access to the park for the purpose of mineral exploration, has been chosen. Amendments to exist i n g l e g i s l a t i o n have been passed that downgrade the area of the mineral claims to a recreation area. The province can now allow development. As the current recessionary phase of the province's economy continues i t i s unlikely that the compensation option w i l l be exercised. Though maintaining the park in an unfettered state would be desirable, planners recognize that the lower cost option i s the l i k e l y choice (Thompson, pers. comm., June 18 1985). However, the question of administrative costs to be born by the Ministry of Lands, Parks and Housing and the Ministry of Energy, Mines and Pertroleum Resources for maintaining t h i s resolution of the c o n f l i c t have not been addressed. In the opinion of many advocates, the issue of mineral claims in provincial parks has not, in t h i s case, been resolved in a desirable fashion. (Bohn, 1985b; Bohn, 1985c; C o l l i n s , pers. comm., Apr i l 28, 1985; 85 McArthur, pers. comm., May 1, 1985) The l i t i g a t i o n process -found in t h i s case has been judged by many not to be a desirable alternative in the precedent i t sets -for other similar cases.(Tenner, pers. comm., Ap r i l 26, 1985; Ratel, pers. comm., May 1, 19855 Heyck, 1985) _hilkD_L_k___ild_ _ n_s_ _ E a n k _ E_DRQ_ a l As with the previous case, a digest o-f the chronology o-f events in the Chilko Lake case i s given in Appendix 5. Both the long standing status o-f the mining industry in the Chilko area and the transformation of unstructured bargaining c o n f l i c t resolution processes applied to the sit u a t i o n w i l l be observed. The case i l l u s t r a t e s the use of the bargaining model in a sit u a t i o n where park interests are attempting to have park land use designated in an area where mineral interests are of long standing. Foundation Phase The lands surrounding Chilko and Taseko Lake, of the Ch i l c o t i n region of B r i t i s h Columbia, have long been known as areas of mineral a c t i v i t y . Prospectors f i r s t explored the Chilko area during the early 1900*s with the f i r s t mineral discoveries in 1910. In the 1930's, mineral deposits had been i d e n t i f i e d that held substantial gold values. Some limited development work produced samples enough to maintain interest in the area for some time. During the 1940's mineral development a c t i v i t y increased considerably as extensive exploration was conducted by d r i l l i n g and tunneling of at least one prospect.(Farrow, 1978) The recognized potential of the area was reflected in the maintenance 86 o-f the mineral claims staked in more prosperous times. Although the mineral exploration in t h i s area i s of long standing, only modest levels of interest and importance have been recognized. The c o n f l i c t between mineral interests and outdoor recreation interests in the Chilko area has not been recognized during the f i r s t decision making environment phase. The foundation i s now set to introduce the elements of land use c o n f l i c t that w i l l become the focus of the subsequent analysis. Revolution Phase Beginning in 1973 the Parks Branch of the Department of Recreation and Conservation conducted studies with a view to id e n t i f y i n g landscapes and environments suitable for a provincial park designation in the area known as the C h i l c o t i n . These studies were in response to a proposal by the Vancouver Natural History Society for a large wilderness park in the Tchaikazan Valley area. However, the Parks Branch studies were designed to give a broader framework for a survey of areas for park establishment. Studies conducted in 1974 flagged the high quality of the C h i l c o t i n for wilderness recreation. (Chilcotin Wilderness Park Study Committee, 1976) A C h i l c o t i n park i s of interest to the Parks Branch as there i s no land designated for conservation between Tweedsmuir Park in the north and Garibaldi Park in the south along the Coast mountains representing the t r a n s i t i o n between the moist Coastal climate and the dry Interior Plateau. With an objective of representing a l l natural physiographic regions of the province in the parks system, further studies of three areas in the C h i l c o t i n were made for comparative purposes 87 in 1975. It was at the end o-f these Parks Branch studies, carried on in a decision making environment encouraging planning, that the -first preliminary perspective o-f possible resource use c o n f l i c t s was sought. To achieve t h i s , an inter-agency analysis of resource values was conducted, but again on a preliminary basis. It was evident that the Parks branch and public interest groups had developed considerable momentum in proposing the establishment of a park, however, l i t t l e consultation had been undertaken with the other resource users having an interest in the area. I n i t i a l reaction to the Parks Branch studies of 1975 by the Geological Branch of the Department of Mines was one of considerable concern for the the size of the proposed withdrawal of land from mineral exploration and development and the impact that park designation would have on the e x i s t i n g and future investment of the mining industry in the C h i l c o t i n area (McArthur, pers. comm., May 1 1985). Other competing resource users had some reservations, though these were seen to be minimal in comparison. In 1975, with a mandate to supply research and information services to the Environment and Land Use Committee of the Provincial Cabinet, the Environment and Land Use Committee Secretariate i n i t i a t e d an inter-agency C h i l c o t i n Wilderness Park Study in response to the formal request of the Squamish -L i l l o o e t Regional D i s t r i c t for establishment of a wilderness park in the southern C h i l c o t i n (Chilcotin Wilderness Park Committee, 1976). Representatives on the inter-agency committee included a l l natural resource and land use agencies of the provincial government. In addition, representations were received from the 88 Western Guides and O u t f i t t e r s , Williams Lake Indian Council, the B.C. and Yukon Chamber of Mines and the Outdoor Recreation Council of B r i t i s h Columbia. These non-governmental groups acted in an advisory role rather than as direct participants. The major goal of the 1975 - 76 study was to conduct a resource inventory. A l l of the areas being considered for park exhibited high values of outdoor recreation. S i m i l a r l y , mineral resource values were recognized in a l l three areas considered. The localized pattern of mineral claims within the Chilko Lake component of the C h i l c o t i n Park Study area, in combination with the spectacular scenic and boating attractions indicated that the Chilko Lake component would be the most l i k e l y candidate for a Class A Park. However, the mining values, hydroelectrical interests and concerns of the native Indians posed problems in defining the park proposal boundaries. The Revolution Phase of the decision making environment in which the Chilko Lake case developed was one of considerable a c t i v i t y . The agitation of the Foundation Phase, with the r i s e of environmental issues, was dramatically transformed to the decision making arena by the change in government. This phase of a c t i v i t y toward the resolution of the Chilko Lake parks / mines c o n f l i c t would not be sustained however. Prosperity Phase At least three major mineral exploration projects were to receive attention during t h i s time. With i n d u s t r i a l prosperity ran a trend toward reduced stress in the parks / mines c o n f l i c t . Mineral industry interests were in a s u f f i c i e n t l y prosperous 89 position that - f l e x i b i l i t y in decision investment making could be a-f-forded. This security also led to l i t t l e resistance toward proposals -for park land designation. There was l i t t l e pressure •for park land designation though, while a l l sectors o-f the economy were able to prosper under the exis t i n g a l l o c a t i o n regimen. Only with the coming downturn in the economy would stress be placed on the government to make decisions that would assure the a l l o c a t i o n of lands to a l l industries and interests that depended on the land for maintenance. Only one Prosperity Phase i n i t i a t i v e would have bearing on the decision making process used in the Chilko case. The Deferred Area Plan was i n i t i a t e d by the Ministry of Forests and was in 1981 used to continue discussions of Ministry of Lands, Parks and Housing proposals. Recession Phase Following the 1978 reorganization of the forests administration of the B r i t i s h Columbia government, the Ministry of Forests set about a consolidation of i t s forest land management plans in the province. A part of t h i s process was the i d e n t i f i c a t i o n of divergent and incompatible resource land uses. Approximately 30 of these areas were recognized and designated as Deferred Planning Areas. Deferred Area Planning was conducted by the regional o f f i c e s of the line agencies. Though generally led by the Ministry of Forests, where recreation resources were of prime concern i t was led by the Parks and Outdoor Recreation Branch of the Ministry of Lands, Parks and Housing(Thompson, pers. comm., June 18, 1985) . The Chilko case i s the most prominent among them.(Federation of Mountain Clubs of B r i t i s h 90 Columbia, undated) The structure o-f these committees was based on the organization o-f the Regional Resource Management Committees. These committees were designed as a forum for the regional managers of the agencies to regularize direct communications concerning resource a l l o c a t i o n and management disputes. In February 1981, the Chilko Lake Deferred Planning Area was recognized. The i n i t i a l c o n f l i c t s that were recognized involved the a l l o c a t i o n of forest, a g r i c u l t u r a l , and grazing rights and the designation of w i l d l i f e management areas. The c r i t e r i a for the planning program did not include any mention of the s i g n i f i c a n t mines / parks c o n f l i c t that had been i d e n t i f i e d in the C h i l c o t i n Wilderness Study ( B r i t i s h Columbia, 1982). Options for the resolution of the parks / forestry c o n f l i c t in the Chilko case were quickly outlined as the process began. By excluding a northern portion of the deferred area from park designation and including i t in provincial forest, the administration of rangeland grazing could be continued by the Ministry of Forests. Likewise, the management of lands for w i l d l i f e could be accommodated by the establishment of a special w i l d l i f e management area in the area that had been excluded. In combination with the downturn in the economic conditions has been the continued uncertainty over the rights of the mineral industry to work mineral claims that are held within a proposed wilderness park. At least one of the three major exploration e f f o r t s in the Chilko area was halted as a res u l t of t h i s unsettled decision making and risk taking environment(Stevenson, pers. comm., May 8, 1985). A l l of t h i s a c t i v i t y served to heighten the s e n s i t i v i t y of the mineral industry toward 91 alienations o-f lands available -for mineral development. As a consequence, the proposals by the Ministry o-f Lands, Parks and Housing -for a wilderness park in the C h i l c o t i n region were met with considerable resistance -from the mining industry and the Ministry o-f Energy, Mines and Mineral Resources acting both as resource steward and advocate. The Recession Phase decision making environment caused a major change in the reaction of the mineral industry and park proponents toward land use decisions. Each of the provincial li n e agencies moved to consolidate their respective holds on crown lands. S i m i l a r l y , as valuable resources were perceived to become scarce, the mineral industry and the park proponents each became more active. The Geological Branch of the Ministry of Energy, Mines and Petroleum Resources had done l i t t l e study toward developing inventories or estimates of mineral resources potential in the Chilko area. To t h i s end, a study was prepared in July 1982 to help formulate the mineral resources portion of the Deferred Planning resources inventory.(Northcote, 1982) This study also contributed to the s p e c i f i c information necessary for the i d e n t i f i c a t i o n of issues for the Chilko Area. Realizing that i t had not developed a level of understanding with other resource li n e agencies, the Resource Data and Analysis section of the Geological Branch at the Ministry of Energy, Mines and Petroleum Resources conducted a Land Use Review Seminar November 5 - 7 , 1982. These meetings were attended by al1 m i n i s t r i e s concerned with land use in the province. During the discussions, the issue of communication between the parties 92 involved was raised in a number o-f contexts. Comparison o-f data on various resource interests with the view to improving the inter m i n i s t e r i a l r e f e r r a l of project plans and to better coordinate the exi s t i n g planning processes, was i d e n t i f i e d as a goal. Of highest p r i o r i t y during the seminar was the relationship of mineral interests to the advocates of parks and recreation areas.(Farrow, 1982) Each of these c o n f l i c t areas was addressed s p e c i f i c a l l y with an understanding that an agreement had to be achieved between the Ministry of Lands, Parks and Housing and the Ministry of Energy, Mines and Petroleum Resources. (Bain, pers. comm., Nov. 8, 1982) After the Land Use Seminar, the Geological Branch was able to prepare a policy paper o u t l i n i n g a mineral resources management perspective for wilderness l e g i s l a t i o n and wilderness management.(British Columbia, 1983; Schmit, pers. comm., March 13, 1984) Public meetings were held in conjunction with the Deferred Area Planning Process. Each of these was held at Alexis Creek, the closest settlement to the proposed park. Meetings were held in October 1981 and March 1982. The purpose of the public p a r t i c i p a t i o n program was threefold. F i r s t the Deferred Area Planning process and i t s implications were explained. Second, the public's knowledge was sought as a contribution to the planning. F i n a l l y , after draft alternatives for management of the Deferred Planning Area had been formulated, a request was made for reactions and preferences to be expressed. The conduct of these meetings was well organized and the reaction of the participants in contributing information was helpful in the 93 reported outcome. However, as with many public p a r t i c i p a t i o n processes, the rate o-f p a r t i c i p a t i o n dissipated s i g n i f i c a n t l y at each stage o-f the program as parties with lesser concerns -fell by the wayside leaving the primary resource users and lobby groups to contend the -future o-f the Chilko Lake Wilderness Park Proposal. The participants in the Deferred Area Planning program for Chilko Lake represented a l l those interests that had participated in the C h i l c o t i n Wilderness Park Study seven years before. Though s p e c i f i c alternative land use plans had been developed, and a much more narrowly defined proposal had been addressed in the second process, very similar issues had been brought forward at that time. The parties representing mining interests in the Chilko area remained in a s i g n i f i c a n t divergence with the remainder of the participants in the public involvement component of the planning process. Of the land use management alternatives that had been proposed, the f i r s t entailed administration of the Chilko Lakes Area as a Provincial Forest thus allowing mineral exploration and development to continue unimpeded. This management option was supported by the mining interests and half of the area residents that participated. The second alternative would prescribe the management of Chilko Lake resources under a Park or Recreation Area designation. The remaining majority of participants in the process supported the park option. It was clear however, that the Chilko Lake Park management alternative would meet major dissent from the mining industry and the Ministry of Energy, Mines and Petroleum Resources.(British Columbia, 1983) However successful the process of c o n f l i c t 94 resolution had been, i t was not able to generate sa t i s f a c t o r y alternative solutions. The mines / parks c o n f l i c t had now begun to achieve the recognition that would push t h i s case from the regional resources management level to discussions centered in the headquarters of the Ministry of Lands, Parks and Housing and the Ministry of Energy, Mines and Petroleum Resources. During 1983, there would be considerable change in the approach taken to resolution of natural resources management c o n f l i c t s in B r i t i s h Columbia. After the Mineral Resources Division position paper, the Deferred Planning Area process was completed with the writing of the Chilko Lake Deferred Area Plan. However, the planning process had not resulted in resolution of the c o n f l i c t at Chilko Lake. The uncertainty of the s i t u a t i o n would continue as the Cariboo Regional Resource Management Committee was hesitant to develop a recommendation to the Environment and Land Use Technical Committee. However, the issue would be forced by the introduction of the July 7, 1983 provincial budget. In the budget, the provincial government outlined the removal or lessening of planning functions from a variety of government agencies at each of the provincial and regional levels. A part of t h i s announcement was the intention of disbanding the Regional Resource Management Committees. As a consequence, the Cariboo Regional Resource Management Committee was faced with a January 1984 deadline for submission of a recommendation. A Provincial Recreation Area was recommended to the Environment and Land Use Technical Committee, as a best alternative to t o t a l achievement of either of the divergent resource values. The consequence of the elimination of the 95 Regional Resource Management Committees was to weaken the strength o-f any recommendations that were made. As there was no p o l i t i c a l w i l l to continue with the recommendations, the proposal was s t a l l e d at the Environment and Land Use Technical Committee. The provincial budget would also a-f-fect changes in the levels o-f s t a f f i n g in a l l of the li n e agencies that were dealing with the Chilko Lake case. With s t a f f cuts and reorganization at the Parks and Outdoor Recreation Division of the Ministry of Lands, Parks and Housing, the entire c o n f l i c t resolution process was informally placed on hold. However, the pr i n c i p a l actor in the Ministry of Lands, Parks and Housing, Derek Thompson, would continue to advocate the continuance of the c o n f l i c t resolution and park creation process.(McArthur, pers. comm., May 1, 1985) In fact, Thompson had made the creation of a provincial park in the C h i l c o t i n region a major goal of his career as parks pianner(Thompson, pers. comm., June 18, 1985). As the line agencies adapted to the reorganization and budget cuts, the restructured p o l i t i c a l r e a l i t y of the parks / mines c o n f l i c t was evident. The business approach of the provincial government, especially ministers of the Environment and Land Use Committee, demanded information about the economic costs of resource a l l o c a t i o n decisions.(Stevenson, pers. comm., May 8, 1985) The p o l i t i c a l climate became such that pressure was put on a l l resource management planning s t a f f to j u s t i f y e x i s t i n g land use designations (Downie, pers. comm., June 18, 1985). Furthermore, there was an e x p l i c i t recognition that the confrontational nature of the parks / mines c o n f l i c t was promoting uncertainties for each of the Ministry of Energy, Mines 96 and Petroleum Resources, the mining industry, the Ministry of Lands, Parks and Housing and the wilderness park lobby groups (Coll i n s , pers. comm., Apr i l 28, 1985; Ratel, 1985). Added stresses -for decision making on the parks / mines issue within the parks ministry may have come through assignment o-f a new and p o l i t i c a l l y motivated deputy minister. In any case, i t was recognized that more p o l i t i c a l support was necessary be-fore a c o n f l i c t resolution proposal was brought forward in the Chilko case. It was the desire of the Parks and Outdoor Recreation Division to minimize media controversy and p o l i t i c a l embarrassment for the government. The need for support from a l l sides for park and recreation area proposals was evident i f ex i s t i n g and future park land use allo c a t i o n s were to be successful. Further complicating the p o l i t i c a l nature of the parks / mines c o n f l i c t and the urgency of the need for a resolution has been the impending decision of the Tener case of mineral claims within Wells Gray Park. With a decision in favour of Tener in the Supreme Court of Canada, a s i g n i f i c a n t corner stone in arguments of current holders of approximately 700 mineral claims within provincial parks was established.(Bohn, 1985e) The prospect of large compensation payments to Tener and others, or the administration of park land for mineral land use access and a c t i v i t i e s , through creation of recreation areas within provincial parks, have added extra impetus and urgency to the need for a s a t i s f a c t o r y resolution of the parks / mines c o n f l i c t in B r i t i s h Columbia. In 1984 the Ministry of Lands, Parks and Housing, set out to 97 win the support required -for the Chilko Lake proposal and for other l i k e projects under i t s mandate. In order to - f a c i l i t a t e an understanding o-f the parks / mines con-flict by both sides in the c o n f l i c t , meetings between the parks and mines lin e agencies were conducted as proposals for new land use designation c o n f l i c t resolving p o l i c i e s approaches were formulated. These meetings were conducted at the headquarters l e v e l , as developments required, to respond to proposals and counter proposals. Each alternative was couched in an overall framework for resolving the generic parks / mines c o n f l i c t with the Chilko Lake case being used as the model on which the prototype resolution was assessed. Each of the mi n i s t r i e s acted as advocates for the positions of the public interests that they represent, and each negotiated the issues inherent in those interests. The Ministry of Lands, Parks and Housing also acted as a f a c i l i t a t o r between the interests of the park proponents and the mining industry. As possible p o l i c i e s developed to address the parks / mines c o n f l i c t , meetings were held with representatives of each to outline the d e t a i l s of the current thinking and to register any concerns and d i f f i c u l t i e s that might be encountered i f the current proposal were implemented. Meetings between the Executive Director of Parks and Outdoor Recreation and parks proponents, including the Outdoor Recreation Council of B r i t i s h Columbia and the Federation of Mountain Clubs of B r i t i s h Columbia have dealt with two issues: f i r s t , in October 1984, the achievement of the Parks and Outdoor Recreation Branch's goal of ecological unit representation through park and recreation area designations second, in February 1985, a plan for B r i t i s h 98 Columbia parks development that was tied to the development of the tourism s e c t o r . ( F u l l e r , pers. comm., May 13, 1985) It appears that e x p l i c i t discussions concerning the c o n f l i c t were down played at these meetings.(Dearden, pers. comm., September 26, 1985) Only one meeting has been held with representatives of the mining industry. In Apr i l 1985, the Deputy Minister of Lands, Parks and Housing, Mr. Bob F l i t o n , met with members of the B r i t i s h Columbia and Yukon Chamber of Mines and the B r i t i s h Columbia Mining Association to outline a proposal for the designation of Recreation Areas such that the recreation and mineral resources could be co-managed (Coll i n s , pers. comm., Ap r i l 28,1985). These meetings were largely confidential in nature and the s p e c i f i c s of any of them have not been revealed to t h i s researcher. The s p i r i t of the meetings was one of a consultative nature with each party achieving a better understanding of the proposals and being able respond constructively before any o f f i c i a l public statements were made. In t h i s way the reactionary nature of the c o n f l i c t has been largely eliminated from the public realm. This privacy of the negotiations however, has resulted in a reduction in the open and public nature of the c o n f l i c t resolution process in comparison to the C h i l c o t i n Wilderness Park Study and the Chilko Lake Deferred Area Planning. Such closed sessions have in some ways served to heighten suspicions among some members of the public. At the same time the Ministry of Lands, Parks and Housing may be usurping some of the lobbying power of the individual participants in the parks / mines c o n f l i c t by acting as a mediator through which reactions to, and changes, in proposals 99 for resolution have been conducted. Through 1984, each o-f the M i n i s t r i e s spent considerable time and e f f o r t in consolidating their p o l i c i e s toward the designation of lands for recreation and conservation purposes. The Ministry of Energy, Mines and Petroleum Resources formalized i t s policy statement of May 1983 on wilderness l e g i s l a t i o n and management with a land use policy information paper in May 1984. This policy states the agencies intent to "ensure that the maximum amount of land i s available for mineral e x p l o r a t i o n " ( B r i t i s h Columbia, 1984a). The Parks and Outdoor Recreation Division policy of August in the same year was designed to c l a r i f y and simplify the land use designation for areas under i t s j u r i s d i c t i o n . It was the intent of the policy to give the parks agency the s i m p l i c i t y of f u l l protection from alienation to resource uses of park land within Class A designations and alternately to manage and protect values, with recreation area status, while allowing resource use in a controlled manner. ( B r i t i s h Columbia, 1984b) In the Chilko Lake Case the bargaining model of c o n f l i c t resolution processes has been applied and adapted in response to varying stresses in the decision making environment. Phases of a c t i v i t y are countered by slowly developing components of the generic parks / mines c o n f l i c t during the Foundation Phase and l i t t l e or no progress toward c o n f l i c t resolution during the Prosperity Phase of the decision making environment. A c o n f l i c t that was f i r s t addressed in an era of public p a r t i c i p a t i o n and e x p l i c i t natural resources planning, the case i s now being addressed behind closed door meetings with individual interest 100 groups. This case i s now being dealt with at the headquarters o-f the l i n e agencies as a policy issue rather than at the regional level as a land use management issue. The Chilko Lake case has been abandoned as a s p e c i f i c instance D-f c o n f l i c t in favour of pursuing a prototype problem resolution. 101 CHAPTER 5 ASSESSMENT OF THE CASE EVIDENCE 102 In t h i s chapter, the detailed cases of chapter 4 w i l l provide evidence to consider the asserted disadvantages of the l i t i g a t i o n model and the claimed advantages of the bargaining model for c o n f l i c t resolution in the B r i t i s h Columbia parks / mines s i t u a t i o n . The Wells Gray Provincial Park case provides evidence to show many of the weaknesses in the l i t i g a t i o n model. The Chilko Lake Wilderness Proposal case shows us evidence that there are shortcomings in the unstructured bargaining associated with c o n f l i c t resolution within the bargaining model as currently practiced. For each of the f i v e categories of evaluation, evidence w i l l be drawn from each case to answer the research questions: does the B r i t i s h Columbian experience r e f l e c t the same weaknesses i d e n t i f i e d in the American l i t i g a t i o n model?; and how well does the unstructured bargaining practiced in B r i t i s h Columbia redress these issues? To r e i t e r a t e , the courts are often thought to be i n e f f i c i e n t in the time that i t takes for c o n f l i c t s to be resolved as a result of increased demands for adjudication and as a result of the delays inherent in the l i t i g a t i o n model. It i s claimed that the bargaining model i s less time consuming as the processes of appeal, and delays of implementation and administrative adjustment, w i l l be . incorporated and anticipated by the participants during the process rather than in the reactionary way found in the l i t i g a t i o n model. By the summer of 1985, nine years had passed in the 103 j u d i c i a l attempt to resolve the case o-f Tener and the Crown on the Wells Gray Provincial Park issue. Reasons o-f the Supreme Court o-f Canada, in Tener's -favour, were handed down on May 9, 1985. At least 15 years had passed since the c o n f l i c t had become active. Delays have been true to the l i t i g a t i o n model. After the i n i t i a l s t a l l i n g of the government administrative agencies in not providing Tener appropriate permits, the legal delays began. Tener's d i s s a t i s f a c t i o n with the Supreme Court of B r i t i s h Columbia's r u l i n g led to the case being heard in the B r i t i s h Columbia Court of Appeals. The appeal resulted in a nearly four year delay. The subsequent positive result for Tener spawned the taking, by the Crown, of the case to the Supreme Court of Canada. Beginning with an eight month delay for the f i l i n g of i n i t i a l documents, added complications of the case before the highest court resulted in more than one hearing being convened, and f i n a l l y the request for additional documentation and arguments by the Supreme Court Justices resulted in the process taking two years and f i v e months. With the l i t i g a t i o n result the c o n f l i c t was s t i l l not d e f i n i t i v e l y resolved. With completion of the l i t i g a t i o n portion of the case, the provincial government of B r i t i s h Columbia has been forced to write new l e g i s l a t i o n . This has extended the time necessary for the c o n f l i c t to be resolved by adding an implementation phase that i s as yet not complete. The claimed time e f f i c i e n c y of the bargaining model as exemplified in the Chilko Lake Wilderness Proposal case i s doubtful. The park values associated with the Chilko Lake si t u a t i o n were f i r s t i d e n t i f i e d and formally made part of a decision making process in 1973. Formal recognition of the 104 potential c o n f l i c t s associated with the proposal were recognized in 1975 - 1978 period. Extensive attempts to resolve the parks / mines c o n f l i c t were i n i t i a t e d with the Deferred Area Planning Process in 1981. Continued, though sporadic, action through the bargaining model has not resulted in resolution of the Chilko c o n f l i c t or established a prototype solution for the resolution of similar parks / mines c o n f l i c t s . The mediated negotiations are continuing as parties are able to respond to proposals and developments. However, there has been no j u s t i f i e d or arbitrary l i m i t set with which to frame the discussions. During the past four and one half years bargaining has been most active. The r e l a t i v e advantage of the bargaining model has not been strongly demonstrated in t h i s case. The b u i l t in delays of the courts in the Wells Gray Provincial Park case have been a major contributor to the extended nature of the c o n f l i c t resolution process. The unstructured, and at times uncommitted, bargaining that has been undertaken in the Chilko Lake Wilderness Proposal example of parks / mines c o n f l i c t has not shown the claimed advantages of savings in time and reduction in delay r e l a t i v e to the l i t i g a t i o n model. Each case has been active for some f i f t e e n years, and the conclusion or resolution of the c o n f l i c t has not come to pass. Each of the cases that has been examined both b r i e f l y and in d e t a i l in t h i s thesis has shown that there i s no quick process for resolution that has been used to address the divergence between parks and mines in B r i t i s h Columbia. 105 Costa It has been held that the l i t i g a t i o n model i s too costly, and that reductions in costs o-f con-flict resolution can be achieved i-f the bargaining model i s adopted. The adversarial component o-f the l i t i g a t i o n model serves to i n f l a t e the costs that are incurred with repeated appeals, legal fees and court and administrative costs. It i s alleged that the voluntary and c o n c i l i a t o r y aspects emphasized in the bargaining model can result in reduced end costs for resolution by i n t e r n a l i z i n g the divergent e f f e c t s that would be found in the l i t i g a t i o n model. With an e f f o r t made to bargain u n t i l an acceptable solution i s reached, the costs may be less than i f repeated solutions are arbitrated by successively higher courts u n t i l the persistence or bank balance of one or other party i s eroded. In the Wells Gray Provincial Park case I was fortunate enough to have privileged information to the costs to one of the parties. David Tener has stated that his legal costs have totaled approximately * 300,000 . This figure has l i t t l e meaning for comparative purposes as additional data for similar cases are not available. However, we can assess the s i g n i f i c a n c e of t h i s amount in comparison to the potential costs that might be expected i f development were permitted within Wells Gray Park. An economic geological assessment of the mineral resources held by Tener projects a cap i t a l cost before production of *30 mi 11 ion.<Irvine, 1978) Tener's expenditure in legal fees i s 1% of possible t o t a l pre production costs i f the development was undertaken. Taken together with costs that accrue to the provincial government for legal services, drafting and 106 a d m i n i s t r a t i o n o-f enabling l e g i s l a t i o n , as w e l l as -federal c o s t s of a d j u d i c a t i o n and l o s s of p o t e n t i a l tax revenues, the Wells Gray l i t i g a t i o n experience can be deemed very c o s t l y . There can only be s p e c u l a t i o n about the a c t u a l c o s t s incurred through the bargaining model i n the C h i l k o Lake Wilderness Proposal case. Each of the p a r t i e s has p a r t i c i p a t e d over time i n varying i n t e n s i t i e s and i n varying r o l e s . The p r o v i n c i a l resource l i n e agencies have been the most c o n s i s t e n t p a r t i c i p a n t s , though the e f f o r t has not been ongoing. The Environment and Land Use Committee S e c r e t a r i a t ' s p a r t i c i p a t i o n u n t i l i t s disbandment was considerable. Groups i n favour of both park and mining i n t e r e s t s have co n t r i b u t e d considerable e f f o r t , much of i t voluntary work of i n d i v i d u a l s . Notable among these p a r t i e s are the Federation of Mountain Clubs of B r i t i s h Columbia, and the B r i t i s h Columbia and Yukon Chamber of Mines. A d d i t i o n a l c o n t r i b u t i o n s have been made by l e s s involved p a r t i c i p a n t s at v a r i o u s stages of the bargaining process. The task of e s t a b l i s h i n g the c o s t s to each of these groups, i f not impossible, i s beyond the resources and information a v a i l a b l e to t h i s researcher. However, i f only one-half man year combined labor was expended on behalf of those p a r t i e s i n favour of mining and those i n favour of parks, f o r only 10 of the past 15 years, and i f an average annual s a l a r y was assigned of $35,000, the conservative cost of the bargaining model as manifest i n t h i s case would be $ 350,000. Though there has been considerable expenditure on e x p l o r a t i o n and development of minerals i n the C h i l k o area, '$500,000 i n one year by one company alone) complete information and i n d i c a t i o n s of resource values are u n a v a i l a b l e 107 •for meaningful comparisons. Comparison o-f the costs between the l i t i g a t i o n model and the bargaining model in these cases i s inconclusive. Without iden t i c a l s i t u a t i o n s true comparative comments can not be made. The s i m i l a r i t i e s here include that neither of the cases i s f u l l y resolved, and both are of similar age and stage of development. The Wells Gray s i t u a t i o n i s an attempt to resolve a s p e c i f i c c o n f l i c t while the task being undertaken in the Chilko example i s now one intended to develop a prototype solution. The Chilko Lake bargaining has addressed a more complex s i t u a t i o n . Overall costs, though s i m i l a r , seem to favour bargaining. Even i f the cost of implementing the unstructured bargaining was twice what we have suggested, the comparison would s t i l l be reasonable. Given the ad hoc c h a r a c t e r i s t i c of the bargaining model implementation in the Chilko Lake case there i s room for further improvement in cost savings over l i t i g a t i o n . _ _ Q _ _ i t y _ £ Q n _ I _ _ b . n i _ _ l _ I _ _ u _ _ The capacity of the courts to understand and to incorporate technical material into the decision making process has been questioned by the c r i t i c s of the l i t i g a t i o n model. By narrowing the terms of reference and questions to be asked before adjudication, the parties are not as able to bring forward related but perhaps not direct evidence. By employing the bargaining model, i t i s alleged that advantages of shared expertise w i l l allow each party in the negotiations an opportunity to be educated by those more knowledgeable on a s p e c i f i c topic. In addition, mediators or other t h i r d party f a c i l i t a t o r s in the 108 bargaining model may be chosen s p e c i f i c a l l y for their understanding of the technical aspects of the c o n f l i c t rather than their understanding of the rules of standing and evidence as they apply to any par t i c u l a r c o n f l i c t resolution process. In the early stages of the l i t i g a t i o n process examined in the Wells Gray Provincial Park case, the Supreme Court of B r i t i s h Columbia finding in favour of the Crown resulted in an appeal by Tener. Of major concern in the decision to appeal was the fear of Tener's lawyer that the court did not understand the argument presented. Though l i t t l e in the way of d i f f i c u l t technical information was presented, the alleged f a i l u r e of the court was enforced by the lack of opportunity in the legal system to educate the participants. Subsequent technical and cognitive issues in the l i t i g a t i o n toward the resolution of the Wells Gray case have been processed well and to the s a t i s f a c t i o n of the participants. Both Tener and provincial parks representatives have expressed no reservations about the decorum and c a p a b i l i t y of the courts. However, the narrow scope of the l i t i g a t i o n process r e s t r i c t e d the courts in such a way that a b i l i t y to contend with technical issues was not c l e a r l y observed. Indications are that the courts, having not dealt with technical issues, have had no major ef f e c t on the resolution of the case on point of law. In t h i s case the claims made about the inadequacy of the courts may not be wrong but rather not relevant. It i s however, Tener's opinion that d i r e c t negotiation on many of these issues raised could have been more constructive than l i t i g a t i o n . The interaction that has taken place in the Chilko Lake example has allowed the parties to understand and develop an 109 appreciation o-f the di-f f i c u l t i e s that are -faced by competing resource users. Comments o-f Vince C o l l i n s in particular are evidence that the understanding o-f the park's ministry has matured in lig h t o-f the bargaining process and the changed p o l i t i c a l climate in which i t has taken place. The line agencies have developed each other's needs, c h a r a c t e r i s t i c s o-f the resources, and an understanding o-f the needs of the constituencies that they represent in an advocacy manner. There i s evidence that the l i t i g a t i o n process has shortcomings in i t s capacity to constructively address issues of technical concern or issues where misunderstanding might be all e v i a t e d through the education of the participants. With the parks / mines c o n f l i c t , the need for enlightenment i s considerable as the p e c u l i a r i t i e s of resources inventory and evaluation are problematic on both sides. Without the knowledge gained through extensive consultation, the casual observer or the uni n i t i a t e d judge in the l i t i g a t i o n process may have d i f f i c u l t y developing an appreciation of the sign i f i c a n c e of resource concerns for each participant. QpcQnlunily_£an_B__li_ip_liQU C o n f l i c t s , especially questions of public concern, attr a c t the interest and value p a r t i c i p a t i o n of many parties. The rulings that are produced by the l i t i g a t i o n model consider only the parties that are before the court. However, the polycentric nature of many c o n f l i c t s result in d i s s a t i s f a c t i o n and c r i t i c i s m from those interested parties that are not before the courts. Decisions of the court may affect changes that were not considered by the judge. The bargaining model, on the other 110 hand, i s designed to incorporate more than p r i n c i p a l parties in the c o n f l i c t in an e f f o r t to reduce discontent among secondary i nterests. It i s clear that in the Wells Gray l i t i g a t i o n only two parties were dire c t participants. The l i t i g a t i o n model has provided a forum for the expression of d i s s a t i s f a c t i o n of one party of lesser stature with the government holding police power. The l i t i g a t i o n mechanism may, in t h i s case, have been Tener's only recourse. Additional interested observers though, included other holders of mineral claims within provincial parks, Ministry of Lands, Parks and Housing and Ministry of Energy, Mines and Petroleum Resources o f f i c i a l s , and interest groups representing the d i v e r s i t y of views in the c o n f l i c t . Rules of standing and questions of law have prevented these parties from going before the courts. The ramifications of the Supreme Court of Canada judgement have affected changes in the way each of these parties proceed with further parks / mines c o n f l i c t resolution. One mining company has, as a result of the favourable decision for Tener, i n i t i a t e d a new court proceeding against the Crown to gain development rights to claims i t has held in Strathcona Provincial Park since the I960's.(Bohn, 1985b) The Ministry of Lands, Parks and Housing has been forced to allow changes in the designation of park land that f a c i l i t a t e s mineral exploration and development. "... (G)overnment had 'no alternative' because of a Supreme Court of Canada decision..."(Bohn, 1985b) said the Minister of Lands, Parks and Housing. "The l e g i s l a t u r e approved a law that allows cabinet to 'exclude certain lands encumbered by various crown-granted mineral claims* in Wells Gray Provincial 111 Park" (Bohn, 1985b). The Ministry o-f Energy, Mines and Petroleum Resources now has to consider more care-fully the administration o-f mineral rights within provincial parks and may have to adopt new regulations and inspection procedures to complete these tasks. Park advocates are now -faced with a threat to the sanctity o-f e x i s t i n g park designations while e-f-forts to have new areas preserved continue. Each o-f these parties has been impacted by the decision o-f the court without d i r e c t p a r t i c i p a t i o n in the l i t i g a t i o n . The Chilko Lake bargaining experience has provided the opportunity -for f u l l p a r t i c i p a t i o n in the decision making process. From the i n i t i a l stages o-f the -first public discussions, the variety o-f p a r t i c i p a t i o n included a l l parties who, believing there may be some impact on their values or interests, cared to present their concerns. I n i t i a l l y , the d i v e r s i t y of participants was great, but as the concerns have been addressed or incorporated into the platforms of others, the number of parties has decreased. Native Indian groups, local residents, regional d i s t r i c t representatives, w i l d l i f e and environmental interest organizations have a l l withdrawn from p a r t i c i p a t i o n . However, none of these group's actions seem to have been a result of d i s s a t i s f a c t i o n with the process. Rather, i t i s an indication of the participants' s a t i s f a c t i o n that their concerns are being dealt with s a t i s f a c t o r l y in the process or that they w i l l be represented by some other party. The Native and local groups as well as w i l d l i f e interests have each had their i n i t i a l concerns answered.(British Columbia, 1982) Regional d i s t r i c t s ' representatives have served to i n i t i a t e the 112 process. The d i v e r s i t y of environmental groups has been diminished as values and concerns are amalgamated, usually in an informal manner, in the arguments of another party. Consequently, though i t now appears that only approximately six parties are engaged in the process, the p a r t i c i p a t i o n of a greater number of parties are represented. The evidence found in our two main case studies reinforces the assertions made in chapter 3, that the l i t i g a t i o n model co n s t r i c t s p a r t i c i p a t i o n in the c o n f l i c t resolution process while the bargaining model provides a forum for f u l l p a r t i c i p a t i o n . The Wells Gray c o n f l i c t examined here has led to continuation of actions after the l i t i g a t i o n processes as responses are required to the variety of parties not d i r e c t l y involved. Further, the bargaining processes seem to have lessened the d i s s a t i s f a c t i o n with decision making by including a f u l l range of participants. El__ib.ili_y_Q£_Q„__Qm_s L i t i g a t i o n as practiced in the courts i s a question of deciding on the l e g a l i t y or rightness of the questions that have been brought before i t . The courts tend to narrow the range of opportunities for c o n f l i c t resolution to the extreme positions of the parties as they come to the process. With these extremes come the intransigence of the losing party to accept the determination of the court. Alternatively, bargaining i s capable of exploring a range of compromise agreements that f a l l between the i n i t i a l negotiating positions. There were only two options available in the Wells Gray l i t i g a t i o n . The question through a l l levels of the court has 113 been the same: should compensation be made to Tener -for the de-facto loss o-f rights to minerals within the park boundaries? The court could decide yes or no with l i t t l e room -for comment. With t h i s limited range o-f options, the court was not able to explore alternative c o n f l i c t resolution strategies. Rather, the alternatives were forced upon the provincial government after the l i t i g a t i o n was complete. The subsequent l e g i s l a t i o n to accommodate the r u l i n g of the court i s not a part of the l i t i g a t i o n model per se. L e g i s l a t i o n and regulation to resolve c o n f l i c t in t h i s case i s a reaction to court rulings. As such, i t i s an extension that may lead to resolution that has not been accommodated by the l i t i g a t i o n process. The unstructured bargaining carried on in the Chilko Lake example has been able to adapt to changing p o l i t i c a l stresses and needs of participants to allow the examination of a variety of options. Though the 'mining to the exclusion of parks' or 'parks at the exclusion of mining' options are available, a range of co-management options are under consideration that w i l l allow for the exploration and possible development of mineral occurence within the Chilko Lake area while care and conservative management techniques are used to preserve the features and character of the landscape that make i t desirable for the pursuit of outdoor recreation. Added to the i n i t i a l questions of the Chilko Lake Park Proposal have been the need for development of a prototype decision making framework for the resolution of similar parks / mines land use c o n f l i c t s throughout B r i t i s h Columbia. Once again t h i s demonstrates the c a p a b i l i t y of c o n f l i c t resolution within the bargaining model to adapt and 114 trans-form the positions o-f the participants into constructive actions. The l i t i g a t i o n model has not, in the case o-f the parks / mines issue, been able to address the d i v e r s i t y o-f issues that accompany and surround the court case and connect i t through a polycentric network to the variety o-f concerns present. There are no opportunities in the courts to bring these -forward. In contrast, the bargaining processes o-f the Chilko case have been •flexible enough to incorporate in variety o-f concerns in attempts to achieve resolution. Summany. Both the l i t i g a t i o n model and the bargaining model, as practiced in the resolution o-f parks / mines con-flict in B r i t i s h Columbia, do not exhibit time e-f-fectivness or measures -for reduction of delays. Though the l i t i g a t i o n example demonstrates the considerable cost of t h i s c o n f l i c t resolution process, the bargaining that has taken place in t h i s issue does not support the contention of cost effectiveness. There appears to be a greater capacity for technical issues and education of the participants in the bargaining model than in the processes of l i t i g a t i o n . P a r t i c i p a t i o n i s more complete and i s more e f f e c t i v e in representing the values and concerns of a l l parties interested in the resolution of parks / mines c o n f l i c t . There are advantages of the bargaining process over l i t i g a t i o n in providing opportunities for an array of outcomes in c o n f l i c t resolution. 115 C H A P T E R 6 C O N C L U S I O N S 1 1 6 C o n c l u s i o n s . The Wells Gray Provincial Park case does not r e f l e c t a l l the weaknesses that have been attributed to the l i t i g a t i o n model nor does the Chilko Lake Wilderness Proposal case re-flect comprehensively the claimed strengths o-f the bargaining model as outlined in Chapter 3 . B u i l t - i n delays and ine-f-f iciency o-f the courts have, in the Wells Gray case, been shown to act strongly to prolong the decision making processes. Government desires to delay a decision in t h i s case have been well served by the c o n f l i c t resolution process. Lack o-f commitment to the bargaining model as a process -for resolution o-f c o n f l i c t has mitigated against the achievement of claimed advantages in time. Time l i m i t s have not been set in which the bargaining process should be e f f e c t i v e l y structured. Progress during the prosperity and recession decision making environment phases, in bargaining conducted to resolve the Chilko Lake case, has been dependent in part on the Wells Gray l i t i g a t i o n . The l i t e r a t u r e cited may be limited in that bargaining and l i t i g a t i o n , rather than exclusionary and one better than the other, should be viewed as a group of options that are worthy of consideration due to the p a r t i a l dependence of one upon the other. Though the Wells Gray experience has been problematic and less than desirable in many ways, i t has served a purpose in setting new conditions and incentives for more bargaining. Precedents set in Tener's court battle have compelled parties on both sides of the c o n f l i c t to pursue bargaining model processes. Costs associated with the l i t i g a t i o n model are unacceptable 117 and the cost of bargaining has not achieved any advantage as a res u l t of the longevity of the process. There i s room for advancement in the reduction of costs with use of bargaining through the deliberate and assertive adoption of stuctured bargaining on the part of participants and l e g i s l a t o r s . L i t t l e evidence in the cases examined that would support or disprove the allegation that the l i t i g a t i o n model i s poorly suited to processing technical material and issues e f f e c t i v e l y in c o n f l i c t resolution decision making. However, through the c o n c i l i a t o r y procedures that have been adopted in the Chilko Lake unstructured bargaining, participants have been able to develop an understanding and appreciation of the resource constraints and needs of divergent parties and interests. Technical material has been communicated, and the need for improved communication has been recognized between the p r i n c i p l e li n e agencies involved in the c o n f l i c t . There i s l i t t l e argument that the l i t i g a t i o n model l i m i t s p a r t i c i p a t i o n in the c o n f l i c t resolution process. P a r t i c i p a t i o n constraints in the Wells Gray case have led to further l i t i g a t i o n by parties in similar situations to the claim holders, added l e g i s l a t i o n and administration burdens on the provincial government, and further stresses in the p o l i t i c a l discussion between parks and mines proponents. Alternatively, the bargaining conducted in the Chilko Lake Wilderness Proposal case has led to p a r t i c i p a t i o n of a l l parties to the extent that their concerns have been meaningfully represented. The Wells Gray l i t i g a t i o n was concerned with deciding on points of law the right to compensation of the claim holder. 118 Options are limited to finding for the appellant or the respondent. The l i t i g a t i o n process does not allow room for consideration of the peripheral issues that are associated with the parks / mines c o n f l i c t . Through the unstructured bargaining conducted in processing the Chilko Lake c o n f l i c t , a range of management decisions has been considered as a part of the ongoing negotiations. Proposed co-management of land resources, with consideration of the needs and desires of a l l parties to the c o n f l i c t , r e f l e c t s the f l e x i b i l i t y that i s inherent in the bargaining model. In summary, I have found that evidence, though inconclusive, suggests that the bargaining model, as practiced in the B r i t i s h Columbian context, presents an opportunity for improvement in the time and delay as well as cost c r i t e r i a that have been examined in the case evidence. The superiority of either model to process technical issues cannot be decided given the extent and facts of evidence in the two detailed cases. As the c r i t e r i a generates a null f i nding in the Wells Gray l i t i g a t i o n , only speculation about the strengths of the bargaining model as i l l u s t r a t e d here can be concluded. The issues of p a r t i c i p a t i o n and range of alternatives in the decision making process however, favour the adoption of bargaining for processing the resolution of the parks / mines conf1i ct. There, are shortcomings and l i m i t a t i o n s in t h i s research. More detailed investigations would contribute to a f u l l e r data set, such that the true costs to various participants would be i d e n t i f i e d . A more complete understanding of the individual parties' aspirations and disappointments with the processes might 119 be possible i-f a l l could be i d e n t i f i e d and were -found w i l l i n g to partake in the investigation. Furthermore, as the conceptual component o-f the thesis has been developed over a number o-f formulations, the emphasis and data requirements have changed accordingly. A lack of consensus among leading scholars in the f i e l d of environmental c o n f l i c t resolution through negotiation and other c o n c i l i a t o r y processes i s r i f e . A l l of these factors together have served to create potential weakness in the thesis. However, the importance of the findings here are not diminished. Strong suggestions can be made for improvement of the exis t i n g c o n f l i c t resolution processes in the B r i t i s h Columbia parks / mines s i t u a t i o n . Upon consideration of the evidence, the overall potential strength of the bargaining model r e l a t i v e to the l i t i g a t i o n model i s apparent. With t h i s prerequisite, recommendations for the adoption of the bargaining model in a stronger and more aggressive manner as a tool for the resolution of parks / mines resources management decision making c o n f l i c t s in B r i t i s h Columbia can be made. _a____ejid______ Five recommendations can be made for the continued improvement of the parks / mines c o n f l i c t resolution processes that we have examined. These recommendations can also be taken as a prescription in addition to ex i s t i n g mechanisms for the resolution of similar future parks / mines c o n f l i c t s as they are addressed in B r i t i s h Columbia under the ex i s t i n g l e g i s l a t i v e , regulatory and administrative frameworks for decision making. 120 The recommendations include: 1. Attempt to discourage reliance on the l i t i g a t i o n model -for resolution of parks / mines c o n f l i c t . 2. Eliminate the ad hoc character of the bargaining model in favour of more structured bargaining. 3. Develop continuity of p o l i t i c a l w i l l to support the use of formal bargaining in the c o n f l i c t resolution process. 4. Commit f i n a n c i a l resources for p a r t i c i p a t i o n of resource m i n i s t r i e s on a consistent basis. 5. Establish time and performance objectives for the c o n f l i c t resolution processes as they are established. To reduce the tendency to chose l i t i g a t i o n processes, the bargaining model must be perceived by a l l parties as more desirable and available for c o n f l i c t resolution. The advantages of the bargaining model must be demonstrated such that a trust of the lesser known process grows among parties in c o n f l i c t . The unstructured bargaining that i s the manifestation of the bargaining model in B r i t i s h Columbia, could be improved with t h i s goal in mind. The ad hoc approach exhibited in the Chilko Lake case was strengthened by establishing a structure that, while allowing the f l e x i b i l i t y of the bargaining model, establishes the degree of involvement and l i m i t s the expectations of the participants such that uninflated and principled negotiation can be conducted. The p o l i t i c a l w i l l to establish the bargaining model as a tool for c o n f l i c t resolution i s c r i t i c a l to i t s 121 acceptance. Continuity o-f e f f o r t , i-f maintained, w i l l not stand alone in advancing the use o-f bargaining i-f implementation of decisions i s not supported by the p o l i t i c a l decision makers. Agreements that may be reached between parks and mines representatives in the public service or in negotiation between parties representing various public interests must be supported with l e g i s l a t i v e or regulatory action. An extension of the p o l i t i c a l support for the implementation of bargaining i s the requirement of f i n a n c i a l support. Though interest groups may continue to have d i f f i c u l t y financing p a r t i c i p a t i o n , p a r t i c i p a t i o n of any kind i s seemingly unfeasible without the sustained f a c i l i t a t i o n provided by the mi n i s t r i e s responsible for natural resources management. The exis t i n g unstructured bargaining, with i t s accompanying open-ended structure, must be abandoned in favour of planned and time-limited bargaining. Innovations in the ex i s t i n g practice of the bargaining model in B r i t i s h Columbia could reduce the time and costs that have been incurred by intensifying the process such that much of the unproductive time over the past years might be reduced or eliminated with emphasis placed on structured bargaining. The l i t i g a t i o n model should not be discounted e n t i r e l y however, as the need for adjudicated settlements w i l l remain where the parties to the c o n f l i c t are not able to pursue a more co n c i l i a t o r y process of resolution. Cases where one or other of the parties i s unwilling to participate in a bargaining process w i l l require the forced measures of l i t i g a t i o n to engage processes of resolution. 122 Detailed strategies for implementation of these recommendations w i l l have to be considered and developed by the parties that are to participate in processes aimed at resolution of the parks../ mines c o n f l i c t . Most prominent in the implementation w i l l be the Ministry of Lands, Parks and Housing, and the Ministry of Energy, Mines and Petroleum Resources. 123 CITED REFERENCES Amy, Douglas J. 1983a. "The P o l i t i c s of Environmental Mediation," Ec.DlQ9x_Law_Qu.ar.ter.lx. Vol. 11. No. 1 pp. 1 -19. 1983b. 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November 8, 1982. Capling, Steve. Planning O f f i c e r , Ministry of Forests. Williams Lake. Telephone communication. Ap r i l 29, 1985. C o l l i n s , Vince. Executive Direstor, Parks Branch, Assistant Deputy Minister,Ministry of Lands, Parks and Housing. Telephone communication. A p r i l 28, 1985. Dearden, P h i l i p . Chairman, B r i t i s h Columbia Chapter, National and Provincial Parks Association. Telephone communication. Ap r i l 29, 1985. Personal communication. September 26, 1985. Dow, Duncan. Resources Planner, Prince Rupert Forest Region. Personal communication. December, 1984. Downie, Bruce. Parks: Research & Planning Inc. Personal communication. June 18, 1985. F u l l e r , Steven. Federation of Mountain Clubs of B r i t i s h Columbia. Telephone communication. Ap r i l 28, 1985. McArthur, Gib. Manager, Resource Data and Analysis, Ministry of Energy, Mines and Petroleum Resources. Geological Branch. Personal communications. February 24, 1984. May 1, 1985. McLennon, Graham. Mineral Land Use S p e c i a l i s t , Geological Branch. Ministry of Energy, Mines and Petroleum Resources. May 1, 1985. Paterson, Jack. Manager, B. C. and Yukon Chamber of Mines. Personal communications. February 15, 1984. May 8, 1985. Ratel, Ann. Land Use Coordinator, Geological Branch, Ministry of Energy, Mines and Petroleum Resources. Personal communication. May 1, 1985. Schmit, Rolph. Geologist, Geological Branch, Ministry of Energy, Mines and Petroleum Resources. Personal communication. March 13, 1984. Stevenson, R. W.( B i l l ) . Chairman, B. C. Land Withdrawl Committee, B. C. and Yukon Chamber of Mines. Personal communication. May 8, 1985. Tener, David. Personal communication. March 7, 1983. Apri l 26, 1985. 132 Thompson, Andrew R. Westwater Research Centre. U.B.C. Personal communication. March 11, 1983. Thompson, Derek. Recreation Planner, Southern Interior Region, Parks and Recreation Branch, Ministry of Lands, Parks and Housing. Kamloops. Telephone communication. A p r i l 29, 1985. Personal communication. June 18, 1985. 133 APPENDIX 1 CHRONOLOGICAL LIST OF NEWSPAPER ARTICLES 1940 - 1985 PARKS / MINES CONFLICT IN BRITISH COLUMBIA 134 Anon. 1946. "Manning Park Mine's Variety Promising," Vancouver ___5_____1_, August 10, p. 15. 1961. "Parks 'Bury' Mines," V i c t o r i a _________ March 3, p. 23. 1961. "Parks People Hurt Mineral Interests," V i c t o r i a Iim£S» March 3, p. 25. 1964. "Kiernan to permit mining in parks," Vancouver £______£, February 19, pp. 1-2. 1964. "Kiernan Promises New Parks Act - But Next Year," V i c t o r i a l i m e s , February 28, p. 1. 1964. "Mine ban in parks law now," Vancouver E _ _ _ i n _ £ , March 11, p. 13. 1964. "Small Parks Mining Out," Vancouver Sj__f March 11, p. 10. 1964. "Park mining rights not new - Kiernan," Vancouver E_Q_in_£, March 13, p. 5. James, W.A. 1965. "Mining in Parks," V i c t o r i a _ _ _ Q n i s t » March 14, p. 4. M i t c h e l l , C.H. 1965. "Multiple Use," V i c t o r i a C o i o n i s t , March 14, p. 4. Stephen, J.C. 1965. "Mines in Parks," Vancouver E_Q_i__£, March 22, p. 4. Anon. 1965. "Parks ofr the Miners," V i c t o r i a I im£_» March 1, p. 4. Shaw, R.M. 1965. "Mine men ask Access," Vancouver E_Q_i__£ March 1, p. 6. Mi t c h e l l , C.H. 1965, "Prospecting Discouraged," V i c t o r i a JJu_£_ March, 10, p. 4. Anon. 1965. "Controlled Mining In Parks Advocated," Vancouver S u a , March 11, p. 62. MacAlpine, Ian. 1965. "Cabinet Urged to Let Mines Into 'B* Parks," Vancouver S u n , September 16, p. 30. Anon. 1965. "Parks mining too risky, says C of C," Vancouver E _ _ _ i n _ £ , September, 17, p. 19. 1965. "Throw Open Class B Parks to Mining," V i c t o r i a _ _ l _ _ i s _ » September 17, p. 18. 135 1965. "Expropriating Mining Claims," Vancouver S u n , October 14, p. 4. Carney, Tom. 1966. "Western's Buttle Lake Project Example o-f Mine Gambles in B.C.," V i c t o r i a l i m e s , November 16, p.16. E l l i o t t , Thomas. 1966. "Mining and parks: Is there r e a l l y a problem?," Vancouver Eno_inc .£ , March 30, p. 7. Anon. 1966. "Mine President Raps C r i t i c s Of Park Exploration Work," Vancouver S u n , June 23, p. 32. 1 9 6 6 . "Park Savers K i l l 'Goose'" V i c t o r i a C o l o n i a l , September 20, p. 15. Kent, Ab. 1966. "Multiple Use of Land Backed by Mines Chief," V i c t o r i a l i m e s , December 22, p. 9. Anon. 1967. "Park being spoiled Barrett t e l l s House," Vancouver E n Q _ i n o e , March 23, p. 10. 1967. "Park Bans 'Stop Boom'," Vancouver S u n , May 30, p. 15. . 1967. "Conservation, B.C. Style," V i c t o r i a Times, • June 10, p. 4. 1967. "Silver Exploration Permitted in Park," Vancouver S u n , June 13, pp. 1-2. Mika, John. 1967. "Kiernan Warning: More Exploration Possible in Park," V i c t o r i a l i m e s , June 13, p. 7. Anon. 1968. "Mine Foes In Parks A Bother," V i c t o r i a l i m e s , January 10, p. 40. 1968. "Violation of parks charged," Vancouver E n Q i i i n o e , February 22, p. 15. 1968. "Park Lines Drawn After Mine Claim'" V i c t o r i a C o l o n i s t , February 22, p. 20. 1968. "Kiernan Accused of Al t e r i n g Park Borders for Companies," Vancouver S u n , February 22, p. 11. 1968. "Barrett demands law against park mining," Vancouver EnO—inoe, May 14, p. 10. 1968. "Mine Man Disputes Tourism Supremacy," Vancouver S u n , September 27, p. 23. Stainsby, Donald. 1969. "The B.C. Miner as a Conservationist," Vancouver S u n , February 25, p. 6. Anon. 1969. "NDP Charges: Park Land Opened tD Mining Firms," V i c t o r i a C o l o n i s t , March 28, p. 49. 136 Anon. 1969. "Mining: 'Anywhere, Any Time'," V i c t o r i a l i m e s , March 28, p. 44. " W i l d l i f e Group C r i t i c i z e s Provinces Mining Policy," Vancouver S u n , May 9, p. 33. 1969. "Chamber Says: Scan Park Land tor Minerals," Vancouver S u n , November 6, p. 2. 1969. "Potential Mines Lost Group Asks Appraisal Be-fore Parks Reserved," Vancouver S u n , November 6, p. 37. 1971. "Richter Backs Mining in Parks," V i c t o r i a CQlD.ni._-, February 12, p. 3. 1971. "Media h i t -for spreading misinformation about mining," Vancouver E t Q - i n c e , A p r i l 17, p. 46. . 1971. "Provincial Mineral Policy Spelled Out by Minister," V i c t o r i a l i m e s , A p r i l 17, p. 2. 1971. "More than a park," Vancouver S u n , May 8, p. 4. '• . 1972. "Mine explorers deface B.C., w i l d l i f e b i o l o g i s t s charge," Vancouver S u n , November 18, pp. 1-2. McKenzie, Art. 1973. "Non - mining c a l l e d a non - solution," Vancouver __Q_inc.e» January 26, p. 19. Butters, Brian. 1973. "Door Slams On Mining," V i c t o r i a l i m e , February 23, pp. 1-2. McNelly, Peter. 1973. "Mining exploration in parks banned," Vancouver E _ a _ i n _ e , February 23, pp. 1-2. Anon. 1973. "Wider Ban On Mining," V i c t o r i a l i m e s , February 24, p. 13. McLintock, Barbara. 1973. "Government May Buy Park Mining Claims," V i c t o r i a C o l o n i s t , July 24, p. 9. Anon. 1974. "Gov't study mines in parks," Vancouver S u n , September 30, p. 14. 1974. "'Denuded' Parkland Approved of Mining," V i c t o r i a l i m e s , October 1, p. 3. 1975. "Park claims bought," Vancouver S u n , March 8, p. 8. 1975. "B.C. mine claims l e f t in lurch," Vancouver , October 30, p. 21. 137 . 1976. "Park Mining 'Not a Bad Thing'," V i c t o r i a I im_Sj January 29, p. 1. 1976. "Mining in Parks 'Not Bad' 1+ S t r i c t Controls Kept," Vancouver S u n , January 29, p. 49. Travers-Smith, T. 1976. "Park Sanctity," V i c t o r i a ___£_, February 11, p. 4. Anon. 1976. "Gov't planning policy on mining in parks," Vancouver E_Q_in_£, February 20, p. 21. 1976. "Park Mining," V i c t o r i a ___££» February 21, p. 4. 1976. "If mining permitted in Strathcona i t would just be foot in the door," V i c t o r i a C o l o n i s t , February 22, p. 28. B l a i r , C. 1976. "Mining," V i c t o r i a Colonist, March 2, p. 5. Anon. 1976. "Mining Ban in Parks Endorsed," V i c t o r i a l i m e . . , March 8, p. 2. 1976. "Park mine policy studied," Vancouver E_Q_i__£> March 30, p. 11. 1976. "Park Mine Claims Vetoed," Vancouver S u n , A p r i l 14, p. 18. 1976. "No More Staking in Parks," V i c t o r i a I im££» A p r i l 14, p. 9. 1976. "No New Mines Allowed In Provincial Parks," V i c t o r i a Iim£S» June 5, p. 2. Farrow, Moira. 1977. "Chilcotin park plans studied by government," Vancouver S u n , January 18, p. 1. Odum, Jes. 1979. "The Prospecting Game Curtelage keeps miners away," Vancouver S u n , October 29, p. A7. Anon. 1982. "Couple s t r i k e s bonanza in park claims f i g h t , " Vancouver E_Q_in_£, March 3. p. 1. Kaun, Bruce. 1982. "Park proposal already a compromise," Vancouver S u n , A p r i l 13, p. 5. Farrow, Moira. 1982. " V i c t o r i a forming policy on mining in parks," Vancouver S u n , August 23, p. A l l . Anon. 1982. " V i c t o r i a to allow mining in B.C. Parks?," Vancouver _£__!£, September 22, p. 5. 1983. "Decision time near for park in Valhallas," Vancouver S u n , February 5, p. G2. 138 Long, Wendy. 1983. "Valhalla Park 'victory' met with mixed •feelings," Vancouver ___» February 18, p. A18. Turkki, Pat. 1984. "Pioneering early days re c a l l e d , " Vancouver S u n , February 3, p. DI. Anon, 1984. "Industry spoksman urges mining in Parks," Vancouver Ec_y ._nc_, February 19, p. 37. Comparelli, Peter, 1984. "Carter note supports Moresby preservaton f i g h t , " Vancouver S u n , June 22, p. A9. Lang, Stew. 1984. "Minister set to tour Moresby wilderness," V i c t o r i a l i m e s - C Q l o n i — t , June 23, p. A3. Bohn, Glenn. 1985a. "Law opens way -for mining in park," Vancouver S u n , June 29, p. A3. 1985b. "Company to press government -for right to mine claims in park," Vancouver S u n , July 4. p. A15. Brummet, Anthony J. 1985. "Government w i l l do utmost to save 'jewels'," Vancouver S u n , July 17, p. A5. Bohn, Glenn. 1985c. "Mines in parks pushed," Vancouver S u n , July 18, p. A12. 1985d. "Owners o-f claims in parks to get compensation," Vancouver S u n , July 23, p. B l . 1985e. "Man with stake in Wells Gray Park seeks permission to prospect by a i r , " Vancouver Sun* August 2, p. A3. Poole, Mike. 1985. "Mine: a hole in the ground owned by a l i a r , " Vancouver S u n , August 14, p. A5. Rutter, Jim. 1985. "Mine: a hole in the ground owned by a l i a r , " Vancouver S u n , August 14, p. A5. Hackett, John. 1985. "Mine: a hole in the ground owned by a l i a r , " Vancouver S u n , August 14, p. A5. Heyck, Anya. 1985. "Impact o-f Wells Gray r u l i n g raises concerns," Vancouver S u n , August 22, p. B5. 139 APPENDIX 2 PARKS / MINES DECISION MAKING ENVIRONMENT PHASES 140 FOUNDATION PHASE 1940's - 1950's No controversy. Era of economic optimism. Claim staking and mining allowed in provincial parks. 1961 1965 Park access r e s t r i c t e d but permission granted in 80 % o-f cases. Economic growth in the mineral sector begins a long upward swing that w i l l apex in 1981. New PARK ACT land use of parks unchanged. Mining in Parks i s subject to m i n i s t e r i a l d i s c r e t i o n . Both mining and parks lobbies are very active. Environmental movement i s gaining momentum on the pollu t i o n and conservation issues. 1967 Mining in Strathcona Park at Buttle Lake and negotiations are undertaken. i s proposed 1968 Mineral staking allowed in a l l provincial parks. Mining allowed in Class B Parks. Mines minister proposes allowing mining in large parks regardless of class. Small parks mineral industry a c t i v i t y banned. Allegations of wrong doing are brought in the case of mineral claims in Tweesmuir Park. 1969 1971 Mineral land Reclamation policy i s introduced with strong opposition lobby from some sector of the mining i ndustry. Mines Minister backs mining in parks. Government policy toward parks and resources i s development or iented. REVOLUTION PHASE 1972 Election of the New Democratic Party 1973 Environment and Land Use Committee and Secratariate are established. MINERAL ACT and PARK ACT amended. Mineral claims pending r e g i s t r a t i o n in provincial parks are denied. Mineral exploration i s banned in Provincial Parks. Mineral claims in provincial parks are subject to review for the purpose of purchase by the government to extinguish t i t l e . 1974 Though changes in taxation of the mineral industry has slowed growth in the value of mine production growth i s s t i l l registered throughout the economy. 1975 Thirteen mineral claims are purchased by the government in Wells Gray Provincial Park. 141 PROSPERITY PHASE 1975 Social Credit Party elected. 1976 Minister of Mines makes statement in favour of mining in parks i f controls are in place. Government considers policy on mineral industry a c t i v i t y in parks. Policy unchanged, mineral claim staking and exploration remain prohibited. 1977 Park planning continues on various fronts but no major parks are established. 1981 The apex of the prosperity phase i s characterized by high metal prices, a generally fast moving economy and production and p r o f i t s in a l l sectors of the provincial economy. RECESSION PHASE 1982 As the provincial economy began to decline, in response to downturns in world prices of resources including minerals and forest products, competition for resource lands in B r i t i s h Columbia i n t e n s i f i e d . P o l i c i e s on mineral a c t i v i t y in parks remains under consideration. Various park proposals continued to be exami ned. 1983 Social Credit party i s re-elected, with a mandate to r e s t r a i n cost of government. Resources management agencies and procedures are reduced and eliminated to enable cost savings. Planning procedures and a c t i v i t i e s are targets for elimination as they are perceived to be a time encumberance in the decision making process. Ministry of Energy, Mines and Petroleum resources set policy of not w i l l i n g l y giving up any potential mineral lands to wilderness designation. The Valhallas Provincial Park i s designated after long lobby e f f o r t by conservationist interests. 1984 The Ministry of Lands Parks and Housing i s faced with the task of winning p o l i t i c a l support as well as developing studies of the economics of park and wilderness designations that are proposed. Park designation classes are s i m p l i f i e d . 142 APPENDIX 3 CASE SELECTION FACTORS ANALYSIS 143 It i s the objective o-f t h i s component to make e x p l i c i t the c r i t e r i a and comparison -format on which selection o-f cases -for in depth analysis in chapter 5 of t h i s thesis was conducted. Two matrices have been constructed to a s s i s t in t h i s s e l e c t i o n . The f i r s t r e f l e c t s the presence of each type of c o n f l i c t in each individual case. The r e l a t i v e incidence of the type of c o n f l i c t in the case i s indicated by designations of: Dominant; Elements Of; and Not Present. Any individual case can have more than one type of c o n f l i c t that has the dominant designation as, in the same way, the not present designation can be applied more than once. See Matrix 1. The second matrix summarizes the additional factors that have been considered in the selection process. These selection factors can be divided into two categories: factors of d i s t i n c t i o n and factors of p r a c t i c a l i t y . See Matrix 2. There are four factors that have been used to distinguish the cases from each other. Diversity of participants indicates the potential for complexity posed by a small or large number of actors in the c o n f l i c t . Those cases where fewer parties are involved in the c o n f l i c t may be thought of as having potential to be simpler. A p p l i c a b i l i t y to other cases shows the interrelated nature of the cases that have been b r i e f l y examined to t h i s point. While the Chilko Lake, South Moresby and V a l h a l l a cases have factors and s i m i l a r i t i e s that link them, the Wells Gray, Tweedsmuir and A t l i n cases have s i m i l a r i t i e s that indicate the study of one w i l l result in findings that are s i g n i f i c a n t in discussion of the others. Of further concern i s the extent to which the cases chosen have advanced in the resolution processes 144 available in B r i t i s h Columbia. The existence of a resolution process apart -from government l e g i s l a t i v e decisions i s then indicated as a factor. F i n a l l y , another d i s t i n c t i v e -factor in the selection o-f cases i s the r e l a t i v e position chronologically that the case holds. It i s the researcher's opinion that cases with a high, or recent, position are pot e n t i a l l y too contentious to be meaningfully accessible and objectively reviewed. A low chronological position indicates a case, that through i n a c t i v i t y i s one that has become too old to permit relevant r e s u l t s to be drawn in li g h t of the current decision making schema. While a median chronological position w i l l r e f l e c t the optimal s i t u a t i o n . Three factors have been selected as factors of p r a c t i c a l i t y in assessing the cases' s u i t a b i l i t y for in depth study. F i r s t i s the existence of an extensive written record pertaining to the case. Second i s the proximity of information sources to the researcher, and t h i r d , i s the degree of a c c e s s i b i l i t y of actors in the c o n f l i c t . The findings in these two matrices are based on my best knowledge of the eight cases in chapter 2, before f u l l measure i s taken in the in depth studies of chapter 5. Accompanying t h i s knowledge are i n t u i t i v e dimensions acquired through f a m i l i a r i t y with the generic perks / mines c o n f l i c t as encountered in B r i t i s h Columbia. 145 MATRIX 1 PRESENCE OF CONFLICT TYPES COGNITIVE VALUE INTEREST BEHAVIORAL 1 2 3 ! 1 2 3 ' , 1 2 3 ' . 1 2 3 CHILKO LAKE X i X ! X J X SOUTH MORESBY X i X i X I X VALHALLA X ! X ! X I X KWADACHA X I X I X I X STRATHCONA X I X I X I X TWEEDSMUIR X I X I X I X WELLS GRAY X I X I X I X ATLIN X I X I X I X 1= DOMINANT 2= ELEMENTS OF 3= NOT PRESENT 146 MATRIX 2 CASE SELECTION FACTORS CHILKO SOUTH MORESBY VALHALLA KWADACHA STRATHCONA TWEEDSMUIR WELLS GRAY ATLIN 1 X X X X 0 A 2 3 X X X X 0 X X X 4 0 X X X X 0 1 X X B 2 X X X X 0 3 X 0 0 X = HIGH 0 = MEDIUM - = LOW A= FACTORS OF DISTINCTION 1= DIVERSITY OF PARTICIPANTS 2= APPLICABILITY TO OTHER CASES 3= EXISTENCE OF RESOLUTION PROCESSES 4= CHRONOLOGICAL POSITION B= FACTORS OF PRACTICALITY 1= WRITTEN RECORD 2= INFORMATION PROXIMITY 3= ACTOR ACCESSIBILITY Upon examination there are a variety o-f reasons that lead us to the selection o-f the Wells Gray Provincial Park and the Chilko Lake Wilderness Park proposals -for in depth analysis in t h i s thesis. It i s my desire to be as representative as possible in 14? the cases such that the understanding o-f the c o n f l i c t and consequently the proposition of appropriate c o n f l i c t resolution processes i s not u n r e a l i s t i c a l l y skewed. Further, a desire i s e x p l i c i t to choose cases that upon examination and analysis w i l l r esult in findings that are transferable to cases of similar circumstance within the provincial j u r i s d i c t i o n . Primary to the selection of these cases i s the d i s t i n c t i o n that each represents an instance where each of the parties to the c o n f l i c t are the f i r s t in right and the other i s trying to assert some right to land. Though the Tener claims predate the establishment of Wells Gray Park, the current c o n f l i c t i s centered around the desire of the claim holder to get access to the park land. The Chilko case, on the other hand, e n t a i l s the perserverance of the park proponent in advancing park land use designation on lands where mineral claims over well known mineral occurences are well known and of long standing. The two cases chosen exemplify two di f f e r e n t levels of complexity that are contained within the generic parks / mines c o n f l i c t as we have come to know i t . The Wells Gray case i s one of a r e l a t i v e l y simple nature where the number of participants i s few and the resultant complexity i s limited to that which i s inherent in the arguments and negotiations presented. The Chilko Case, on the contrary, i s one of pote n t i a l l y many participants in the c o n f l i c t . Though the major d i f f i c u l t y l i e s in the divergence between the parks and mines interests, a large number of competing peripheral interests are present to compound the s i t u a t i o n . A t h i r d rational for the choice of these cases i s found in 148 the approaches to c o n f l i c t resolution that have been used in attempts to resolve them. Different approaches have been used for each case. The Wells Gray case i s one where the courts have been used to adjudicate some resolution which to mid 1985 has not been s a t i s f a c t o r y . The Chilko Lake Case has been the subject of an extended land use planning process that has not resulted in a decision or the resolution of the c o n f l i c t that i s present. Each of these processes r e f l e c t common approaches to c o n f l i c t resolution in the parks / mines s i t u a t i o n . In each of these, the degree of success has been questionable. It i s therefore of interest t D determine the types of c o n f l i c t and response that brings an unsatisfactory r e s u l t . A f i n a l rationale for the selection of these cases i s the apparent a v a i l a b i l i t y of information and sources of knowledge pertaining to the cases. With p r i n c i p l e s involved in each case located in the lower mainland of B r i t i s h Columbia and V i c t o r i a , as well as the court documentation of the Wells Gray Case, these selections have been made. To summarize, there are four reasons for choosing the Wells Gray and the Chilko Lake cases. F i r s t , i s the d i f f e r e n t i a t i o n between proponents in each; second, i s the differences in the number and complexity of the participants in the c o n f l i c t ; t h i r d , i s the variety of the response proffered in attempts to resolve the individual c o n f l i c t s ; and f i n a l l y , the r e l a t i v e proximity and abundance of information on these cases r e l a t i v e to the others examined in chapter 2. 149 APPENDIX 4 CHRONOLOGY OF EVENTS WELLS GRAY PROVINCIAL PARK 150 FOUNDATION PHASE 1934 June 5. F i r s t rights to mineral claimed 1937 July 3. A consortium of investors receive crown granted t i t l e to 16 mineral claims. Holdings are distributed as follows: Bradley 50 % Tener Sr. 25 % others 25 % July 23. C e r t i f i c a t e of indefeasible t i t l e i s issued under the Land Registry Act. 1939 December 14. Notice of Wells Gray Park reserve appears in the B r i t i s h Columbia Gazette. The Park i s created. Tener Sr. s t i l l has the right to minerals and to work on the surface. 1940's Some exploration and development work i s conducted on mineral claims 1965 A park use permit i s now required for development of mineral claims within a l l parks. 1970 Tener continues process of acquiring park land use permi t. REVOLUTION PHASE 1972 November. New Democratic Party replaces Social Credit government. 1973 February 22. The Park Act i s revised to r e s t r i c t the access of Tener to the surface of the claims. July 23. Provincial Government ac t i v e l y considers negotiation to buy out mineral rights held in provincial parks. 1974 September. Tener Sr. dies. Tener begins to request park land use permits such that work can continue on the claims. 1975 Spring. David Tener takes over Bradley's share to win c o n t r o l l i n g interest in the claims. Letters, telephone c a l l s , and personal conferencing between Tener and the Parks Branch continue 1975 - 1978 151 PROSPERITY PHASE 1975 Social Credit government returns. 1977 Minister of Mines, Jim Chabot of f e r s David Tener 100,000 dollar quit claim compensation. 1978 January 24. Parks Branch requests an itemized quit claim price. Tener, treats the l e t t e r as a denial of the rights to minerals that he holds. Tener, his accountants, lawyers, and P. Eng. W.T. Irvine prepare claim value estimate of h i s t o r i c a l expenditures at 1.5 m i l l i o n d o l l a r s , and the present value of loss of opportunity to be about 3 m i l l i o n d o l l a r s . Parks Branch employee who writes l e t t e r asking for quit claim price i s f i r e d . 1979 May. Issue a writ against the Crown in Right of B r i t i s h Columbia asking for compensation. 1980 B r i t i s h Columbia Supreme Court rejects Tener's claim for compensation. RECESSION PHASE 1982 March 2. B r i t i s h Columbia Court of Appeal rules that Tener should be compensated for the 16 mineral claims in Wells Gray Park. December 30. Factums of both the Appellant ( B r i t i s h Columbia) and Respondent (Tener) are submitted to the Supreme Court of Canada. 1984 November 2. Final documents of the parties to the case are submitted to the Supreme Court of Canada. 1985 A p r i l 26. Tener awaits the decision of the Supreme Court of Canada. Current compensation claim price i s suggested of 5.2 m i l l i o n d o l l a r s . Upward estimates have been suggested of 12 m i l l i o n d o l l a r s . May 9. Supreme Court of Canada reasons are handed down in favour of Tener. June 28. Provincial l e g i s l a t u r e passes ammendments that allow the creation of a recreation area in Wells Gray Provincial Park, thus allowing Tener to proceed with development. 152 APPENDIX 5 CHRONOLOGY OF EVENTS CHILKO LAKE WILDERNESS PROPOSAL 153 FOUNDATION PHASE 1935 Prospectors recover gold from the Lord River area within the Chilko area. 1940's Mineral industry i^e**s-trr-y a c t i v i t y i s increased with the exploration diamond d r i l l coring and tunneling of mineral deposits. 1964 Further staking of mineral claims in the Chilko Lake area. 1970's Rising metal prices cause increased a c t i v i t y in Chilko area. REVOLUTION PHASE 1973 Parks Branch of the Ministry of Recreation and Conservation do a series of studies to investigate park values in the region extending from Tweedsmuir Park in the north to Carpenter Lake in the south. 1975 September 11. Inter - agency C h i l c o t i n Wilderness Park Study i s i n i t i a t e d by the Environment and Land Use Committee Secretariate. PROSPERITY PHASE 1980 Mineral exploration a c t i v i t y continues to attract a considerable expenditure. RECESSION PHASE 1981 February. Deferred Area Planning Process i n i t i a t e d between Ministry of Forests and Ministry of Lands, Parks and Housing. 1982 July. Mineral resources and potential study i s completed for the Chilko Lake area by Ministry of Energy, Mines ad Petroleum Resources. November 5-7. Ministry of Energy, Mines and Petroleum Resources holds a Land Use Review Seminar in V i c t o r i a to a s s i s t in determining c o n f l i c t s between mineral and other land uses. Mineral exploration a c t i v i t y i s cu r t a i l e d due to concerns for security of mineral rights tenure and f a l l i n g mineral prices. 1983 May 28. Ministry of Energy, Mines and Petroleum Resources presents a position paper o u t l i n i n g the mineral resource management perspective for wilderness l e g i s l a t i o n and management in B r i t i s h Columbia. 154 June 17. Deferred Planning Area Report for Chilko i s submitted to the Environment and Land Use Technical Committee o-f the Provincial Deputy Ministers. July 7. Provincial Budget c a l l s -for the elimination o-f the Regional Resource Management Committees and a reduction in Planning a c t i v i t i e s throughout the provincial government services. Cariboo Regional Resources Management Committee recommend the creation of a core recreation area with mineral exploration allowed in the periphery. Parks and Outdoor Recreation Division o-f the Ministry a-f Lands, Parks and Housing continue to push -for the establishment o-f a Class A park in the Chilko area. Lands, Parks and Housing r e a l i z e that they need considerable p o l i t i c a l support be-fore a park or recreation area proposal i s put be-fore the provincial cabi net. Process o-f consultation and mediation between the parks and mines interests by Lands, Parks and Housing i s begun. 1984 May. Mineral resource development land use policy -for the ministry o-f Energy, Mines and Petroleum Resources i s pub 1i shed. Regular consultation between the Geological Branch o-f the Ministry o-f Energy, Mines and Petroleum Resources and the Parks and Outdoor Recreation Division o-f the Ministry o-f Lands, Parks and Housing continue at the headquarters l e v e l . August 22. Parks and Recreation Branch o-f the Ministry o-f Lands, Parks and Housing publishes park land designation policy that w i l l eliminate classes o-f parks leaving only Class A Provincial Parks and recreation areas. 1985 A p r i l . Parks and Outdoor Recreation Division of the Ministry of Lands, Parks and Housing submit a policy proposal to the mining industry for comment. 155 

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