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Public process and the creation of a marine protected area at Race Rocks, British Columbia LeRoy, Alfred Sean 2002

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PUBLIC PROCESS AND THE CREATION OF A MARINE PROTECTED AREA AT RACE ROCKS, BRITISH COLUMBIA by ALFRED SEAN LEROY B. Sc. Hons., The University of Victoria, 1999 A THESIS SUBMITTED IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF SCIENCE (PLANNING) i n FACULTY OF GRADUATE STUDIES (School of Community and Regional Planning) We accept this thesis as conforming to the required standard THE UNIVERSITY OF BRITISH COLUMBIA OCTOBER 2 0 0 2 © Alfred Sean LeRoy, 2 0 0 2 in presenting this thesis in partial fulfilment of the requirements for an advanced degree at the University of British Columbia, I agree that the Library shall make it freely available for reference and study. I further agree that permission for extensive copying of this thesis for scholarly purposes may be granted by the head of my department or by his or her representatives. It is understood that copying or publication of this thesis for financial gain shall not be allowed without my written permission. Department The University of British Columbia Vancouver, Canada DE-6 (2/88) Abstract The creat ion o f a mar ine protected area in Bri t ish Co lumb ia is a pol i t ical process tha t m u s t reconci le the wants o f several ju r isd ic t ions and interests. O n e f o r u m for consu l ta t ion and reconci l ia t ion is a consensus process, where indiv iduals represent ing d i f fe r ing interests engage in long- te rm, face-to-face d iscuss ions, seeking agreement on strategy, p lans, pol ic ies, and act ions. Th is s tudy employed qual i tat ive me thods to examine the successes and s h o r t c o m i n g s o f the consensus process associated w i t h the f o r t h c o m i n g des ignat ion o f the X w ayar j (Race Rocks) Mar ine Protected Area, wh ich wi l l be Canada's f i rs t mar ine pro tected area under the federal Oceans Act. Known as the Race Rocks Advisory Board, th is process inc luded government , abor ig inal and stakeholder representat ives, and was successful at nego t ia t ing consensus recommenda t ions in suppor t o f des ignat ion . Notab le a m o n g the r e c o m m e n d a t i o n s were prov is ions for the creat ion o f a no-take zone, and for the es tab l i shment o f a co -management reg ime invo lv ing First Nat ions , Bri t ish C o l u m b i a and Canada. However, once s u b m i t t e d , these r e c o m m e n d a t i o n s were mis represented in the federal government ' s regulatory approval process, leading to protest by var ious First Na t ions and a halt t o final des ignat ion . Both the misrepresenta t ion and the protest involved g roups tha t were not part o f the Race Rocks Advisory Board. This suggests tha t consensus processes fo r the creat ion o f mar ine protected areas shou ld inc lude representat ives f r o m each part o f the des ignat ion process, i nc lud ing delegates f r o m all affected First Na t ions and all relevant branches o f government . To achieve th is , i t is r e c o m m e n d e d tha t fu tu re consensus processes be jo in t ly convened by Canada, Bri t ish C o l u m b i a and affected First Na t ions , respect ing the government - to -government re la t ionship between the three part ies. The jo in t convenors w o u l d negot iate wha t f o r m o f co-ord inat ion and faci l i ta t ion shou ld take place in the process, and wh ich stakeholders shou ld be involved. In effect, th is w o u l d be a co-managed consensus p r o c e s s — an exper iment w i t h a new f o r m o f publ ic engagement , wh ich is in keeping w i t h the ' learn ing-by-doing ' approach endorsed by federal pol icies for the creat ion o f mar ine protected areas under the Oceans Act. Table of Contents Abstract ii List of Tables vi List of Figures viii Acknowledgements ix Preface x Passages xiii Chapter i - Introduction i i. i Problem definition i 1.2 Research agenda 2 1.3 Structure of this thesis 3 1.4 Limitations of this study 3 1.5 Note on terminology 4 1.6 Commonly used acronyms 5 Chapter 2 - Research Methods 6 2.1 Qualitative approach 6 2.2 Primary and secondary research 7 Chapter 3 - Marine Protected Areas 9 3.1 What are marine protected areas? 9 3.1 .1 Definitions and goals 1 0 3 . 1 . 2 Scientific rationale 11 3 . 1 . 3 Parks vs. marine protected areas 1 2 3.2 Marine protected areas in British Columbia 12 3 . 2 . 1 Jurisdiction 13 3 . 2 . 2 Legislation for marine protected areas 13 3 . 2 . 3 Federal Oceans Act. 1 4 3 . 2 . 4 Policies for Marine Protected Areas 15 3.3 Aboriginal rights in British Columbia 16 3 .3 .1 A new Constitution 1 7 3 . 3 . 2 Treaty negotiations 1 7 3 . 3 . 3 Delgamuukw 1 8 3 . 3 . 4 Marshall 1 9 3 . 3 . 5 Recent decisions 2 0 3.4 Summary 20 Chapter 4 - Theoretical Framework 21 4.1 Community involvement in marine protected areas 21 4 . 1 . 1 Co-management 2 1 4 . 1 . 2 Legitimacy in decision-making 2 3 4.2 Reaching consensus 24 4 . 2 . 1 What is consensus? 2 5 iii 4 . 2 . 2 Consensus processes 2 6 4 . 2 . 3 Facilitation 2 8 4.3 Communicative planning theory 29 4 . 3 . 1 Ideal or pragmatic? 2 9 4 . 3 . 2 Habermas' discourse ethics 3 0 4 . 3 . 3 A Foucauldian critique 31 4.4 Conceptual and analytical frameworks 33 4 . 4 . 1 Conceptual framework 33 4 . 4 . 2 Analytical framework 3 4 4.5 Summary 37 Chapter 5 - X'avan 38 5.1 Biophysical setting 38 5.2 Aboriginal and colonial history 44 5 . 2 . 1 Douglas Treaties 4 5 5 . 2 . 2 Royal Navy and the Lightstation 4 5 5.3 Current activities 46 5.3 .1 Pearson College and the Ecological Reserve 4 7 5 . 3 . 2 Tourism and recreation 4 8 5 .3 .3 Environmental advocacy 5 0 5.4 Designation as a Pilot M P A 50 5.5 Summary 51 Chapter 6 - Race Rocks Advisory Board 52 6.1 Formation of the Advisory Board 52 6 . 1 . 1 Co-ordination and facilitation 53 6 . 1 . 2 Representation 53 6 . 1 . 3 Attendance 5 4 6.2 Proceedings 55 6 . 2 . 1 Meeting No. 1 55 6 . 2 . 2 Meeting No. 2 5 7 6 . 2 . 3 Meeting No. 3 6 0 6 . 2 . 4 Meeting No. 4 6 4 6 . 2 . 5 Burning ceremony 6 5 6 . 2 . 6 Meeting No. 5 6 6 6 . 2 . 7 Consensus vs. written recommendations 6 9 6.3 Proposals for designation 7 ° 6 . 3 . 1 Draft Feasibility Report 7 ° 6 . 3 . 2 Proposal to Designate 7 ° 6.4 Subsequent events 71 6 . 4 . 1 Conflict at Miramichi Bay 7 1 6 . 4 . 2 'Official designation' 7 2 6 . 4 . 3 Gazette regulations 7 3 6 . 4 . 4 Meeting No. 6 7 5 6.5 Summary 76 Chapter 7 - Voices of the Participants 77 7.1 Challenge 77 7 . 1 . 1 Innovative 7 7 iv 7 - 1 . 2 Fair decisions 7 9 7 . 1 . 3 Partnerships in implementation 7 9 7.2 Respect 81 7 . 2 . 1 Inclusive 8 1 7 . 2 . 2 Accountable to the participants 8 3 7 . 2 . 3 Respectful of identities 8 5 7.3 Balance 85 7 . 3 . 1 Fair process through skilled facilitation 8 6 7.4 Summary 88 Chapter 8 - Interpretation 90 8.1 Innovative 90 8 . 1 . 1 No-take zone 9 0 8 . 1 . 2 Co-management 9 2 8.2 Fair decisions 93 8.3 Partnerships in implementation 94 8 . 3 . 1 Voluntary stewardship 9 5 8 . 3 . 2 Funding the Race Rocks M P A 9 5 8 . 3 . 3 Continued role for the RRAB 9 6 8.4 Inclusive 97 8 . 4 . 1 First Nations 9 7 8 . 4 . 2 Stakeholders 9 8 8.5 Accountable to the participants 99 8 . 5 . 1 Waiting for Ministerial agreement-in-principle 9 9 8 . 5 . 2 Failure of the regulatory process 1 0 0 8.6 Respectful of identities 102 8.7 Fair process through skilled facilitation 102 8 . 7 . 1 Combined co-ordination and facilitation 1 0 3 8 . 7 . 2 Boundary options 1 0 4 8 . 7 . 3 Independent facilitation 1 0 5 8.8 Summary 105 Chapter 9 - Conclusions 108 9.1 Successes and shortcomings 108 9.2 Planning for consensus no 9.3 Recommendations i n 9.4 Suggestions for further study 113 References " 5 Appendices 125 Appendix A. Race Rocks Advisory Board Terms of Reference 125 Appendix B. Race Rocks Advisory Board Recommendations 128 Appendix C. XwaYen (Race Rocks) Marine Protected Area Regulations 131 V List of Tables Table 3.1 I U C N categories for M P A s 10 Table 3.2 A A A S Scientific Consensus Statement on Marine Reserves and Marine Protected Areas 11 Table 3.3 M P A s in B C 12 Table 3.4 Legislation for M P A s in B C 13 Table 3.5 Definition of 'Marine Protected Area' in the Oceans Act 14 Table 3.6 Code of Practice for the M P A Program 15 Table 3.7 What is an aboriginal right? 17 Table 4.1 W C P A Guidelines for M P A s 22 Table 4.2 Misinformation and the management of comprehension, trust, consent and knowledge in planning processes 23 Table 4.3 Strategies for Getting to Yes. 24 Table 4.4 N R T E E Guiding Principles for Consensus Processes 26 Table 4.5 Questions for the successful implementation of consensus agreements 27 Table 4.6 Habermas and Foucault 31 Table 4.7 Theoretical framework 37 Table 5.1 Biota at Race Rocks 43 Table 5.2 Tourism activities in the vicinity of Race Rocks 48 Table 5.3 E N G O s engaged in marine conservancy i n the Georgia Basin 50 Table 6.1 Timeline for the R R A B and associated events, Dec. 1999- Dec. 2001 52 Table 6.2 Attendance at R R A B Meeting Nos. 1-6 55 Table 6.3 Agenda for Meeting No. 1 56 Table 6.4 Presentations given by R R A B facilitator, Dec. 1999 57 Table 6.5 Agenda for Meeting No. 2 57 Table 6.6 R R A B Terms of Reference (excerpts) 61 Table 6.7 Agenda for Meeting No. 4 64 Table 6.8 Participants in the burning ceremony at Beecher Bay, March 9, 2000 65 Table 6.9 Agenda for Meeting No. 5 66 Table 6.10 Consensus recommendations (excerpts) 67 Table 6.11 Proposed timetable for the designation of the Race Rocks M P A 71 Table 6.12 Regulations published in the Canada Gazette (excerpts) 74 Table 7.1 Theoretical framework 77 Table 7.2 Dominant voices of participants in the RRAB 89 Table 8.1 Outline for Chapter 8 90 Table 8.2 Implementing the consensus agreement negotiated by the RRAB 94 Table 8.3 Implications of the case study 106 vii List o f Figures i Figure 4.1 Gradients of Agreement Scale for consensus decisions 25 Figure 4.2 Conceptual framework 33 : Figure 5.1 Location of JCayarj/Race Rocks, as well as Pearson College and Canadian Forces Base Esquimalt 39 ! Figure 5.2 Hydrographic chart of Race Rocks, as well as Bentinck Island, Whirl Bay and Rocky Point 40 I Figure 5.3 Photo of Great Race Rock 41 i Figure 5.4 Bathymetry of Race Rocks 42 Figure 5.5 Wildlife at Race Rocks 43 1 Figure 5.6 'Race Islands' on John Arrowsmith's Map of Vancouver Island and the Adjacent Coasts, 1849 44 i Figure 5.7 Douglas Treaties in the vicinity of Race Rocks 45 Figure 5.8 Race Rocks Lightstation, 1875 46 1 Figure 5.9 Canadian Coast Guard at Race Rocks 46 ! Figure 5.10 MARPAC training at Whirl Bay 46 Figure 5.11 Pearson College's educational programs at Race Rocks 47 1 Figure 5.12 Boundary of Race Rocks Ecological Reserve 47 .Figure 5.13 Webcams at Race Rocks 48 j Figure 5.14 Sport diving at Race Rocks 49 i Figure 5.15 Sport fishing near Race Rocks 49 ' Figure 5.16 Recreational boater interacting with wildlife in Juan de Fuca Strait 49 Figure 6.1 Boundary options for the Race Rocks MPA, Jan. 2000 59 Figure 6.2 Proposed Management / Governance Framework 68 !Figure 6.3 Ministers Dhaliwal and Sawicki with the RRAB and students from Pearson College 72 ' Figure 6.4 Logo for Xwayan/Race Rocks 73 I Figure 8.1 Two models for the co-management of the Race Rocks MPA 101 Figure 9.1 Consensus vs. designation processes at Race Rocks no viii Ackno wled gements I t hank Tony Dorcey, James Tansey and Rod Dobell for the i r d i rec t ion , m e n t o r s h i p and encouragement in the preparat ion o f th is thesis. One cou ld not hope for a better thesis c o m m i t t e e . I also thank John Fr iedmann for his con t r ibu t ion to th is work, bo th t h r o u g h his research seminar and as the external reader. I a m especially grateful t o everyone I in terv iewed in the course o f my research. I appreciate the t i m e you have given me. I t hank Pearson College for p rov id ing a memorab le tou r o f Great Race Rock. I w o u l d like to acknowledge the encouragement and unders tand ing o f Sean Edwards (office mate ) , Sandra Bicego and Louise Murga t royd (fel low students o f mar ine protected areas), and Cour tney Beaubien, Erin Embley and Karen Miner (fel low members o f Tony 's Thesis-Advis ing-over-breakfast-at-Cafe-Zen Round Table) . Finally, a special w o r d o f thanks m u s t go to m y f iance Zehra Pirani, w i t h o u t whose endu r ing suppor t th is work w o u l d not have been possible. Th is project was sponsored by the Sustainable Deve lopment Research Inst i tu te (Georgia Basin Futures Project, SSHRC) and the School o f C o m m u n i t y and Regional P lanning at the Universi ty o f Bri t ish Co lumb ia . Financial suppor t was also prov ided by the Canadian Inst i tu te o f Planners (s tudent scholarship) and the Canadian Associat ion o f Geographers (conference travel award) . ix Preface Qual i ta t ive research calls for the inc lus ion o f a personal i n t roduc t ion , as a way to let the reader know, up f ront , o f the background, bias and approach o f the researcher t o the project at hand. As I wr i te th is , I a m a 28 year-old male Canadian, w i th roots s t re tch ing via Quebec to England, France, Ho l land and Norway. I grew up on the west coast o f Canada, in Vic tor ia , the capital city o f the province o f Bri t ish Co lumb ia . C r o w i n g up on the west coast in f luenced me in many ways; a m o n g t h e m , it exposed me to the pol i t ical forces that , t h r o u g h the 1990s, redef ined our percept ion o f and approach to the managemen t o f natural resources in BC. The pol i t ical forces I speak o f were d o m i n a t e d by t w o issues. First, there was the rise o f publ ic resistance to forestry practices in BC, part icular ly the c lear-cut t ing o f the tempera te rainforests o f Vancouver Is land. The mos t dramat ic mani fes ta t ion o f th is was the 1993 blockade o f the Kennedy Lake Bridge in Clayoquot Sound, an event that led to the largest mass arrest — o v e r 900 p e o p l e — in Canadian history. Though I d id not jo in the blockade, th is event resonated in my pol i t ical conscience. It also affected provincia l pol icy at the t i m e , leading to new mode ls o f land use p lann ing bui l t on inclusive f o r m s o f dec is ion-mak ing . Second, the abor ig inal land quest ion emerged as a cri t ical issue for the prov ince ( though it had always been a crit ical issue for abor iginal peoples). M o s t BC First Na t ions have never ceded t i t le t o the i r land and resources, and a series o f cour t decis ions in the 1990s f inal ly pressed the Crown to begin m o d e r n treaty negot ia t ions, a process tha t cont inues — w i t h d i f f i c u l t y — to th is day. In the mean t ime , the courts said that the Crown was ob l iged t o inc lude First Nat ions in the management o f their t rad i t ional t e r r i t o r i e s — a legal requ i rement for a new f o r m o f governance. It is in th is context that I was f i rst exposed to the concept o f mar ine protected areas (MPAs) . It was 1997, and I was an undergraduate s tudent tak ing f ield courses at Bamf ie ld Mar ine Stat ion, located in a smal l c o m m u n i t y on the west coast o f Vancouver Is land. T h o u g h I was a geography s tudent , I was hooked on the relatively new f ield o f conservat ion biology, a so-cal led 'act iv ist science' in tent on p r o m o t i n g the conservat ion o f biological diversi ty. As w i t h other c o m m u n i t i e s on the outer coast, Bamfie ld is on the doors tep o f one o f the m o s t bio-diverse inter-t idal ecosystems in the wor ld . O n e o f our class projects was to plan a smal l MPA (less than a hectare) for the shal low waters s u r r o u n d i n g an islet in Barkley Sound. The in tent was to create a 'no-take zone ' that cou ld be v is i ted by fu ture s tudents to m o n i t o r long- term changes — f r o m po l l u t i on , c l imate change, the re in t roduct ion o f sea ot ters, e t c . — to the mar ine ecosystem. It was a very modes t p roposa l , t o o modes t for those w h o dreamed o f grand networks o f MPAs. Sti l l , the proposal was wr i t t en , and a meet ing was organised to present the idea to the local c o m m u n i t y . The c o m m u n i t y was taken by the fresh en thus iasm o f the s tudents , but the logic o f ou r a rgumen ts fell f lat, for several reasons. The f i shermen had heard enough about pro tected a r e a s — when the Pacific Rim Nat iona l Park Reserve was created, they had been to ld that they w o u l d be able t o con t inue f i sh ing in the park. «That lasted only a few years, unt i l the p romise was broken!» was thei r response. The spor t - f ish ing lodge owners ch imed in : « O n e smal l M PA was f ine, but what i f th is gave us the idea o f creat ing more?» «But we shou ld create a who le network o f MPAs!» one s tudent b lur ted out . «That 's exactly the p rob lem here,» a lodge owner said, « l f you start w i th th is MPA, soon you' l l create m o r e and we' l l have nowhere to f ish!» Then the Chief o f the local First Nat ion declared that th is was all the i r t rad i t iona l ter r i tory anyway: «You folks can restr ict your f i sh ing, but we' l l do what we wan t .» Finally, the d i rector o f the mar ine stat ion upheld the mar ine stat ion 's r ight to conduc t man ipu la to ry exper iments on the p roposed site: «Ever wonder why there are no anemones on the islet? They have been removed in order to study the process o f re-colonisat ion. This is i m p o r t a n t for science.» Let d o w n , by one o f our o w n ! In a few shor t m inu tes , all the en thus iasm was gone. Some s tudents were f rus t ra ted , and others were resentfu l . The reality was that we had been taught only one d i m e n s i o n o f mar ine conserva t ion : h o w to physically design an MPA. We d id not know how to conv ince o ther p e o p l e — w i t h views as val id as our o w n — t h a t an MPA was s o m e t h i n g w o r t h d o i n g . We had not learned how to bui ld the social consensus needed to t u r n our idea in to reality. In o ther w o r d s , we had not unders tood the lessons being taught by the histor ical events (men t i oned earl ier) tha t were un fo ld ing a round us. A few years later, I f o u n d myse l f in p lann ing school . I had begun to digest m y experiences at Bamf ie ld and elsewhere. I had developed an innocent bel ief that new f o r m s o f c i t izen invo lvement in resource m a n a g e m e n t could go a long way to address the env i ronmenta l ills and histor ical w rongs o f th is province. I decided my thesis w o u l d be on the consensus process tha t r e c o m m e n d e d the creat ion o f a real MPA in the same, spectacular mar ine ecosystem as Bamf ie ld . This case study appeared to have succeeded where o thers had fa i led. H o w w o u l d I approach my research? Here is what I had in m i n d : • Tell the story. No one else wi l l likely wr i te an ent ire thesis on the same case study 1 . Th is was my chance to tell wha t happened, and f ind m e a n i n g in it. • Be a critic, not a cynic. It is easy to be over-crit ical o f gove rnmen t act ivi t ies. I wan ted to capture both the successes and shor tcomings that are part o f any pol i t ical process. • Be sensitive. People involved in publ ic consu l ta t ion processes are there because they care. As Fisher and Ury (1991) w o u l d say, I wanted to be 'easy on the people ' . As a researcher, I had the unique experience o f having the conf idence o f everyone I spoke to , and the responsib i l i ty not to 'spi l l the beans' f r o m one interview to the next. In the end , I probably had a more comprehens ive unders tand ing o f the process than anyone w h o was actual ly involved in it! I thank everyone w h o ent rus ted me w i th th is privi lege. W i t h all th is said, let me tell you about a place called X w a y s n , or Race Rocks. Sean LeRoy Vancouver, Oc tober 2 0 0 2 Or so I thought— it turns out that several students have been interested in Race Rocks. Notable among them, Louise Murgatroyd (1999) completed a graduate research project on Race Rocks at Dalhousie University, and Sandra Bicego (forthcoming) is completing a graduate thesis on marine reserves (including Race Rocks) at the University of British Columbia. ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ #1 J - J " V M S | mm •few's " "<!'• We harbour a bias towards the oceans, one that may \fiave its genesis in the easily rationalized, unease we feel when we as perfectly adapted land creatures venture into what is for us a foreign and dangerous medium. Paradoxically, we simultaneously harbour ,.a,sense of familiarity about the sea— an almost mystical feeling thai it is a part of us and a common , thread among a disparate collection of coastal peoples around the world. 1»: ' — Tundi Spring Agardy Photo by author. k 7Y> set' t//uf deliberative processes come with , 15 " ° guarantees is a bit like seeing that we are - •* mortal. We need to bemoan less the facts of ^f^m flur fi'titude and ask more hoiv we can create m f t  mm o u r fi'titude ow we can cn r/'rli deliberative processes in the time we J in the settings we face. have, — John Forester m— W/wt we kept telling Fisheries is: "move it along, move it along, you've got consensus, MOVE!" Consensus is a fleeting moment. Jk — Member of the Race Rocks Advisory Board •4MB «r Photo by author. XIV Chapter i - Introduction For m u c h o f history, the sea has been perceived as "resi l ient and so vast as to be essential ly l im i t less" (Agardy 1997, p. i o ) . The ocean was the u l t imate in c o m m o n proper ty , p rov id ing open access to anyone w i th the means to harvest its weal th (Boersma and Parrish 1999). The regulat ion o f h u m a n activity has been either unnecessary, given super -abundant resources, or impract ica l , given the di f f icul t ies involved in en fo rcement (Jentoft 2000c). These percept ions have changed w i th the g row ing awareness tha t h u m a n activity is hav ing a p r o f o u n d impac t on the mar ine env i ronment . W a r n i n g signals such as col lapsed f isheries and species ext inct ions have led to the real isation that the oceans are no longer a l imi t less f ront ier . One response to th is recogni t ion has been to set aside i m p o r t a n t mar ine habi tat f r o m the no rma l scope o f h u m a n activity, t o create mar ine protected areas. 1.1 Problem definition M a r i n e protected areas are a relatively new f o r m o f mar ine conservancy, part icular ly in Bri t ish C o l u m b i a and Canada (Jamieson and Levings 2001)2. It is only recently tha t Canada has had effective legislat ion for mar ine protected areas, m o s t notably in the federal Oceans Act (1996)3. The imp lemen ta t i on o f a nat ional system o f mar ine protected areas ( required by the Act) has the potent ia l t o make a signi f icant con t r ibu t ion to the health and sustainabi l i ty o f mar ine ecosystems in Canada, and (in tu rn) the coastal c o m m u n i t i e s w h o depend on t h e m . The creat ion o f a mar ine protected area in Bri t ish Co lumb ia is a pol i t ical process tha t m u s t reconci le the wants o f several ju r isd ic t ions and interests. Federal and provincia l agencies are called upon to work together . Abor ig ina l people m u s t be consu l ted . User g roups and env i ronmenta l non-governmenta l organisat ions want t o have a say. The task faced by the government agency responsible for the Oceans Act is t o ful f i l its manda te whi le reconc i l ing these interests, engag ing each o f these groups in mean ing fu l consu l ta t ion . 2 While most marine protected areas date from the late twentieth century, there are earlier examples that should be noted. Royal National Park in Australia (1879) is the first known, statutory park to include a marine protected area (Davis 2001). The first marine protected area in British Columbia and Canada was the marine component of Strathcona Provincial Park (1911) (Jamieson and Levings 2001). Recognition must also be given to sanctuaries and spiritual sites that have existed before and/or in parallel with modern states. 1 While not addressed in this thesis, the Canada National Marine Conservation Areas Act (which received Royal Assent on June 13, 2002) will also play an important role in the creation of marine protected areas across Canada, including the Great Lakes. 1 O n e f o r u m for consu l ta t ion and reconci l iat ion is known as a consensus process, where " ind iv idua ls represent ing d i f fer ing interests engage in long- te rm, face-to-face d iscuss ions, seeking agreement on strategy, plans, pol icies, and ac t ions" (Innes and Booher 1999, p. 11). Consensus processes have been f o u n d to be part icular ly useful for address ing env i ronmenta l issues, o f f i n d i n g so lu t ions beyond the cus tomary ' ze ro -sum' c o m p r o m i s e between m o r e and less deve lopment (Cormick et al. 1996). For government agencies, consensus processes can br ing legi t imacy to di f f icul t env i ronmenta l decis ions, p rov id ing an al ternat ive to the increasingly hazardous 'decide, announce, and defend ' (Thomas 1995). Whi le p r o m i s i n g , consensus is "a far - f rom-s imple process o f g iv ing voice to and e m p o w e r i n g a c o m m u n i t y " (Few 2000, p. 402). Part ic ipants are chal lenged to reth ink the i r pos i t ions , t o search for jo in t so lu t ions that are considered fair by c o m m o n consent . This chal lenge is i m p o r t a n t t o the success o f a process; however, it is also a n o r m a l i z i n g inf luence, an act o f power. The exercise o f power m u s t be tempered w i th the need to respect the people s i t t ing at the table, and the groups that they represent. This is part icular ly relevant for abor ig inal people w h o are "s t rugg l ing to move f r o m dependency on the nat ion state t o self-d e t e r m i n i n g agency" (Davis and Jentoft 2001, p. 223). 1 . 2 Research agenda The broad research quest ion o f th is thesis is: H o w shou ld consensus processes be used t o create mar ine protected areas in Brit ish Columbia? More specif ically, how shou ld th is be done whi le ba lanc ing the need to chal lenge and respect the par t ic ipants in the process? The goal o f th is thesis is to reflect on these quest ions, d raw ing ins ight f r o m the consensus process associated w i th the ( fo r thcoming) designat ion o f t h e X w a y a r j (Race Rocks) Marine Protected Area, wh ich wi l l be Canada's f irst Mar ine Protected Area under the Oceans Act (1996). M o s t active f r o m December 1999 to March 2000, the Race Rocks Advisory Board was notable for its use o f consensus dec is ion-mak ing techniques, the inc lus ion o f gove rnmen t , abor ig ina l , and stakeholder representat ives in the dec is ion-mak ing g roup, and its success at p rov id ing consensus recommenda t ions in suppor t o f des ignat ion . The object ives o f th is thesis are therefore as fo l lows: • Review the substant ive founda t ion o f the case study, inc lud ing the history o f mar ine protected areas and abor ig inal r ights in BC; • Develop a theoret ical f ramework for the in terpretat ion o f consensus processes as an artefact o f c o m m u n i c a t i o n and power dynamics a m o n g par t ic ipants; • D o c u m e n t the geographical and histor ical context o f the Race Rocks area and the func t ions o f the Race Rocks Advisory Board; and . App ly the theoret ical f ramework to the case study, deve lop ing an in terpre ta t ion , conc lus ions and recommenda t i ons . 1.3 Structure of this thesis This thesis is d iv ided in to nine chapters. Chapter 2 out l ines the research m e t h o d s used in th is study. Chapter 3 reviews the history, status, legislat ion and pol icies for mar ine protected areas, and the evolv ing legal status o f abor ig inal r ights in BC. Chapter 4 reviews the practical and theoret ica l l i terature on c o m m u n i t y invo lvement in mar ine protected areas, consensus dec is ion -mak ing and c o m m u n i c a t i v e p lann ing theory, leading to a theoret ical f r amework w i t h wh ich t o in terpret the case study. Chapter 5 recounts the natural , abor ig inal and colonial history o f Race Rocks, as well as cur rent act ivi t ies and the a n n o u n c e m e n t o f the Race Rocks Pilot MPA. Chapter 6 d o c u m e n t s the proceedings o f the Race Rocks Advisory Board and associated events, wh i le Chapter 7 presents the par t ic ipants ' perspectives on the Advisory Board process, s t ruc tured by the theoret ica l f ramework f r o m Chapter 4. Chapter 8 in terprets and discusses the imp l i ca t ions o f the case study. Chapter 9 provides conc lus ions and recommenda t ions . 1.4 Limitations of this study T i m e and expediency have consp i red to constra in the scope o f th is thesis. The theoret ica l sect ions cut a nar row swath t h r o u g h the wide array o f mater ials wor thy o f cons idera t ion . A m o r e comp le te review wou ld have inc luded the l i terature on (for example) col laborat ive p lann ing (e.g. Healey 1997), civil society (e.g. Cohen and Arato 1994; F r iedmann 1998), radical p lann ing (e.g. Sandercock 1998), ins t i tu t iona l theory (e.g. Healey 1999), and the e m e r g i n g d iscuss ion on abor ig inal consensus dec is ion-mak ing (e.g. Lam 2002) 3 The case study approach l imi ts the st rength and broad appl icat ion o f the conc lus ions and r e c o m m e n d a t i o n s o f th is research, wh ich only traces the Race Rocks 'story ' f r o m September 1998 t o December 2001. The par t ic ipant interviews took place over a year after the Race Rocks Advisory Board reached consensus. N o t all m e m b e r s o f the Advisory Board were in terv iewed, nor were any federal off icials outs ide o f BC. Care was exercised not to u n d e r m i n e the reputa t ion o f par t ic ipants in the Advisory Board. A more aggressive strategy m i g h t have yielded fur ther ins ights , but at the expense o f research ethics. 1.5 Note on terminology This study involves names that c o m e in di f ferent languages and spel l ings. The f o l l o w i n g vers ions wi l l be used t h r o u g h o u t th is text. They have been chosen for the i r currency or ease o f use, w i t h no offence in tended t o any party: • Beecher Bay First Nation: English name for Scja'new. Na t ion . Also spel led Becher Bay. • Clallam: Canadian English name for x w s^e iam, the Coast Salish language spoken by the Beecher Bay First Nat ion (and others) (Suttles 1990). Also spel led Klal lam (Amer ican Engl ish) , T la l l um, and S'Kla l lum. • Race Rocks: The English name for the islets w i th in the Race Rocks MPA. A t t r i bu ted t o off icers o f the H u d s o n ' s Bay Company (Walbran 1971). . Race Rocks MPA: Short for X w aysr) (Race Rocks) Mar ine Protected Area, wh ich wi l l soon be des ignated as Canada's f i rst MPA under the Oceans Act (1996). . Songhees First Nation: English name for the Lekwungen Na t ion . • T'Sou-ke First Nation: Formerly spelled Sooke, wh ich remains the correct spe l l ing for the nearby Dist r ic t o f Sooke. • iNCayarj (p ronounced shwai'yen): The Clal lam name for Race Rocks, m e a n i n g 'swif t water ' . This is the proper spel l ing accord ing to Mont le r (1997). It is a sl ight var ia t ion on ^ " a y a r j , the spel l ing prov ided to Pearson College by the Beecher Bay First Na t ion (Fletcher 2000b). This paper uses the Mont le r (1997) vers ion s imply for ease o f use, since it is compat ib le w i th the high-qual i ty Anglo-Sal ishan fonts used t h r o u g h o u t the text (see Thorn 1997). X way9rj can be angl ic ized as XwaYeN (O'Sul l ivan 2000). 4 1.6 Commonly used acronyms The fo l l ow ing is a list o f the m o s t c o m m o n l y used acronyms in th is thesis. Each ac ronym is proper ly in t roduced in the relevant sect ion; th is list is prov ided for quick reference: • BC: Province o f Bri t ish Co lumb ia , Canada. • CPAWS: Canadian Parks and Wi lderness Society (see Table 6.2, p. 55). . CSSC: Coast Salish Sea Counci l (see Table 6.2, p. 55). . DFO: Depar tmen t o f Fisheries and Oceans, Government o f Canada (see Section 3.2.2, p. 13). . ENGO: Env i ronmenta l Non-Governmenta l Organ isa t ion (see Section 5.3.3, p. 50). • IUCN: In ternat ional Un ion for the Conservat ion o f Nature. Also referred t o as The W o r l d Conservat ion Un ion (see Section 3.1.1, p. 10). • MARPAC: M a r i t i m e Forces Pacific, Depar tment o f Nat iona l Defence, G o v e r n m e n t o f Canada (see Section 5.3, p. 46). . MELP: Min is t ry o f Env i ronment , Lands and Parks, G o v e r n m e n t o f Bri t ish C o l u m b i a (1991-2001) (see Section 3.2.1, p. 13). . MPA: Mar ine protected area (see Section 3.1.1, p. 10). OceansActMPA or Pilot MPA refers to 'Mar ine Protected Area' (capital ized), the off icial t e r m in the Oceans Act (1996) (see Table 3.5, p. 14). • NRTEE: Nat iona l Round Table on the Env i ronment and the Economy (see Section 4.2.2, p. 26). • RRAB: Race Rocks Advisory Board (see Section 6.1, p. 52). • SFAB: Sport F ish ing Advisory Board (see Table 6.2, p. 55). • WCPA: W o r l d C o m m i s s i o n on Protected Areas (see Section 4.1.1, p. 21). . WWOA-NW: Whale Watch Opera tors Associat ion N o r t h West (see Table 6.2, p. 55). 5 Chapter 2 - Research Methods This chapter sets ou t the research me thods used in th is project, descr ib ing the qual i tat ive research approach and the procedures used for pr imary and secondary research. 2 . 1 Qualitative approach This project was a case study o f the social process o f creat ing a mar ine protected area. Lacking the repl icat ion o f extensive studies, th is thesis is the p roduc t o f a qual i tat ive, in terpret ive approach to unders tand ing the story o f the Race Rocks MPA ( M o r r o w and Brown 1994). As stated in a s imi lar study by Few (2000, p. 404), " the quest ions and analysis evolved as both the research and the process under study proceeded, ensur ing tha t conceptua l ou tpu ts were g rounded in the empir ica l f i nd ings " . The ph i losophica l jus t i f icat ion for th is approach draws on e lements o f phenomeno logy , e thno logy and g rounded theory. Each e lement wi l l be discussed in t u r n . Phenomenology is part o f the human is t i c t rad i t i on , wh ich suggested ( init ial ly) tha t the study o f h u m a n behaviour is not well served by the logical pos i t i v ism o f the V ienna Circle (Bernard 1995). Al f red Schutz used the analogy o f molecules: when you study molecules, you do not have to worry about what the wor ld 'means ' t o the molecules. However , ...when you try to understand the reality of a.human being, it's a different matter entirely. The only way to understand social reality is through the meanings that people give to that reality. In a phenomenological study, the researcher tries to see reality through an informant's eyes. (p. 14) The emphas is o f phenomeno log ica l research is on p roduc ing good descr ip t ions o f events and perspect ives, regardless o f causes or explanat ions. Closely related t o phenomeno logy is the ethnographic approach. Ethnography draws on analyt ic real ism to suggest that the social wor ld is an interpreted — r a t h e r than l i t e r a l — w o r l d . As such, " the researcher, the top ic , and the sense-making process are in in te rac t ion" (Fontata and Frey 1998, p. 291). Ethnographers "substant ia te thei r f ind ings w i t h a reflexive account o f themselves and the processes o f thei r research" (p. 292). 6 Shar ing the natural is t approach o f e thnography, grounded theory stresses "observa t ions , open-ended in terv iewing, the sensi t is ing use o f concepts , and a g rounded ( induct ive) approach to t h e o r i z i n g " (Denzin 1998, p. 329). This is of ten referred to as ' le t t ing the data speak'. At the same t ime , the empir ica l founda t ion o f a study " shou ld be judged by the range, density, l inkages between, and systemat ic relatedness o f its theoret ical concepts , as well as by the theory 's specif ic i ty and general i ty" (p. 329). In other words , g rounded theory calls for the ' t r i angu la t ion ' o f evidence in suppor t o f one's in terpre ta t ion. In s u m m a r y , the qual i tat ive approach employed in th is study bases its val id i ty in the f o l l o w i n g research ethics: • Prov id ing good descr ip t ion, independent o f explanat ion ( f rom phenomeno logy ) ; • Reflect ing on the role o f the researcher and the research process in the p roduc t i on o f in terpre ta t ions and conc lus ions ( f rom ethnology) ; and • Seeking more than one source o f evidence in suppor t o f a given in terpre ta t ion ( f rom g rounded theory) . These ethics account for the separate descr ip t ion and in terpretat ion o f the case study, the inc lus ion o f a personal in t roduc t ion in the Preface, and the emphas is — i n the interpretat ive s e c t i o n s — on perspectives that are suppor ted by more than one source. 2 . 2 Primary and secondary research Secondary research began w i th a review o f publ icat ions and the onl ine archive ma in ta ined by Pearson College (Fletcher 2002). This review prov ided the founda t ion for p r imary research, wh ich inc luded personal interviews, at tendance at a Race Rocks Advisory Board mee t ing (December 20014) and a site visit (June 2002). Interviews were sough t w i t h m o s t par t ic ipants in the Advisory Board, as well as other indiv iduals associated w i t h the Board 's act ivi t ies (n= 14 o f 16 requests) . The interviews took place between Augus t 2001 and May 2002, in a variety o f set t ings in and around Vancouver, V ic tor ia and N a n a i m o , BC. The Race Rocks Advisory Board was most active from December 1999 to March 2000, the period during which the group negotiated consensus recommendations for the creation of a Marine Protected Area. However, another meeting was held on December 6, 2001, attended by only some of the original Advisory Board members, and by the author (see Table 6.1, p. 52; Table 6.2, p. 55). 7 All interv iews were conduc ted by the researcher, and ranged in length f r o m 20 t o 90 m inu tes . Interview topics were based pr imar i ly on the concepts d iscussed in Chapter 4. The interv iew schedule was 'semi -s t ruc tured ' , set t ing out areas o f d iscuss ion whi le a l low ing for f lexibi l i ty in the order and w o r d i n g o f quest ions (Robson 1993). I f requested, a list o f in terv iew themes was made available before the interview, as well as a shor t research prospectus . However , i n fo rmat ion on the project was l im i ted in order t o reduce interv iewee bias in favour o f (or opposed to) the research agenda (Bernard 1995). The interv iew procedure fo l lowed a protocol approved by the Universi ty o f Br i t ish Co lumb ia ' s Behavioural Ethics Review Board. Interviewees were assured o f conf ident ia l i ty . C o m m e n t s or op in ions w o u l d not be at t r ibuted to the interviewee w i t h o u t the i r pe rm iss ion . Part icular care was taken to ensure that i n fo rmat ion was not t ransferred f r o m one interviewee t o another . Permiss ion was sought t o use a mic ro audiocassette recorder (n= 14 o f 14 in terv iews) , wh ich cou ld be s topped at any t i m e (n= 1). The one request t o s top the recorder d id not have a s igni f icant impac t on the mater ials inc luded in Chapter 7. A s u m m a r y was wr i t ten after each interview, fo l lowed by the t ranscr ip t ion o f the aud io tape. The interview t ranscr ip ts were then coded and analysed us ing ATLAS.t i sof tware ( M u h r 2002). The coded t ranscr ip ts provided source mater ia l for Chapter 7, as wel l as the issues and op in ions that are discussed in Chapter 8. Permission was obta ined for the inc lus ion o f p r imary mater ia l that is or could be readily a t t r ibu ted to one ind iv idual or g roup . For example, permiss ion was obta ined for c i tat ions o f the faci l i tator ' , but not 'a user g roup representat ive ' , or 'a par t ic ipant ' . For clarity, anonymous c i tat ions o f the same ind iv idual are n u m b e r e d by order o f f i rst appearance (Anon. 1, 2, etc.). 8 Chapter 3 - Marine Protected Areas The purpose o f th is chapter is to : (1) in t roduce the concept o f mar ine protected areas, i nc lud ing the i r history, de f in i t ion , goals and rat ionale; and (2) review the status o f mar ine pro tected areas in BC, inc lud ing issues o f ju r isd ic t ion , legislat ion and abor ig inal r ights. 3.1 What are marine protected areas? The Western concept o f mar ine protected areas traces its roots t o terrestr ia l parks in the so-cal led New W o r l d . For European colonists , the f ront ier was c o m m o n property; the regulat ion o f h u m a n activity was an at t r ibute o f set t lement and deve lopment , part icular ly f a r m i n g (Seed 1995). In th is context, wi lderness areas gained value only w h e n they became a rare, ecological a n d / o r spir i tual c o m m o d i t y to be protected (Taylor 1994). Just over a century ago, th is recogni t ion led to the creat ion o f Nor th Amer ica 's f i rst m o d e r n terrestr ia l parks: Ye l lowstone in the Uni ted States (1872), and Banff in Canada (1885). These f i rst parks were not p e r f e c t — t h e y were based on the pol i t ical wi l l o f a faraway elite in search o f a hol iday p layground (Dearden and Berg 1993). They were ' for t ress parks' tha t excluded the abor ig inal people w h o had been stewards o f the land. However , they set in m o t i o n a t rad i t ion that , w i t h var ious rat ionales, holds that human i t y shou ld set aside certain natural areas f r o m the ful l scope o f h u m a n activity (Grumb ine 1992). This t rad i t ion has led t o the pro tec t ion o f 12.4% o f BC and 9.1% o f Canada's land base ( N D P 2001; WRI 2000)5. It is only recently that a t tent ion has tu rned to the protect ion o f the mar ine e n v i r o n m e n t . Boersma (1999, p. 288) suggests that the delay is due to the "belated real isat ion tha t the ocean, like the land, can be degraded and the fact that Western c iv i l izat ion d id not regard mar ine systems as ownable unt i l recently". In other words , it is only as explorat ion and explo i ta t ion close the 'new f ront ier ' that nat ions consider the parallel issues o f mar ine conservancy and sovereignty over the coastal zone. This concern has been mani fes t in many ways, i nc lud ing the adopt ion o f in ternat ional wha l ing mora to r ia , the negot ia t ion o f the Law o f the Sea ( U N 1982), and the m o v e m e n t to create mar ine protected areas. In comparison, MPAs cover 0.01% or less of BC, Canadian and international marine areas (Jamieson and Levings 2001; Symington 2001; WRI 2000). 9 3-i.i Definitions and goals A marine protected area (MPA) is def ined by The Wor ld Conservat ion Un ion ( IUCN) as: Any area o f inter-tidal or sub-tidal terrain, together with its overlying water and associated flora, fauna, historical and cultural features, which has been reserved by law or other effective means to protect part or all o f the enclosed environment. (Kelleher 1999, p. xviii) The IUCN refines th is def in i t ion in to six categories (Table 3.1). Larger MPAs of ten have several zones tha t have di f ferent levels o f pro tec t ion , separate incompat ib le act iv i t ies, or test d i f ferent m a n a g e m e n t regimes for the same resource. The t e r m no-take zone (a zone) or marine reserve (an ent ire MPA) refers t o an area where no resource extract ion is pe rm i t t ed . The incorpora t ion o f use and non-use areas imp l ies t w o goals for MPAs. One goal is " t o conserve the biological diversity and product iv i ty ( inc lud ing ecological life suppor t systems) o f the oceans" (Kelleher 1999, p. xix). This goal recognises the in t r ins ic value o f mar ine ecosystems in susta in ing life on ear th. Agardy (1997, p. 88) proposes a broader goal : " t he pro tec t ion o f crit ical ecological processes tha t ma in ta in the ecosystem and al low for the p roduc t ion o f goods and services beneficial t o h u m a n k i n d " . In other words , MPAs conserve mar ine ecosystems for the benefi t o f humani ty . Table 3.1 IUCN categories for MPAs. Category I: Science or wilderness protection (Strict Nature Reserve/Wilderness Area) Category II: Ecosystem protection and recreation (National Park) Category III: Conservation of specific natural features (Natural Monument) Category IV: Conservation through management intervention (Habitat/Species Management Area) Category V: Seascape conservation and recreation (Protected Seascape) Category VI: Sustainable use of natural ecosystems (Managed Resource Protected Area) Source: Kelleher (1999, p. xviii). One m i g h t assume that the f i rst goal impl ies a higher level o f pro tec t ion (e.g. IUCN Category I), and the second goal a lower level o f pro tec t ion . However, th is s imp le d i c h o t o m y is c o n f o u n d e d by the suggest ion that mar ine reserves have a spillover effect: Because reserves contain more and larger fish, protected populations can potentially produce many t imes more offspring than can exploited populations. In some cases, studies have estimated order-of-magnitude differences in egg production. Increased egg output is predicted to supply adjacent fisheries through export o f offspring on ocean currents. In addit ion, as protected stocks build up, reserves are predicted to supply local fisheries through density-dependent spillover o f juveniles and adults into f ishing grounds. (Roberts et al. 2001, p. 1920) In o ther words , a reserve can protect the intr ins ic value o f mar ine ecosystems whi le sti l l i m p r o v i n g s o m e local f isheries. TO 3.1.2 Scientific rationale It shou ld be noted tha t the spi l lover effect cont inues to be the subject o f s tudy and debate. Ano the r debate involves the decis ion whether or not to close f isheries for migra tory or pelagic species w i th in an MPA, i f these species are not a target for ful l p ro tec t i on 6 . O n e a r g u m e n t is tha t species-specif ic regulat ions are di f f icul t t o enforce, and lead to the loss o f protected species t h r o u g h by-catch. Ano ther a rgument is that good f isheries gear can have a low level o f by-catch, and compl iance wi l l be better i f regulat ions are deemed fair by f i sh ing interests. The persistence o f such debates under l ines the impor tance o f unders tand ing the scient i f ic rat ionale for the es tab l ishment o f M PAs. The Amer ican Assoc ia t ion for the Advancement o f Science (AAAS) recently pub l ished a Scientific Consensus Statement on Marine Reserves and Marine Protected Areas, signed by 161 mar ine scient ists f r o m around the wor ld (Table 3.2). T w o assert ions by the AAAS (2001, p. 2) are o f par t icular relevance to th is study: • " Increased reserve size results in increased benef i ts, but even smal l reserves have posit ive ef fects"; and • "Ful l p ro tec t ion (which usually requires adequate en fo rcement and publ ic invo lvement ) is crit ical t o achieve th is ful l range o f benef i ts" . The f i rst assert ion is impor tan t since the Race Rocks MPA wi l l be only 251 ha, considered smal l by in ternat iona l s tandards 7 . This last assert ion is a no tewor thy admiss ion that MPAs w i th no-take zones require m o r e than the logic o f scient i f ic rat ionale to be successful . Table 3.2 AAAS Scientific Consensus Statement on Marine Reserves and Marine Protected Areas. Ecological effects within reserve boundaries • Reserves result in long lasting and often rapid increases in the abundance, diversity and productivity of marine organisms. 4 These changes are due to decreased mortality, decreased habitat destruction and to indirect ecosystem effects. • Reserves reduce the probability of extinction for marine species resident within them. • Increased reserve size results in increased benefits, but even small reserves have positive effects. • Full protection (which usually requires adequate enforcement and public involvement) is critical to achieve this full range of benefits. Marine protected areas do not provide the same benefits as marine reserves. Ecological effects outside reserve boundaries • In the few studies that have examined spillover effects, the size and abundance of exploited species increase in areas adjacent to reserves. • There is increasing evidence that reserves replenish populations regionally via larval export. Ecological effects of reserve networks • There is increasing evidence that a network of reserves buffers against the vagaries of environmental variability and provides significantly greater protection for marine communities than a single reserve. • An effective network needs to span large geographic distances and encompass a substantial area to protect against catastrophes and provide a stable platform for the long-term persistence of marine communities. Source: AAAS (2001, p. 2). 6 In BC, the debate over the protection of migratory and pelagic fish in MPAs would apply principally to salmon and herring. 7 Marine scientists generally advocate for MPAs that are several thousand hectares in size (NOAA/DOC 2001). 11 3-i.3 Parks vs. marine protected areas Another way to look at MPAs is to d is t ingu ish t h e m f r o m a more fami l ia r concept m e n t i o n e d e a r l i e r — t e r r e s t r i a l parks. MPAs are fundamenta l l y di f ferent f r o m terrestr ia l parks, for several reasons: • Zones: In BC, land and resources in terrestr ial parks may not be sold or extracted. MPAs are not so s imple ; only s o m e include no-take zones, and large mu l t i - zone MPAs are m o r e akin t o Uni ted Nat ions Biosphere Reserves (Kelleher 1999); • Jurisdictions and boundaries: Unl ike mos t terrestr ial parks, effective MPAs usual ly require the co-operat ion o f several orders o f government , and may involve sovereignty or t rans-boundary issues; • Highly mobile species: Where terrestr ial parks are designed for bo th mob i le and sessile species, popu lar concern for the mar ine env i ronmen t is d o m i n a t e d by an interest in highly mob i le species (e.g. migra tory f ish, whales) ; and • Fishing: Where land use decis ions usually involve several c o m p e t i n g e c o n o m i c interests, mar ine pol i t ics are d o m i n a t e d by the al locat ion o f f ish. Taken together , these dif ferences present many challenges for g o v e r n m e n t agencies h o p i n g to t ransfer their experience w i th terrestr ia l parks to the mar ine env i ronment . 3.2 Marine protected areas in British Columbia Bri t ish C o l u m b i a has 124 MPAs that meet the broad def in i t ion prov ided by the IUCN (Table 3.3). Mos t are prov inc ia l ent i t ies, p ro tec t ing species and habitats under provincia l j u r i sd ic t ion . Several are also protected by federal f isheries c losures cover ing some o f the protected area, a n d / o r s o m e o f the cons t i tuen t species. On ly four, very smal l MPAs ( to ta l l ing 161.85 n a ) a r e mar ine reserves, w i th ful l protect ion f r o m f i sh ing and habitat a l terat ion. Table 3.3 MPAs in BC Marine protected areas No. Provincial MPAs 116 • Ecological Reserves 15 • Provincial Parks 81 • Wildlife Management Areas 4 • Wildlife Reserves 15 • Protected Areas 1 Federal MPAs 8 • National Park Reserves 1 • Migratory Bird Sanctuaries 5 . National Wildlife Areas 2 Marine reserves (type) Size Porteau Cove 42 ha (Marine Provincial Park) Point Atkinson 0.85 ha (protected research site) Whytecliffe Marine Sanctuary 19 ha (municipal park) Williams Head Penitentiary 100 ha (fisheries closure enforced to prevent inmate escape)8 Source: Jamieson and Levings (2001). According to jamieson and Levings (2001, p. 142), the fisheries closure around Williams Head Penitentiary is the only closure in Canada where enforcement is "continuous and totally effective". 12 3.2.1 Jurisdiction As suggested above, MPAs exist in a complex jur isd ic t ional space der iv ing f r o m the Cons t i t u t i on and other convent ions . In Canada, the federal government has the ju r isd ic t ion to protect migra tory birds, m o s t mar ine life ( inc lud ing mar ine m a m m a l s ) , m o s t a n a d r o m o u s f ish ( inc lud ing sa lmon) , habitat below high water that falls under federal legis lat ion, and habi tat in of fshore areas (Jamieson and Levings 2001)9. The provincia l g o v e r n m e n t has the ju r isd ic t ion t o protect all o ther species and habitats, inc lud ing land above the high water mark , and seabed that is landward f r o m any line drawn f r o m headland to h e a d l a n d 1 0 . Beyond mar ine conservancy, the province has ju r isd ic t ion over any resource deve lopment or electr ical generat ion (i.e. w i n d or t idal) that could potent ia l ly take place at Race Rocks. However, the federal g o v e r n m e n t has ju r isd ic t ion over the Race Rocks L ights ta t ion , the nearby Indian Reserves and mi l i tary base (and thei r act iv i t ies), as well as sh ipp ing and nav igat ion, inc lud ing air nav igat ion. 3.2.2 Leg is la t ion fo r m a r i n e pro tected areas An MPA in BC can be created under any one o f five provincia l or six federal statutes (Table 3.4). All prov inc ia l legislat ion for MPAs is admin is te red by BC Parks, an agency w i th in the Min is t ry o f Env i ronment , Lands and Parks (MELP) 1 1 . The st rongest level o f provincial protect ion — e q u i v a l e n t t o IUCN Category I — is prov ided by the Table 3.4 Legislation for MPAs in BC Statute (type) Provincial legislation (administered by BC Parks) • Ecological Reserve Act (RSBC 1996) (Ecological Reserves) • Environment and Land Use Act (RSBC 1996) (Protected Areas) • Land Act (RSBC 1996) (Designated Wildlife Reserves) • Park Act (RSBC 1996) (Provincial Parks, Marine Provincial Parks) . Wildlife Act (RSBC 1996) (Wildlife Management Areas) Federal legislation (Environment Canada) . Canada Wildlife Act (RS 1985) (National Wildlife Areas) • Migratory Birds Convention Act{\ 994) (Migratory Bird Sanctuaries) Federal legislation (Fisheries and Oceans Canada) • Fisheries Act (RS 1985) (fisheries closures) • Oceans Act (1996) (Marine Protected Areas) Federal legislation (Parks Canada) • Canada National Marine Conservation Areas Act (2002) (Marine Conservation Areas) • Canada National Parks Act (2000) (National Parks, National Park Reserves) Source: jamieson and Levings (2001). 9 Offshore areas are seaward of provincial seabed but within the 200-Na. Mi. Exclusive Economic Zone (jamieson and Levings 2001). 1 0 The definition of'headland' is the subject of disagreement: while the bottom of the Georgia and Juan de Fuca Straits (including Race Rocks) is accepted as provincial seabed, the status of the seabed east of the line between Vancouver Island and the Queen Charlotte Islands is unresolved (Jamieson and Levings 2001). " BC Parks was part of the Ministry of Environment, Lands and Parks (MELP) when the Race Rocks Advisory Board was most active (1999-2000). In 2001, the functions of this Ministry were divided into the Ministry of Sustainable Resource Management, whose functions include MPA planning, and the Ministry of Water, Land and Air Protection, whose functions include MPA management. BC Parks is now part of the Ministry of Water, Land and Air Protection. 13 Ecological Reserve Act (RSBC 1996), wh ich was used to designate the Race Rocks Ecological Reserve in ig8o12. Federal legislat ion for MPAs is admin is te red by three agencies: Parks Canada, Env i ronment Canada, and Fisheries and Oceans Canada (popular ly referred to as D F O 1 3 ) . M o s t relevant t o th is study is DFO, wh ich admin is ters the Fisheries Act (RS 1985) and the Oceans Act (1996). The Fisheries Act provides the means to create the s imp les t f o r m o f MPA: a f isheries closure. The Oceans Act, descr ibed below, is the statute under wh ich the Race Rocks M P A wi l l eventual ly be designated. 3.2.3 Federal Oceans Act The Oceans Act (1996) is relatively new leg is la t ion 1 4 tha t has the purpose o f assert ing federal sovereignty over the Exclusive Economic Zone, as well as p u r s u i n g the integrated m a n a g e m e n t o f oceans and mar ine resources. As part o f th is mandate , the Act (s. 35(2)) calls upon DFO to " lead and co-ordinate the deve lopment and imp lemen ta t i on o f a nat ional system o f Marine Protected Areas" (capital ized) (Table 3.5). T w o prov is ions o f the Oceans Act (1996) are i m p o r t a n t t o th is case study. First, in exercising powers and pe r fo rm ing dut ies under the Act (s. 33(i)(a)), D F O is required to : ...co-operate with other ministers, boards and agencies of the Government of Canada, with provincial and territorial governments and with affected aboriginal organisations, coastal communities and other persons and bodies, including those bodies established under land claims agreements. Second, Mar ine Protected Areas are created t h r o u g h regulat ions, wh ich are subject t o the ve t t ing process set ou t in the Statutory Instruments Act (RS 1985) (except in emergenc ies 1 5 ) . After a draft regulat ion is prepared by DFO ( inc lud ing the consu l ta t ions descr ibed above) , the 1 2 Ecological Reserves protect "rare, endangered, or sensitive species or habitats", "unique, outstanding, or special features", and "areas for scientific research and marine awareness" (Jamieson and Levings 2001, p. 144). ' 3 The older, more traditional name for Fisheries and Oceans Canada is the Department of Fisheries and Oceans (DFO). 1 4 The Oceans Act (1996) received Royal Assent on December 18,1996, with most sections coming into force on January 31,1997. 1 5 The Oceans Act (1996: s. 36(1)) allows the Minister to establish Marine Protected Areas on an emergency basis "where the Minister is of the opinion that a marine resource or habitat is or is likely to be at risk". This emergency designation expires after 90 days. Table 3.5 Definition of'Marine Protected Area' in the Oceans Act. A Marine Protected Area is an area of the sea that forms part of the internal waters of Canada, the territorial sea of Canada or the exclusive economic zone of Canada and has been designated under this section for special protection for one or more of the following reasons: 1) The conservation and protection of commercial and non-commercial fishery resources, including marine mammals, and their habitats; 2) The conservation and protection of endangered or threatened marine species, and their habitats; 3) The conservation and protection of unique habitats; 4) The conservation and protection of marine areas of high biodiversity or biological productivity; and 5) The conservation and protection of any other marine resource or habitat as is necessary to fulfil the mandate of the Minister. Source: Oceans Act, 1996 (s. 35(31)) H regulat ion is examined by the Privy Counci l Off ice and the Depar tmen t o f Justice. I f f o u n d to be sat isfactory, the regulat ion is then publ ished twice in the Canada Gazette^: first in Part I, w i t h an indicated per iod for final publ ic c o m m e n t s (usually 30 or 60 days); then in Part I I , at wh ich po in t the regulat ion becomes law. 3.2.4 Pol ic ies f o r M a r i n e Protected Areas W i t h the Oceans Act (1996) in force, DFO released d iscuss ion papers on the p roposed pol icy f r a m e w o r k for Mar ine Protected Areas (DFO 1997), as well as the new re la t ionsh ip between DFO, Env i ronment Canada and Parks Canada (DFO 1998b). In Augus t 1998, DFO and BC's MELP co-released a d iscuss ion paper on "co-o rd ina t ing all ex ist ing federal and prov inc ia l mar ine protected areas p rograms under a single u m b r e l l a " ( D F O / M E L P 1998). In September and December 1998, M in is ter David Anderson announced several 'p i lo t ' sites for Mar ine Protected Areas on the Pacific Coast, one o f wh ich was Race Rocks (DFO 1998a)17. In March 1999, D F O released its final Marine Protected Areas Policy, i nc lud ing a Code of Practice tha t pledges to : "establ ish MPAs in a fair and t ransparent m a n n e r " , t o "p lan and establ ish MPAs w i t h the active par t ic ipat ion o f interested and affected par t ies" , and to " p r o m o t e the use o f par tner ing a r rangements in manag ing M P A s " (DFO 1999b, p. 8) (Table 3.6). The accompany ing Framework for Establishing and Managing Marine Protected Areas fu r ther states that DFO wi l l seek the suppor t o f "af fected Abor ig ina l organisat ions, coastal c o m m u n i t i e s and other persons" (DFO 1999c, p. 5). The emphas is o f these policies is a " learning-by-d o i n g " (DFO 1999c, p. 5) approach, part icular ly w i th Table 3.6 Code of Practice for the MPA Program. In implementing the Marine Protected Areas program, Fisheries and Oceans will: • Establish MPAs in a fair and transparent manner. • Adopt the principles of sustainable development, integrated management and the precautionary approach in decision-making. • Base decisions on the best available scientific information and traditional ecological knowledge. • Adopt an ecosystem approach to planning, establishing and managing MPAs. This will include co-ordinating across jurisdictions and organisations and recognising the interaction of marine ecosystems with the land. • Plan and establish MPAs with the active participation of interested and affected parties, building upon existing programs and institutional or community structures wherever possible. • Promote the use of partnering arrangements in managing MPAs. • Evaluate the design, management and effectiveness of MPAs on a regular basis with respect to their stated goals. S o u r c e : DFO (1999b, p. 8). ' 6 The Canada Gazette publishes all appointments, notices, regulations and statutes enacted by the Government of Canada. 1 7 The pilot sites announced in September 1998 were Race Rocks and Gabriola Passage, followed in December 1998 by Bowie Seamount and Endeavour Hot Vents. 15 respect t o publ ic consu l ta t ion . The f irst test case w o u l d be the Race Rocks pi lot site, and the Race Rocks Advisory Board, the subject o f th is study. 3.3 Aboriginal rights in British Columbia As suggested at var ious po in ts in th is chapter, abor ig inal r ights, t i t le and treat ies m u s t be cons idered in the creat ion o f MPAs in BC. This has not always been so; notably, abor ig ina l people were no t inc luded in the designat ion o f the Race Rocks Ecological Reserve in 1980. The shif t in approach since tha t t i m e was brought about by a series o f cour t dec is ions and pol i t ical events that reached a crit ical mass in the 1990s18. Incrementa l ru l ings by the Supreme Cour t o f Canada over turned the prevai l ing assumpt ion that provincia l land pol icy and federal statutes had ext inguished abor ig inal t i t le in BC, a province w i t h very few treat ies. The prov ince was forced to abandon its policy o f terra nullius, the no t ion tha t BC was devoid o f abor ig ina l t i t le (except for Indian Reserves), and that " i f there is a p rob lem it is a federal respons ib i l i ty " (Tennant 1996, p. 45). Meanwhi le , abor ig inal blockades and the controversial pol ice a n d / o r mi l i tary responses at Oka , Quebec (1990), Gustafsen Lake, BC (1995) and Ipperwash, On ta r i o (1995) caused federal and provincia l governments t o reconsider the state's re la t ionship w i t h abor ig inal peop le 1 9 . A m o n g the products o f th is debate was the (also controvers ia l ) Royal C o m m i s s i o n on Abor ig ina l Peoples ( INAC 1996). This sect ion focuses on the recent legal history o f abor ig inal r ights and t i t le in BC, t o prov ide context for the theoret ical f ramework developed in the next chapter. Detai ls abou t the abor ig inal history o f Race Rocks ( inc lud ing the Douglas Treaties f r o m the 1850s) wi l l be d iscussed fur ther in Section 5.2 (p. 44). 1 8 It has been argued that the origin of the "modern epoch of Indian policy and national Indian politics" (Leech-Crier 2 0 0 0 , p. 1) can be traced to the release (1969) and subsequent withdrawal (1971) —fol lowing intense public outcry— of the Trudeau-Chretien 'White Paper' on aboriginal policy. According to the White Paper, aboriginal people "would lose the special protection granted under the Indian Act, the Department of Indian Affairs would be abolished, and responsibility for services to Native people would be transferred to the provinces" (NFB 2002 , p. 1). This episode was soon followed by the Supreme Court of Canada's ruling in Caldervs. Attorney-General of British Columbia (1973), which confirmed the legitimacy of aboriginal land claims. The Calder ruling in turn led to the negotiation of the James Bay-Northern Quebec Agreement (1975), as well as the initiation of treaty negotiations with the Nisga'a Tribal Council (1976). 1 9 A notable attempt at reconciliation was the dialogue that led to the Charlottetown Accord (1992), which was ultimately rejected by national referendum. 16 3.3.1 A new Constitution Efforts at fu r the r ing abor ig inal r ights in Canada were helped greatly by the 1982 shif t in mode l o f governance, f r o m Par l iamentary t o Const i tu t iona l Monarchy. Section 35(1) o f the new Constitution Act (1982) inc luded a s ta tement that was cri t ical for abor ig inal people: " the exis t ing abor ig inal and treaty r ights o f the abor ig inal peoples o f Canada are hereby recognized and a f f i rmed" . Aboriginal rights "refer t o practices, t rad i t ions or c u s t o m s wh ich are integral t o the d is t inct ive cul ture o f an abor ig inal society" ( T N O 2002, p. 1) (Table 3.7). Aboriginal title is "a sub-category o f abor ig inal r ights deal ing solely w i th land c la ims" (p. i ) 2 0 . Treaty rights refer t o abor ig inal r ights that are set ou t in a treaty. It was left t o the cour ts to in terpret the mean ing and imp l i ca t ions o f Section 35. In Regina vs. Sparrow(1990), the Cour t held tha t 'Sect ion 35 r ights ' are capable o f evo lv ing o v e r t i m e , and m u s t be interpreted in a generous and liberal manner . The Court also ruled that governments m i g h t regulate the exist ing abor ig inal management o f resources, but tha t after conservat ion goals are met abor ig inal people m u s t be given pr ior i ty over other user g roups to f ish for food ( M A A 1998). 3.3.2 Treaty negot ia t ions The Sparrow (l990) decis ion led to a federal-provincial-abor ig inal agreement t o begin the negot ia t ion o f m o d e r n Table 3.7 What is an aboriginal right? Aboriginal rights: • Refer to practices, traditions or customs which are integral to the distinctive culture of an aboriginal society and were practiced prior to European contact, meaning they were rooted in the pre-contact society; • Must be practiced for a substantial period of time to have formed an integral part of the particular aboriginal society's culture; • Must be an activity that is a central, defining feature which is independently significant to the aboriginal society; • Must be distinctive (not unique), meaning it must be distinguishing and characteristic of that culture; • Must be based on an actual activity related to a resource: the significance of the activity is relevant but cannot itself constitute the claim to an aboriginal right; • Must be given a priority after conservation measures (not amounting to an exclusive right); • Must meet a continuity requirement, meaning that the aboriginal society must demonstrate that the connection with the land in its customs and laws has continued to the present day; • May be the exercise in a modern form of an activity that existed prior to European contact; • May include the right to fish, pick berries, hunt and trap for sustenance, social and ceremonial purposes (for example, ceremonial uses of trees and wildlife locations); • May include an aboriginal right to sell or trade commercially in a resource where there is evidence to show that the activity existed prior to European contact "on a scale best characterized as commercial" and that such activity is an integral part of the aboriginal society's distinctive culture; • May be adapted in response to the arrival of Europeans if the activity was an integral part of the aboriginal society's culture prior to European contact; • Do not include an activity that solely exists because of the influence of European contact; and • Do not include aspects of aboriginal society that are true of every society such as eating to survive. Aboriginal rights arise from the prior occupation of land, but they also arise from the prior social organization and distinctive cultures of aboriginal peoples on that land. Treaty negotiations will translate aboriginal rights into contemporary terms. Source: BC Treaty Negotiation Office (TNO 2002) Aboriginal title is not fee-simple title. This said, aboriginal people might negotiate fee-simple title to a given terrestrial area as part of a treaty settlement. No treaty settlements to date provide either foreshore rights or fee-simple title to federal or provincial seabed. However, this may change with the Haida Nation's claim (launched in March 2002) to part of the seabed in Hecate Strait (Harvey 2002). 17 t reat ies across m u c h o f BC 2 1 . This agreement establ ished a 'government - to -government ' re la t ionsh ip between all three part ies, wh ich is reflected in the language o f all t reaty-related d o c u m e n t s . In such a re lat ionship, each party c o m m i t s t o send off icials o f s imi la r stature to s imi lar f o r u m s o f d iscuss ion, such that Chiefs do not f ind themselves w o r k i n g w i th secondary federal or provincia l off icials. In 1993, the BC Treaty C o m m i s s i o n was f o r m e d as an independent body charged w i t h overseeing a six-stage treaty negot ia t ion process (BCTC 2002). This process was open t o any First Na t ion in BC, inc lud ing the signator ies o f Douglas Treaties. T h o u g h uphe ld in several cour t ru l ings, the t e r m s o f the Douglas Treaties were negot ia ted under quest ionable c i rcumstances , and had never been properly honoured by the provincia l or federal governmen ts ( M A A 1998). In 1995, several Douglas Treaty signator ies f o r m e d the Te 'mexw Treaty Assoc ia t ion (2001), and entered nego t ia t i ons 2 2 . In 1996, the Te 'mexw negot ia t ions comp le ted Stage 3, the Framework Agreement to Negotiate a Treaty, wh ich ( a m o n g other th ings) requires tha t " the part ies negot iate in te r im measures agreements ... when an interest is be ing affected wh ich cou ld u n d e r m i n e the process" (BCTC 1996, p. 7). The negot ia t ions for Stage 4, the Agreement-in-Principle, are o n g o i n g (Te'mexw Treaty Associat ion 2001). 3.3.3 Delgamuukw In December 1997, the Supreme Cour t handed down the landmark ru l ing for Delgamuukw vs. British Columbia, wh ich def ined the "na ture and effect o f abor ig inal t i t l e 2 3 , h o w it can be proved, whether provincial laws can ext inguish abor ig inal t i t le or r ights, and the Crown 's author i ty and related f iduciary dut ies in relat ion to abor ig inal t i t l e " (Pape 1998, p. 3). In Delgamuukw (1997), the Cour t f o u n d that abor ig inal t i t le includes the r ight t o exclusive use and occupa t ion o f land, the r ight t o choose to what uses land can be put, and an e c o n o m i c c o m p o n e n t t o land use and occupat ion (Pape 1998)24. 2 1 This excluded areas of interest for the Nisga'a Treaty (concluded in 1998), and areas covered by Treaty No. 8 (1899) (MAA 1998). 2 2 The Te'mexw Treaty Association (2001) includes the Beecher Bay, Malahat, Nanoose, Songhees and T'Sou-ke First Nations. The traditional territory of the Beecher Bay, Songhees and T'Sou-ke First Nations extends to Race Rocks. 2 3 Aboriginal title is "a sub-category of aboriginal rights dealing solely with land claims" (TNO 2002, p. 1). 2 4 However, such uses cannot destroy the ability of the land to sustain future generations of aboriginal peoples (Pape 1998). 18 To establ ish the existence o f abor ig inal t i t le, the land m u s t have been exclusively occup ied by a g roup before the assert ion o f Crown sovereignty (1846 in BC), and occupat ion m u s t have been c o n t i n u o u s since tha t t i m e 2 5 . In f r ingement on abor ig inal t i t le by federal or provincia l gove rnmen ts m u s t be just i f ied by a " c o m p e l l i n g and substant ia l legislative ob jec t ive" — s u c h as c o n s e r v a t i o n — and m u s t be "cons is tent w i th the f iduciary re lat ionship between the Crown and abor ig inal peoples" (Pape 1998, pp. 6-7). These requ i rements call for consu l ta t ion ; " s o m e cases may even require the ful l consent o f an abor ig inal na t ion , part icular ly when provinces enact h u n t i n g and f i sh ing regulat ions in relat ion t o abor ig inal lands" (p. 7). 3.3.4 M a r s h a l l The issue o f in f r ingement has been fur ther addressed in other decis ions. In Regina vs. Marshall(1999), the Supreme Cour t upheld the treaty r ight o f the M i k ' m a q to f ish for a "modera te l i ve l ihood" (para. 24) (rather than jus t subsistence), s ta t ing that : T h e M i ' k m a q t rea ty r igh t t o p a r t i c i p a t e in t h e largely u n r e g u l a t e d c o m m e r c i a l f i shery o f 1760 has e v o l v e d i n t o a t r e a t y r i gh t t o p a r t i c i p a t e in t h e largely regu la ted c o m m e r c i a l f i shery o f t h e 1 9 9 0 s . (pa ra . 38) Conf l i c t ing in terpreta t ions o f th is ru l ing led to violent con f ron ta t ion between f isheries off icers and abor ig inals at M i ram ich i Bay, New Brunswick, wh ich took place in the m ids t o f the Race Rocks Advisory Board proceedings (Curtis 2000b; Isaac 2000) (see Section 6.4.1, p. 71). A few m o n t h s later, the Supreme Court made the unusual move o f releasing a c lar i f icat ion on the Marshall (1999) dec is ion, in wh ich it to ld DFO that the in f r ingement o f abor ig ina l and treaty r ights is not just i f ied in order t o protect the l ivel ihood o f non-abor ig ina ls : . . . (Th is ) a r g u m e n t a m o u n t s t o say ing t h a t a b o r i g i n a l a n d t rea ty r i gh ts s h o u l d be r e c o g n i z e d o n l y t o t h e ex ten t t h a t s u c h r e c o g n i t i o n w o u l d n o t o c c a s i o n d i s r u p t i o n o r i n c o n v e n i e n c e t o n o n - a b o r i g i n a l p e o p l e . A c c o r d i n g t o t h i s s u b m i s s i o n , i f a t rea ty r i gh t w o u l d be d i s r u p t i v e , i ts ex is tence s h o u l d be d e n i e d o r t h e t rea ty r i g h t s h o u l d be d e c l a r e d i n o p e r a t i v e . Th i s is no t a legal p r i n c i p l e . It is a p o l i t i c a l a r g u m e n t . W h a t is m o r e , it is a po l i t i ca l a r g u m e n t t h a t is express ly re jec ted by t h e po l i t i ca l l e a d e r s h i p w h e n it d e c i d e d t o i n c l u d e s. 35 in t h e Constitution Act, 1982. ... It is t h e o b l i g a t i o n o f t h e c o u r t s t o g ive ef fect t o t h a t n a t i o n a l c o m m i t m e n t . (Regina vs. Marshall (clarification) 1 9 9 9 , p a r a . 45) However , the Cour t t empered these c o m m e n t s , s ta t ing that : T h e M i n i s t e r ' s a u t h o r i t y e x t e n d s t o o t h e r c o m p e l l i n g a n d s u b s t a n t i a l p u b l i c o b j e c t i v e s w h i c h m a y i n c l u d e e c o n o m i c a n d r e g i o n a l fa i rness , a n d r e c o g n i t i o n o f t h e h i s t o r i c a l re l iance u p o n , a n d p a r t i c i p a t i o n i n , t h e f i shery by n o n - a b o r i g i n a l g r o u p s . (pa ra . 41) 2 S In some circumstances, oral histories may be an acceptable form of evidence for this occupation (Pape 1998). 19 3-3-5 Recent dec is ions There have been t w o decis ions o f note since the Advisory Board submi t t ed its r e c o m m e n d a t i o n s . In Taku River Tlingit First Nation vs. Ringstad et al. (2002), the BC Cour t o f Appeal " re in forced the no t ion that the interests o f First Na t ions in the BC Treaty process, expressed in a f ramework agreement [n.b. such as exists w i th the Te 'mexw] , are suf f ic ient ly substant ive to deserve the protect ion o f the cou r t s " (BCTC 2002, p. 3). Then in Haida Nation vs. BCand Weyerhaeuser (2002), the BC Cour t o f Appeal said tha t " the Crown 's duty t o consu l t derives f r o m the ' t rust- l ike ' re la t ionship between abor ig inal peoples and the C r o w n " , and that consu l ta t ion " m u s t take place w i t h o u t requ i r ing First Na t ions t o prove thei r t i t le t o the land in a lengthy t r ia l " (BCTC 2002, p. 3). 3.4 Summary This chapter has in t roduced the concept o f MPAs, and descr ibed the histor ical and legal context for the i r es tab l i shment in BC. To s u m m a r i s e the ma in po in ts : • MPAs are a p r o m i s i n g new too l for mar ine conservancy (suppor ted by scient i f ic s tud ies) , p rov id ing benefi ts t o both mar ine ecosystems and coastal c o m m u n i t i e s ; • MPAs are conceptual ly d is t inc t f r o m terrestr ial parks; • T h o u g h there are several relevant statutes available t o government agencies, only four MPAs in BC qualify as mar ine r e s e r v e s — w i t h a comple te ban on f i sh ing and ful l p ro tec t ion f r o m habi tat a l terat ion; • The Oceans Act is a p r o m i s i n g new too l for oceans governance and mar ine conservancy, i nc lud ing the creat ion o f Mar ine Protected Areas. One example, the Race Rocks MPA, is the subject o f th is study; • The Oceans Act and s u p p o r t i n g policies call for publ ic invo lvement in the es tab l i shment o f M PAs. This led t o the creat ion o f the Race Rocks Advisory Board; and • The evo lv ing legal unders tand ing o f abor ig inal r ights, t i t le and treat ies is a cri t ical cons idera t ion in the managemen t o f natural resources in BC. First Na t ions m u s t be ful ly consu l ted and inc luded in the estab l ishment and m a n a g e m e n t o f MPAs. Such consu l ta t ion m u s t respect the 'government - to -government ' re la t ionship between First Na t ions , BC and Canada. 20 Chapter 4 - Theoretical Framework This chapter develops the theoretical framework that will be used to examine the case study, building on discussions about community involvement in marine protected areas, consensus processes, and communicative planning theory. 4.1 Community involvement in marine protected areas In a recent article, Jentoft (2000c, p. 141) asks the rhetorical question: "how do frustrated and disappointed fishers [or other marine resource users] react to a regulatory regime that they do not perceive to be in their interest?" Jentoft states that they will choose between two responses: exit or voice. The exit response involves "disobeying the rules that the management system has produced" (Jentoft 2000c, p. 141). This strategy is risky: it may bring penalties or moral condemnation, and — i f left unchecked— may lead to the destruction of the resource. The voice response involves protest that is "expressed publicly, indirectly through an interest organisation, directly to the government agency responsible for the management system, or to the courts" (p. 141). This strategy is also risky, potentially leading to "counter-arguments and criticism, and, in authoritarian societies, repression" (p. 141). 4.1.1 Co-management For the voice response to work, there must be "institutions which allow [resource users] the right and the opportunity to freely express criticism and alternative interpretations of given premises and 'facts'" (Jentoft 2000c, p. 141). These institutions should "serve as places for communication and deliberation on the procedures, goals and means of the regulatory system", which makes them "more robust than any government initiative that relies on force and penalty only" (p. 141). Jentoft (2000a, pp. 528-9) calls this the co-management approach to marine resource management, "a collaborative and participatory process of regulatory decision-making between representatives of user-groups, government agencies and research institutions". 21 The inc lus ion o f user groups and research ins t i tu t ions in the creat ion and management o f MPAs is r e c o m m e n d e d by the Wor ld C o m m i s s i o n on Protected Areas (WCPA). Their Guidelines for Marine Protected Areas state that " the fundamenta l cr i ter ion for success is to br ing in f r o m the beg inn ing every s igni f icant sector that wi l l affect, or be affected by the M P A " , and fur ther r e c o m m e n d "a co-management par tnersh ip as one possible mode l t o use" (Kelleher 1999, pp. 21-36) (Table 4.1). The Guidel ines go on to identi fy f isheries, t o u r i s m , aquacul ture and scient ists as impor tan t groups to consider , as well as " the r ights o f ind igenous peoples" (Kelleher 1999, p. 24). They also call for an apprec ia t ion o f " the ful l just i f icat ion for deve lop ing m a n a g e m e n t par tnerships w i th local c o m m u n i t i e s and the benefi ts they wi l l b r i n g " (p. 29). Agardy (1997, pp. 89-90) suppor ts th is inc lus ion o f c o m m u n i t i e s , such that MPAs " e m p o w e r local users w h o m i g h t not otherwise have a col lective voice in dec is ion -mak ing about resource use and a l locat ion" , and "a l low for more equi table shar ing o f benefi ts than m i g h t have existed previously" . A long s imi lar l ines, Jentoft (2000b, p. 59) ma in ta ins that co-management : ...can only work effectively as part of a larger scheme for community development, which includes the civil society as an arena for social integration, building trust and networks, learning and internalisation of democratic virtues and social responsibility through participation in public affairs. The c o m m o n t h e m e in these a rguments is that c o m m u n i t y invo lvement in the creat ion and m a n a g e m e n t o f an M P A can create a v i r tuous circle that improves the conservancy o f mar ine resources whi le s t reng then ing the c o m m u n i t y that depends on t h e m . Table 4.1 WCPA Guidelines for MPAs. Working with relevant sectors • The fundamental criterion for success is to bring in from the beginning every significant sector that will affect, or be affected by, the MPA. • Assign top priority to cooperation with those responsible for fisheries. • Recognise tourism as a sector that often has much to gain from an MPA and that can generate substantial economic benefits from it. • Ensure that aquaculture is regulated so as not to damage the MPA. • Consider the rights of indigenous peoples. • Recognise that land-based activities can threaten or destroy MPAs. • Encourage scientists to use the MPA in their research without damaging its conservation objectives. • A range of other sectors will be affected by or will affect the MPA and so should be involved. Making partnerships with communities and other stakeholders • Appreciate the full justification for developing management partnerships with local communities and the benefits that these will bring. • Understand the local communities that will be affected by the MPA and identify potential partners. • Choose the type of management partnership most suitable to the situation. • Consider a co-management partnership as one possible model to use. • Whatever the management partnership, involve stakeholders from the very beginning • Be innovative and creative in the establishment of partnerships. • Challenge orthodoxy in institutions. • Emphasise flexibility, learning-by-doing and a long-term approach. Source: Kelleher (1999, pp. 21-36). 2 2 4.1.2 Leg i t imacy i n d e c i s i o n - m a k i n g T h o u g h co -management and c o m m u n i t y invo lvement is impor tan t , it is only a vague f i rst step in ensur ing that " the managemen t system be regarded as legi t imate a m o n g affected par t ies" (Jentoft 2000c, p. 141). Hi l l ier (1998) argues that an i m p o r t a n t f o u n d a t i o n o f legi t imacy in p lann ing ins t i tu t ions is fair par t ic ipat ion in dec is ion-mak ing . Fair participation " compr i ses hav ing the abil i ty t o express one's op in ions and tell one 's stor ies (vo ice)" (p. 17). Further, ...it involves being listened to with respect, having access to adequate information, being able to question others, having some degree of control over the decision-making procedure and resultant outcome, demonstrating that decisions are made impartially, and receiving good feedback. (p. 17) Forester (1989) warns that legi t imacy is threatened by the presence o f misinformation (accidental or del iberate) in p lann ing processes, wh ich affects the knowledge, c o m p r e h e n s i o n , t rus t and consent o f par t ic ipants (Table 4.2). Progressive p lanners shou ld "ant ic ipa te and counteract the practical m i s i n f o r m a t i o n likely t o arise in organ isat iona l and pol i t ical processes" (p. 41). Dorcey and McDanie ls (2001) concur, expand ing the cri ter ia for legitimacy t o inc lude the use o f technica l i n fo rma t ion in dec is ion-making, the rules o f c o m m u n i t y engagement , and the representat iveness o f par t ic ipants in the dec is ion-mak ing process. In o ther words , the legi t imacy o f c o m m u n i t y invo lvement in p lann ing processes m u s t be bui l t on a clear unde rs tand ing o f the mechanics o f dec is ion-making. Table 4.2 Misinformation and the management of comprehension, trust, consent and knowledge in planning processes. Forms of misinformation Mode Comprehension (problem-framing) Trust (false assurance) Consent (illegitimacy) Knowledge (misrepresentation) Decision-making Resolutions passed with deliberate ambiguity. Symbolic decisions, false promises. Decisions reached without legitimate representation of public interests but appealing to public consent as if this were not the case. Decisions that misrepresent actual possibilities to the public. Agenda setting Obfuscating issues through jargon or quantity of information. Using respectable personages to gain trust. Arguing that a political issue is actually a technical issue best left to experts. Before decisions are made, misrepresenting costs, benefits, risks, true options. Shaping felt needs Definition of problem or solution through ideological language. Encouraging benign dependence on apolitical others. Appeals to the adequacy and efficacy of formal participatory processes without addressing their systematic failures. Ideological or deceptive presentation of needs or requirements. Source: Forester (1989, p. 38). 23 These mechanics are explored by Fisher and Ury (1991) in , . . , 0 . , „ . ' ' / \ 1 Table 4.3 Strategies for Getting to Yes. Getting to Yes: Negotiating Agreement without Giving In. 1} S e p a r a t e t h e peop|e f r o m t h e prob|em. Fisher and Ury (1991) suggest four strategies for negot ia t ing 2> Focus on interests, not positions. 3) Invent options for mutual gain. leg i t imate, 'wise agreements ' between part ies w i th conf l i c t ing 4) Insist on using objective criteria. pos i t ions (Table 4.3). First, the part ies shou ld "separate the source: Fisher and ury (1991). people from the problem", c o m i n g to "work side by side, a t tack ing the p r o b l e m , not each o ther " (p. 17). Second, the part ies shou ld "focus on interests, not positions", look ing for the reasons that underl ie a given a r g u m e n t (p. 40). Th i rd , the part ies shou ld "invent options for mutual gain", " se t t i ng aside a des ignated t i m e w i th in wh ich to th ink up a wide range o f possible so lu t ions that advance shared interests and creatively reconci le d i f fer ing in terests" (Fisher and Ury 1991, p. 56). Finally, both part ies shou ld "insist on using objective criteria" (p. 81). Echoing the no t ion o f fa i rness, " the agreement m u s t reflect some fair s tandard (e.g. expert o p i n i o n , c u s t o m or law) independen t o f the naked wi l l o f ei ther s ide" (p. 81). 4 . 2 Reaching consensus The strategies for Getting to Yes are designed for bi-lateral negot ia t ions, but have been adapted for the mul t i -par ty context more c o m m o n to MPAs. One m e c h a n i s m for negot ia t ing agreement a m o n g mul t ip le part ies is known as a consensus process, where " ind iv idua ls represent ing d i f fer ing interests engage in long- term, face-to-face d iscuss ions, seeking agreement on strategy, plans, pol icies, and act ions" ( Innes arid Booher 1999, p. 11). Consensus processes have been f o u n d to be part icular ly useful for f i nd ing ' n o n z e r o - s u m ' so lu t ions t o env i ronmenta l issues, where "one party's gain is not necessari ly another party 's loss" (Cormick et al. 1996, p. 70). This is impor tan t for the creat ion and m a n a g e m e n t o f MPAs, wh ich can degenerate in to a batt le between those advocat ing env i ronmenta l p ro tec t ion and those de fend ing economic oppor tun i t y (Davis 2002). The fo l l ow ing sect ions review the concept o f consensus, ou t l ine pr incip les for consensus processes, and discuss the impor tance o f skil led fac i l i ta t ion. 24 4-2.1 What is consensus? Consensus is defined by the Oxford Encyclopaedic English Dictionary zs "general agreement", "collective opinion", or the "majority view" (Hawkins and Allen 1991, p. 310). Some authors have expressed dissatisfaction with these definitions (e.g. Hillier 1998). Among them, Kaner (1996, p. 210) argues that the meaning of consensus is closer to its Latin root, consentire, which means: "to think and feel together". Unanimity is only one, demanding form of consensus, where everyone has an individual veto over the final decision. Rather than this 'all-or-nothing' approach, Kaner (1996) suggests that participants refer to a Gradients of Agreements Scale (Figure 4.1). The distribution of opinion around various gradients indicates the level of support for a decision: . "Enthusiastic support" for a consensus decision exists when most of the participants indicate their "endorsement", "endorsement with a minor point of contention", or "agreement with reservations" (p. 213). . Some decisions may only get "lukewarm support", where most participants give "agreement with reservations", "abstain" or "stand aside" (p. 214). • Difficult compromises may only win "ambiguous support", where endorsements are mixed with an equal number of formal disagreements (p. 215). Ultimately, the 'decision rule' —such as unanimous agreement, a majority vote, a gradient of agreement, or a level of support— will have to be negotiated by the participants in the consensus process. 0 0 0 0 Endorsement Endorsement Agreement with Abstain with a minor reservations point of contention I like it. Basically I like it. I can live with it. I have no opinion. Source: Kaner (1996, p. 212). Figure 4.1 Gradients of Agreement Scale for consensus decisions. 0 0 0 0 Stand aside Formal Formal Block disagreement, disagreement, but willing to go with request to with majority be absolved of responsibility for implementation / don't like this, / want my 1 don't want to 1 veto this but 1 don't want disagreement stop anyone proposal. to hold up the noted in writing, else, but 1 don't group. but I'll support want to be the decision. involved in implementing it. 25 4-2.2 Consensus processes As this implies, consensus is more than an endpoint; it is "a participatory process by which a group thinks and feels together [consentire] en route to their decision" (Kaner 1996, p. 210). Consideration must be given to how such a process might lead to agreement while addressing the concerns discussed in this chapter. Such consideration has been given by the National Round Table on the Environment and Economy (NRTEE), who provide ten Guiding Principles for consensus processes (Cormick et al. 1996) (Table 4.4). Table 4.4 NRTEE Guiding Principles for Consensus Processes. Principle 1. Purpose-driven Principle 2. Inclusive, not exclusive Principle 3. Voluntary participation Principle 4. Self-design Principle 5. Flexibility Principle 6. Equal opportunity Principle 7. Respect for diverse interests Principle 8. Accountability Principle 9. Time-limits Principle 10. Implementation Source: Cormick et al. (1996, p. 5). The NRTEE argues that consensus processes should be inclusive, targeting "those parties affected by any agreement that may be reached, those needed to successfully implement it, or who could undermine it if not included in the process" (Cormick et al. 1996, p. 23). However, there should be voluntary participation, reducing the sense of threat felt by wary stakeholders and providing greater legitimacy to an eventual consensus decision. Willingness to participate will be more forthcoming if a consensus process is purpose-driven: "the parties should have a common concern and believe that a consensus process offers the best opportunity for addressing it" (Cormick et al. 1996, p. 15). For a consensus process to be fair, there should be equal opportunity for participation. This may call for: • Training on consensus processes and negotiation skills; • Adequate and fair access to all relevant information and expertise; and • Resources for all participants to participate meaningfully. (P- 59) Also important is a respect for diverse interests, a commitment to show respect, share knowledge and invest time to understand other participants and the groups they represent. This may include workshops to break down barriers between groups, a technique "widely used in Canada to introduce non-aboriginal people to the cultural values and circumstances of aboriginal people" (p. 76). 26 A consensus process shou ld be designed by the par t ic ipants (self-design). At the beg inn ing o f any process, the part ic ipants shou ld : • Define the issues clearly, and assess the suitability of a consensus process for each issue— as opposed to other decision-making processes; . Clarify roles and responsibilities for everyone involved; and • Establish the ground rules for operating. (Cormick et al. 1996, p. 40) However , th is design shou ld be flexible, able to evolve "as the part ies become m o r e fami l ia r w i t h the issues, the process, and each o ther" (p. 50). The par t ic ipants shou ld be accountable to "bo th the i r const i tuencies and t o the process they have agreed to es tab l ish" (Cormick et al. 1996, p. 78): It is important that the participants representing groups or organisations effectively speak for the interests they represent. Mechanisms and resources for timely feedback and reporting to constituencies are crucial and need to be established. This builds understanding and commitment among the constituencies and minimises surprises. (p. 78) The NRTEE suggests that "d i f ferent types o f stakeholders require di f ferent degrees o f accountabi l i ty f r o m the i r representat ives" , var iat ions tha t are "ref lected in g roup s t ruc ture and internal c o m m u n i c a t i o n s " (p. 8i). There shou ld be "clear and reasonable time limits for w o r k i n g towards a conc lus ion and repor t ing on resul ts" (Cormick et al. 1996, p. 87). Part ic ipants "need s t rong incent ives to start and t o stay w i th a d e m a n d i n g consensus process" (p. 88). By se t t ing t i m e l im i ts at the outset , "par t i c ipan ts reassure each other o f their c o m m i t m e n t t o reach c losure" (p. 88). Finally, the par t ic ipants m u s t c o m m i t t o implementation d u r i n g the consensus process: " fa i lure t o th ink t h r o u g h imp lemen ta t i on can undo conf idence and mu tua l t rus t in negot ia t ions" (Cormick et al. 1996, p. 96). The NRTEE provides a list o f key quest ions tha t shou ld be addressed in any consensus process dedicated to successful imp lemen ta t i on (Table 4.5). Table 4.5 Questions for the successful implementation of consensus agreements. • Is the solution technically and legally sound? • Will those whose support will be needed accept the agreement? • How will formal ratification be achieved? • How will implementation be funded? • Who will be responsible for doing what? • When will parts of the agreement be implemented? • Will actions follow agreed commitments? • How will parties hold each other to commitments? • How will promises turn into action? • What about unforeseen difficulties? Source: Cormick et al. (1996, p. 98). 27 4.2.3 Facilitation Imp l ic i t in these pr inciples is the impor tance o f facilitation. Faci l i tat ion is a specif ic role, d is t inc t f r o m conven ing or co-ord inat ing . In the context o f MPAs in BC, the convenor o f a consensus process w o u l d likely be one or more sponsor ing agencies (such as D F O ) . The co-ordinator w o u l d be a project manager, likely an employee o f one o f those agencies. The facilitator m i g h t be the same person, or someone cont racted for the dura t ion o f the consensus process. A faci l i ta tor provides guidance to all g roup c o m m u n i c a t i o n , " teach ing g roup m e m b e r s h o w to design and manage an effective dec is ion-mak ing process" (Kaner 1996, p. 36). Acco rd ing t o Kaner (1996), a ski l led faci l i tator wil l encourage ful l par t ic ipa t ion , p r o m o t e m u t u a l unders tand ing , foster inclusive so lu t ions and teach new t h i n k i n g skil ls, wh i le ensur ing tha t par t ic ipants avoid sel f -censorship, f ixed posi t ions and a w in or lose menta l i ty . These o u t c o m e s are achieved by emp loy ing techniques such as the one-text procedure, where the faci l i ta tor leads the group t h r o u g h the dra f t ing and revision o f a wr i t ten agreement (Fisher and Ury 1991). W h o shou ld face th is daun t ing task? The NRTEE argues that it shou ld be: ...an independent person, acceptable to all o f the participants, whose focus and expertise is in the management and shepherding o f consensus processes and in assisting disput ing parties to find common agreement. (Cormick et al. 1996, p. 12) Independence is i m p o r t a n t so that the consensus process can "level the playing f ie ld , suspend ing power imbalances for as long as the process con t i nues " (p. 35). However , independence does not necessarily imply neutral i ty. Laue and Cormick (1978, p. 221) argue against neutral fac i l i ta t ion, since "neutra l i ty ... a lmost always works to the advantage o f the party in power" . Rather, the responsibi l i ty o f the faci l i tator is " t o use skil ls, pos i t ions , and power to fu r ther the e m p o w e r m e n t o f the power less" (p. 229). Forester (1999, pp. 194-5) captures the balancing act played by an effective faci l i tator : [They] must be close enough to listen but far enough away to manage the process. They must be sensitive enough to understand but be tough enough to ask hard questions. They must be attentive enough never to be dismissive, yet they must be insightful enough to probe for what may really matter. They must take each party seriously yet be able to laugh. ...they must enable the parties to move ahead rather than tell them where to go. 28 This balance is met when facilitators are "civic friends", who "create a space for speaking and listening, for difference and respect, for the joint search for new possibilities, and ultimately for newly fashioned agreements about how we shall live together" (p. 197). 4.3 Communicative planning theory These arguments suggest that consensus processes are best led by a facilitator (independent or otherwise) who is respectful of participants, but who has an agenda of seeking to 'plan in the face of power' (Forester 1989). In this study, such an agenda might refer to the creation of MPAs in the face of established institutions and economic interests. Power is "manifest in the relations of social life, in the micro-politics of daily struggles, constraints, and responses to them" (Healey 1999, p. 113). It can be argued that a consensus agreement is the achievement of a facilitated decision-making process that productively manipulates the power relationship between willing participants. What are the implications of this technique? The following sections draw on communicative planning theory to reflect on this question, leading into the conceptual and analytical framework for this study. 4.3.1 Ideal or pragmatic? Communicative planning theory is a complex of ideas concerned with power and the production of truth in planning and decision-making. As stated by Healey (1999, pp. 116-7): The ambition of communicative planning theory is to contribute to transforming governance cultures— to provide concepts, critical criteria, and examples of open and participative governance through which conceptions of place qualities can be articulated, debated, disseminated, and used to focus and inform new initiatives and responses to change. As communicative planning theory is an evolving set of ideas, the approach taken here is to contrast two arguments from the literature— arguments that are not a dichotomy, but are at tension with one another (see Flyvbjerg 1998a; Forester 1999; Healey 1999; Innes 1998). The first, idealistic argument is that planners should seek to create decision-making spaces that are free from the influence of power. Proponents of this argument often cite Habermas' theory of communicative action, also known as discourse ethics. In an ideal speech situation, "all participants are free to have their say and have equal chances to express their views" (Layder 1994, p. 189). 29 Decis ions are based only on the s t rength o f rat ional a r g u m e n t a t i o n — independen t o f power, pol i t ics or g roup dynamics. To Habermas, th is creates a " t ranscendenta l m o m e n t o f val id i ty [that] bursts every provincial i ty asunder" (Ashenden and Owen 1999, p. 5). The universal real isat ion o f ideal speech w o u l d be the penu l t imate ach ievement o f the project o f en l i gh tenment . The second, p ragmat ic a rgumen t is that planners shou ld accept tha t decis ions are always in f luenced by power, and so act strategically t o "make part ic ipatory p lann ing a pragmat ic reality rather than an empty ideal " (Forester 1999, p. 3). This g roup is of ten m i n d f u l o f Foucault , w h o suggested tha t an ideal speech s i tuat ion is imposs ib le t o achieve, since the very a rguments we make are part o f the historical context in wh ich we make t h e m : ...the transcendence Habermas speaks of is not something about which we could ever have any epistemological assurance so long as our reason is historical, for the historicity of subjectivity and reason places ontological limits on our ability to have such knowledge. (Kelly 1994, p. 388) Fur thermore , th is historical ly cont ingent , subjective knowledge is part o f the s t ruc ture o f power in society: " there is no power relat ion w i thou t the correlat ive cons t i tu t i on o f a f ield o f knowledge, nor any knowledge that does not presuppose and cons t i tu te at the same t i m e power relat ions " (Kelly 1994, p. i o ) . In short , power relat ions cannot be separated f r o m the p roduc t ion o f t r u th in dec is ion-mak ing processes (Fischler 2000). The fo l l ow ing sect ions s u m m a r i s e the essential a rguments o f the ' H a b e r m a s i a n ' and 'Foucau ld ian ' pos i t ions in c o m m u n i c a t i v e p lann ing theory. 4.3.2 H a b e r m a s ' d iscourse ethics H a b e r m a s ' theory of communicative action is meant t o "clari fy the p resuppos i t ions o f the rat ional i ty o f processes o f reaching unders tand ing , wh ich may be p resumed to be universal because they are unavo idab le" (Flyvbjerg 1998b, p. 212). A l t hough c o m m u n i c a t i v e rat ional i ty is th reatened by m o d e r n society, the core o f c o m m u n i c a t i v e r a t i o n a l i t y — " t h e uncons t ra ined , un i fy ing, consensus-br ing ing force o f argumentat ive speech" (p. 212)— is a central experience in the life o f a h u m a n being. 30 Acco rd ing t o his theory, val idi ty and t ru th are ensured when _ ,, , „ , . _ , ° Table 4 . 6 Habermas and Foucault. par t ic ipants in a given discourse respect five key requ i rements Habermas-discourse ethics o f discourse ethics (Table 4.6). The requi rement o f generality T> Generality [inclusiveness] 2) Autonomy ensures tha t " n o party affected by what is being discussed ,. r ' 7 ° 3) Ideal role taking shou ld be excluded f r o m the d iscourse" (Flyvbjerg 1998b, p. 4) Power neutrality 5 ) Transparence [openness] 213). To have autonomy, "al l par t ic ipants shou ld have equal Foucauldian critique possib i l i ty t o present and cr i t ic ize val idi ty c la ims in the process . consider what is shaping the mental o f d iscourse" (p. 213). and social universe of participants. • Question the interpretation and implementation of decisions. The no t i on o f ideal role taking means: "par t ic ipants m u s t • Question the historical necessity of a given situation. be w i l l i ng and able t o empath ize w i th each other 's val idi ty • Question the exertion of power through discourse. c l a i m s " (Flyvbjerg 1998b, p. 213). Power neutrality impl ies that , Recognise the dangers of consensus processes. "ex is t ing power dif ferences between part ic ipants m u s t be , , , ° 1 Sources: Ashenden and Owen (1999), neutra l ized such tha t these dif ferences have no effect on the F l s c h l e r ( 2 0 0 0 ) i F | y" b i e r g (^sb). creat ion o f consensus" (p. 213). Finally, as transparence suggests, "par t i c ipan ts m u s t openly explain the i r goals and in tent ions and in th is connect ion desist f r o m strategic a c t i o n " (p. 213). 4.3.3 A F o u c a u l d i a n c r i t i que It is no t possible, nor appropr ia te to fo rmu la te a 'Foucauld ian theory ' o f c o m m u n i c a t i v e p lann ing . Foucaul t d id not create any universal theor ies, but instead sought to : ...criticize the workings of institutions which appear to be both neutral and independent; to criticize them in such a manner that the political violence which has always exercised itself obscurely through them will be unmasked, so that one can fight them. (Flyvbjerg 1998b, p. 223) To Foucault , a cri t ical analysis o f c o m m u n i c a t i o n begins w i th an examinat ion o f the dynamics o f p o w e r — t o ask quest ions unt i l "acts, gestures, d iscourses wh ich up unt i l t hen had seemed to go w i t h o u t saying become prob lemat ic , di f f icul t , dangerous" (Fischler 2000, p. 361). A m o r e appropr ia te approach is to conduc t a Foucauldian cr i t ique o f H a b e r m a s ' d iscourse ethics, wh ich w o u l d inc lude five ma in points (Table 4.6). First, rather than focus ing on cond i t i ons o f c o m m u n i c a t i o n , Foucault w o u l d h igh l ight the "cons t ruc t ion o f intel lectual s t ructures that shape and are shaped by non-discursive pract ices" (Fischler 2000, p. 359). 3i Put di f ferent ly, we shou ld focus on "wha t shapes the menta l and social universe o f speakers rather than on specif ic s ta tements " (p. 359). Second, Foucaul t w o u l d emphas ise 'how' as m u c h as 'what ' decis ions are i m p l e m e n t e d . The in terpre ta t ion and imp lemen ta t i on o f laws and regulat ions is as i m p o r t a n t as the process tha t created t h e m (Flyvbjerg 1998b). Th i rd , Foucault w o u l d call a t tent ion to " the genesis o f a given s i tua t ion , s h o w i n g that th is part icular genesis is not connected to absolute histor ical necessi ty" (p. 225). In other words , reaching a rat ional decis ion t h r o u g h an ideal speech s i tuat ion is not the only course o f act ion. Four th , Foucaul t w o u l d quest ion the m o d e r n rat ional i ty o f government ( 'governmenta l i ty ' ) , part icular ly our acceptance o f the way it exerts sovereign power (per iodic, spectacular displays o f force) , d iscip l inary power (cont inuous survei l lance, encourag ing self-regu la t ion) , and bio-power (def in ing norma l vs. deviant behaviour) (Layder 1994). In o ther w o r d s , Foucaul t w o u l d quest ion the rat ionale for the exert ion o f power t h r o u g h d iscourse (or o therwise) . This sen t iment is reflected in the assert ion that " t rea t ing people equally is inherent ly unequa l " (Hi l l ier 1998, p. 16), part icular ly across cul tural and l inguist ic d iv ides. Finally, Foucaul t w o u l d ask us to consider the dangers o f c o m m u n i c a t i v e rat ional i ty, specif ically, the dangers o f consensus processes. A m o n g t h e m : • Consensus processes as the suppression of conflict. As Flyvbjerg (1998b, pp. 228-9) argues: "social conf l ic ts produce themselves the valuable t ies that ho ld m o d e r n democra t i c societies together and provide t h e m w i th the st rength and cohes ion they need . . . . In a Foucauldian in terpre ta t ion, suppress ing conf l ic t is suppress ing f r e e d o m , because the privi lege to engage in conf l ic t is part o f f r e e d o m " ; • Consensus processes as a mechanism of social control. Consensus processes general ly require open c o m m u n i c a t i o n , revealing one's "values, needs, feel ings, fears, and vu lnerab i l i t ies" (Fischler 2000, p. 364). This br ings personal and cul tura l issues in to the publ ic d o m a i n , imp ly ing that they are c o m m o d i t i e s for exchange; and • Consensus processes as 'superior' to representational government. A cons tan t rel iance on consensus processes can undermine representat ive democracy and the legi t imacy o f state in tervent ion (Fischler 2000). These po in ts are pause for t h o u g h t for those w h o w o u l d uncri t ical ly embrace consensus processes for the creat ion and management o f MPAs. 32 4.4 Conceptual and analytical frameworks This section sets out the conceptual and analytical frameworks for this study, built on the foregoing discussion on negotiation, consensus processes and communicative planning theory, as well as the contextual information provided in the previous chapter. The framework will structure the interpretation of the case study, beginning in Chapter 7 (p. 77). 4.4.1 Conceptual framework The conceptual framework for this study is based on the premise, explored in this chapter, that consensus processes for the creation and management of MPAs in BC should seek to provide voice and fair participation, enable co-management and community development, avoid misinformation, and ensure legitimacy in decision-making. To do this, a consensus process should balance the need to both challenge and respect participants and the groups they represent (Figure 4.2). A consensus process challenges participants by questioning assumptions and seeking compromise from each participant. However, these questions and demands are an act of power, and for this to be accepted each participant and group will want to be treated with respect. Balance Characteristics: Innovative, Fair decisions, Partnerships in implementat ion. Characteristic: Fair process through skilled facilitation. Characteristics: Inclusive, Accountable to the participants, Respectful o f identities. Challenge A Figure 4.2 Conceptual framework. 33 4 4 - 2 Analytical framework Balancing challenge and respect is the unifying theme of the analytical framework, which draws on the literature reviewed here to define seven broad, inter-related characteristics of an effective consensus process for the creation of MPAs in BC: • Challenge: A consensus process should challenge participants to be innovative, reach fair decisions, and form partnerships in implementation; • Respect: At the same time, a consensus process should respect participants by being inclusive, accountable to the participants, and respectful of identities; and • Balance: The balance between challenge and respect requires fair process through skilled facilitation. The following sections describe each characteristic of the analytical framework. Supporting material is listed in the accompanying footnotes. Challenge Consensus processes should challenge participants to be innovative, to explore "thoughtful solutions that could not be created within the constraints of existing political, legal, or administrative processes" (Cormick et al. 1996, p. 5)26. This may include new institutions for marine resource management. A call for innovation may sound like empty rhetoric, but it is important in order to avoid the cynical perception that a consensus process is the 'same old thing in new packaging'. As stated by the N RTEE, "people need a reason to participate in the process" (p. 15). A consensus process should also challenge participants to reach fair decisions, measured against an independent standard, also agreed to by the participants2 7. This standard may refer to scientific studies on MPAs, or other forms of knowledge. The use of an accepted 2 6 The importance of innovation is implied in the following sources: Fisher and Ury (1991) (Invent options for mutual gain); NRTEE (Cormick et al. 1996) (Purpose-driven); and the WCPA (Kelleher 1999) (Challenge orthodoxy in institutions; Emphasise flexibility in process outcome, learning-by-doing and a long-term approach). 2 7 The use of an independent standard to assess fair decisions is suggested by the following sources: Fisher and Ury (1991) (Insist on using objective criteria); and Foucault (Ashenden and Owen 1999; Fischler 2000; Flyvbjerg 1998b) (Reaching a decision in a consensus process is not the only course of action. Though the decision-making process is important, the final agreement should be judged on its own merits. However, Foucault would also question the notions of'independence' and 'standards'.). 34 independent standard is important to counteract the resentment that may be felt by minority voices in the process, which can undermine the durability of a consensus agreement. The third challenge to participants is to explore partnerships in implementation28. A consensus agreement should not be an endpoint; it should be a milestone in an ongoing partnership in support of marine conservancy and community development. As such, the consensus agreement should include a full implementation plan. As stated by several authors, a co-management approach is a promising arrangement to consider. Respect The first way a consensus process can be respectful to participants is to be inclusive, inviting the voluntary participation of all parties affected by the M P A 2 9 . Some groups may refuse to join, as is often the case with First Nations concerned about prejudicing treaty negotiations, or of acquiescing to less than 'government-to-govemment' discussions. Self-exclusion may undermine the process; however, it has been argued that this can be overcome by providing good channels of communication between the consensus table and the self-excluded group (Cormick et al. 1996). Consensus processes are also respectful if they are accountable to the participants30. At one level, this means that the consensus process should be designed —from the beginning— by the participants. To be accountable, such a design should be flexible, but with time limits The importance of partnerships in implementation is supported by the following sources: Foucault (Ashenden and Owen 1999; Fischler 2000; Flyvbjerg 1998b) (The interpretation and implementation of laws and regulations is as important as the process that created them); jentoft (2000a, b, c) (There must be institutions to receive the 'voice response'; Co-management must be part of a larger scheme for community development); the NRTEE (Cormick et al. 1996) (Implementation); and the WCPA (Kelleher 1999) (Appreciate the full justification for developing management partnerships with local communities and the benefits that these will bring; Understand the local communities that will be affected by the MPA and identify potential partners; Choose the type of management partnership most suitable to the situation; Consider a co-management partnership as one possible model to use; Be innovative and creative in the establishment of partnerships). Inclusion is referred to in the following sources: Agardy (1997) (Empower local users who might not otherwise have a voice in decision-making); Habermas (Ashenden and Owen 1999; Flyvbjerg 1998b) (Generality); the NRTEE (Cormick et al. 1996) (Inclusive, not exclusive; Voluntary participation); and the WCPA (Kelleher 1999) (Bring in from the beginning every significant sector that will affect, or be affected by, the MPA; Assign top priority to cooperation with those responsible for fisheries; Recognise tourism as a sector; Ensure that aquaculture is regulated so as not to damage the MPA; Recognise that land-based activities can threaten or destroy MPAs; Encourage scientists to use the MPA in their research without damaging its conservation objectives; A range of other sectors will be affected by or will affect the MPA and so should be involved). Accountability is endorsed by the following sources: Dorcey and McDaniels (2001) (Representativeness of participants); the NRTEE (Cormick et al. 1996) (Accountability; Flexibility in process design; Self-design; Time limits); and the WCPA (Kelleher 1999) (Involve stakeholders from the very beginning). 35 for completion. At another level, participants should be accountable to each other, by committing to the process, and by providing effective representation of their constituencies. Finally, a consensus process should be respectful of identities31. Consensus processes seek to treat people as equals. However, as stated by Hillier (1998, p. 16), "treating people equally is inherently unequal", particularly across cultural, linguistic and economic divides. Consensus processes should include mechanisms for understanding, respecting and accommodating difference, in the hope of ensuring full participation by all. In the case of MPAs in BC, this applies mostly to aboriginal people, who have a distinct place in Canadian history, as well as rights protected under the Constitution. Balance The achievement of an appropriate balance between challenge and respect requires fair process through skilled facilitation32. As Forester (1999, p. 192) writes, facilitators are creators of "collaborative, deliberative spaces in which ... citizens meet and seek to refashion their lived worlds". This calls for skill at "gathering diverse points of view, building a shared framework of understanding, developing inclusive solutions, and reaching closure" (Kaner 1996, p. xvi). The more challenging the issue at hand, the more likely the facilitator will have to be an independent person, neutral on the content of discussion but "advocating for fair, inclusive and open processes that balance participation and improve productivity while establishing a safe psychological space in which all group members fully participate" (Kaner 1996, p. x). Though independent, such a facilitator should still be knowledgeable enough to ensure that misinformation does not undermine the legitimacy of the process. 3 ' Respect for identities is supported by: Foucault (Ashenden and Owen 1999; Fischler 2000; Flyvbjerg 1998b) (Question the modern rationality of government, particularly the way it exerts power through discourse); Habermas (Ashenden and Owen 1999; Flyvbjerg 1998b) (Ideal role taking); the NRTEE (Cormick et al. 1996) (Respect for diverse interests) and the WCPA (Kelleher 1999) (Consider the rights of indigenous peoples). Though not reviewed here, further discussion can be found in Sandercock (2000). 3 2 Fair process through skilled facilitation is advocated by: Fisher and Ury (1991) (Separate the people from the problem; Focus on interests, not positions); Forester (1989) (Legitimacy is threatened by the presence of misinformation in planning processes); Foucault (Ashenden and Owen 1999; Fischler 2 0 0 0 ; Flyvbjerg 1998b) (We should focus on what shapes the mental and social universe of speakers rather than on specific statements); Habermas (Ashenden and Owen 1999; Flyvbjerg 1998b) (Autonomy, Transparence, Power neutrality); Hillier (1998) (Fair participation involves being listened to with respect and being able to question others); Kaner (1996) (A facilitator encourages full participation, promotes mutual understanding and cultivates shared responsibility); and the NRTEE (Cormick et al. 1996) (Equal opportunity). 36 Summary Table 4.7 summarises the theoretical framework for this study. Table 4.7 Theoretical framework. Concept Characteristic(s) Challenge • Innovative • Fair decisions • Partnerships in implementation Respect • Inclusive • Accountable to the participants • Respectful of identities Balance • Fair process through skilled facilitation Chapter 5 - X a^yai) This chapter reviews the geography and history of X way3rj / Race Rocks, including a description of the biophysical setting, aboriginal and colonial history, current activities, and its designation as a Pilot MPA in 1998. This provides context for the chapters describing and interpreting of the proceedings of Race Rocks Advisory Board. 5.1 Biophysical setting Xway3n, or Race Rocks (48°i8' N, i23°32' W) is an archipelago of nine islets located 17 km southwest of Victoria, BC (Figure 5.1, p. 39; Figure 5.2, p. 40; Figure 5.3, p. 41). Located in the rain shadow of the Olympic Peninsula, Race Rocks receives an unusually high amount of sunshine through the winter months, and air temperatures that rarely drop below freezing (DFO 2000b). Dry summers are cooled by constant winds and regular blankets of fog (up to 45 days per year) (Matthews 2000). Terrestrial vegetation consists of lichen, mosses, grasses, and sedges that can survive on rock or on leached and wind-desiccated soils. The islets represent the peaks of a submarine mountain consisting of cliffs, chasms, benches, and channels (Murgatroyd 1999) (Figure 5.4, p. 42). Geologically, this mountain consists of fine-grained basalts and coarse crystalline gabbros that make up the Metchosin Igneous Complex, a three-kilometre-thick ophiolite that formed as an oceanic island about 54 million years ago (Yorath and Nasmith 1995). The Metchosin Igneous Complex moves as part of the Crescent Terrane (separated from the rest of Vancouver Island by the Leech River fault), which reached its current position about 42 million years ago. Both Clallam and English names for the area were inspired by the very strong tidal currents that flow through the islets, reaching up to eight knots in inter-tidal and sub-tidal areas (Thomson 1981). Race Rocks is located at the narrowest point of the Juan de Fuca Strait (12 Na. Mi . wide), exposed to the 1-2 fathom semi-diurnal tides that enter and drain from Georgia Strait and Puget Sound (Matthews 2000). Interacting with the tidal flows are waves whipped up by winds funnelling down the Strait. Dangerous rips form when eastward tidal floods coincide with the westward outflow winds (north-easterlies or south-easterlies) that are present most of the winter (Thomson 1981). 38 Scale: Approx. 1:750,000. Green areas indicate provincial parks or protected areas, including the Race Rocks Ecological Reserve. Base map: BC Ministry of Sustainable Resource Management (MSRM 2002). Figure 5.1 Location of X"ayan/Race Rocks, as well as Pearson College and Canadian Forces Base Esquimalt. 39 Scale: Approx. 1:50,000. Contour interval: 100 ft. Soundings in fathoms reduced to lowest normal tides. Source: Canadian Hydrographic Service Chart No. 3641 (1982), as modified by Pearson College (Fletcher 2002). Figure 5.2 Hydrographic chart of Race Rocks, as well as Bentinck Island, Whirl Bay and Rocky Point. 41 Race Rocks Proposed Pilot M a r i n e Protected Area Canadian Hydrographic Service Surveyed February 1999 Imagery by ABAC (Pacific) National Defence m 2ft00 m M B r ~ Canada' Scale: Approx. 1:30,000. Black areas indicate < 5 m depth, including islands (the 'rocks'). Source: DFO (1999a). Figure 5.4 Bathymetry of Race Rocks. 42 The fast, turbulent currents rushing over the rough underwater topography at Race Rocks provide the marine ecosystem with a constant supply of nutrients from Pacific upwellings to the west, and estuarine-fed waters to the east (Murgatroyd 1999). The currents also prevent the stratification of the water column and promote high levels of dissolved oxygen, supporting a complex, localized food web of remarkable abundance and diversity (Table 5.1; Figure 5.5). Table 5.1 Biota at Race Rocks. Life form Taxa Marine algae and vascular plants Phytoplankton Zooplankton Benthic invertebrates, including Northern abalone. Fish, including halibut, Kelp greenling, lingcod, rockfish, salmon, and Wolf eel. Avifauna, including Pelagic and Brandt's cormorants, Pigeon guillemots, Black oystercatchers and Glaucous-winged gulls. Most species nest on the Rocks. Pinnipeds, including California and Northern sea lions; and Harbour, Northern fur, and Elephant seals. Cetaceans, including Dall's and Harbour porpoises, Killer whales, and Grey whales. 41 130 100 200 35 45 Sources: DFO (2000b); Murgatroyd (1999)-Race Rocks provides important habitat for rockfish, lingcod and Kelp greenling, and a refuge for the threatened Northern abalone (COSEWIC 2000; DFO 2000b). Race Rocks also represents an important resting site for pinnipeds. In particular, Race Rocks is the largest haul-out and breeding area for Harbour seals in the Juan de Fuca Strait, with gatherings of up to 1,000 individuals at a time. These attract many Killer whales, particularly from transient populations. Common names (clockwise from top left): Killer whale, Oystercatchers, Brooding anemone, Brittle star, and Elephant seal. Source: Pearson College (Fletcher 2002). Figure 5.5 Wildlife at Race Rocks. 43 5-2 Aboriginal and colonial history Xway9rj has felt the presence of Coast Salish peoples for t housands of years (Suttles 1990). Fall ing w i th in the t rad i t iona l terr i tory of Clal lam and Nor thern Straits Salish g roups , X w aysr) was harvested for gul l 's eggs, sea cucumbers , sea urch ins, ch i tons , snai ls, whelks , musse ls , barnacles, seaweeds, crab, and f ish, t o be used for both c o n s u m p t i o n and t rade (DFO 2000b; Pearson College 2000a, b) . Acco rd ing t o Suttles (1990), none of these g roups h u n t e d p inn ipeds , but the Clal lam were known to hun t whales. T h o u g h there had been earlier 'voyages of discovery' , the European co lon isa t ion of Vancouver Is land d id not begin unt i l the late e ighteenth century (Suttles 1990). O n June 23,1790, Don Manue l Q u i m p e r , ensign of the Spanish Royal A r m a d a , p lanted a large w o o d e n cross near Sooke, f i red a 21-gun salute, and bur ied d o c u m e n t s of possession of the coast " i n the n a m e of His Cathol ic Majesty Carlos IV" (p. 30). The cross was p r o m p t l y removed by the local abor ig inals. Discover ing th is a few weeks later, Q u i m p e r replaced it w i t h a t o p p e d and l imbed pine tree wi th the cross beam nailed high above the g r o u n d . The f i rs t European ident i f icat ion of X w ayan may have been by Q u i m p e r or o ther Spanish explorers, or by Captain George Vancouver, w h o arr ived in 1792 t o f inal ise detai ls of the Nootka Convention, es tab l ish ing Bri t ish sovereignty over Vancouver Is land. The n a m e 'Race Rocks' f i rst appears in H u d s o n ' s Bay Company records in 1842, t hen car tographical ly in the surveys by Captain Kellett (1846), wh ich were incorporated in to A r r o w s m i t h ' s Map of Vancouver Island and the Adjacent Coasts (Walbran 1971) (Figure 5.6). Scale: Approx. 1:970,000. Source: Arrowsmith (1849), as provided by the BC Archives (2001). Figure 5.6 'Race Islands' on John Arrowsmith's Map of Vancouver Island and the Adjacent Coasts, 1849. 44 5.2.1 Douglas Treaties The Crown Colony of Vancouver Island was established in 1849. Between 1850 and 1854, Governor James Douglas 3 3 made 14 land purchases from aboriginal groups on Vancouver Island, including the Beecher Bay 3 4, Songhees and T'Sou-ke First Nations, all of whose traditional territories extend to Race Rocks (Te'mexw Treaty Association 2001) (Figure 5.7). Known as the Douglas Treaties, they stipulated that the area in question be surrendered "entirely and forever" in exchange for cash, clothing or blankets, but allowed aboriginal groups to retain existing village sites and the "liberty to hunt over unoccupied lands" and the right to "carry on their fisheries as formerly" (MAA 1998, p. 1)35. 5.2.2 Royal Navy and the Lightstation In 1846, the Royal Navy established a base in Esquimalt Harbour, and would eventually acquire the areas of Mary Hill and Rocky Point that were not already part of Indian Reserves, as well as Bentinck Island (MARPAC 2001). In the 1850s, Captain George Richard conducted a six-year hydrographical survey of the coast, beginning with navigation hazards such as Race Rocks (Clayton 1999). His survey report to the British Admiralty wrote of the many ships lost while navigating into Esquimalt and Victoria Harbours, and of "a great want which is felt by all vessels coming to Vancouver's Island of a light on the North shore of the Race Islands or Rocks" (Matthews 2000, p. 1). " v * Creat Ksci Rock Scale: Approx. 1:300,000. Borders of Douglas Treaty areas are subject to dispute. Source: Treasury Board of Canada (2002). Figure 5.7 Douglas Treaties in the vicinity o f Race Rocks. James Douglas was appointed Chief Factor of Fort Victoria in 1843, and then Governor of Vancouver Island in 1851 (MAA 1998). Before colonisation, various Northern Straits Salish groups (particularly the T'Sou-ke) occupied the areas of Vancouver Island adjacent Xw«iyan., and the Clallam occupied the northern slopes of the Olympic Peninsula (Harris 1997; Suttles 1990). By the mid-nineteenth century, the Clallam had expanded north to Beecher and Parry Bays on Vancouver Island, into smallpox-depopulated T'Sou-ke territory. This led to intermittent warfare between the Clallam and T'Sou-ke, but this had settled down by the time the Treaty of Washington established the British-American border in 1846. This treaty split the Olympic Peninsula Clallam from the Vancouver Island Clallam, who became the Beecher Bay First Nation. The Douglas Treaties were not without their flaws. The Beecher Bay First Nation signed their deed of conveyance with Douglas in 1850, but did not receive any land for a reserve until the joint Reserve Commission toured the area in 1877 (Harris 2002). By that time, several Crown grants had been allocated to settlers, and the Beecher Bay were forced to settle for two abandoned pre-emptions (abandoned because of their poor quality) and a fishing station at Albert Head. The Commission concluded that "it was unfortunate that lands were not assigned to these Indians in accordance with the spirit of the agreement of 1850" (p. 27). 45 Source: Pearson College (Fletcher 2002). Figure 5.8 Race Rocks Lightstation, 1875. The Admi ra l t y approved the cons t ruc t ion o f the Race Rocks L igh ts ta t ion , sh ipp ing pre-cut and n u m b e r e d Scott ish grani te as ballast in a t imber ship re tu rn ing to Victor ia (Apple ton 1967) (Figure 5.8). O n Boxing Day, i860, the Imper ia l Light on Race Rocks was l i t fo r the f i rs t t i m e . Cont ro l o f the Lightstat ion wou ld soon change hands. BC jo ined Confederat ion w i t h Canada in 1871, w h i c h mean t that the D o m i n i o n government gained ju r i sd ic t ion over "Beacons, Buoys, L ighthouses, and Sable Is land" (Constitution Act1982, s. 91(9)). However , ownersh ip o f the l ights tat ion was d isputed unt i l 1894, when the province secured t i t le t o Race Rocks, agreeing only t o lease the land on Great Race Rock to the D o m i n i o n government (Victoria T imes-Colonis t 2001). 5 . 3 Current activities Today, the Race Rocks L ights ta t ion is operated by the Canadian Coast Guard , a civi l ian agency w i th in D F O (Figure 5.9). Canadian Forces Base Esquimal t con t inues the mi l i tary role establ ished by the Royal Navy, serv ing as the headquarters for Canada's M a r i t i m e Forces Pacific (MARPAC). Inc luded in MARPAC faci l i t ies are the Mary Hi l l and Rocky Point . . . 1 1 . , I I J J Figure 5.10 MARPAC training at Whir l Bay. Tra in ing Areas, located on Vancouver Island and 5 J Bent inck Is land, directly adjacent to Race Rocks (Figure 5.2, p. 40). Bent inck Is land and nearby Wh i r l Bay are used for a m m u n i t i o n demo l i t i on t ra in ing , bo th on land and underwater (MARPAC 2000) (Figure 5.10). Source: Pearson College (Fletcher 2002) Figure 5.9 Canadian Coast Guard at Race Rocks. Source: MARPAC (2002) 46 5-3-I Pearson College and the Ecological Reserve Lester B. Pearson College of the Pacific was established on Pedder Bay in 1974, on a parcel of land donated by the federal government from MARPAC's Mary Hill Training Area. The United World College was named after the late Liberal Prime Minister of Canada (1897-1972), who had been a proponent of creating an international 'College of the Pacific' (Pearson College 2001). Since its inception, teachers at the College have incorporated Race Rocks into its educational programs, as a case study of marine biology, conservation, aboriginal traditions, and (more recently) Internet technology (Curtis 2000a; Fletcher 2000b) (Figure 5.11). Pearson College was instrumental in having Race Rocks declared a provincial Ecological Reserve in 1980, which protected all resources under provincial jurisdiction on and around Race Rocks above the 20-fathom line (excluding Great Race Rock, still leased for the Lightstation) (Order in Council 692 1980) (Figure 5.12). By 1990, DFO had brought in complementary regulations that prohibited the harvesting of most living resources in the water column, with the exception of halibut and salmon (DFO 2000b). Source: Pearson College (Fletcher 2002). Figure 5.11 Pearson College's educational programs at Race Rocks. Scale: Approx. 1:50,000. Source: MELP (1992), as provided by Pearson College (Fletcher 2002). Figure 5.12 Boundary o f Race Rocks Ecological Reserve. In 1994, the Canadian Coast Guard announced that it was going to begin automating lightstations along the Pacific Coast. Pearson College sought to keep the lightkeepers at Race Rocks, as 'Eco-guardians' of the Ecological Reserve. The College signed an agreement with the Coast Guard to operate the Lightstation buildings as an educational facility, and solicited the help of donors to cover the salary of the lightkeepers (Canadian Press 1997). Automation eventually went ahead: in 2001, the federal lease on Great Race Rock was reduced from 1.5 ha to 0.15 ha, and the provincial Ecological Reserve was expanded to cover this land (Leyne 2001). 47 Pearson College has since acquired the opera t ing permi t for the Ecological Reserve, conver t ing the unused Coast Guard bu i ld ings in to the Great Race Mar ine Research and Educat ion Centre (ESD 2002). The bui ld ings are used to suppor t research act ivi t ies, as well as hous ing the live, interact ive c o m p o n e n t s o f the RACEROCKS.COM websi te, wh ich includes several 'webcams ' broadcast ing cont inuous ly to the Internet (Harne t t 2000) (Figure 5.13). 5.3.2 T o u r i s m a n d recrea t ion The need for Eco-guardians derives f r o m the fact that Race Rocks has become a signi f icant dest inat ion for coastal t o u r i s m and recreat ion. T o u r i s m is the second largest export indust ry in BC, w i th one in every three t o u r i s m dol lars spent on mar ine-re lated activit ies (Murga t royd 1999) (Table 5.2). Whale wa tch ing is the m o s t impor tan t t o u r i s m activity at Race Rocks, and the m o s t c o m m o n way for vis i tors t o see the Rocks (Murga t royd 1999) (Figure 5.13). Paradoxically, the Rocks are not the pr imary dest inat ion for whale watch vessels, since the whales roam t h r o u g h o u t the Georgia Basin. Rather, Race Rocks is a stopover en route to v iewing whales in the Juan de Fuca Strait, or a 'Plan B' when no whales are seen. M o s t whale wa tch ing companies are members o f the Whale Watch Opera tors Associat ion Nor thwest , an industry associat ion that p romotes best practices in responsible wi ld l i fe v iewing. The Assoc ia t ion was establ ished to improve co-ord inat ion a m o n g the operators, as well as to develop procedures tha t reduce the impac t o f whale w a t c h i n g on the endangered southern popu la t ion o f Killer w h a l e s 3 6 . The Assoc ia t ion Images (from top): Harbour seal with pup; Whale watching vessel at Race Rocks. Source: Pearson College (Fletcher, 2002). Figure 5.13 Webcams at Race Rocks. Table 5.2 Tourism activities in the vicinity of Race Rocks. Item Number Commercial whale watching 40 boats based in Victoria (in 1998) Commercial whale watching 8,000 trips from Victoria (in 1997) (n.b. not all to Race Rocks) Scuba divers recorded at the 1,300 guest book on Great Race Rock (in 1995) (n.b. not all divers moor) Scuba divers taken to Race 500 Rocks by Ogden Point Dive Centre (in 1999) Sport fishing angler-days in 200,000 the Victoria area (in 1995) Source: Murgatroyd (1999). 3 6 Studies suggest that the primary threats to the southern resident population of Killer whales are declining salmon populations and the presence of toxic pollutants in the marine environment (Garrett 2002). 48 Source: Ogden Point Dive Centre (2002). Figure 5.14 Sport diving at Race Rocks. has posted specif ic guidel ines for the Race Rocks area, where the pr imary concern is caus ing a s tampede a m o n g p inn ipeds rest ing on the Rocks ( W W O A - N W 2002). Race Rocks is a ma jo r dest inat ion for spor t scuba divers, w h o rate t he area as one o f the premier d iv ing dest inat ions in the w o r l d , despi te the cool ocean temperatures (Figure 5.14). The presence o f s t rong currents means that d iv ing at Race Rocks requires "advanced dive experience and mobi le surface suppor t f r o m vessels" (Murga t royd 1999, p. 22). Ecological Reserve regulat ions prevent anchor ing or the harvest ing o f any benth ic species. The Rocks are also "an extremely popular [sport] f i sh ing g r o u n d for local residents due both t o its accessibil i ty f r o m Victor ia and local mar inas, and the natural features which make it conduc ive to catch ing f i s h " (Murgat royd 1999, p. 23) (Figure 5.15). M o s t spor t f i sh ing companies part ic ipate in the activit ies o f the Sport Fishing Advisory Board, wh ich represents the interests o f recreational f ishers in DFO's regulatory processes. Fisheries regulat ions for the Race Rocks area only al low for sa lmon and hal ibut f i sh ing 3 7 ; however, there have been concerns that these regulat ions are not enforced, and that o ther species are regular v ic t ims o f by-catch. The Rocks are also a dest inat ion for recreational boaters, w h o general ly s top by to look at mar ine m a m m a l s . Ignorant boaters can pose a threat to wi ld l i fe, and as such are the target o f an educat ion campa ign by the Veins o f Life Watershed Society's Mar ine M a m m a l M o n i t o r i n g Program, wh ich is suppor ted in part by DFO (M3 2001) (Figure 5.16). Source: DFO (2001 Figure 5.15 Sport f ishing near Race Rocks. Source: VLWS/DFO (2002). Figure 5.16 Recreational boater interacting with wildlife in Juan de Fuca Strait. 3 7 These regulations will continue to be in force until the final designation of the Race Rocks MPA. 49 5.3.3 Environmental advocacy Many environmental non-governmental organisations (ENCOs) engage in marine environmental advocacy in the Georgia Basin (Table 5.3). These E N G O s generally promote the establishment of a large network of MPAs and marine reserves throughout coastal BC and Washington State. Advocacy campaigns usually focus on high priority areas, where a high risk of environmental degradation coincides with a low level of protection. Notably, E N G O s were not the original proponents of an Oceans Act M PA at Race Rocks, given that there was already a high level of protection provided by the Ecological Reserve. 5.4 Designation as a Pilot M P A On September 1,1998, Minister David Anderson (Member of Parliament for Victoria) announced that Race Rocks and Gabriola Passage would be the "first Pilot Marine Protected Areas [under the Oceans Acf\ in Canada" (DFO 1998a, p. 1). The Pilot MPAs were a new concept that would "provide an opportunity to learn and test different applications of MPA identification, assessment, legal designation, and management" (p. l). Formal designation would "require further consultation and collaboration with local communities, First Nations, stakeholders and the public" (p. i). Why choose Race Rocks? Though not a priority for the E N G O community, Race Rocks had many features that made it an appealing candidate for designation: • Legacy of conservation: Pearson College had established an international reputation as custodian of Race Rocks, particularly through its education and research programs, including R A C E R O C K S . C O M . An MPA would build on this legacy of conservation, both for marine ecosystems and the historical site; Table 5.3 ENGOs engaged in marine conservancy in the Georgia Basin. Adopt-A-Stream Foundation BC Environmental Network Campaign for the Northwest Canadian Parks and Wilderness Society Coastal Community Network David Suzuki Foundation Ecotrust Canada First Fish First Nations Environmental Network Fish Forever Friends of the San )uans For the Sake of the Salmon Georgia Strait Alliance Living Oceans Society Marine Stewardship Council Pacific Marine Conservation Council People for Puget Sound Puget Sound Society for Conservation Biology Puget Soundkeeper Alliance Raincoast Conservation Society Salish Sea Expeditions Sea Shepherd Conservation Society Sierra Club of British Columbia Sierra Legal Defence Fund Southeast Alaska Conservation Council Underwater Council of British Columbia Western Canada Wilderness Committee The Whale Museum Source: Living Oceans Society ( 2 0 0 2 ) . 50 • Lightkeepers: Facing public outcry, the Coast Guard's lightstation automation program had been halted abruptly in 1998, leaving some lightstations at safer locations with their keepers, and some dangerous locations —such as Race Rocks—without. Through the MPA designation process, D F O might reinstate the lightkeepers or provide financial support for the 'Eco-guardians'; • Provincial co-operation: The existence of the Race Rocks Ecological Reserve meant that the area was already closed to resource activities under provincial jurisdiction. This would reduce provincial resistance to the federal initiative, at a time when federal-provincial relations were strained by ongoing Pacific Salmon Treaty negotiations with the United States (see Smyth 1998); and • Legacy o f Lester B. Pearson: An MPA at Race Rocks would be another way to support Pearson College, a legacy of the Liberal Party of Canada. With the announcement made, D F O conducted surveys of the pilot sites (Figure 5.4, p. 42), and finalised its policy documents for the MPA Program. The stage was set for the formation of the Race Rocks Advisory Board. 5.5 Summary This chapter has reviewed the geography and history of Race Rocks. The highlights of this story are as follows: • The proposed Marine Protected Area is situated in an extraordinary biophysical setting; • The identity of Race Rocks and the surrounding area is closely tied to the aboriginal and colonial history of southern Vancouver Island, including the policies and activities of Douglas, the Navy and later the Coast Guard; • Pearson College has played a key role in the stewardship of Race Rocks, sponsoring its designation as an Ecological Reserve in 1980; • Race Rocks is a popular tourism and recreation destination, and is vulnerable to the impact of these activities; • Though there are many E N G O s active in the Georgia Basin, none actively promoted the designation of an Oceans Act M PA at Race Rocks; and • The designation of Race Rocks as a Pilot MPA was a political decision based on many factors, only one of which was the imperative of increased ecosystem protection in the Race Rocks Ecological Reserve. 51 Chapter 6 - Race Rocks Advisory Board This chapter documents the proceedings of the Race Rocks Advisory Board and associated events, drawing largely on primary research material and the minutes of Advisory Board meetings (Table 6.1). All primary material in this chapter is presented anonymously. Comments that derive from the minutes of Advisory Board meetings or other secondary sources (in the public domain) are cited as such. This text should not be considered a complete record of events; rather, it is an interpretation based on the available information. 6.1 Formation of the Advisory Board As discussed in earlier chapters, D F O policies only provide broad guidance as to what form of public involvement should be involved in the establishment of MPAs. Though D F O had extensive experience consulting with fisheries groups, including First Nations, the agency had limited experience working in a multi-stakeholder context. Race Rocks would be the first test case in implementing these policies, and a point of reference for future endeavours. Formed in December 1999, the Race Rocks Advisory Board (RRAB) represented "a reasonably comprehensive cross-section of interest groups and activities" (RRAB 200of, p. 2). The objectives of the RRAB were to: • Represent key constituent groups or stakeholders; • Provide advice to DFO and BC Parks on the consultation process; • Collate and analyse feedback from consultations; • Make interim management recommendations to DFO and BC Parks for the establishment of an MPA at Race Rocks; and • Ensure community involvement in the establishment and on-going management of the Race Rocks MPA. (p. 2 ) The following sections describe the co-ordination, facilitation, representation and attendance in the RRAB, leading into a review of the proceedings and associated events. Table 6.1 T i m e l i n e for the R R A B and associated events, Dec. 1999- Dec. 2001. Date Event Dec. 1,1999 R R A B M e e t i n g No. 1 Dec. 22 Workshop on 13-moon seasonal round Jan. 5, 2000 R R A B M e e t i n g No. 2 Jan. 21 MARPAC tour of demolition training sites Jan. 26 R R A B M e e t i n g No. 3 • Terms of Reference Feb. 23 R R A B M e e t i n g No. 4 Mar. 9 Beecher Bay Burning Ceremony Mar. 22 R R A B M e e t i n g No. 5 • Recommendations Aug.-Sept. Escalation of DFO-Mi'kmaq conflict at Miramichi Bay Sept. 14 'Official designation' of MPA by Dhaliwal and Sawicki, protested by First Nations Oct. 28 Proposed regulations published in Part 1 of Canada Gazette Nov. T'Sou-ke, Songhees and Beecher Bay First Nations object to proposed regulations Jun. 2001 First Nations endorse MPA concept, but call for more consultation and recognition of Douglas Treaty rights Dec. 6 R R A B M e e t i n g No. 6 Sources : DFO (2000a), O'Sullivan (2000), RRAB (1999, 2000a, b, c, d, 2001), Somerville (2000). 5 2 6.1.1 Co-ordination and facilitation In the terminology introduced in Section 4.2.3 (p. 28), the RRAB was convened by the Oceans Directorate of the Pacific Region offices of DFO, with the cooperation of BC Parks and the support of Parks Canada. The Board activities were co-ordinated by an employee of the Oceans Directorate, in consultation with the Department. The co-ordinator also facilitated most of the RRAB meetings. The exception was Meeting No. 5, when an independent facilitator was contracted to help the RRAB produce consensus recommendations 3 8. 6.1.2 Representation The RRAB included representatives of government agencies, First Nations, Environmental Non-Governmental Organisations (ENGOs), user groups, scientists, educators, and others. The most active government agencies were: • BC Parks, working to ensure that the MPA complemented the existing provincial Ecological Reserve, particularly the management planning process that was underway; • DFO (Oceans Directorate, Pacific Region), guiding the designation of the MPA; • Maritime Forces Pacific (MARPAC), seeking to continue demolition training activities at Bentinck Island and Whirl Bay; and • Parks Canada, providing advice on public consultation processes, and in return, gaining insight as to what will be involved in the creation of National Marine Conservation Areas (see Section 3.2.2, p. 13). First Nations were represented by the Coast Salish Sea Council (CSSC), led by a widely respected Coast Salish elder. The CSSC had been recently launched "to bring together the ... Coast Salish tribes on both sides of the Canada-US border, to develop agreements and move forward on social and environmental issues" (Georgia Strait Alliance 2000, p. 9). The CSSC was contracted by D F O to provide a form of representation that would not interfere with ongoing treaty negotiations. The CSSC was to liaise and build support among the relevant Douglas Treaty First Nations, promote aboriginal values in the RRAB discussions, and ensure that the recommendations respected treaty and aboriginal rights. 3 8 The contracted facilitator was Judith Cullington, of Judith Cullington & Associates (RRAB 2 0 0 o d ) . 53 The E N G O community was represented by three groups: . Canadian Parks and Wilderness Society (CPAWS), supporting "the development of policy and legislation for MPAs, public awareness and education, and the identification and documentation of large marine areas as potential MPAs" (CPAWS-BC 2001); . Friends o f Ecological Reserves, promoting "the establishment, management and maintenance of Ecological Reserves in British Columbia" (Borris 2001, p. 2); and • Georgia Strait Alliance, seeking "to protect and restore the marine environment and promote the sustainability of Georgia Strait, its adjoining waters and communities" (Georgia Strait Alliance 2002). There were four marine resource user groups represented on the RRAB: . Local marina operators (not formally organised), representing the interests of marina and sport fishing charter operations, particularly the nearby Pedder Bay Marina; • Sport diving community (not formally organised), seeking to maintain access to one of the premier sport diving locations in Canada; . Sport Fishing Advisory Board (SFAB) (Vancouver Island/South Coast region), formally representing the interests of sport fishers in all D F O consultation processes; and • Whale Watch Operators' Association North West (WWOA-NW), advocating a best practices approach to the regulation of whale watching in BC and Washington State. Marine scientists (not formally organised) were represented by a local scientist (unaffiliated with local universities), who sought to ensure continued research opportunities at Race Rocks and to inform the discussion on no-take zones and ecosystem dynamics. Pearson College was represented by employees of the college, who sought to improve marine stewardship at Race Rocks, particularly through the creation of a no-take zone. 6.1.3 Attendance Attendance was strongest among government, First Nations, Pearson College, E N G O and sport diving representatives (Table 6.2, p. 55). Attendance was lowest among other user group representatives, who often sent proxies to the meetings. Seven people were in full attendance at Meeting Nos. 1-5, which led to the consensus recommendations. Only three participants attended all six meetings. 54 6 .2 Proceedings Table 6.2 Attendance at RRAB Meeting Nos. 1-6. The RRAB meetings were preceded by discussions with BC Parks, Parks Canada, Pearson College and others, each of whom suggested participants for the process. Potential members were personally contacted by the RRAB co-ordinator and facilitator. Though certain interests were sought out, other self-identified groups would have been welcome at that early stage. 6.2.1 Meeting No. i The first meeting of the RRAB took place from n:oo to 15:30 on December 1,1999, at the Coast Guard Base in Victoria, BC (RRAB 1999). After introductions took place, the facilitator presented the agenda for the meeting (Table 6.3, p. 56), and gave a slide presentation on the Oceans Act (1996), MPAs, and Race Rocks. The meeting was then opened to general discussion (RRAB 1999). Prompted by Pearson College, the CSSC established the First Nations perspective on MPAs: . "First Nations support MPAs where there is no conflict with existing agreements ... or the treaty process" (RRAB 1999, p. 2); • The CSSC offered to organise a workshop on the 13-moon traditional seasonal round of Coast Salish peoples; and • "Using First Nations language in any documentation produced on Race Rocks would greatly facilitate the acceptance and understanding of a management plan for the area by local First Nations" (p. 3). Participant (number of meetings attended) Government representatives • BC Parks: Doug Biffard (4), Chris Kissinger (i), Jim Morris (5), Marty Roberts (2) • DFO (Pacific Region): Communications and Policy Branch. Nancy Holman (1); Oceans Directorate. Kelly Francis (5), Marc Pakenham (6); Science Branch. Dr. John Pringle (1)*, Brian Smiley (1), Cindy Wright (1) • Maritime Forces Pacific (MARPAC): Duane Freeman (3), Lt. Com. Bill Laing (4), Andrew Smith (1) • Parks Canada: Bill Henwood (1)*, Jennie Sparkes (6) First Nations representatives . Coast Salish Sea Council (CSSC): Gordon Hanson (4), Tom Sampson (5) ENCO representatives • Canadian Parks and Wilderness Society (CPAWS): Keith Symington (4) « Friends of Ecological Reserves: Cheryl Borris (5) • Georgia Strait Alliance: Howard Breen (4), Peter Ronald (1) User group representatives • Local marina operators: Sean Moore (2) • Sport diving community: Erin Bradley (5) • Sport Fishing Advisory Board (SFAB): Dan Kukat (3)* • Whale Watch Operators Association - North West (WWOA-NW): Kevin Walker (3)* Science and education representatives • Marine scientists: Dr. Anita Brinckmann-Voss (4) • Pearson College: Garry Fletcher (5), Angus Matthews (6) Non-participant observers » BC Land Use Co-ordination Office: Kaaren Lewis (1) • DFO (Headquarters): Oceans Directorate. Tiina Kurvits (1) • DFO (Pacific Region): Fisheries Management. Paul Preston (1); Oceans Directorate. Sean MacConnachie (4), Louise Murgatroyd (1) • Georgia Strait Alliance: Rupert Gale (3) • South Islands Aquatic Stewardship Society: Judith Burke (1) • Sustainable Development Research Institute, University of British Columbia: Sean LeRoy (1) Source: RRAB (1999, 2000a, b, c, d, 2001). • Sent proxy representative to some meetings. 5 5 The Georgia Strait Alliance then led a discussion on the need for a traditional use study at Race Rocks, and explored funding possibilities (RRAB 1999). The CSSC suggested that the RRAB commission such a study. BC Parks and DFO were open to the idea, but made no commitments. BC Parks then introduced the draft management plan for the Ecological Reserve (which had been distributed ahead of time), and emphasised the importance of recognising the parallel Ecological Reserve and MPA designation. Following lunch, the RRAB turned to discuss the development of a Terms of Reference for the RRAB (RRAB 1999). The CSSC stressed the importance of "recognising First Nations as a level of government (not a stakeholder) in the MPA process" (p. 4). BC Parks indicated that the RRAB could provide a mechanism for revising the draft management plan for the Ecological Reserve. This prompted Pearson College to argue that matters of jurisdiction and protocol between BC Parks and D F O "be addressed immediately" (p. 4). Parks Canada suggested that the Terms of Reference should include a definition of consensus (RRAB 1999). After more discussion, Parks Canada proposed that a sub-committee create a draft Terms of Reference before the next meeting. A sub-committee was formed, including representatives from DFO, BC Parks, the Georgia Strait Alliance, Pearson College, Parks Canada and the CSSC. The facilitator then set out an aggressive meeting schedule for the RRAB, including three meetings before the end of January 2000 (RRAB 1999). It was important that "the Minister of Fisheries and Oceans and the [BC] Minister of Environment, Lands and Parks be comfortable with designation by fiscal year-end [end of March]" (p. 5). The meeting then shifted to a discussion about the meaning of consensus, and what supplementary consultations would take place. This did not get very far, apparently for lack of time. In closing, MARPAC offered to give a tour of their training activities at Bentinck Island and Whirl Bay (RRAB 1999). To create goodwill, the MARPAC representative further suggested that the Navy would be able to lower the training charge limit at Whirl Bay from 50 lbs. to Table 6.3 Agenda for Meeting No. 1. 1 ) Introduction of Board Members. 2) Draft Terms of Reference. 3) Frequency of meetings and schedule for information/consultations. 4) Format and process for information/consultations. 5) Managing the information/feedback. 6) Making recommendations: consensus or strong majority? 7) Other business. 56 20 lbs., and time the training sessions to limit the impact on fish and other species near Race Rocks. In the month between Meeting Nos. l and 2, the facilitator gave presentations to a number of groups (including some on the RRAB) (Table 6.4), and the CSSC offered a workshop on the 13-moon seasonal round, held at Pearson College (RRAB 2000b). The CSSC also began discussions with local First Nations, who later reported: "all are interested in the process but don't want to be involved if it interferes with the Treaty process. They would like to meet separately" (p. 9). 6.2.2 Meeting No. 2 The second meeting of the RRAB took place from n:oo to 15:30 on January 5, 2000, at Pearson College in Metchosin, BC (RRAB 2000b). After introductions and a discussion of the agenda (Table 6.5), the facilitator led a discussion on the draft Terms of Reference. Pearson College and the Georgia Strait Alliance found the draft satisfactory and wanted to move on with the process. Others were not satisfied, seeking clarification on goals, ground rules, timelines, and the definition of consensus (RRAB 2000b). Once this topic was raised, Pearson College suggested that consensus "is where everybody is reasonably content and walks away from the table satisfied" (p. 3). After further deliberation, the facilitator asked the participants to submit comments in the days after the meeting, so that the sub-committee could prepare a new draft within a week. Table 6.4 Presentations given by RRAB facilitator, Dec. 1999. BC Land Use Co-ordination Office BC Ministry of Fisheries BC Parks Capital Regional District Roundtable on the Environment Department of National Defence Rural East Sooke Association Saanich Inlet Protection Society Sea to Sea Blue/Green Belt Conservancy Society for the Protection of Ayum Creek Sport Fishing Advisory Board The Land Conservancy Source: RRAB (2000b). Table 6.5 Agenda for Meeting No. 2 1) Purpose of meeting 2) Draft Terms of Reference 3) Consensus decision-making 4) MPA boundaries 5) Draft management plans 6) Updates from meetings / consultations 7) Other business Source: RRAB (2000b). This discussion was followed by an Ecosystem Overview Presentation by a representative of the Science Branch of D F O (Pacific Region) (RRAB 2000b). This presentation reviewed the species and ecosystems at Race Rocks, as well as "major gaps in our current knowledge and general recommendations on future research" (p. 3). The Georgia Strait Alliance enquired if 57 the ecosystem overview supports the extension of the Ecological Reserve boundary. The Science Branch representative replied: [the] objective which is focused upon will determine the requirements of the boundaries, e.g. if the objective is to protect a nesting area, the boundaries are probably sufficient. If the objective is to protect foraging sites the boundaries may be too small. (p. 4). Pearson College suggested the existing boundary "would work very well if everybody abided by it", and that they "would hate at this stage for boundary discussions to prevent decisions being made" (p. 4). The RRAB returned to the boundary discussion after lunch (RRAB 2000b). Before the first meeting, the facilitator had distributed a map depicting three options for the boundary of the M P A (Figure 6.1, p. 59). Option 1 was to keep the existing boundaries of the Ecological Reserve, which represent the 20-fathom contour line. Option 2 was to 'angularize' the Ecological Reserve boundaries, such that they are easier to mark and enforce. Option 3 was to add 100 m to the angularized boundaries. This map generated a great deal of discussion (RRAB 2000b): • The Georgia Strait Alliance and the Science Branch representative promoted the concept of buffer zones, such that a larger area of protected seabed would surround a smaller no-take zone. • The Science Branch representative further argued that a "bathymetric definition of the area would not be an effective method to enforce" (p. 6). The Georgia Strait Alliance concurred: "as a precedent, it is not an effective system for future MPAs" (p. 6). The Parks Canada representative also noted that in other parts of the world, "straight lines have been shown to be more effective and easier to understand" (p. 6); • The SFAB indicated that it supported a closure for rockfish, but sought "the continuation of fishing opportunities for transient species (e.g. halibut and salmon) within the existing reserve" (p. 5); • Pearson College reminded the group "that the objective for an MPA in general is not only to protect species and habitat but to increase research and public education" (p. 5). Overlaying the existing boundary of the Ecological Reserve "would be easier politically" (p. 5), since there are two halibut fishing spots on the southwest edge of the Ecological Reserve. "The SFAB might agree to a no-take in the existing area if the boundaries did not increase" (p. 5). 58 t \ O p t o n 1 • £aiitli»g Ecological RtMrv* BmtHttTjf i" » O p t b n 1 • Angulartiad Bountfary O Option 3 - U-ffl«r (Option 2 » 109m) AngialwdMi Bound.ry MNM MM I FMrMltf OpSon t OpSor.2 Opto 3 B M N e p ! » « » « « • » W I M » worn « t t H ao*a ffHMKK > • ' « » « >5>M«« ? ,«*« « « ] • » W i n at}**«iM IIBnMa U t t R i i l a < M9 •§•• tm «•*• «:«a mm Scale: Approx. 1:20,000. Source: RRAB (2000b), as provided by Pearson College (Fletcher 2002). Figure 6.1 Boundary options for the Race Rocks MPA, Jan. 2 0 0 0 . 59 • BC Parks said "this MPA cannot solve all problems today" (p. 5). The management plan could recommend a future increase of the MPA and/or Ecological Reserve; . The W W O A - N W was concerned that no-take meant 'no-go' (i.e. no human access), but was assured by an Oceans Directorate representative that the MPA would "continue to offer public access under some guidelines or regulatory authority" (p. 5); • The facilitator agreed that "enforcement is a major issue", and perhaps "stakeholders would support relatively small MPAs if they were properly enforced" (p. 5); and • The CSSC reminded the RRAB that "there are existing Supreme Court decisions that grant First Nations absolute rights to the fishery resources as well as treaty rights that supersede any new rules" (p. 5), and further suggested: "the MPA could be in place for a certain amount of time and then re-evaluated" (p. 6). The SFAB representative closed the discussion by asking for "a better-defined map with bathymetric lines and boundaries" (p. 6), for a SFAB meeting on January 20, 2000. The RRAB was then presented with a draft Ecological Reserve/MPA management plan, built on a proposal written by Pearson College (RRAB 2000b). The RRAB was asked to review the draft before the next meeting. Between Meeting Nos. 2 and 3, the MARPAC representative led a tour of the facilities and training sites at Bentinck Island and Whirl Bay (MARPAC 2000). The facilitator (with BC Parks) met separately with the SFAB and the sport diving community (RRAB 2000c). 6.2.3 Meeting No. 3 The third meeting of the RRAB took place between 12:00 and 16:00 on January 26, 2 0 0 0 at Pearson College (no agenda available) (RRAB 2000c). Terms of Reference The meeting began with the revision and endorsement of the Terms o f Reference, which "clarifies the objectives, process, role and conduct of the Advisory Board" (RRAB 200of, p. 1) (Table 6.6, p. 6i; full text in Appendix A, p. 125). O f particular note are the following sections: • On the RRAB's advisory role: "The RRAB shall act solely as an advisory body to BC Parks and D F O . Nothing in these terms of reference constitutes authority to perform operational or management functions, or to represent or make decisions on behalf of BC parks and/or D F O and/or First Nations" (p. 3); 60 Table 6.6 RRAB Terms of Reference (excerpts). Source: RRAB (200of). Full text in Appendix A (p. 125). Purpose The Race Rocks Advisory Board (RRAB) has been established to enable a Marine Protected Area designation under the Oceans Act at Race Rocks. The terms of reference have been developed to clarify the objectives, process, role and conduct of the Advisory Board. Objectives The RRAB will: • Represent key constituent groups or stakeholders; • Provide advice to DFO and BC Parks on the consultation process; • Collate and analyze feedback from consultations; • Make interim management recommendations to DFO and BC Parks for the establishment of a marine protected area at Race Rocks; and • Ensure community involvement in the establishment and on-going management of Race Rocks MPA. Participation The Race Rocks area is of interest to a wide range of constituents representing a broad spectrum of activities. The RRAB represents a reasonably comprehensive cross-section of interest groups and activities. The RRAB shall be comprised of, but not limited to, representatives from the following groups: [list removed] If a member/participant is unable to attend a scheduled Board meeting, they may invite an alternate from their constituency. Participants are encouraged to invite other members of their groups to attend RRAB meetings, with prior notification of the Chair and subject to space limitations. Roles The RRAB shall provide advice to BC Parks, DFO and First Nations regarding the development of a management plan for the MPA. The RRAB shall act solely as an advisory body to BC Parks and DFO. Nothing in these terms of reference constitutes authority to perform operational or management functions, or to represent or make decisions on behalf of BC Parks and/or DFO and/or First Nations. The RRAB shall draw on the expertise of its members and other sources in order to provide advice to BC Parks and DFO. The RRAB may serve as a forum for consultation and deliberation among its participants and as a source of consensus-based advice to BC Parks and DFO. Such consensus advice shall fairly represent the collective and individual views of the RRAB members and the constituencies they represent. Participants on the Race Rocks Advisory Board are encouraged to • Provide advice and information on their activities within and surrounding Race Rocks; • Actively participate in discussions; • Share airtime with others; • Offer respect for different viewpoints and attention when others are speaking; . Ask questions for clarification and mutual understanding; • Verify assumptions; • Deal with differences as problems to be discussed, not battles to be won; • Refrain from distracting others through side conversations, cell phones off; • Make a best faith effort to work toward an agreement at the table; • Represent the perspectives, concerns and interest of respective agencies or constituencies wherever possible to ensure that agreements developed are acceptable to the organisations, agencies or constituents that you represent; • Maintain dialogue with your constituency regarding the activities and discussions of the RRAB; and • Refer media contacts regarding the activities of the Board to the Chair/facilitator. Board members can speak on behalf of the Board not on the behalf of individual members. Process Recommendations by the RRAB will be made through a consensus-based process. The intent of this process is to provide the opportunity for all parties to participate in a manner which responds to their interests. If issues arise, whenever possible, final decisions will be made on the basis of recommendations supported by consensus as opposed to being unilaterally imposed. Consensus shall mean the "general agreement of all participants on a package of decisions or recommendations" and shall embody the following concepts: • Consensus does not mean total concurrence on every aspect of a decision, but all participants must be willing to accept the overall decision package. • If a participant withholds agreement on an issue(s), that participant is responsible for explaining how their interests are adversely affected or how the proposed agreement fails to meet its interests. The participant withholding agreement must propose alternatives and other participants must consider how all interests may be met. • Once consensus is reached on the overall package, it is assumed to be binding (Cormick et al. 1996). • All participants to a recommendation on which consensus had been achieved agree to exercise their rights, mandates, and responsibilities consistent with that recommendation and to take such further steps as may be necessary to give it effect. • If consensus is not achieved through this process, each participant will exercise their rights, responsibilities, and mandates as they see fit— unfettered as to statutory decision-making responsibilities and without prejudice to their rights and obligations by reason of having participated in the process. Deliverables The RRAB will deliver recommendations on levels of protection, goals and objectives to BC Parks, DFO and First Nations on the establishment of an MPA at Race Rocks. The Federal and Provincial Government in accordance with the joint MPA strategy for Canada's Pacific Coast will determine the final recommendations for a MPA at Race Rocks. Responsibilities of DFO and BC Parks DFO and BC Parks support the sharing of all information and dialogue from the consultative process. Representatives from the respective departments on the RRAB will endeavour to fairly represent the interim management recommendations developed by the RRAB. BC Parks and DFO will review the recommendations of the Advisory Board and consider those recommendations when developing criteria for the designation, management and regulation of Race Rocks Marine Protected Area and future MPA strategies. 6i • O n respectful deliberation: Participants are encouraged to: "share airtime with others; offer respect for different viewpoints and attention when others are speaking; ask questions for clarification and mutual understanding; verify assumptions; deal with differences as problems to be discussed, not battles to be won; [and] make a best faith effort to work toward an agreement at the table" (pp. 3-4); • On representing constituencies: Participants are encouraged to: "ensure that agreements developed are acceptable to the organisations, agencies or constituents that you represent; [and] maintain dialogue with your constituency regarding the activities and discussions of the RRAB" (p. 4); • O n the meaning of consensus: "Consensus shall mean the 'general agreement of all participants on a package of decisions or recommendations'" (p. 4). "Once consensus is reached on the overall package, it is assumed to be binding (Cormick et al. 1996) [citation in original]" (RRAB 200of, p. 4); and • On the responsibilities of DFO and BC Parks: "Representatives from the respective departments on the RRAB will endeavour to fairly represent the interim management recommendations developed by the RRAB" (p. 5). With the Terms of Reference established, discussion resumed on the boundary issue (RRAB 2000c). The facilitator described the results of various information sessions, reporting that the SFAB endorsed the bathymetric model, and the sport diving community "supported the bathymetric model with an extension to the 50 metre depth contour" (p. 2). Extensive discussion ensued: • CPAWS suggested that the RRAB focus on "what is important at the end of the day ... the establishment of the first MPA in Canada" (p. 2); • The local marina operators' representative indicated that many people know and recognise the existing footprint of the Ecological Reserve, but reminded the RRAB that the SFAB only supports "no-take of resident species", and is "still looking for fishing opportunities for transient species" (p. 3); • The CSSC expressed concern that "if this process was to establish a protected area then it should be protected in its entirety" (p. 3). First Nations "would be looking at this project for 4 to 5 years to see if MPAs work" (p. 3); • The Friends of Ecological Reserves "felt that the College is the primary constituent at Race Rocks and not fish harvesters. ...First Nations have suggested that they would suspend harvesting for 5 years. Is SFAB willing to do that?" (p. 3). . CPAWS and the Georgia Strait Alliance responded by saying: "to facilitate completion of the process [they] would rather support Option l with a no-take provision" (p. 3); 62 • Pearson College reminded the RRAB that the 20-fathom boundary of the Ecological Reserve was not based on science but on the limit of scuba diving. "The RRAB has to come to terms with the fact that this area is not scientifically defensible in terms of conservation and protection but that there is an urgency to move forward" (p. 3). There may have to be "a 20-year study to determine where to put boundaries, but until that time use the existing boundaries of the Ecological Reserve" (p. 3); • BC Parks suggest that the real problems lie with "compliance, enforcement and education" (p. 3). The Georgia Strait Alliance concurred, reiterating: "the RRAB should not get hung up on boundaries" (p. 3); After more discussion, Parks Canada suggested "until the objectives of the MPA are defined it is not possible to make a decision on boundaries" (p. 4). The marine scientists' representative asked when the boundary questions would have to be decided, and was told by an Oceans Directorate representative: "we would have to finish public consultations before a boundary decision can be made" (p. 4). Not resolving this issue, the facilitator moved on to the latest draft management plan (RRAB 2000c). There was discussion on the existing format of management plans for provincial Ecological Reserves, and a quick interjection by Pearson College that "the governments have to work together in the development of a unified management plan" (p. 4). The Friends of Ecological Reserves "inquired if the Province had a problem going forward with a joint plan" (RRAB 2000c, p. 4). BC Parks said it was only a question of format, which would be brought up with senior managers. In closing, the facilitator discussed expanding the representation of marine scientists on the RRAB, asking for names of people to contact. Between Meeting Nos. 3 and 4, the CSSC began organising a traditional burning ceremony that would take place on the shores of Beecher Bay (RRAB 200od). The CSSC later reported: "...the MPA initiative goes beyond Race Rocks.... First Nations people are looking at Race Rocks as what role they will play in future processes and in their interaction with senior levels of government" (p. 2). Also during this time, the Oceans Directorate and BC Parks held two public information meetings on February 13 and 16, 2000, which were attended by over 100 people, including the Mayors of Colwood and Metchosin, BC. 63 6.2.4 Meeting No. 4 Table 6.7 Agenda for Meeting No. 4. 1) Purpose of meeting The fourth meeting of the RRAB took place from 12:00-2) Agenda and minutes 16:00 on February 23, 2000 at the BC Parks office in Victoria 3) Update on public consultation (RRAB 200od). The SFAB and local marina operators' 4 ) R o u n d t a b l e u P d a t e s 5) Draft Management Recommendations representatives were conspicuously absent from the meeting. 6 ) P e r m i t p r o c e s s for r e s e a r c h a n d » r 1 r 1 1 /-•- 1 1 /- 1 1 education After the acceptance of the agenda (Table 6.7) and minutes, 7) Next steps the CSSC, D F O and BC Parks provided an update on their 8) other business activities (described above) (RRAB 200od). The W W O A - N W S o u r c e : R R A B ( 2 ° o o d ) ' distributed draft guidelines for whale watching operations at Race Rocks, which included a 200-m exclusion zone from shore. The W W O A - N W further suggested: "implementing many regulations would create an atmosphere of trying to find loopholes as opposed to an atmosphere of compliance" (p. 4). The facilitator then gave a slide presentation on the draft management recommendations, which had been distributed before the meeting (RRAB 200od). The RRAB then worked on refining the draft, addressing issues such as the management of vessel traffic, fishing, educational activities and whale watching. Though not discussed at length, the RRAB began developing a management and governance model where the MPA would be co-managed by D F O , BC Parks and First Nations, with the advice of the RRAB. Discussion then turned to the permitting process for the Ecological Reserve, which was administered by Pearson College on behalf of BC Parks (RRAB 200od). The meeting closed with the indication by the Oceans Directorate that there would be one final meeting "where the vision will be vetted and recommendations are accepted", and that "if there were interests in particular areas, groups could get together to discuss the recommendations" (p. 6). The month between Meeting Nos. 4 and 5 was filled with activity. The SFAB began lobbying publicly against the creation of a no-take zone. On February 27, 2000, the front page of the Victoria Times-Colonist read: "A Rocky Road: Not everyone wants Race Rocks declared a protected marine area" (Curtis 2000b, p. Ai) . In the article, the SFAB representative argued: "recreational fishermen should have a right to fish salmon and halibut in the proposed refuge. They are migratory species and it's hard to take away historic use" (p. Ai) . However, most 64 media coverage was balanced or in favour of the MPA (see Gilbert 2000), particularly with the launch of RACEROCKS.COM (March 11, 2000), attended by (among others) David Anderson, Thor Heyerdahl and Queen Noor of Jordan (Harnett 2000). About this time, side negotiations took place between the facilitator, various RRAB members and the SFAB. Negotiating directly with the SFAB, several E N G O s provided a guarantee that they would support boundary Option 1 (the Ecological Reserve boundary) if the SFAB agreed to the no-take zone. At a critical SFAB meeting attended by the facilitator and other representatives, the SFAB agreed to endorse a no-take zone at Race Rocks —to support the Oceans Act (1996)— provided it was not considered a precedent for other MPAs. 6.2.5 Burning ceremony On March 9, 2000, the Beecher Bay First Nation (with the support of DFO) hosted a burning ceremony on their Indian Reserve closest to Race Rocks (Fletcher 2000a). The ceremony was led by an aboriginal elder from Kuper Island, BC, and was attended by many members of the RRAB, other government representatives, students from Pearson College and representatives from several First Nations from southern Vancouver Island and from Washington State (Table 6.8). The ceremony centred on the symbolic burning of a cedar table served with traditional food (Fletcher 2000a). It was later described in an anecdote written by one of the Pearson College representatives: Everyone stood back a few meters and for 15 minutes or more the whole table and food burned. . . . When the fire started going down, more sticks were piled on the top after they went along the edge with a bucket pouring water, probably to cool the outer log along the side. Then the two blankets were carefully folded and placed on top, again the fire burned. As we sat watching, the smoke went straight up in the air and drifted out to sea over the graveyard for the first i o minutes. Then at a certain point it turned back and swept back down to the earth, enveloping everyone. Lea Charles [Beecher Bay First Nation] later told us this was a good sign, and that the ancestors had touched our faces welcoming us to their land, and they now knew who we were. The fire burned vigorously and then subsided to smoking embers. Tom and the ceremony leader talked for a few minutes about what message to convey to us. The leader spoke, saying that the elders were pleased and that indeed they would be with the young servers for the rest o f their lives whenever they needed help. There was a very positive feeling about the ceremony in those present. At this t ime, the elders came around with a basin o f water and we were all asked to wash our hands and faces, thus ending the ceremony. (Fletcher 2000a, p. i ) Table 6.8 Participants in the burning ceremony at Beecher Bay, March 9, 2 0 0 0 . First Nations: Beecher Bay First Nation (incl. Chief Burt Charles and Lea Charles); Coast Salish Sea Council (Tom Sampson, Cordon Hanson); LummiNation, Pene/akut First Nation (incl. ceremony leader) and other First Nations. Federal and Provincial Governments: BC Parks (Dave Chater, Doug Biffard, |im Morris); DFO (Marc Pakenham, Kelly Francis); MARPAC: (Duane Freeman, Lt. Com. Bill Laing, base commander) and Parks Canada (Jennie Sparkes). Pearson College: Garry Fletcher, Angus Matthews, Dr. Joe Maclnnes and others (including students). Source: Fletcher ( 2 0 0 0 a ) . 65 After the ceremony was over, a CSSC representative said: "whenever major decisions were being made it was the custom of their people to ask the ancestors for advice" (p. 1). Before First Nations "can talk and make decisions about important issues like this marine protected area proposal, we must get to know each other on their terms" (p. 1). 6.2.6 Meeting No. 5 The fifth meeting of the RRAB took place from 10:00-16:30 on March 22, 2000 at the BC Parks office in Victoria (RRAB 2000e). After the introduction of observers (including a representative from D F O Headquarters) and the acceptance of the minutes and agenda (Table 6.9), the CSSC thanked the RRAB members who participated in the burning ceremony. Pearson College described the launch of RACEROCKS.COM, and the facilitator thanked the SFAB for their endorsement of a no-take zone at Race Rocks. The SFAB then remarked that "over 100,000 potential anglers could be affected by this process", that "this outcome is not precedent setting ... each candidate MPA [is] a unique area and situation" (RRAB 2000e, p. 2). Pearson College replied that it was "important to recognise that the success of the MPA process at Race Rocks is based on the ongoing goodwill and cooperation of the primary users" (p. 5). The D F O co-ordinator and facilitator then introduced the independent facilitator who would lead the negotiation of the final recommendations (RRAB 200oe). This allowed the co-ordinator to sit as a D F O representative and full participant in the discussions. The independent facilitator walked the group through the recommendations using the 'single-text approach', which involves going through the draft as a group, line by line (see Fisher and Ury 1991). The following section reviews the consensus recommendations in their final form, and their progression through DFO's regulatory process. The proceedings of Meeting No. 6 will be discussed toward the end of the Chapter, in Section 6.4.4 (P- 75)-Table 6.9 Agenda for Meeting No. 5. 1) Purpose of meeting 2) Recommendations for interim management of Race Rocks MPA— facilitated by Judith Cullington 3) Governance 4) Developing a Race Rocks MPA budget 5) Updates from meetings/consultations 6) Other business Source: RRAB (200oe). 66 Recommendations Table 6.10 Consensus recommendations (excerpts). The recommendations are divided into six sections: designation, area boundaries, human use, environmental protection, management/governance framework and stewardship (Table 6.10; full text in Appendix B, p. 128) (RRAB 2000a). The designation section "recommends that Race Rocks be designated as a Marine Protected Area under the Oceans Act Section 35" (p. io). The area boundaries section specifies that the MPA should "coincide with the Ecological Reserve" (p. 10). The human use section includes provisions for boating, aviation, fishing, diving and educational activities, as well as a traditional use study (RRAB 2000a). Most notable is the voluntary stewardship approach to most activities, except for the creation of a no-take zone. The environmental protection section includes provisions to prohibit dredging, the development of non-renewable resources (e.g. mining, petroleum), and the installation of pipelines or utility corridors (RRAB 2000a). The RRAB further recommends the establishment of a conservation partnership for the protection, monitoring and research of birds, marine mammals and habitat. The management / governance framework calls for several co-management and multi-stakeholder committees, a local operator, and an enforcement Area boundaries • Recommend that the boundary for Race Rocks MPA coincide with the Ecological Reserve boundary, being all waters within the 36.5-metre (20-fathom) line as described on Canadian Hydrographic Chart 3641. Human use • Recommendations for vessel and boating management guidelines addressing the following areas will be developed in consultation with user groups: speed limits; anchoring restrictions; shoreline restriction; considerations when whales are within the MPA boundary; sensitive areas restrictions (i.e. kelp beds); ballast water discharge and vessel traffic considerations; vessel and boating management guidelines will de developed in consultation with user groups; and routine monitoring and reporting of vessel activity. • Recommendations for the management of aviation activities: helicopter traffic by authorization; and no over flights. • Recommendation for the management of fishing activities: establish a "no-take" zone for all species within the 20-fathom contour line with other conservation and protection measures as recommended by the Steering Committee. • Recommendations for management of diving activities to be developed in consultation with user groups: volunteer stewardship developed in cooperation with the dive community; educational and training programs for the dive community; adaptive development and application of Reef-keepers and other observation programs; and routine monitoring and reporting of diving activity. • Recommendations for the management of educational activities and research: adaptive and integrated permit process for education and research, as per Ecological Reserve Act example monitored by Eco-warden Operator; develop a spectrum of learning opportunities including internet-based learning opportunities about MPAs; educational and research activity reported annually; and develop learning and research opportunities which have minimal impact on ecosystem. • Recommendations for the development of a Traditional Use Study: through consultation with First Nations, develop terms of reference and framework for a traditional use study, including translation; conduct traditional use study; and working cooperatively, develop marine ecosystem-related curriculum for schools to further understanding of First Nations' relationship with Race Rocks. Environmental protection • Recommendations for the management o f dredging and dumping: dredging of any kind is prohibited in Race Rocks MPA; and disposal of any material, including overboard discharge of sewage, is prohibited in the Race Rocks MPA. (Continued next page) 67 Pacific Steering Committee (First Nations, BC Parks, DFO) Race Rocks Management / Implementat ion Committee (First Nations, BC Parks, DFO) Race Rocks Advisory Board (post-designation) (cross-sector representation) Eco-warden operator Source: Interpreted from RRAB (2000a). Figure 6.2 Proposed Management / Governance Framework. regime based on partnerships and voluntary compliance (RRAB 2000a) (Figure 6.2). The management committees would be as follows: • Operating coast-wide, a Pacific Steering Committee of First Nations, BC Parks and DFO representatives (co-managers) would guide the designation of MPAs in BC; . At Race Rocks, a Management / Implementation Committee of First Nations, BC Parks and D F O representatives (co-managers) would guide the management of the Race Rocks MPA; and . This committee would receive advice from a multi-stakeholder Race Rocks Advisory Board, in its post-designation form. Echoing earlier recommendations, the final section on stewardship calls for a "voluntary compliance and stewardship program" (RRAB 2000a, p. 13): Rather than develop a complex regulatory framework for protection and conservation, there are strong indications that a voluntary compliance and stewardship program will achieve the goals and objectives as described herein. Principal stakeholder groups have expressed a keen interest in not only developing "best practices" but also working towards ensuring a high degree of compliance, (p. 13) • Recommendations for the management of exploration for, and development of, non-renewable resources: that the exploration for, or development of, non-renewable resources is prohibited in the Race Rocks MPA; and no pipelines or utility corridors. • Recommendations for the protection o f birds and habitat: develop a structured monitoring program and protocol for other activities; establish appropriate conservation measures and protection areas; develop partnerships with CWS [Canadian Wildlife Service], Rocky Point Bird Observatory Society etc.; use Internet capability for non-intrusive observation; and routine monitoring and reporting. • Recommendations for the protection of marine mammals and habitat: develop partnerships with all groups for monitoring and research within a structured program; establish protection measures where appropriate; partnerships with whale watching industry for public education; work with marine mammal viewing industry to develop best practices; use Internet capability for non-intrusive observation; and routine monitoring and reporting. Management / Governance Framework • Pacific Steering Committee: consists of a representative from First Nations, BC Parks and DFO; develops policy and management recommendations for ERs [Ecological Reserves] / MPAs; and identifies areas of interest and process for designation; and provides general direction for Race Rocks Management / Implementation Committee. • Race Rocks Management / Implementation Committee: consists of a representative from First Nations, BC Parks and DFO; implements and co-ordinates the management of Race Rocks ER / MPA; provides policy and management recommendations to government departments regarding ER / MPAs; provides direction for the Race Rocks ER / MPA Eco-warden Operator; works with the Race Rocks Advisory Board; and provides direction for ER / MPA evaluation. • Race Rocks Advisory Board (post designation): Cross-sector representation; provides advice to Pacific Steering Committee and Race Rocks Management / Implementation Committee on management issues; facilitates communications with constituents; makes recommendations for the operations of Race Rocks Marine Protected Area; and provides advice and participates in ER / MPA evaluation. • Eco-warden operator: direction provided by Race Rocks Management / Implementation Committee; manages day-to-day operations in Race Rocks ER / MPA; facilitates permit system for research and education; facilitates compliance program; develops information and education programs; and assists with ongoing evaluation and monitoring. • Recommendations for compliance: Emphasise partnerships and voluntary compliance through education; support stewardship initiatives; develop enforcement response by appropriate government agencies, as required; and develop a protocol for reporting to the Steering Committee and Management / Implementation Committee. Source: RRAB (2000a). Full text in Appendix B (p. 128). 68 6.2.7 Consensus vs. written recommendations For the most part, the negotiation of the final recommendations involved few significant differences in opinion (RRAB 200oe). Further, the consensus negotiations —as recorded in the minutes of Meeting No. 5— are well reflected in the written recommendations (RRAB 2000a). There are two notable exceptions: the negotiation of the provisions for a no-take zone (important differences in opinion), and the provisions for funding the Race Rocks MPA (changed in the written recommendations). No-take zone The CSSC led the final negotiations for the no-take zone by proposing a "no-take for a trial five-year period", arguing that "First Nations support conservation and suggest a 5-year period to research the effects of an MPA on the surrounding area" (p. 4). Pearson College supported "the suggestion of the five-year window to ensure that we review the goals and achievements of the MPA" (p. 4). The Georgia Strait Alliance then indicated support for any wording that "wouldn't prejudice First Nations and their rights" (p. 4). Having already endorsed the no-take zone (with no conditions), the SFAB responded: "the intent is no fishing for everybody" (RRAB 2000e, p. 4). This zone should include "the entire water column to the 20-fathom contour line" (p. 4). After some discussion, the RRAB agreed to this, and reached consensus on the following statement: Existing fishery and harvesting closures be expanded to a no-take zone within the 20-fathom contour line with other conservation measures as recommended by the steering committee. (p. 4) This was shortened slightly in the written recommendations. Establish a "no-take" zone for all species within the 20-fathom contour line with other conservation and protection measures as recommended by the Steering Committee. (RRAB 2000a, p. 10) Funding the Race Rocks MPA As part of the compliance provisions for the Race Rocks MPA, the RRAB proposed that: "all levels of government financially support compliance, research and education" (RRAB 200oe, p. 6) at Race Rocks. In the written recommendations, this was shortened to "support stewardship initiatives" (RRAB 2000a, p. 13), with no explicit commitment to funding. 69 6.3 Proposals for designation To recapitulate, the RRAB negotiated consensus recommendations for the creation of Canada's first Oceans Act M PA, including a no-take zone. Among other things, the MPA would be co-managed, provide for a traditional use study, support the self-regulation of user groups, and reinforce the stewardship of Pearson College. As put by the co-ordinator, it was time for the recommendations to "move up the line" (RRAB 200oe, p. 7). 6 . 3 . 1 Draft Feasibility Report Before being submitted to the Minister of Fisheries and Oceans (now Herb Dhaliwal), the recommendations would be wrapped into larger, more comprehensive documents. The first of these was entitled the Draft Feasibility Report and Recommendations, which was prepared by the Oceans Directorate of D F O (Pacific Region), with the assistance of Parks Canada, BC Parks and Pearson College (RRAB 2000a). The Reportwas also circulated for review by the RRAB (RRAB 200oe). The Report included background information, an account of the public consultation process, and the recommendations reviewed above (RRAB 2000a). It also described the relationship between First Nations and the Race Rocks MPA: From a First Nations perspective, the Race Rocks area has cultural significance with respect to traditional use and management of the area's resources. There is recognition that, should a Marine Protected Area be established, it will not infringe on First Nations' existing Treaty rights, traditional, food, ceremonial interests or relationship with the area. Further, there developed a significant opportunity to develop co-operative management and First Nations' educational opportunities. (p. 7) 6.3 .2 Proposal to Designate The role of First Nations was reinforced in DFO's formal Proposal to Designate Xwaydn (Race Rocks) Marine Protected Area (DFO 2000b). As is evident in the title, Xwaysr] was now given a prominent place in the name of the proposed MPA. The Proposalalso strengthens provisions for the co-management of Race Rocks: Stewardship of the Xwayarj (Race Rocks) area is entrusted to all Canadians. To ensure that the interests of all Canadians are fairly represented in management processes for the area, three lead steward groups will oversee the management of the Xwayar) (Race Rocks) area. The tri-partite management will be comprised of the Coast Salish First Nations people; the provincial government through the Ministry of Environment, Lands and Parks; and the federal government through Fisheries and Oceans Canada. (P- 5) 70 This arrangement is further described in a section proposing a "joint Management Committee" (p. 17): Co-operative Management: It is recommended that a joint Management Commit tee consist ing o f First Nations, Fisheries and Oceans Canada and BC Parks be established to ensure that the planning and management o f the area is co-ordinated, effective and efficient and that Fisheries and Oceans Canada and BC Parks, as the lead public agencies, are publicly accountable for achieving the area's goals and objectives. Among further provisions, the Proposal includes an assessment of Race Rocks based on IUCN criteria, and a timetable for the final designation of the MPA (Table 6.11). 6.4 Subsequent events With the Proposal fmaWsed by D F O (Pacific Region) and 'sent to Ottawa', the RRAB awaited Ministerial agreement-in-principle and an announcement of designation. On July 29, 2000, an editorial in the Vancouver Sun read: A remarkable advisory board representing 17 different communi ty interests f rom sports anglers to the Navy to First Nations to scientists and environmentalists — m i r a c l e o f miracles in this polarized p r o v i n c e — achieved consensus. ... Dhaliwal has the power to simply declare Race Rocks a Marine Protected Area. This is a win-win scenario that almost everybody wants. Why doesn't he just do it? (Hume 2000, p. B5) As time passed, it became clear that X way3rj was but one set of rocks in the national landscape of political agendas and events. Most salient was the conflict in Miramichi Bay, New Brunswick, which escalated in the late summer of 2000. Table 6.11 Proposed timetable for the designation o f the Race Rocks MPA. Date Milestone Jun. 30, Preparation of the Race Rocks 2000 MPA proposal Jul. 31 Agreement/support from key stakeholders, relevant provincial and federal agencies and committees Aug. Minister (agreement-in-principle) Sept. Federal / Provincial announcement of designation or the timing of designation and implementation of interim management arrangements Sept. 30 Commence management planning process Jun. 8, Canada / BC approval of 2001 management plan Dec. 1 Regulatory regime completed Source: DFO (2000b). 6.4.1 Conflict at Miramichi Bay As discussed in Section 3.3.4 (p. 19), the Regina vs. Marshall (1999) ruling had recently reaffirmed the Mi'kmaq's claims of "a treaty right to participate in the commercial fisheries" (Davis and Jentoft 2001, p. 226). As described by Davis and Jentoft (p. 227): ...the Mi 'kmaq immediately made plans to begin f ishing commercially, targeting the lucrative lobster fishery. ... Non-aboriginals threatened direct action to stop what was now being framed as a frontal assault on the conservation o f sustainable lobster stocks and the basis o f their l ivelihoods. DFO fisheries and Royal Canadian Mounted Police officers were engaged in keeping the sides separated as well as in seizing boats and gear, charging Mi 'kmaq for f ishing out o f season and wi thout licenses, and arresting non-aboriginals for destroying Mi 'kmaq fishing gear. 71 The Burnt Church First Nat ion was the m o s t assertive M i ' k m a q group, " i ns i s t i ng that the Marshall decision enabled t h e m to i m p l e m e n t thei r own f isheries m a n a g e m e n t sys tem" (Davis and Jentoft 2001, p. 228). The escalat ion o f tens ion between m e m b e r s o f the Burnt Church First Na t ion and D F O off icers led t o open displays o f force on each side. The m o s t publ ic ized clash took place on Augus t 30, 2000, w h e n a D F O boat r a m m e d and ran over a M i ' k m a q vessel, fo rc ing all the occupants to j u m p into the water. Th is event was recounted by a M i ' k m a q reporter for the Canadian Broadcast ing Corpora t ion : I looked up ... just in time to see three natives jumping off their rammed boat. A friend of mine was being clubbed by the officers as he was trying to rescue the guys in the water. He was saved from being hauled onto the DFO boat by other natives throwing stones. The officers had to let him go to shield themselves from the rocks. It was satisfying to finally see a national network actually video a DFO boat ramming a native boat. It's been a tactic used by the DFO before, but of all the media that gathered here during these past weeks, none had managed to get it on camera. A picture can tell you a million stories. (Somerville 2000, p. 1) Video o f the clash was broadcast on the nat ional news, leading to publ ic d isapproval o f DFO's act ions (see Isaac 2000). It also greatly exacerbated tens ions between D F O and First Na t ions across the country, many o f wh ich felt a responsib i l i ty to demonst ra te the i r sol idar i ty w i th the M i ' k m a q at Burnt Church. 6.4.2 'O f f i c i a l des igna t ion ' The conf l ic t at M i ramich i Bay con t inued in to September 2000, over lapp ing w i th the 'off icial des igna t ion ' o f t h e X w a y a r j (Race Rocks) Mar ine Protected Area. T h o u g h the regulatory process was sti l l underway, a ceremony was held at Race Rocks on September 14, 2000, a t tended by Herb Dhal iwal , Joan Sawicki (BC Min is ter o f Env i ronment , Lands and Parks), as well as m e m b e r s o f the RRAB (Figure 6.3). The ceremony represented the jo in t Minister ia l S o u r c e : Pearson college (Fletcher 2002). endorsemen t o f the recommenda t ions o f the RRAB, F i g u r e 6 j Ministers Dhaiiwaiand sawicki with the RRAB and students from Pearson College. 72 including an indication that "Race Rocks will now be managed co-operatively by the Advisory Board, along with First Nations, D F O and BC Parks" (DFO 2000c, p. i). However, the whole event was a strain for a representative of the CSSC, who told a reporter: "it's hard for me to sit there as an aboriginal... it took all my energy to sit there" (Watts 2000, p. F4). The situation was made all the more difficult by the presence of protestors from the T'Sou-ke and Songhees First Nations, who arrived with drums and placards. As fellow members of the Te'mexw Treaty Association, they argued that the MPA "will protect the area, but in the end it will just keep us out" (p. F4). In the end, most participants in the ceremony felt that the protests did not compromise the Race Rocks MPA, or the work of the RRAB. The net effect of the ceremony was to bring the RRAB's recommendations into the public spotlight, to strengthen Race Rocks' public identity (complete with a logo; Figure 6.4), and to give many an impression that the Race Rocks M PA was a fait accompli. 6.4.3 Gazette regulations Throughout this time, D F O (Headquarters) was preparing draft regulations and the Regulatory Impact Analysis Statement for theXwayar) (Race Rocks) Marine Protected Area, which would have to be approved by the Privy Council Office and the Department of Justice. On October 28, 2000, the approved draft regulations appeared in the Canada Gazette, Part I (O'Sullivan 2000). As described in Section 3.2.3 (p. 14), interested persons were called upon "to make representations with respect to the proposed Regulations within 30 days after the date of publication of this notice" (p. 3369). The proposed regulatory text was short, reflecting the only 'hard' outcome of the RRAB: the agreement to create a no-take zone (Table 6.12, p. 74). The accompanying Regulatory Impact Analysis Statement (see Appendix C, p. 131) incorporates most other sections of the Proposal to Designate Xwaydij (Race Rocks) Marine Protected Area (DFO 2000b). However, the Statement includes two provisions that represent a departure from both the Proposal and the RRAB consensus recommendations. , racerocks.com R A C E R O C K S M a r i n e P r o \m c. t u i A r e t Source: Pearson College (Fletcher 2 0 0 2 ) . Figure 6.4 Logo for X"ay3r)/Race Rocks. 73 First, the Statementrefers to the voluntary restriction of traditional resource activities at Race Rocks, a concept not discussed by the RRAB: Table 6.12 Regulations published in the Canada Gazette (excerpts). XwaYeN (RACE ROCKS) M A R I N E PROTECTED AREA REGULATIONS DESIGNATION Four C o a s t Sal ish First N a t i o n s , Beecher Bay, T 'Sou-ke , S o n g h e e s a n d E s q u i m a l t N a t i o n s , c l a i m t h e eas te rn e n d o f t h e St ra i t o f Juan de Fuca as pa r t o f t h e i r t r a d i t i o n a l t e r r i t o ry . A l t h o u g h t h e c r e a t i o n o f t h e M P A d o e s n o t res t r i c t h a r v e s t i n g by First N a t i o n s f o r f o o d , soc ia l o r as the XwaYeN (Race Rocks) Marine c e r e m o n i a l p u r p o s e s , they v o l u n t e e r e d t o f o r e g o t h i s ac t iv i ty in Protected Area s u p p o r t o f t h e d e s i g n a t i o n o f t h e M P A . ( O ' S u l l i v a n 2000, p. 3367) 1. The area within the 20-fathom (36.58 metre) contour line as shown on the chart set out in the schedule is hereby designated Second, the management/governance framework proposed by the RRAB was not included. The sections on co-management make no mention of First Nations, referring instead to co-operation between D F O and BC Parks, as well as "marine mammal watching, guided diving, research and education, ballast water management, National Defence and Transport Canada programs in the area" (p. 3366). PROHIBITION 2 . ( 1 ) [definitions removed] (2) No person shall remove from XwaYeN (Race Rocks) Marine Protected Area any (a) fish; (b) part of the fish habitat; or (c) living marine organism that forms part of the ecosystem of fish. (3) Subsection (2) does not apply to removal for scientific research for the protection and understanding of the XwaYeN (Race Rocks) Marine Protected Area. COMING INTO FORCE 3. These Regulations come into force on the day on which they are registered. Source: O'Sullivan (2000). Full text (including Regulatory Impact Analysis Statement) in Appendix C (p. 131). The Statement claims that these new provisions were recommended by the RRAB, which was a surprise to the CSSC, other members of the RRAB, and DFO (Pacific Region). This also caused offence to several Douglas Treaty First Nations. In November 2000, the Chiefs of the Beecher Bay, T'Sou-ke and Songhees wrote a letter of objection to the Minister of Fisheries and Oceans, citing the Delgamuukw vs. British Columbia (1997) decision, infringement of Douglas Treaty rights, and lack of consultation (RRAB 2001). It is not clear whether this objection was a direct result of the Gazette publication, or whether it derived from earlier events such as the 'official designation' ceremony. Regardless, the regulatory process was halted immediately. In December 2000, Oceans Directorate personnel (DFO, Pacific Region) met individually with the Chiefs, acknowledging that proper consultation had not taken place (RRAB 2001). A subsequent meeting appears to have taken place between the Chiefs and Herb Dhaliwal. By June 2001, the Chiefs had written a letter of support for the MPA, on the condition that there was true co-operation and acknowledgement of Douglas Treaty rights. 7 4 6.44 Meeting No. 6 Little further progress was made before the sixth meeting of the RRAB, which took place from 11:00-14:30 on December 6, 2001 at the Coast Guard base in Victoria (RRAB 2001). The meeting was only attended by government, E N G O and Pearson College representatives, and many of these representatives had changed from previous meetings. The primary purpose of the meeting was to keep the RRAB abreast of the status of the Race Rocks MPA (RRAB 2001). The Oceans Directorate began by providing an update on the ongoing discussions with Douglas Treaty First Nations (reviewed above). There was: ...the need for another version of the regulations that better captures First Nations rights to access resources for Food, Social and Ceremonial purposes and indicates that these rights are not being infringed upon. (RRAB 2 0 0 1 , p. 2) This prompted extensive discussion: . Pearson College indicated that there were "very serious flaws in the wording of the Gazette piece, not reflecting the recommendations of the RRAB", and that there was a "serious disconnect between Ottawa and the RRAB". Further, it was hoped that "the new wording would be reviewed by the Board so that it can go through the second time without difficulties", since "failure at this juncture would be disastrous" (pp. 1-2); • CPAWS "pointed out that a lesson to be learned from this is to talk of co-operative management and steering committee participation, that First Nations must be invited as co-chairs for meetings, rather than participants" (p. 2); • Pearson College concurred that tripartite arrangements are necessary, then expressed concern "that the Board was under the impression that [the CSSC] had been present as overall representative of First Nations", and asked "whether future boards will have representatives from the CSSC", given that "a great deal had been learned [from them]" (P- 2); • The Oceans Directorate replied: "First Nations must be allowed to decide how they wish to be represented, whether as individual Chiefs or with one person representing all". Thought the CSSC's role "has been critical to the process ... in retrospect, there should have been more active communication with Chiefs who had a specific interest in the area" (p. 2); and • BC Parks agreed that "First Nations want government-to-government meetings first... the process is challenging and frustrating for those who wish to see [the Race Rocks MPA] happen, but First Nations have a protocol they expect to be adhered to" (p. 2). 75 The meeting then turned to discuss the status of other Pilot MPAs, and the draft management plan for the Race Rocks Ecological Reserve (RRAB 2001). With the MPA process on hold, BC Parks again sought to develop its own management plan (completed in 2002, see ESD 2002). BC Parks led the RRAB through the most recent draft, seeking comments. 6.5 Summary The RRAB process and surrounding events can be summarised as follows: • The RRAB was convened by the Oceans Directorate of D F O (Pacific Region), with the cooperation of BC Parks and support of Parks Canada. The RRAB was co-ordinated by an employee of the Oceans Directorate, who also facilitated most of the meetings. The negotiation of the consensus recommendations was led by an independent facilitator; • The RRAB included representatives from government agencies, First Nations, E N G O s , user groups, marine scientists and Pearson College. Attendance at RRAB meetings was strongest among government, First Nations, Pearson College, E N G O and sport diving representatives; . The RRAB developed a Terms of Reference that provided guidance on the RRAB's advisory role, respectful deliberation, representing constituencies, the meaning of consensus, and the responsibilities of DFO and BC Parks; • The RRAB co-ordinator/facilitator presented three boundary options to the RRAB. The boundary discussion dominated the proceedings until a compromise was negotiated outside the consensus process, in which the SFAB agreed to a no-take zone if the E N G O s agreed to the smallest boundary option; • The consensus recommendations provide for a series of co-management (First Nations-BC Parks-DFO) and multi-stakeholder (RRAB) committees, as well as a local operator for the Race Rocks MPA. The co-management provisions were strengthened in the MPA proposals written by D F O (Pacific Region). The proposals included 'Xwayarj' in the name of the MPA; • Coincident events at Miramichi Bay compromised the relationship between D F O and First Nations across Canada, and complicated the 'official designation' ceremony; • The Regulatory Impact Analysis Statement prepared by D F O (Headquarters) departed from the proposals submitted by D F O (Pacific Region), prompting a formal objection by Douglas Treaty First Nations. D F O (Pacific Region) is working with Douglas Treaty First Nations to develop a regulatory text that respects aboriginal and treaty rights, as well as a government-to-government relationship between Canada, BC and First Nations; and • With the MPA on hold, BC Parks has proceeded with the finalisation of a management plan for the Race Rocks Ecological Reserve. 76 Chapter 7 - Voices of the Participants This chapter summarises the views of participants in the Race Rocks Advisory Board, structured by the theoretical framework developed in Chapter 4 (Table 7.1). The text is based on primary research material, most of which is presented anonymously. Permission was obtained for the use of primary material that is or could be readily attributed to one individual or group. For example, permission was obtained for citations of'the facilitator', but not 'a user group representative', or 'a participant'. For clarity, anonymous citations of the same individual are numbered by order of first appearance (Anon, i , 2, etc.). As a preface, all the participants interviewed expressed their respect for the D F O co-ordinator/facilitator (henceforth the 'facilitator'; see Section 6.1.1, p. 53), and distinguished these sentiments from their views on the RRAB process. 7.1 Challenge This section reviews participants' opinions on the degree to which the RRAB process challenged participants to be innovative, reach fair decisions, and form partnerships in implementation (see Section 4.4.2, p. 34). 7.1.1 Innovative Participants' opinions on the innovativeness of the RRAB process focused on the means by which the group produced consensus recommendations for the creation of a no-take zone, and for the co-management of Race Rocks by First Nations, BC Parks and D F O . No-take zone Most participants felt that the no-take zone/boundary discussion was a 'make or break' issue, and therefore supported the compromise negotiated between E N G O s and the SFAB. One E N G O representative dealt directly with the SFAB: The key thing was getting the designation and that it be no-take. I thought is was silly to argue over boundaries in this particular case— the differences betweeen the options were, ecologically speaking, Table 7.1 Theoretical framework. Concept Characteristic(s) Challenge • Innovative • Fair decisions • Partnerships in implementation Respect • Inclusive • Accountable to the participants • Respectful of identities Balance • Fair process through skilled facilitation 77 i n s i g n i f i c a n t . W e d i d n o t see w h a t ro le a 5 0 - m e t r e bu f fe r z o n e c o u l d p lay excep t t o look s i l ly a n d t o s l o w d o w n t h e p r o c e s s even m o r e . W e k n e w SFAB d i d n ' t w a n t t o see t h e b o u n d a r i e s e x t e n d e d o n e c e n t i m e t r e . So I ca l led t h e m a n d w e c h a t t e d a l o n g w h i l e , a n d I h i n t e d t h a t w e w o u l d n ' t c rea te a c l a m o u r at t h e tab le o n b o u n d a r i e s i f t h e no - take w a s agreed t o . I d o n ' t k n o w h o w m u c h t h i s a f fec ted t h e i r d e c i s i o n , b u t I d o k n o w t h a t it w a s n ' t t h e so r t o f t h i n g t h a t c o u l d be t a l k e d a b o u t at t h e b r o a d e r t a b l e w i t h o u t it b e c o m i n g a larger, m o r e po l i t i ca l a n d p o t e n t i a l l y p a i n f u l d i s c u s s i o n . ( A n o n . 1) In another instance, a participant joined the facilitator at a SFAB meeting, playing a critical role in convincing the SFAB to endorse the no-take zone at Race Rocks: . . . i t 's an i n t e r e s t i n g ro le t h a t t h e c o m m u n i t y v o l u n t e e r s p lay in t h i s . W e e n d e d u p w i t h a c o n s e n s u s at a real ly, real ly aggress ive S p o r t F ish A d v i s o r y Board m e e t i n g — a s m a l l g r o u p , b u t an a g g r e s s i v e m e e t i n g . W e e n d e d u p w i t h a c o n s e n s u s t h a t e v e r y b o d y h a d t o g ive u p s o m e t h i n g . T h a t t h e S p o r t F ish A d v i s o r y B o a r d w o u l d in fac t r e c o m m e n d a c o m p l e t e c l o s u r e at Race Rocks, p r o v i d e d t h a t w e d i d n ' t m a k e t h e reserve any b igger . A n d t h a t w a s real ly t o u g h t h i n g t o g ive u p . ... I w e n t t o t h a t w i t h [ the f a c i l i t a t o r ] . H a d [ the fac i l i t a to r ] g o n e t o t h a t m e e t i n g a lone , t h e y ' d s t i l l be a r g u i n g , I real ly be l ieve it. B u t luck i ly , t h e r e w a s s o m e c o m m o n sense, j u s t a b o u t : " l o o k , i t 's a t i n y area, y o u ' r e g o i n g t o b u s t al l y o u r gear t h e r e anyway , a r e n ' t f i s h e r m e n c o n c e r n e d a b o u t c o n s e r v a t i o n ? " T h e r e w e r e t h i n g s t h a t I c o u l d say t h a t p e r h a p s a g o v e r n m e n t o f f i c ia l c o u l d n ' t say. A n d t h e y sa id , "we l l you c a n ' t m a k e i t any b i g g e r " , a n d [ the f a c i l i t a t o r ] at t h a t p o i n t h a d s h o w n t h e m a m a p , w h i c h s h o w s t h e c i rc les o f e x p a n s i o n . A n d I w a s ab le t o say: " t h i s e x p a n s i o n ' s n u t s ! N o way! W h a t ' s t h e p o i n t ? W e d o n ' t k n o w w h a t ' s d o w n t h e r e anyway . " ... So be fo re y o u k n o w it I 'm s o r t o f g a n g i n g u p o n [ the fac i l i t a to r ] as w e l l , b u t t h e c o n s e n s u s w a s reached b e c a u s e t h e y s a w s o m e c o m m o n sense t o w h a t w e were p u t t i n g f o r w a r d . ( A n o n . 2) Other participants were concerned that the no-take zone, as negotiated, will be unenforceable. As put by one participant: W h e n it c o m e s t i m e t o e n f o r c e r e g u l a t i o n s , h o w t o p r o v e t h a t s o m e o n e is i n s i d e o r o u t s i d e a park , w h e n y o u ' v e g o t al l t h e s e s p i d e r f i n g e r s . These p e o p l e a r e n ' t even g o i n g t o k n o w i f t h e y are ins ide o r o u t s i d e o f t h e p a r k a t t i m e s . F r o m an e n f o r c e m e n t pe rspec t i ve , i t ' s far eas ier t o have a n g l e d , s t r a i g h t - l i n e b o u n d a r i e s , so t h a t you can say t h a t t h i s p e r s o n is c lear ly i n , o r c lear ly o u t . I f y o u have a no - take M P A , a n d y o u ' r e g o i n g t o c h a r g e a n y b o d y w h o ' s f i s h i n g in it, f i r s t y o u ' r e g o i n g t o have t o p r o v e t h a t t h e y w e r e in it. T h a t ' s g o i n g t o be near i m p o s s i b l e at Race Rocks, un less t h e y ' r e s t a n d i n g o n t h e s h o r e l i n e . So f r o m an e n f o r c e m e n t pe rspec t i ve , I 'm n o t real ly sure h o w D F O ' s g o i n g t o d o t h a t yet . ( A n o n . 3) Co-management Most participants felt that the incorporation of the co-management model in the recommendations was a remarkable accomplishment, and credited the role played by the CSSC. In the words of one: [The CSSC] h a d p r o m o t e d t h e ro le o f First N a t i o n s a n d o u r u n d e r s t a n d i n g t o t h e ex ten t t h a t w e al l a g r e e d — e v e n [ the SFAB] a n d o t h e r s w h o h a d a real p r o b l e m w i t h i t — w e al l ag reed t h a t F i rs t N a t i o n s w e r e n ' t a s t a k e h o l d e r , t h e y w e r e a g o v e r n i n g agency. A n d t h e r e c o m m e n d a t i o n o f t h e A d v i s o r y B o a r d q u o t e s w h a t [CSSC rep resen ta t i ve ] ca l led a th ree - l egged m i l k s t o o l , t h e y are e q u a l t o t h e federa l g o v e r n m e n t a n d p r o v i n c i a l g o v e r n m e n t , a n d t h e rest o f us j u s t so r t o f fa l l in l ine b e h i n d . ( A n o n . 2) Another participant felt that the co-management provisions were all the more important in light of the events at Miramichi Bay: I remember having a conversation with [a CSSC representative] ... I said that what I think you can do here is basically to get DFO to come to the table and commit to the sort o f things that your people are fighting for on the east coast. It's basically saying the same thing: ... if you feel you have the right — t h e j u r i s d i c t i o n — to fish, that's also the right or jurisdiction to manage protected areas. You have a right to full, or at least equal partnership in the management o f a protected area. To me, I thought this was helping that cause, though there would be many First Nations who thought [the CSSC] was a traitor. To me, [s/he] was a bit o f a hero to be f ighting hard to make sure that there was that co-operative, co-managed condit ion. Everything else follows f rom that. (Anon, 1) At the same time, this participant knew that co-management would be problematic for DFO: It would be problematic to some lawyers in DFO to call it "co-management", so we call it "co-operative management". Parks Canada has the same p r o b l e m — they don't want to call it "co-management" because the final authority — i n their m i n d — rests with the Minister. You can have these co-management boards or steering committees, but i f there's a contentious issue, and things are split down the middle, then the final authority rests with the Minister. (Anon. 1) 7.1.2 Fair decisions For most participants, the fairness of decisions made by the RRAB revolved around the scientific defensibility of the no-take zone, as negotiated. To the E N C O s , the boundaries of the no-take zone were too small to be defensible. In the words of one E N G O representative: What I said, honestly ... i f you really wanted to do this th ing right, you should look at the whole area o f Vancouver Island. There's ballast water coming in, there's heavy f ishing o f rock fish outside the Ecological Reserve/MPA, compromis ing protection goals inside it. (Anon. 1) In contrast, some user groups felt that the no-take itself was indefensible. As argued by one user group representative: The th ing to remember is that the marine protected area only works for the protection o f resident species; it does nothing for migratory species, unless you cover the whole coast, and that's not a factor in the solut ion. ... no matter what you did with the Race Rocks area you're not going to protect salmon runs, for instance. You're not going to protect Fraser River, Thompson stocks, Skeena stocks, by inst i tut ing an MPA at Race Rocks. It's just not going to happen. (Anon. 4) Another representative countered that the no-take was defensible on the practical grounds that it reduces poaching: ...it's very di f f icul t . . . to go out and say "you're bot tom fishing in an [MPA]", and then to be able to have them say "we're only f ishing for salmon", or halibut. So you can't have a split definit ion for f ishing. You're either f ishing or you're not fishing. (Anon. 5) 7.1.3 Partnerships in implementation In addition to the recommendations for co-management reviewed above, opinions on the success of the RRAB at creating partnerships in implementation centred on the issues of 79 voluntary stewardship by user groups and Pearson College, funding the Race Rocks MPA, and a continued role for the RRAB. Voluntary stewardship Several participants felt that a success of the RRAB was to build a foundation for voluntary stewardship, regardless of government regulations. As stated by one participant: The way the stakeholder groups worked was interesting, because some of them were not all that well formed when this started. ... The whale watch community is better organised now than it was then. Their standards didn't really exist, they said they did, they were scrambling to find them and put them together, and they were using the North West Whale Watchers stuff, and they've since refined that a bit. The Sport Fish Advisory Board ... it's really ironic that it's 2 1/2 years ago that they agreed to a complete closure at Race Rocks, and DFO still hasn't done it. We're treating it as if it is, and they're cooperating. It's an interesting example of folks getting along with each other and government someday catching up. (Anon. 2) Most participants felt that another success of the RRAB was to build support for the stewardship role provided by Pearson College. In the words of a user group representative: If Pearson College has anything to do with it [improved stewardship], they will. ... I have a group of school kids from Victoria who want to see the inside of our organisation. I phoned [Pearson College representative] up and [s/he]'s going to have us up on to the island. That's huge. These kids are going to come out of high school with an appreciation for this M PA that will do society well. So now I see that the success of the MPA will be rooted in the effectiveness of the management of the area. Fortunately, Pearson College is sitting right there doing this for us. (Anon. 6) The facilitator also felt that voluntary stewardship would improve simply because people think Race Rocks is an MPA: In most people's minds, it's a marine protected area. When John Turner wrote in the Globe and Mail ... he talked about Race Rocks as a marine protected area, as one of Canada's first marine protected areas. And so, ipso facto, there you have it. In most people's minds, it's a marine protected area. If Fisheries and Oceans Canada doesn't have it all signed off in the regulatory Gazette process in Ottawa, my question is, does it really matter? In an existential kind of way, does that matter? (Facilitator) Funding the Race Rocks MPA Some participants were concerned that the written recommendations did not include any financial commitments for the implementation of the Race Rocks MPA, as was negotiated in Meeting No. 5. In the words of one: There's one recommendation that has mysteriously disappeared, and that is the recommendation that "governments" provide ongoing funding to sustain Race Rocks. That was agreed to at the meeting, and it's in the minutes, but it's not in the recommendations. (Anon. 2) 8 0 Continued role for the RRAB Several participants were further disappointed that the RRAB was now (for the most part) excluded from discussions on the future of Race Rocks, contrary to the consensus recommendations. This led to fresh scepticism about consensus processes in general, as described by one participant: As a result o f doing this, I've become very sceptical with the whole concept o f Round Table negotiations, stakeholders, all o f that area.... It was fine up to a certain point. But f rom then on, you feel you're being used. You feel that at a certain point they will bring out: "oh, but we've involved consultat ion with stakeholders", but yet they have not followed through the mandate o f the Oceans Act to really totally come up with a new process and make it work. And at one point we had the chance to do that, and that 's, I guess, the biggest regret. And it may come around, you don' t want to throw it all saying it's been a total failure. But it was a total success in communi ty and stakeholder involvement up to that point. (Anon. 5) Another participant was reflective about the nature of consensus processes: I think it's about democracy. The big fear o f process is that you think the process has attained the perfect design and co-ordination and facilitation, and it never does. It's always going to be that imperfect gem. It has to be reworked and revisited continually throughout that process. The ideal process is transformative. It should affect everyone involved in it, because it's really about democracy making. You get glimpses o f it, you always do. You kind o f go, "this is the way it should be", but there's always going to be that person who's not represented fairly by that person at the table. So it's an unattainable objective, really, because it's only as good as the players that are there, and i f they're not fairly representing and reporting back, it's still a backroom deal as far as everybody that person's supposed to be representing. (Anon. 7) 7 .2 Respect This section summarises participants' views on the degree to which the RRAB respected participants by being inclusive, accountable to the participants, and respectful of identities (see Section 4.4.2, p. 35). 7.2.1 Inclusive The participants were mostly satisfied with the inclusiveness of the RRAB process. However, there were concerns with the representation of First Nations and two stakeholder groups— marine scientists and sport divers. 81 First Nations Concern over the representation of First Nations only emerged after several Douglas Treaty First Nations objected to the draft regulations in the Gazette. One participant felt that this problem should have been foreseeable: DFO was a bit opportunist ic in deciding who to bring to the table, and probably a bit selective too, because [CSSC representative] is someone who's approachable and doesn't get clouded by the preachy rhetoric that we see slow down tables or processes like this all the t ime. [The CSSC representative] was looking after the interests o f [their] people I think, but they [CSSC] were created to move things along on the environmental front. So that was probably selective, and purposeful. They [DFO] shouldn't have been surprised, that they had a bit o f a problem afterward when they announced it. (Anon, i ) Another participant suspected that First Nations were seeking concessions in the treaty negotiation process: Clearly, if you were seeking in treaty making to win a particular concession f rom the federal government negotiators it would be around MPAs. I think that has been the case almost in every instance. So one shouldn' t be naive about that larger context playing out. I think the federal government did what they could do initially, and didn't get much interest. And so to have people cry foul at the end o f the day is a bit ... predictable, and will be repeated ad nauseam. So the question becomes: do we stop creating marine parks until such t ime that the treaties are concluded ... well we can't. (Anon. 7) One participant felt that the facilitator did all that was possible in the circumstances: There could have been an assumption that the First Nation representative actually represented the Bands near Race Rocks. It was later on that there was some feeling that this wasn't the case. We did not know this at the t ime. No Advisory Board member could question that i f someone came to the table, that they didn't really represent all First Nations interests in the area. Sometimes we invite people [Douglas Treaty First Nations] to participate and they aren't able to. I give credit to [the facilitator] for really trying to involve First Nations, and providing the Advisory Board members with a better understanding o f First Nations tradit ions, through the burning ceremony and the 13-moons workshop. There was a great deal o f encouragement to members to listen to First Nations concerns, and to have First Nat ion involvement. If we didn't include enough First Nations representation, well I'm not sure whose fault that was, i f indeed that is anybody's fault. (Anon. 8) The facilitator was forthright: [The CSSC] did not really have a clear mandate from First Nations to be participating in this process. I think in fairness to [CSSC representative], [s/he] thought [s/he] was doing the right th ing. We thought [s/he] was doing the right thing. We thought that the communicat ions [s/he] had with the Douglas Treaty bands was clear and they understood that they were representing their interests, but it wasn't that way. [CSSC representative] is very astute and well respected everywhere. [CSSC representative] has a great degree o f respect, and I'm not trying to fault [h im/her] in this observation, but we didn' t know how to bring First Nations into this discussion in a way that First Nations were entirely comfortable wi th. (Facilitator) 82 Stakeholders Some participants were concerned with the low participation of marine scientists. In the words of one: I think one o f the shortcomings was that we had low representation f rom the academic communi ty . We did have representatives f rom Pat Bay [DFO Institute o f Ocean Sciences], but not f rom the university [University o f Victoria and/or Bamfield Marine Station]. ... I recall suggesting someone, and that wasn't followed through with. ... The only real scientist that had been involved there was [the marine scientists' representative]. And [s/he] was certainly able to present the idea that we should have a larger area ... and I think [s/he] was quite upset that this was eventually ignored.... But there was nobody on here who could go in and say, with some level o f scientific accuracy, that this is the reality. (Anon. 5) Another participant was concerned about participation of sport divers on the RRAB. The sport diving representative spoke for the major dive charter operations in Victoria, but did not represent other diving clubs, including the local dive club for military personnel: I'm still a little concerned that we haven't got broad representation f rom the dive communi ty . ... It never involved the military dive team, which it probably should have early on, because they've always played a role.... [There have been] three or four violations of the standards o f the reserve, all by fleet dive folk. (Anon. 2) 7.2.2 Accountable to the participants Participants' views on the accountability of the process focused on the period after the negotiation of the consensus recommendations: waiting for Ministerial agreement-in-principle, and the failure of the regulatory process. Waiting for Ministerial agreement-in-principle The delay between the submission of consensus recommendations and the Ministerial agreement-in-principle was a source of frustration for most participants. As described by one: ...around March, when we had this consensus meeting where we came up with the recommendations that were sent of f to the Minister, everyone was so jubilant at the end o f that meeting that we were actually able to craft something to send to the Minister, that there were expectations that the Minister would embrace this, and move ahead with designation. Because we had been put on this fast track, the six-month fast track to get this going, they thought that the Minister wanted this stuff right away, and they certainly wanted this to happen right away, and they wanted their work recognised, that this volunteer effort wasn't a waste o f t ime. I think it was May or J u n e — still no word f rom the Minister or DFO. Memos started to circulate among the stakeholders, that were then sent to DFO, about the integrity o f this process. We had worked hard to put together these recommendations, and what are you doing with them, we expected this to be announced by now! Two months, and we haven't heard "boo" f rom you. (Anon. 3) Another participant was concerned that the consensus of the RRAB would break down: 83 What we kept tel l ing Fisheries is: "move it along, move it along, you've got consensus, MOVE!" Consensus is a fleeting moment . (Anon. 2) However, one participant felt the delay was understandable: We finished our work by the end o f March, and it went off to Ottawa. And it sat, and sat, and sat. People like [participant] got really hot under the collar, because [s/he] wanted immediate results. Wel l . . . I f igured it would take six months for Ottawa to go through its processes. David Anderson changed portfolios ... so that held things up a bit. Everybody was getting a bit antsy. ... [The facilitator] pulled us together, and brought us all together at Dunsmuir Lodge for a presentation and update, in August, just before the announcement. This was to calm everyone d o w n — "yes, everything's on track, yes, Ottawa's on side, yes, it's all happening, it's just happening really slowly...." Then the announcement came! In my mind, it was about six months later, which is about par for the course! (Anon. 9) Failure of the regulatory process To many participants, the language contained in the Gazettewas an affront to the consensus achieved by the RRAB. Most participants felt that the recommendations were the result of a careful effort to respect aboriginal rights and treaties, notably through the support of traditional activities and the provisions for co-management. The anger at seeing these recommendations rejected and/or misrepresented in the Gazette is evident in the following statement from one participant: ...we learned all this [the importance o f traditional activities and co-management], and we came to understand this, and we came to respect all this. And [the facilitator] and [a DFO representative] and even [another DFO representative] were on side with this. This got to Ottawa. The original Gazette language you need to get. It's a complete screw-up. It was a disastrous turn ing point in the First Nations relationship. It was written by people who had no understanding o f what the Advisory Board process had done. Had no understanding, in fact it ignored a number o f the recommendations. And actually, even breaks the basic fundamentals o f the Douglas Treaty. It was a slap in the face. (Anon. 2) Another participant felt disillusioned and used: So don' t mislead us to th inking that we do have power, or we do have influence in this process. Don' t mislead us that way. The ... Oceans Act sets us up for that. Maybe it was a bit too open, it is the one part that was not honourable or not straightforward on the real facts on this. I like to claim that when you go into something like this you should go into it naively, wi thout baggage. But yet that whole process was not set up naively, without baggage. And yet here we are going in as stakeholders th ink ing that we're really representing our interests in coming to consensus, and being prepared to give and take with other stakeholders, who we recognise as other valid players in it. If that 's being treated as a token process then at a certain point you feel used in that. (Anon. 5) The facilitator was frustrated as well: ...somebody in Ottawa decided that they thought it was important to put in the Gazette that First Nations agreed to forego their tradit ional rights. ... Take a look at the Gazette / — "agreed to forego their tradit ional rights in the Race Rocks area". And you know what, that was not the discussion at all. From the outset we reiterated, over and over again, this does not abridge or affect First Nations tradit ional rights for food, ceremonial, cultural or whatever. We hope that First Nations will support the conservation concerns we have, and work on a conservation basis in this area. (Facilitator) 8 4 7.2.3 Respectful of identities For most participants, respecting identities in the RRAB process was about respecting and involving First Nations. To one participant, the best way to achieve this was: ...people-to-people, usually involving elders, usually involving ceremony, and certainly involving a lot o f respect, and this desire to wipe the slate clean and figure out what's the best way o f doing things. And that 's what [CSSC representative] was all about, and that's who the relationship was with.... (Anon. 2) All the participants interviewed were impressed with the presence provided by the CSSC. However, the incorporation of cultural awareness activities drew a wide range of responses. Some participants expressed frustration at being called upon to resolve large, intractable issues. In the words of one: First Nations were given very generous amounts o f t ime to present their perspective on what was taking place. From the First Nations side o f things, there was very good participation, a positive contr ibut ion in the end. The process to me was frustrating, in that culturally I don' t have the kind o f t ime they want to take to try and understand each other. I was unwil l ing to do two, three day retreats to understand their language, which was one o f the requests they brought to the table. So it was awkward for moments where I had to express that "as much as I know your language is important, and culturally, over t ime it's something I want to learn more about, I can't lock myself up for three days to learn that right now. If that becomes what's required for me to participate in this process, I would have to withdraw". That was very awkward to make those statements. But again, as I step back and look back with a retrospective sort o f glance, I see that it was okay, that it was quite positive in the end, although in that moment I can still feel the frustration that I was feeling: why are we thrown into these environments where we are expected to solve all o f the cultural frustrations that society is experiencing? This is just not right. As much I would like to solve that over my lifetime, I don' t feel compelled to want to solve it over 3 days. I don' t think that's realistic. (Anon. 6) Most other participants were supportive of cultural activities, particularly those who attended the burning ceremony at Beecher Bay. The ritual of the burning ceremony had a marked impact on many of the participants. In the words of another participant: ... it was a very, very amazing ceremony. That was where the ancestors were coming on board, as it was explained to us, and there I really do believe that we had the blessing o f the elders. ...we thought we had all o f this resolved. (Anon. 2) 7.3 Balance This section summarises participants' views on the degree to which the RRAB was a fair process guided by skilled facilitation (see Section 4.4.2, p. 36). 85 7-3-1 Fair process through skilled facilitation Participants' opinions on the fairness and facilitation of the RRAB process focused on the implications of combined co-ordination and facilitation by DFO. This issue was further highlighted by the presentation of boundary options for the MPA, and the experience of independent facilitation in Meeting No. 5. Combined co-ordination and facilitation by DFO The facilitator was of two minds about the possibility of independent facilitation: ...when you try to be a facilitator, you don't want to push your agenda. Being employed by Fisheries and Oceans was perhaps not the best construct. But, looking for independent or contract facilitation, I didn't think that was the best way to go, either. There's luggage with both particular ideas. You have the independent facilitator who really doesn't know the territory, doesn't understand a lot of the detail, a lot of the complexity, but is quite independent in some respects, although still working for whoever's paying the bill. So not entirely independent. Or someone who wants to facilitate who is working for Fisheries and Oceans, and we know who's paying for that facilitation, and I would suggest that both people are accountable, and I think the people participating understood that. (Facilitator) Most participants felt that the discussion at the consensus table was inclusive and fair. In the words of one participant: I like the way it was set up. It was informal, everybody was put at ease right at the start, that's all [the facilitator] kept saying: "we think we can accommodate everybody here, we want to know what impacts are happening and how we can mitigate, so by all means speak up, and by all means don't be afraid to say why and when and how you need it". So I thought [s/he] was very good at putting everybody at ease very early in the process. (Anon, io) For another participant, the facilitator's personal approach was important: ...[The facilitator] is a big, gregarious, gentle [person], who is very friendly and open, and doesn't have a hidden agenda of any kind, and wants the very best in what is done. If the success of what happened can be laid on any person's doorstep it would be because of [the facilitator], just because of who that person was and how that person was able to make everyone as comfortable as possible. (Anon. 9) In contrast, several user group representatives felt that the discussion was biased against them, threatening their trust in the process. To one representative, this suggested the need for independent facilitation: 86 If any o f the participants — a n y of the par t i c ipants— aren't able to trust the process, and trust the facilitator, then I think you've created scepticism at the very least, and I think out o f that can fall some...you know there's repercussions f rom that, there's costs that are attached to that. So to have somebody that is not only seen as being independent, but is absolutely independent in appearance, as well, in all aspects, not just in the goings-on o f the meetings, not just through the proceedings. I think that's absolutely key and fundamental to any process. (Anon. 4) To another user group representative, facilitation is of particular concern if the process is being convened by government, and being driven by a government agenda: I don' t think it was particularly effectively facilitated. I don' t want to be unnecessarily critical, but it may have been better to have someone like Pearson College as the key facilitator, rather than government, because government always has an axe to grind, they always have an agenda. Pearson College does too, but it is a slightly softer agenda. (Anon. 6) However, there was also recognition that the user groups brought with them a long-standing resentment of D F O . As put by another representative: Most people would come in very defensive. There would be questions asked that were answered very impertinently to even the question. Lots o f people, I believe, were "already already l istening", which means that they had decided what DFO was saying, before they had even said it. It's called "already already l istening", which is going in with a predetermined answer to any question that's going to be asked anyhow. Which was inaccurate, and not very effective. (Anon, n ) The E N G O representatives were less fixed in their views. One E N G O representative maintained that independent facilitation is important, but was not necessary in this instance: If this was a broader process, I would have taken issue to DFO facil itation. It kind o f falls apart when government is both the convenor and chair o f a process. But, because it's Race Rocks, it's pretty straightforward, we were surprised with how long it took. (Anon. 1) To another E N G O representative, the issue of facilitation is not as critical as the co-ordination of the process itself, which should have involved both First Nations and BC Parks: I don' t think any facilitator is independent. Having hired our own facilitators to work in a similar sort o f way, and I know that you still direct the facilitator, because we're paying their way. The only possibility is for all parties to pay for that facilitation, and to pick the facilitator. I didn' t see the need for that; wi th respect to this...what I see is the process co-ordination being more important than the facil i tation. You have to have good facilitation skills, but the process co-ordination should have involved First Nations. BC Parks would tell you that they were quite upset with Fisheries and Oceans through the course o f this, at different t imes. They didn't feel like they were being heard on a number o f things. (Anon. 7) Boundary options Many participants were troubled when the facilitator presented three options for the boundary of the MPA. As recounted by one participant: 87 ...[the facilitator] led us through the o p t i o n s — they came directly f rom DFO. This is one cr i t ic ism: in public planning processes, you shouldn't begin by predetermining what your three opt ions are, especially since they are all the same, ecologically. (Anon, i) This view is echoed by another participant: A facilitator cannot express any personal philosophy or positions or anything else. The facilitator cannot take the role o f a participant. If [s/he] does, you need a different facilitator, and [s/he] needs to get at the table, to have a seat at the table as if [s/he]'s one o f the players. (Anon. 4) Reflecting back on the process, the facilitator is uncertain about using this approach: When you talk about a protected area, you are setting up a fence, you are setting up a boundary, you are setting up an obstacle, and that obstacle is one o f the fundamental issues with any discussions you have. When we started talking about Race Rocks, I did know that this would be the big issue. How big is this going to be? Where is the fence going to be drawn, and who is going to be in, and who is going to be out? To the creatures it doesn't matter so much because they can't quite read the bathymetry on the chart, and they can't say, "let's make a run for the marine protected area! Here come the f ishermen, let's go!" I drew a map representing three sizes for the proposed MPA...they were all relatively small increments o f each other...the biggest, the medium-sized one, and then the existing outl ine o f the ecological reserve. So we could initiate some discussion about how big this should be, and for what reasons. I knew that the big one wasn't going to be big enough for the environmental groups. I knew that. And I knew that the small one was going to be too big for the SFAB. But o f all three, the SFAB would buy in to the smallest one. And in many respects, there was no scientific, ecosystem analysis-based reasons for drawing the three different maps. (Facilitator) Independent facilitation The switch to independent facilitation in Meeting No. 5 took place so that the facilitator could join in the negotiation of the final recommendations: I said, I'd really like to be able to participate in that discussion. ... And everybody thought that was OK. Then how about we get a facilitator who knows the area, and the conservation stuff generally, to come in and help with that final disti l lation o f recommendations and all the rest o f it. (Facilitator) This independent facilitation was a new experience for several participants, who noticed the contrast with the previous meetings. In the words of one participant: There was a key meeting at which the consensus suddenly occurred. Looking back on it I give more credit to the [independent] facilitator.... We got together in the room having talked through a whole lot o f this stuff, and we banged through these recommendations pretty darned quickly, and I now realise that the [independent] facilitator was the key to making it happen. The meeting wasn't being chaired by a Fisheries person, and Fisheries was an active player at the meeting, and it freed us up to march through this stuff. And those recommendations — w h i c h I think all the advisory board members are quite proud o f — w e r e hammered out at that meeting. (Anon. 2) 7.4 Summary Table 7.2 (p. 89) summarises the dominant voices of participants in the RRAB process. 88 Table 7.2 Dominant voices o f participants in the RRAB. Framework Issues Dominant voices Challenge Innovative • No-take zone Mostly positive. Most supported the negotiation of a compromise between ENGOs and the SFAB. However, some felt the boundaries are unenforceable. • Co-management Mostly positive. Most consider the co-management provisions to be groundbreaking, and credit the involvement of the CSSC. However, some knew that the provisions would be problematic for DFO. Fair decisions • Scientific defensibility of the no-take zone Somewhat negative. Some were concerned that the no-take zone was not based on scientific rationale. Partnerships in implementation • Voluntary stewardship Positive. Most felt the RRAB process improved opportunities for the voluntary stewardship of Race Rocks by user groups and Pearson College. • Funding the Race Rocks MPA Somewhat negative. Some were concerned that the written recommendations do not include provisions for the financial support of the Race Rocks MPA, something that was negotiated in Meeting No. 5 . • Continued role for the RRAB Negative. Many were concerned that the RRAB no longer plays a significant role in determining the future of Race Rocks. Respect Inclusive • First Nations Mixed voices. Some felt that the objections raised by Douglas Treaty First Nations were foreseeable and avoidable. Others felt the objections were inevitable and motivated by an interest to win concessions in treaty negotiations. • Stakeholders Mostly positive. Some would have preferred more participation by marine scientists and sport divers. Accountable to the participants • Waiting for Ministerial agreement-in-principle Negative. Most considered the wait too long, which was disrespectful to participants and threatened the consensus achieved by the RRAB. • Failure of the regulatory process Negative. Most considered the language in the Gazetteto be an affront to the consensus achieved by the RRAB. Respectful of identities • Respecting and involving First Nations Mostly positive. Most considered the RRAB process an important cultural learning experience made possible by the successful involvement of the CSSC. However, some considered the cultural activities too time demanding. Balance Fair process through skilled facilitation • Combined co-ordination and facilitation by DFO Mixed voices. Most considered the facilitation inclusive and fair. However, several participants would have preferred independent facilitation and/or joint co-ordination with First Nations and BC Parks. • Boundary options Negative. Most did not consider it appropriate for a facilitator to present predetermined options to a consensus table. • Independent facilitation Positive. Most participants were proud of the consensus recommendations, which were credited in part to the independent facilitator. 89 Chapter 8 - Interpretation This chapter examines the outcomes of the case study, guided by the theoretical framework from Chapter 4 and the issues and opinions presented in Chapter 7 (Table 8.1). Each section reviews the relevant theoretical material, interprets the issues at hand, and then discusses the implications for the use of consensus processes to create marine protected areas in BC. 8.1 Innovative To be innovative, a consensus process should explore "thoughtful solutions that could not be created within the constraints of existing political, legal, or administrative processes" (Cormick et al. 1996, p. 5). This can be achieved by 'inventing options for mutual gain' (Fisher and Ury 1991), challenging orthodoxy in institutions, and emphasising a learning-by-doing approach (Kelleher 1999). 8.1.1 No-take zone From the beginning, the RRAB had a bold agenda: to deliver Canada's first MPA under the Oceans Act (1996), complete with a no-take zone. Race Rocks was already a provincial Ecological Reserve, and the commercial fishery had been closed for a decade. As such, the two parties most affected by a no-take zone would be sport fishers and First Nations with aboriginal and treaty rights in the area. Sport fishers Table 8.1 Outline for Chapter 8. Section Issues Challenge 8.1 Innovative • No-take zone • Co-management 8.2 Fair decisions • Scientific defensibility of the no-take zone 8.3 Partnerships in • Voluntary stewardship implementation • Funding the Race Rocks MPA • Continued role for the RRAB Respect 8.4 Inclusive • First Nations • Stakeholders 8.5 Accountable to • Waiting for Ministerial the participants agreement-in-principle • Failure of the regulatory process 8.6 Respectful of • Respecting and identities involving First Nations Balance 8.7 Fair process • Combined co-ordination through skilled and facilitation by DFO facilitation • Boundary options « Independent facilitation 8.8 Summary The potential boundary of the no-take zone ended up being a matter of negotiation between ENGOs who sought a large, multi-zone MPA, and sports fishers (SFAB and local marina operators) who sought to retain access to migratory fish species. Other issues were also at play: some ENGOs sought to 'get this one done' so that DFO could move on to other 9 0 MPAs, and the SFAB wanted to demonstrate its support for the Oceans Act (1996). The negotiated solution was a no-take MPA (henceforth 'marine reserve'; see Section 3.1.1, p. 10) that matched the boundaries of the Ecological Reserve. Fisher and Ury (1991) would call this 'positional bargaining', finding the middle ground between two lines in the sand. There had been an attempt to find creative solutions, most notably in two proposals: • Create an experimental marine reserve for five years, to see if by-catch by sport fishers was indeed a problem for bottom fish species; and • Create a core no-take zone, surrounded by an extension of the provincial Ecological Reserve (protecting the seabed). Rather than exploring these and other options further, there appeared to be a rush to get the SFAB's endorsement and move on to other issues. This could be explained by several factors, including: • An acknowledgement that marine reserves are a new concept in BC, and will not gain the ready support of fishers until they have a track record of success; • The fear of straining the relationship between the SFAB and DFO, leading to a retrenchment of positions and the failure of the RRAB process; and • The fear that a proposal to modify the provincial Ecological Reserve would provoke jurisdictional conflict with the province. These are important considerations. However, the net result was a fisheries closure that could have been created under the long-standing Fisheries Act {RS 1985), rather than something distinctive to the integrated management approach embodied by the Oceans Act (1996). The possible implications of this outcome are twofold: • It is not possible to dovetail the interests of E N G O s and sport fishers, at least until there is more support among sport fishers for marine reserves that include closures for migratory and pelagic species. As such, the initial creation of small marine reserves may represent an incremental, 'learning by doing' approach (Kelleher 1999) to improved marine conservancy; and/or • Seeking thoughtful solutions for the integrated management of marine resources (including the creation of marine reserves) requires more time and groundwork than was accorded the RRAB process. 91 First Nations The support of a marine reserve by the GSSC likely resulted from the inclusion of provisions for the co-management of the Race Rocks MPA by First Nations, BC Parks and D F O . These provisions represent the most innovative outcome of the RRAB process, a serious 'challenge to the orthodoxy' (Kelleher 1999) of DFO. 8.1.2 Co-management It is very difficult to create a fully protectedmarine reserve in coastal BC, most of which is subject to modern treaty negotiations. As discussed in Section 3.3 (p. 16), the aboriginal and treaty rights of aboriginal people in Canada are protected by the Constitution. Xwaysr] falls within the traditional territory of the Beecher Bay, Songhees and T'Sou-ke First Nations, conferring them aboriginal rights that are partly defined by the Douglas Treaties. To create a fully protected marine reserve at Race Rocks, these rights would have to be redefined in the modern treaty negotiation process, and/or infringed upon by BC and Canada: • Treaty negotiations: Would require the completion of the treaty negotiations ongoing between the Te'mexw Treaty Association, BC and Canada, which have been stalled at Stage 4 since 1996. The restriction of aboriginal access to Race Rocks would probably require some form of compensation; and/or • Infringement: Would require extensive consultation, and perhaps the full consent of affected First Nations (Pape 1998). This consent is unlikely while treaty negotiations are underway. In either case, the creation of a fully protected marine reserve would require consultation with First Nations over an extended period of time, and would have to be designed to respect the 'government-to-government' relationship between First Nations, BC and Canada. Neither option was appealing for an Advisory Board convened by D F O (not tri-partite) and running under tight deadlines. The solution proposed by the RRAB was to create a highly protectedmarine reserve 3 9 that does not infringe on aboriginal and treaty rights: There is recognition that, should a Marine Protected Area be established, it will not infringe on First Nations' existing Treaty rights, tradit ional, food, ceremonial interests or relationship with the area. (RRAB 2 0 0 0 a , p. 7) 3 9 The marine reserve would be 'highly protected' because of the low impact of aboriginal activities at Xwaysr]. 92 The RRAB then recommended the establishment of a co-management regime for Race Rocks (Race Rocks Management / Implementation Committee) and all future Oceans Act MPAs (Pacific Steering Committee). Built on a respect for the 'government-to-government' protocol, these committees would create a dialogue between First Nations, government agencies and stakeholders (the post-designation RRAB), supporting marine stewardship and the treaty negotiation process. And should this be desirable, First Nations might eventually agree to restrict their activities at X w ay3rj . The subsequent misrepresentation and/or rejection of these recommendations will be discussed in Section 8.5.1 (p. 99). The direct implications of this outcome are as follows: • Consensus processes can be very successful at negotiating innovative proposals for the creation and management of highly protected marine reserves that include aboriginal people and respect aboriginal and treaty rights; and . Given that the inclusion of co-management provisions was credited (by participants) to the CSSC, the form of aboriginal representation provided by the CSSC (the dialogue and activities, not necessarily the CSSC itself) is worth considering for other consensus processes for the creation of MPAs in BC. 8 .2 Fair decisions To reach fair decisions, consensus processes should refer to an independent standard agreed to by the participants. The use of an independent point of reference would address Foucault's concerns with the dangers of communicative rationality (Ashenden and Owen 19 9 9 ) 4 0 . Such 'objective criteria' (Fisher and Ury 1991) might be provided by scientific studies or other forms of knowledge, such as traditional ecological knowledge. The debate surrounding the scientific defensibility of the no-take zone at Race Rocks revolved around two arguments: • The no-take zone needs to be larger than 251 ha (the size of the Ecological Reserve) to have a significant impact on marine ecosystems; and • There is no justification for the closure of fisheries for migratory or pelagic species. They do not benefit from the closure, and by-catch is not a serious issue. Foucault would also suggest a critique of the historicity and subjectivity of science and traditional knowledge (Ashenden and Owen 1999). 93 The RRAB did not make a concerted effort to examine or resolve this debate. Except for anecdotal discussion, the RRAB did not explicitly draw upon scientific research or traditional ecological knowledge from the Race Rocks area. The explanations for this include: . There are not enough scientific studies at Race Rocks to draw upon, and a traditional use study has not been conducted at Race Rocks; and • The participants did not want to address this issue, choosing instead to accept a small no-take zone and move on to other topics. The implications of this outcome are as follows: • If there are not enough studies to inform no-take/boundary discussions at Race Rocks (the subject of a research program by Pearson College and others), it will be even harder to find baseline studies for most other areas of the coast. This suggests that D F O and other agencies should sponsor scientific research and traditional use studies in preparation for the designation of future MPAs; and • Though scientific and traditional use studies would undoubtedly be of benefit, the absence of such studies is not a major hindrance to the creation of an MPA when the participants in a consensus process are motivated to reach closure. 8.3 Partnerships in implementation The implementation of consensus agreements is as important as the process that created them (cf. Foucault, in Ashenden and Owen 1999). Successful implementation calls for partnerships in support of marine conservancy and community development, which may involve co-management (Jentoft 2000a, b, c; Kelleher 1999). As introduced in Section 4.2.2 (p. 26), the NRTEE provides a series of questions with which to examine the implementation of consensus agreements (Cormick et al. 1996). These questions are addressed in various parts of this chapter (Table 8.2); this section will discuss the issues of voluntary stewardship, funding for the Race Rocks MPA, and a continued role for the RRAB. 94 Table 8.2 Implementing the consensus agreement negotiated by the RRAB. Question from NRTEE Section Is the solution technically 8.5 Accountable to and legally sound? the participants Will those whose support 8.4 Inclusive will be needed accept the agreement? How will formal 8.5 Accountable to ratification be achieved? the participants How will implementation 8.3 Partnerships in be funded? implementation Who will be responsible 8.3 Partnerships in for doing what? implementation When will parts of the 8.5 Accountable to agreement be the participants implemented? Will actions follow agreed 8.5 Accountable to commitments? the participants How will parties hold each 8.3 Partnerships in other to commitments? implementation How will promises turn 8.5 Accountable to into action? the participants What about unforeseen 8.3 Partnerships in difficulties? implementation 8.3 .1 Voluntary stewardship The RRAB considered several options for the management of human activities at Race Rocks, including prohibitions, regulations, and/or volunteer guidelines and stewardship. The RRAB made the following choices: . Prohibition: Helicopter traffic, dredging and dumping, exploration or development of non-renewable resources; • Regulation: Fishing activities; and . Volunteer guidelines and stewardship: Vessel and boating management, diving activities, education and research activities, protection of birds and habitat, protection of marine mammals and habitat. In other words, the RRAB prohibited only the most egregious activities, regulated fishing in order to create a highly protected marine reserve, and relied on volunteer guidelines and stewardship for all other activities. These choices were likely made for the following reasons: . The activities of the RRAB forced several user groups to self-organise, and pushed them to develop guidelines that were then found to be acceptable to the RRAB; and • The stewardship of Pearson College and the presence of Eco-guardians reassured participants that volunteer guidelines would be enforced through moral suasion. The implications of these outcomes are as follows: • Consensus processes are a catalyst for the improved organisation and capacity of user groups to engage in volunteer stewardship for MPAs; and • The presence of a local warden at an MPA reduces the need for government regulations for many human activities. 8.3.2 Funding the Race Rocks M P A Race Rocks is in the unique circumstance of having benefited from the presence of lightkeepers who voluntarily conducted warden-like activities, then lost their jobs to lightstation automation, and then were hired by Pearson College to be Eco-guardians while volunteering to do many of their former lightkeeping tasks. As recounted in Section 5.4 (p. 50), one of the intents of creating a Pilot MPA at Race Rocks was to potentially reinstate the lightkeepers, and by doing so support the implementation of the Race Rocks M PA. 95 Given this history, there was surprisingly little discussion of money in the RRAB process, except for the recommendation that "all levels of government financially support compliance, research and education" (RRAB 200oe, p. 6) at Race Rocks. The low level of discussion and the exclusion of this item in the written proposals may have been for the following reasons: • It was a given that D F O would provide adequate funding for implementation; • There was concern that 'all levels of government' was beyond DFO's jurisdiction; and/or . There was an assumption that Pearson College was willing and able to continue paying for the Eco-guardians. Whichever the reasons, the net result is that —pending official designation— there is little dedicated government funding for the implementation of the Race Rocks M P A 4 1 . The implications of this outcome are as follows: • Consensus processes should negotiate explicit funding arrangements as part of the consensus recommendations (oral and written); and • MPAs benefit from the co-sponsorship of a non-governmental institution. 8.3.3 Continued role for the R R A B The RRAB negotiated a sophisticated management/governance framework for the Race Rocks MPA, including provisions for the co-management of Race Rocks, and the continued involvement of stakeholders (a post-designation RRAB). However, these recommendations hinged on the successful implementation of the Race Rocks MPA. The failure of the Gazette process created one of the NRTEE's 'unforeseen difficulties' (Cormick et al. 1996). Faced with a crisis, D F O did not call another RRAB meeting until December 2001. By then, the RRAB was no longer the central forum for deciding the future of the Race Rocks M PA. This led to the disillusionment and/or non-participation of several members of the (original) RRAB. The implication of this outcome is as follows: • Consensus agreements for the creation of M PAs should include contingency plans for the involvement of stakeholders if implementation does not go as planned. This excludes the various government grants that have supported environmental surveys and the implementation of the RACEROCKS.COM web site (Millennium Bureau 1999), as well as funding for the environmental remediation of Coast Guard facilities. 96 8.4 Inclusive A fundamental concern in any consensus process is that it be inclusive (Habermas' 'generality', see Flyvbjerg 1998b), "bringing in from the beginning every significant sector that will affect, or be affected by the MPA" (Kelleher 1999, p. 21). Agardy (1997) suggests this will empower local users who might not otherwise have a voice in decision-making. The RRAB facilitator used a two-tier approach to public consultation: incorporating First Nations and primary stakeholders in the RRAB, and meeting with other groups separately (48 in all). For the most part, this was successful. The only groups that could have been better represented were: • First Nations: the problems with the Gazette would not have been as serious had there been better representation from Douglas Treaty First Nations; and . Stakeholders: some participants felt there was insufficient representation by marine scientists from local universities, and by local sport diving clubs. 8.4.1 First Nations A discussion on the inclusion of First Nations raises fundamental questions about the involvement of aboriginal people in the management of natural resources in BC, some of which were introduced earlier in the discussion on co-management (see Section 8.1.2, p. 92). As discussed in that section, the involvement of First Nations was seen to be successful up until the publication of draft regulations in the Gazette, and the subsequent objection by several Douglas Treaty First Nations. The representation of First Nations by the CSSC was an attempt to be inclusive without interfering with the treaty negotiation process. Had the Gazette been properly written, it is quite possible that the Race Rocks MPA would have had the tacit blessing of Douglas Treaty First Nations, as was initially indicated by the burning ceremony at Beecher Bay. One could even speculate that the successful designation of the Race Rocks MPA, with all the provisions proposed by the RRAB, would have strengthened the role of the CSSC in representing First Nations in similar fora throughout the 'Salish Sea'. 97 Despite these possibilities, the selection of the CSSC to represent First Nations was a risky strategy, for several reasons: • Given the size of the Canadian government bureaucracy, regulatory processes are not failsafe. Some would say they are even prone to mistakes (and subsequent correction, of course); • Though the CSSC has connections and influence with local First Nations, the Douglas Treaty First Nations did not choose the CSSC as their representative; and • Though the CSSC played a prominent role in the RRAB, it did not participate as an equal partner with DFO, as required by the government-to-government protocol. This would suggest that a preferred approach to the involvement of First Nations would be more robust, have the explicit endorsement of local First Nations, and respect the government-to-government protocol. Such an approach might proceed as follows: • Before anything else, D F O initiates contact with local First Nations; • Assuming there is support for the MPA, D F O invites First Nations to be a joint convenor of the consensus process; then • As joint convenors, D F O and local First Nations negotiate what form of co-ordination, facilitation and aboriginal representation should take place. Possibilities include joint co-ordination (co-chairs), and/or independent facilitation. In other words, D F O would initiate a co-management partnership from the start. 8.4.2 Stakeholders It is in the nature of consensus processes to discover, partway through the process, that important stakeholders are missing (Cormick et al. 1996). Some RRAB participants indicated that they would have preferred more representation from marine scientists and sport divers. The possibility of including more marine scientists was discussed but not successfully acted on. The sport diving club at the military base was part of the wider consultations conducted by the facilitator, but perhaps should have been included in the RRAB itself. This may have been for several reasons: • The facilitator did not follow up on the request for more marine scientists; . No other scientists were available to join the RRAB, particularly with its time demands; and/or 98 . The sport diving club at the military base did not appear to be a primary stakeholder until after the RRAB process concluded. These possibilities suggest that: • Consensus processes should have mechanisms for addressing concerns about the inclusiveness of the process; • If representation by more marine scientists is crucial, consensus processes may have to be more accommodating of academics' time constraints— perhaps by holding some meetings at the university campus; and . Consensus processes should be prepared to adapt to the incorporation of new members partway through. This adaptation (and delay) will be less difficult than the subsequent problems in implementing a consensus agreement. 8 . 5 Accountable to the participants To be accountable, a consensus process should be designed by the participants, be flexible, and have time limits for completion. In addition, participants should be accountable to the process and each other, most importantly by providing effective representation of their constituencies (Dorcey and McDaniels 2001). One of the strengths of the RRAB process was the development of a comprehensive Terms of Reference, which was approved by the group in Meeting No. 3. Apart from the fact that the RRAB was convened, co-ordinated and facilitated by D F O (rather than any other arrangements suggested in this chapter), the design of the RRAB process was inclusive, and for the most part successful. Furthermore, the RRAB process was relatively open and flexible, and had a brisk but plausible timeline for reaching consensus. As such, the accountability of the process revolves around the events that transpired after the RRAB produced consensus recommendations: the wait for Ministerial agreement-in-principle and the failure of the regulatory process. 8.5.1 Waiting for Ministerial agreement-in-principle When the RRAB first met in December 1999, the facilitator proposed an aggressive timeline for the completion of the process, including three meetings before the end of January 2000. In the end, there were five meetings in less than four months, which was an 99 ambitious, concerted push to reach consensus before the 'end of fiscal' (March 31). After that rush, it took D F O almost six months before the 'official designation' ceremony, which indicated joint Ministerial agreement-in-principle. Most participants found this too long, and pointed out that the ceremony would have gone off without a hitch if it had taken place before the escalation of violence in Miramichi Bay. Furthermore, the Proposal to Designate Xwayan (Race Rocks) Marine Protected Area, which sets out a timeline for designation (Table 6 . n , p. 71), was not released until September 2000, toward the end of the waiting period (DFO 2000b). This delay may be understandable, particularly since this was the first MPA regulation to be written by D F O . However, the concern expressed by participants suggests the following: • Consensus agreements for the creation of MPAs should include a tentative timeline for the completion of government regulatory processes (or whatever process will lead to final designation); and • As proposed earlier, consensus agreements should include a mechanism for reconvening the consensus table should the regulatory process not go as planned. 8.5.2 Failure of the regulatory process As discussed earlier, the Regulatory Impact Analysis Statement in the Gazette includes statements to the effect that local First Nations agree to 'voluntarily forego' their traditional activities at Race Rocks, and excludes the provisions for the co-management of the Race Rocks MPA. This may have been for several reasons: • Traditional activities: The recommendations received by D F O (Headquarters) were logically inconsistent— strictly speaking, it is impossible to create a no-take zone (no fishing by anyone, including aboriginal people) while at the same time allowing traditional activities. Since the CSSC endorsed the creation of a no-take zone, and the CSSC was understood to represent First Nations, it was logical to conclude that First Nations had agreed to forego their traditional activities; and • Co-management: The Oceans Act (1996) falls under the jurisdiction of D F O . Co-management with BC Parks and First Nations would compromise this jurisdiction and fetter the discretion of the Minister. The less threatening option was the 'co-operative management' of Race Rocks with government agencies and stakeholders, which does not threaten DFO's jurisdiction or the Minister's discretion (Figure 8.1, p. 101). lOO BC Parks DFO User groups Warden First Nations DFO ENCOs BC Parks Academia User groups Warden First Nations ENCOs Academia Model proposed by the RRAB. Model included in the Gazette. Figure 8.1 Two models for the co-management of the Race Rocks MPA. Whatever the reasons, these sections in the Statement are a significant departure from the consensus recommendations provided by the RRAB. O f even greater concern, the Statement claims that these provisions were recommended by the RRAB. Forester (1989, p. 38) would call this the management of public consent through misinformation, reaching decisions "without legitimate representation of public interests but appealing to public consent as if this were not the case" (see Table 4.2, p. 23). Foucault would further call this an example of 'governmentality', of the exertion of power through discourse (Layder 1994) 4 2 . It is inappropriate to lay the blame for this on the RRAB, the facilitator, or even D F O , which had no experience with the preparation of regulations for MPAs. The issue at hand is that D F O (Headquarters) was clearly unprepared for the recommendations proposed by the RRAB and approved by D F O (Pacific Region). This suggests the following: • Consensus processes for the creation of MPAs should include representatives from D F O (Headquarters), who are able to provide immediate feedback on the acceptability of proposals on the table. In other words, D F O (Headquarters) should be treated as a separate government agency; and • If recommendations are to be rejected —by DFO, the Privy Council Office or the Department of Justice— they should be openly rejected and returned to the consensus table, where alternatives can be negotiated by the participants. 4 2 Foucault would also question the supposition that the recommendations of a consensus process are superior to the decisions made by the authorities of representational governments (Fischler 2 0 0 0 ) . 8.6 Respectful of identities As stated succinctly by Hillier (1998, p. 16), "treating people equally is inherently unequal". Consensus processes should seek to understand, respect and accommodate difference, providing for the full involvement of all participants. In the context of M PAs in BC, the principal cultural divide is with First Nations. Accommodating this difference should include an effort to understand the cultural heritage of aboriginal people, supporting Habermas' 'ideal role-taking' at the consensus table (Flyvbjerg 1998b). The RRAB process provided several opportunities for non-aboriginal participants to learn Coast Salish perspectives on marine resource management, including the 13-moons workshop and the burning ceremony at Beecher Bay. Most participants were supportive of these activities; however, one participant was concerned that cultural activities have the potential to be unreasonably time demanding. Nevertheless, these activities contributed to the negotiation of several recommendations that reflect aboriginal perspectives, including provisions for co-management and a traditional use study. These outcomes have the following implications: . Given that the cultural activities were credited (by participants) to the CSSC, the form of aboriginal representation provided by the CSSC (the dialogue and activities, not necessarily the CSSC itself) is worth considering for other consensus processes for the creation of MPAs in BC. • Cultural awareness activities should be in a format that is acceptable (particularly with respect to time), if not appealing to other participants in the consensus process. 8.7 Fair process through skilled facilitation A fair and productive consensus process is one where the participants are able to 'separate the people from the problem' and 'focus on interests, not positions' (Fisher and Ury 1991). The facilitator's role is to create conditions of discourse that approximate a Habermasian 'ideal speech situation' (Flyvbjerg 1998b), while at the same time seeking to 'plan in the face of power' (Forester 1989). The more difficult the issue, the more likely the facilitator should be an independent person trusted by all participants to be neutral to the outcome of the consensus process. 1 0 2 As discussed in Section 8.5 (p. 99), one of the successes of the RRAB process was the quick negotiation of a comprehensive Terms of Reference. This document provided extensive guidance for fair and respectful discourse, such as: • Share airt ime with others; . Offer respect for different viewpoints and attention when others are speaking; • Ask questions for clarification and mutual understanding; • Verify assumptions; [and] . Deal with differences as problems to be discussed, not battles to be won. (RRAB 2 0 0 o f , pp. 3-4) The Terms of Reference also included a sophisticated definition of consensus, which roughly corresponds to Kaner's (1996, p. 212) "agreement with reservations": Consensus shall mean the "general agreement o f all participants on a package o f decisions or recommendat ions" and shall embody the fol lowing concepts: • Consensus does not mean total concurrence on every aspect o f a decision, but all participants must be wi l l ing to accept the overall decision package. • If a participant withholds agreement on an issue(s), that participant is responsible for explaining how their interests are adversely affected or how the proposed agreement fails to meet its interests. The participant wi thholding agreement must propose alternatives and other participants must consider how all interests may be met. • Once consensus is reached on the overall package, it is assumed to be binding (Cormick et al. 1 9 9 6 ) [citation in original]. • All participants to a recommendation on which consensus had been achieved agree to exercise their rights, mandates, and responsibilities consistent with that recommendation and to take such further steps as may be necessary to give it effect. • If consensus is not achieved through this process, each participant wil l exercise their rights, responsibilities, and mandates as they see f i t — unfettered as to statutory decision-making responsibilities and without prejudice to their rights and obligations by reason o f having participated in the process. (RRAB 2 0 0 o f , p. 4 ) With these ground rules in place, participants' concerns with the facilitation of the RRAB process were more about 'who' and 'what' rather than 'how' the RRAB was facilitated. These concerns focused on three issues: combined co-ordination and facilitation, the presentation of boundary options, and the change to independent facilitation. 8.7.1 Combined co-ordination and facilitation The RRAB process was convened, co-ordinated, and for the most part facilitated by D F O . As described in Section 7.3.1 (p. 86), the DFO co-ordinator/facilitator felt that this was preferable to independent facilitation, for the following reasons: 103 • An independent facilitator may not "know the territory"; • A contracted independent facilitator is not very independent, given that D F O would still be paying the bills; and . A D F O facilitator is accountable for what happens in the process. Most participants were satisfied with this arrangement, or were not aware that there was an alternative. In the words of one participant, this was "DFO's show". However, one E N G O would have preferred joint co-ordination with BC Parks and First Nations— a co-management approach from the start. Moreover, user groups had "learned from experience" to be mistrustful of any consultative process that is led by government, D F O or otherwise. It would appear that the more a group interacts with government consultation processes, the less trustful they are of their sincerity and integrity. This suspicion is made worse when the outcome of the consultation process will have a direct impact on a person's livelihood. For example, E N G O s —concerned with promoting long-term ideals— may feel less threatened than user groups, who are faced with a potential loss in economic opportunity 4 3. Put differently, the more a group feels threatened, the less trusting they will be. The point of this discussion is to reinforce the notion —suggested by Kaner (1996) and others— that consensus agreements are built on participants' trust in the facilitator, independent or otherwise. This suggests the following: • The participants in consensus processes should choose what form of facilitation should take place (independent vs. non-independent), and who the facilitator should be; and • If the participants call for an independent facilitator, they should choose someone who is knowledgeable about the topic under discussion, and consider joint funding arrangements. 8.7.2 Boundary options Before the RRAB process began, the facilitator prepared a map depicting three boundary options for the Race Rocks MPA. The presentation of these options early in the RRAB process raised the concerns of several participants, who felt it was an inappropriate attempt to 4 3 This rule does not hold fast, however, when ENGOs are fighting to protect a species or ecosystem that is under serious threat. 104 determine the outcome of the process. The facilitator later concurred that this was not the best way to have proceeded. Though the boundaries were presented as options for discussion, Forester (1989, p. 38) would ask whether this had the effect of "misrepresenting actual possibilities to the public". The three options certainly loomed large over the RRAB, dampening the search for other possibilities. This suggests the following: . Regardless of good intentions, a co-ordinator and/or facilitator should not develop options for discussion without the prior consent of participants in the consensus process; and • Preferably, options would be proposed by participants in the process, not the facilitator. 8.7.3 Independent facilitation D F O contracted an independent facilitator to guide the negotiation of the final recommendations in Meeting No. 5. All participants interviewed were very impressed with the role played by this facilitator, who used the 'one-text procedure' to reaching consensus. The participants further reported a strong feeling of accomplishment —one called it "an incredible rush of excitement"— at having finally reached consensus, and on time. The success of the independent facilitation in Meeting No. 5 suggests the following: • Independent facilitation is a promising approach to the negotiation of final recommendations; and • Facilitators should consider using the 'one-text procedure' for the negotiation of final recommendations. 8.8 Summary The implications of the case study are listed in Table 8.3 (p. 106). 105 Table 8.3 Implications o f the case study. Framework Issues Implications Challenge Innovative • No-take zone • The initial creation of small marine reserves may represent an incremental, 'learning by doing' approach to improved marine conservancy. • Seeking thoughtful solutions for the integrated management of marine resources (including the creation of marine reserves) requires more time and groundwork than was accorded the RRAB process. • Co-management • Consensus processes can be very successful at negotiating innovative proposals for the creation and management of highly protected marine reserves that include aboriginal people and respect aboriginal and treaty rights. Fair decisions • Scientific defensibility of the no-take zone • DFO and other agencies should sponsor scientific research and traditional use studies in preparation for the designation of future MPAs. • Though scientific and traditional use studies would undoubtedly be of benefit, the absence of such studies is not a major hindrance to the creation of an MPA when the participants in a consensus process are motivated to reach closure. Partnerships in implementation • Voluntary stewardship • Consensus processes are a catalyst for the improved organisation and capacity of user groups to engage in volunteer stewardship for MPAs. • The presence of a local warden at an MPA reduces the need for government regulations for many human activities. • Funding the Race Rocks MPA • Consensus processes should negotiate explicit funding arrangements as part of the consensus agreement. • MPAs benefit from the co-sponsorship of a non-governmental institution. • Continued role for the RRAB • Consensus agreements for the creation of MPAs should include contingency plans for the involvement of stakeholders if implementation does not go as planned. Respect Inclusive • First Nations A consensus process for the creation of an MPA might proceed as follows: 1 ) Before anything else, DFO initiates contact with local First Nations. 2 ) Assuming there is support for the MPA, DFO invites First Nations to be a joint convenor of the consensus process. 3) As joint convenors, DFO and local First Nations negotiate what form of co-ordination, facilitation and aboriginal representation should take place. Possibilities include joint co-ordination (co-chairs), and/or independent facilitation. In other words, DFO would initiate a co-management partnership from the start. • Stakeholders • If representation by more marine scientists is crucial, consensus processes may have to be more accommodating of academics' time constraints— perhaps by holding some meetings at the university campus; • Consensus processes should be prepared to adapt to the incorporation of new members partway through. This adaptation (and delay) will be less difficult than the subsequent problems in implementing a consensus agreement; Accountable to the participants • Waiting for Ministerial agreement-in-principle • Consensus agreements for the creation of MPAs should include a tentative timeline for the completion of government regulatory processes (or whatever process will lead to final designation). • Failure of the regulatory process • Consensus processes for the creation of MPAs should include representatives from DFO (Headquarters), who are able to provide immediate feedback on the acceptability of proposals on the table. In other words, DFO (Headquarters) should be treated as a separate government agency. • If recommendations are to be rejected, they should be openly rejected and returned to the consensus table, where alternatives can be negotiated by the participants. Respectful of identities • Respecting and involving First Nations • The form of aboriginal representation provided by the CSSC (the dialogue and activities, not necessarily the CSSC itself) is worth considering for other consensus processes for the creation of MPAs in BC. • Cultural awareness activities should be in a format that is acceptable (particularly with respect to time), if not appealing to other participants in the consensus process. (Continued next page) 106 Balance Fair process • Combined co-ordination through skilled and facilitation by DFO facilitation • The participants in consensus processes should choose what form of facilitation should take place (independent vs. non-independent), and who the facilitator should be. • If the participants call for an independent facilitator, they should choose someone who is knowledgeable about the topic under discussion, and consider joint funding arrangements. Boundary options • Regardless of good intentions, a co-ordinator and/or facilitator should not develop options for discussion without the prior consent of participants in the consensus process. • Preferably, options would be proposed by participants in the process, not the facilitator. • Independent facilitation • Independent facilitation is a promising approach to the negotiation of final recommendations. • Facilitators should consider using the 'one-text procedure' for the negotiation of final recommendations. 107 Chapter 9 - Conclusions This chapter sums up the main implications of the case study, proposes conclusions and recommendations for the implementation of consensus processes to create marine protected areas in BC, and then suggests avenues for further study. 9.1 Successes and shortcomings This section reviews the successes and shortcomings 4 4 of the RRAB process. As discussed at various points in this thesis, Race Rocks was DFO's first experience with MPAs. The co-ordinator of the RRAB process was working mostly from scratch, drawing only on broad policies, professional experience and the insights of colleagues. Regardless of the critique presented here, the RRAB process and recommendations are a laudable achievement. The successes of the RRAB process were as follows: . Innovation: • Boundaries: The creation of a small marine reserve will likely improve public support for future MPAs in BC. Concerns about the enforcement of the MPA boundaries will likely be offset by volunteer stewardship and the presence of Eco-guardians; • Co-management The co-management provisions would have allowed the creation of a highly protected marine reserve that respects aboriginal and treaty rights. It would have also provided a strong precedent for future MPAs; • Partnerships in implementation: The RRAB process improved the capacity of user groups to engage in volunteer stewardship at Race Rocks; . Inclusive: With the exception of Douglas Treaty First Nations, the RRAB process included most groups that "will affect, or be affected by the MPA" (Kelleher 1999, p. 21); • Respectful o f identities: The RRAB was an important cultural learning experience made possible by the successful involvement of the CSSC; and . Fair process through skilled facilitation: Most participants considered the facilitation of the RRAB meetings to be inclusive and fair. Most were also proud of the consensus recommendations negotiated under the guidance of the independent facilitator. 4 4 The categories used in this section are a rough grouping of the ratings used to summarise the voices of the participants (see Table 7.2, p. 89). The change in terminology is intended to distinguish the author's from the participants' voices. 108 Many of the successes of the RRAB process can be attributed to the energy and resolve of the D F O co-ordinator/facilitator. The co-ordinator/facilitator was going to create an MPA with the support of everyone in the RRAB. There was a determined effort to do this right: to accommodate needs, get everyone on board, and create a new community for marine stewardship, all within a few short months. The deliberation at the consensus table was inclusive and respectful. The participants were challenged to think differently, but in the words of one participant: "there was leaning, but not to the point that the person said 'ouch'". O f particular note was the successful involvement of the CSSC, including the organisation of aboriginal workshops and ceremonies. The shortcomings of the RRAB process were as follows: • Innovative? The boundary of the marine reserve was a line drawn in the sand between two adversaries, rather than a creative solution that reflects the integrated management approach embodied by the Oceans Act (1996); . Partnerships in implementation? The problems with the regulatory process have meant that there is no stable funding for the management of the Race Rocks Pilot MPA, and the RRAB is no longer the primary forum for guiding final designation; • Inclusive? Douglas Treaty First Nations were not properly represented on the RRAB; • Accountable to the participants? The wait for Ministerial Agreement-in-Principle was too long for most participants. The Regulatory Impact Analysis Statementdid not respect the consensus reached by the RRAB, and —by claiming otherwise— compromised the integrity of participants in the process; and . Fair process through skilled facilitation? The combined role played by the D F O co-ordinator/facilitator weakened several participants' trust in the process. This trust was further jeopardised by the proposal of predetermined boundary options for the MPA. The shortcomings of the RRAB process derive mostly from a lack of prescience and caution. In hindsight, it might have been expected that the user groups would be suspicious and could be reassured by independent facilitation. It could have been foreseen that the presentation of preconceived boundary options would create wedges rather than bridges. It could have been further understood that contracting the CSSC to represent First Nations was a risky approach. Though less predictable, there might also have been concern that the provisions of the consensus agreement would be rejected and/or modified by 'Ottawa'. 109 9.2 Planning for consensus The apparent disconnect between the Pacific Region and Headquarters offices of D F O suggests the central conclusion of this thesis: a consensus process for the creation of MPAs in BC should incorporate —and gain the consent of— representatives from each part of the full designation process (Figure 9.1). Why should this be? In the case study, the RRAB (Meeting Nos. 1-5) appears to have been a relatively successful consensus process, one of Forester's (1999, p. 197) "...spaces for speaking and listening, for difference and respect, for the joint search for new possibilities". All would seem to be well. However, this was not the whole story: . The Pilot MPA was created by Ministerial directive; . D F O arrived at the first RRAB meeting with preconceived boundaries for the MPA; • After the RRAB reached consensus, the recommendations were reworked by D F O (Pacific Region) and then modified by D F O (Headquarters), the Privy Council Office and the Department of Justice; and • The final status of the Race Rocks MPA is being negotiated behind closed doors between D F O and Douglas Treaty First Nations. After negotiating a hard-fought consensus, the RRAB (Meeting No. 6) has been marginalized, acting as little more than a forum for information dissemination. A generalized interpretation of this conclusion is that in employing consensus techniques, planners should think 'outside the process'. Although fair discourse is critical, planning for consensus also means planning for the consensus recommendations— making sure the right people are party to the consensus, and that there will not be any surprise reactions from the powers that be. This calls for a contemplation and critique of how the consensus process will ^ Pilot MPAs ^ Design of potential boundaries '^Designation ceremony' ^ RRAB Mtg. No. 6 ail Preparation -»k- RRAB Mtg. Nos. 1-5 -»«- Proposal & Gazette -+«- Objection 11 & Renegotiation |«- Consensus process Designation process 9/98 12/99 3/°° 9/oo 11/00 12/01 Figure 9.1 Consensus vs. designation processes at Race Rocks. no interact with the political landscape that surrounds it— where the consensus process came from and where the consensus decision will go. To ignore these issues is to limit the ability of a consensus process to implement "thoughtful solutions that could not be created within the constraints of existing political, legal, or administrative processes" (Cormick et al. 1996, p. 5). There is little to be accomplished by negotiating a ready consensus among like-minded individuals, while avoiding those who will make the final decisions. To 'plan in the face of power' (Forester 1989) is to have a clear understanding of what powers are at hand, and to include them in the push for change. 9.3 Recommendations The successes of the case study and the conclusions presented above suggest that a consensus process for the creation of MPAs in BC should proceed as follows: • Initiation: D F O initiates contact with affected First Nations (and BC Parks in areas with provincial seabed or adjoining foreshore). Assuming there is support for the MPA, D F O invites First Nations (and BC Parks) to be a joint convenor of the consensus process; • Co-ordination and Facilitation: As joint convenors, D F O and local First Nations (and BC Parks) negotiate what form of co-ordination and facilitation should take place. Possibilities include joint co-ordination, and/or independent facilitation; • Representation: • DFO. Representatives from the Pacific Region and Headquarters, with regular contact with the Minister's office, Privy Council Office and Department of Justice; • First Nations: Representative (s) with the mandate to negotiate on behalf of all affected First Nations; • BC Parks: Representative(s) with the appropriate level of authority, depending on whether BC Parks is a contributing participant, a joint convenor, or a joint convenor contemplating parallel designation under provincial legislation; • Stakeholders: Appropriate representatives as identified by the convenors, and with an open door policy at the beginning of the process. At minimum, this would include user groups, E N C O s , academics and local stewards. There should also be mechanisms for the incorporation of stakeholders identified during the process; • Terms o f Reference: Negotiated by the participants, including (among other things) a clear definition of the meaning of consensus, and a timeline for reaching consensus; i n • Options: The options to be considered in the designation of the MPA should be developed by the participants in the consensus process. This may include the commissioning of studies (scientific and otherwise) in support of the negotiations; • Decision-making: All participants (including D F O Headquarters) should accede to the consensus recommendations negotiated in the process; . Agreement: Should address the NRTEE questions set out in Table 4.5 (p. 27), including a tentative timeline for designation and explicit funding arrangements; • Designation: The consensus table should meet throughout the designation process, so that it is able to provide advice and address complications as they arise; and . Implementation: The participants in the consensus process should have continued involvement in the implementation and management of the MPA. As stated earlier, these recommendations represent a co-management approach to the creation of MPAs, combined with a respect for the government-to-government protocol with First Nations. As such, they are similar to the RRAB recommendations that were rejected during the preparation of the Regulatory Impact Analysis Statement for the Gazette. What makes this proposal different? The recommendations presented here outline the design of a co-managed consensus process for the creation of a future MPA. Consensus processes are relatively self-contained, non-threatening fora for experimenting with new forms of public engagement. This would be another way to 'learn by doing', as called for in DFO's (1999b) MPA Policy and the Oceans Act (1996). Just as the creation of a small marine reserve is a stepping-stone for future MPAs, so would an experiment with a joint or tri-partite consensus process (with BC Parks if necessary) be a stepping-stone to the joint or tri-partite co-management of MPAs. A representative from 'Ottawa' would not only contribute to and strengthen the consensus agreement, but also gain a meaningful appreciation of the potential of the co-management approach to address the unique challenges faced by marine resource managers in the areas of coastal BC that are subject to treaty negotiations. 112 9.4 Suggestions for further study The recommendations presented above derive from the theoretical and substantive materials developed in the first half of this thesis. As such, there is an inherent limit to their scope and comprehensiveness, and hence their ability to represent the full 'story' on Race Rocks and consensus processes. Several issues remain to be explored, hopefully by future students of planning and marine conservancy. Three such issues will be introduced here, as they are on the cusp of the materials included in this thesis. First, a major focus of this study has been on the theory and practice of facilitation. Regretfully, the focus on facilitation (i.e. independent vs. non-independent) has been at the expense of any meaningful discussion of co-ordination. Many of the successes of the RRAB can be attributed to the leadership, energy and (for lack of a better word) chutzpah of the D F O co-ordinator. If this was so, what is the role of the co-ordinator in consensus processes? More specifically: • Co-ordinator as planner: Is the co-ordinator of a consensus process the same as a planner} If so, should the co-ordinator try to be one of Forester's (1989) progressive planners (see Section 4.1.2, p. 23)? • Co-ordinator vs. facilitator: What is the relationship between the co-ordinator and the facilitator? Can one person effectively play both roles? If not, should the co-ordinator provide strong leadership or should s/he only give broad direction to the process? Second, this thesis has been critical of the Gazette process, especially the misrepresentation of the recommendations provided by the RRAB. For example, Section 8.5.2 (p. 100) states: "if recommendations are to be rejected, they should be returned to the consensus table, where alternatives can be negotiated by the participants". It would be fruitful to explore the implications of this statement: • Role o f advisory boards: Is this statement a challenge to the Westminster tradition of representational government? Are advisory boards a supplement or obstacle to democracy in Canada? • Terms o f Reference: The Terms of Reference for the RRAB states that: "the RRAB shall act solely as an advisory body to BC Parks and DFO" (RRAB 200of, p. 1). Was this mandate clearly understood by the participants, or was it forgotten with the "rush of excitement" that accompanied the consensus agreement? If so, is this a phenomenon experienced in other consensus processes? 113 Finally, this thesis has the structure and appearance of a deductive research study. The research question in Chapter i suggests the scope for the literature review and theoretical framework, which in turn guides the content and structure of Chapters 7 and 8, and the conclusions and recommendations presented above. 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Orca Book Publishers, Victoria, BC. 124 Appendices Appendix A. Race Rocks Advisory Board Terms of Reference Race Rocks Advisory Board Terms of Reference Source: RRAB(2000f). Translated from HTML format. 1. Introduction: The Oceans Act provides the authority for the nomination or recommendation and establishment of Marine Protected Areas (MPAs). The Race Rocks area has been recommended as a pilot Marine Protected Area for a number of reasons. As a transition zone between the Pacific Ocean and coastal waters, the area is renowned for its exceptional diversity of marine life. From a First Nation's perspective the area has cultural significance with respect to traditional use and management of the area's resources. There is recognition that, should a Marine Protected Area be established, it will not infringe on First Nations' existing Treaty rights, traditional, food, ceremonial interests or relationship with the area; and allow for cooperative management opportunities. Race Rocks was designated as an Ecological Reserve in 1980 under the province of British Columbia's authority and a cooperative management relationship has been developed with Lester B. Pearson College of the Pacific. Fisheries and Oceans Canada and BC Parks, in collaboration with First Nations, stakeholders and the public, are aiming to develop further management strategies to support protection and conservation objectives for the area. The Race Rocks Advisory Board (RRAB) has been convened with representation from a number of stakeholder groups and levels of government. 2. Purpose: The Race Rocks Advisory Board has been established to enable a Marine Protected Area designation under the Oceans Act at Race Rocks. The terms of reference have been developed to clarify the objectives, process, role and conduct of the Advisory Board. 3. Objectives: The Race Rocks Advisory Board will: • Represent key constituent groups or stakeholders; • Provide advice to Fisheries and Oceans Canada and B.C. Parks on the consultation process; • Collate and analyze feedback from consultations; • Make interim management recommendations to Fisheries and Oceans Canada and B.C. Parks for the establishment of a marine protected area at Race Rocks; and . Ensure community involvement in the establishment and on-going management of Race Rocks MPA. 4. Participation, Roles and Responsibilities: Participants: The Race Rocks area is of interest to a wide range of constituents representing a broad spectrum of activities. The RRAB represents a reasonably comprehensive cross-section of interest groups and activities. The RRAB shall be comprised of, but not limited to, representatives from the following groups: • Fisheries and Oceans Canada . BC Parks 125 First Nations Council of the Salish Sea • Lester B. Pearson College . Department of National Defence • Sports Fishery Advisory Board • Whale Watchers Operators Association - North West • Scientific Community • Dive Community • Georgia Strait Alliance • Friends of Ecological Reserves • Canadian Parks and Wilderness Society • Local Marina Operators • Parks Canada (Advisor/Observer Status) • Underwater Harvesters of B C If a member/participant is unable to attend a scheduled Board meeting, they may invite an alternate from their constituency. Participants are encouraged to invite other members of their groups to attend R R A B meetings, with prior notification of the Chair and subject to space limitations. Roles: The R R A B shall provide advice to B C Parks, Fisheries and Oceans Canada and First Nations regarding the development of a management plan for the M P A . The R R A B shall act solely as an advisory body to B C Parks and Fisheries and Oceans Canada. Nothing in these terms of reference constitutes authority to perform operational or management functions, or to represent or make decisions on behalf of B C Parks and/or Fisheries and Oceans Canada and/or First Nations. The R R A B shall draw on the expertise of its members and other sources in order to provide advice to B C Parks and Fisheries and Oceans Canada. The R R A B may serve as a forum for consultation and deliberation among its participants and as a source of consensus-based advice to B C Parks and Fisheries and Oceans Canada. Such consensus advice shall fairly represent the collective and individual views of the R R A B members and the constituencies they represent. Responsibility of Advisory Board Participants: Participants on the Race Rocks Advisory Board are encouraged to: • Provide advice and information on their activities within and surrounding Race Rocks; • Actively participate in discussions; . Share airtime with others; • Offer respect for different viewpoints and attention when others are speaking; • Ask questions for clarification and mutual understanding; • Verify assumptions; « Deal with differences as problems to be discussed, not battles to be won; • Refrain from distracting others through side conversations, cell phones off; • Make a best faith effort to work toward an agreement at the table; • Represent the perspectives, concerns and interest of respective agencies or constituencies wherever possible to ensure that agreements developed are acceptable to the organisations, agencies or constituents that you represent; 126 « Maintain dialogue with your constituency regarding the activities and discussions of the Race Rocks Advisory Board; and • Refer media contacts regarding the activities of the Board to the Chair/facilitator. Board members can speak on behalf of the Board not on the behalf of individual members. 5. Process: Recommendations by the R R A B will be made through a consensus-based process. The intent of this process is to provide the opportunity for all parties to participate in a manner which responds to their interests. If issues arise, whenever possible, final decisions will be made on the basis of recommendations supported by consensus as opposed to being unilaterally imposed. Consensus shall mean the "general agreement of all participants on a package of decisions or recommendations" and shall embody the following concepts: • Consensus does not mean total concurrence on every aspect of a decision, but all participants must be willing to accept the overall decision package. • If a participant withholds agreement on an issue(s), that participant is responsible for explaining how their interests are adversely affected or how the proposed agreement fails to meet its interests. The participant withholding agreement must propose alternatives and other participants must consider how all interests may be met. • Once consensus is reached on the overall package, it is assumed to be binding (Cormick et al. 1996). • Al l participants to a recommendation on which consensus had been achieved agree to exercise their rights, mandates, and responsibilities consistent with that recommendation and to take such further steps as may be necessary to give it effect. • If consensus is not achieved through this process, each participant will exercise their rights, responsibilities, and mandates as they see fit — unfettered as to statutory decision-making responsibilities and without prejudice to their rights and obligations by reason of having participated in the process. 6. Meetings: Meetings will be held periodically to assess and evaluate RRAB's activities and input. The chair / facilitator will be responsible to call meetings as interest or issues develop. R R A B members are also able to call a meeting if a topic has to be addressed. 7. Deliverables: The R R A B will deliver recommendations on levels of protection, goals and objectives to B C Parks, Fisheries and Oceans Canada and First Nations on the establishment of an M P A at Race Rocks. The Federal and Provincial Government in accordance with the joint M P A strategy for Canada's Pacific Coast will determine the final recommendations for a M P A at Race Rocks. 8. Timeline: It is expected that the Race Rocks Advisory Board, as outlined by these terms of reference, will complete the tasks described by 31 March, 2000. 9. Responsibilities of Fisheries and Oceans Canada and B . C . Parks: Fisheries and Oceans Canada and B.C. Parks support the sharing of all information and dialogue from the consultative process. Representatives from the respective departments on the Race Rocks Advisory Board will endeavour to fairly represent the interim management recommendations developed by the Race Rocks Advisory Board. B.C. Parks and Fisheries and Oceans Canada will review the recommendations of the Advisory Board and consider those recommendations when developing criteria for the designation, management and regulation of Race Rocks Marine Protected Area and future M P A strategies. 127 Appendix B. Race Rocks Advisory Board Recommendations Recommendations for Designation and Management of Race Rocks Marine Protected Area Source: Section 3.3 of RRAB (2000a). Translated from HTML format. Recommendations for the designation and management of the Race Rocks Marine Protected Area have been developed as a result of extensive consultations over the past eighteen months. The Race Rocks Advisory Board unanimously supports these recommendations. Key recommendations are categorized into the following six areas: (a) Designation: Recommend that Race Rocks be designated as a Marine Protected Area under the Oceans Act Section 35. (b) Area Boundaries: Recommend that the boundary for Race Rocks Marine Protected Area coincide with the Ecological Reserve boundary (1980); being all waters within the 36.5 metre (20 fathom) line as described on Canadian Hydrographic Chart 3641 [1980]. Total area 200 hectares. (c) Human Use: Managing human use and impacts are the principal issues for Race Rocks as a combined marine protected area and ecological reserve (c) 1. Recommendations for vessel and boating management guidelines addressing the following areas will be developed in consultation with user groups: • speed limits . anchoring restrictions • shoreline restriction • considerations when whales are within the MPA boundary • sensitive areas restrictions (i.e. kelp beds) » ballast water discharge and vessel traffic considerations • vessel and boating management guidelines will de developed in consultation with user groups • routine monitoring and reporting of vessel activity (c) 2. Recommendations for the management of aviation activities: • helicopter traffic by authorization • no over flights (c) 3. Recommendation for the management of fishing activities: • establish a "no-take" zone for all species within the 20 fathom contour line with other conservation and protection measures as recommended by the Steering Committee (c) 4. Recommendations for management of diving activities to be developed in consultation with user groups: • volunteer stewardship developed in cooperation with the dive community • educational and training programs for the dive community • adaptive development and application of Reefkeepers and other observation programs • routine monitoring and reporting of diving activity 128 (c) 5. Recommendations for the management of educational activities and research: • adaptive and integrated permit process for education and research, as per Ecological Reserve Act example monitored by Eco-warden Operator • develop a spectrum of learning opportunities including internet-based learning opportunities about MPA's • educational and research activity reported annually • develop learning and research opportunities which have minimal impact on ecosystem (c) 6. Recommendations for the development of a Traditional Use Study: • through consultation with First Nations, develop terms of reference and framework for a traditional use study, including translation • conduct traditional use study • working cooperatively, develop marine ecosystem-related curriculum for schools to further understanding of First Nations' relationship with Race Rocks (d) Environmental Protection: (d) 1. Recommendations for the management of dredging and dumping: • dredging of any kind is prohibited in Race Rocks Marine Protected Area • disposal of any material, including overboard discharge of sewage, is prohibited in the Race Rocks Marine Protected Area (d) 2. Recommendations for the management of exploration for, and development of, non-renewable resources: • that the exploration for, or development of, non-renewable resources is prohibited in the Race Rocks Marine Protected Area • no pipelines or utility corridors (d) 3. Recommendations for the protection of birds and habitat: • develop a structured monitoring program and protocol for other activities • establish appropriate conservation measures and protection areas • develop partnerships with CWS, Rocky Point Bird Observatory Society, etc. • use internet capability for non-intrusive observation • routine monitoring and reporting (d) 4. Recommendations for the protection of marine mammals and habitat: • develop partnerships with all groups for monitoring and research within a structured program • establish protection measures where appropriate • partnerships with whale watching industry for public education . work with marine mammal viewing industry to develop best practices . use internet capability for non-intrusive observation • routine monitoring and reporting (e) Management/Governance Framework: Recommendations for management/governance: (e) I. Pacific Steering Committee • consists of a representative from First Nations, B.C. Parks and Fisheries & Oceans Canada • develops policy and management recommendations for ER/MPA's • identifies areas of interest and process for designation • provides general direction for Race Management/ Implementation Committee (e) 2. Race Rocks Management/Implementation Committee • consists of a representative from First Nations, B.C. Parks and Fisheries & Oceans . implements and co-ordinates the management of Race Rocks ER/MPA • provides policy and management recommendations to government departments regarding ER/MPA's • provides direction for the Race Rocks ER/MPA Eco-warden Operator • works with the Race Rocks Advisory Board • provides direction for ER/MPA evaluation (e) 3. Race Rocks Advisory Board (post designation) • cross-sector representation • provides advice to Pacific Steering Committee and Race Rocks Management/Implementation Committee on management issues • facilitates communications with constituents • makes recommendations for the operations of Race Rocks Marine Protected Area • provides advice and participates in ER/MPA evaluation (e) 4. Eco-warden operator • direction provided by Race Rocks Management/Implementation Committee • manages day to day operations in Race Rocks ER/MPA • facilitates permit system for research and education • facilitates compliance program • develops information and education programs • assists with ongoing evaluation and monitoring (e) 5. Recommendations for compliance: • emphasize partnerships and voluntary compliance through education • support stewardship initiatives • develop enforcement response by appropriate government agencies, as required • develop a protocol for reporting to the Steering Committee and Management/Implementation Committee (f) Stewardship: As the consultative process unfolded, it soon became apparent that there was significant support for the creation of a Marine Protected Area at Race Rocks. Rather than develop a complex regulatory framework for protection and conservation, there are strong indications that a voluntary compliance and stewardship program will achieve the goals and objectives as described herein. Principal stakeholder groups have expressed a keen interest in not only developing "best practices" but also working towards ensuring a high degree of compliance. The development of stewardship initiatives and "best practices" guidelines has already commenced; the results will be reflected in the development of a management plan. 130 Appendix C. XwaYen (Race Rocks) Marine Protected Area Regulations Source: O'Sullivan (2000). Copied from PDF document. 3364 Canada Gazette Part I October 28, 2000 XwaYeN (Race Rocks) Marine Protected Area Regulations Statutory Authority Oceans Act Sponsoring Department Department of Fisheries and Oceans REGULATORY IMPACT ANALYSIS STATEMENT Description The Oceans Act (the Act) came into force on January 31,1997. Part II of the Act authorizes the establishment of an Oceans Man-agement Strategy (OMS) based on the principles of sustainable development, integrated management and the precautionary ap-proach. This part of the Act also provides authority for the devel-opment of tools necessary to carry out the OMS, tools such as the establishment of Marine Protected Areas. Section 35 of the Act authorizes the Governor in Council to designate, by regulation. Marine Protected Areas for any of the following reasons: (a) the conservation and protection of commercial and non-commercial fishery resources, including marine mammals and their habitats; (b) the conservation and protection of endangered or threatened species and their habitats; (c) the conservation and protection of unique habitats; (d) the conservation and protection of marine areas of high biodiversity or biological productivity; and (e) the conservation and protection of any other marine re-source or habitat as is necessary to fulfill the mandate of the Minister of Fisheries and Oceans. In 1998, the Minister of Fisheries and Oceans announced four pilot Marine Protected Area initiatives on Canada's Pacific Coast. One of these, Race Rocks in British Columbia, meets the criteria set out in paragraphs 35(1 )(b), (d) and (e) above. This regulatory initiative proposes to formally designate, under the Oceans Act, the waters surrounding Race Rocks as XwaYeN (Race Rocks) Marine Protected Area (MPA). In addition, the harvesting of liv-ing marine resources within the MPA will be prohibited subject to existing aboriginal or treaty rights. XwaYeN (pronounced shwai'yen) is located in the Juan de Fuca Strait, 17 kilometres off the coast of Vancouver Island, southwest of Victoria. The islets of XwaYeN (Race Rocks) form the most southerly part of Canada's Pacific Coast. Named for its strong tidal currents and rocky reefs, the waters surrounding XwaYeN (Race Rocks) are a showcase for Pacific marine life, featuring whales, sea lions, seals, birds and a wide variety of underwater plants and animals. These waters are home to a thriving community of sub-tidal invertebrates, includ-ing sponges, anemones, hydroids and soft corals. Crowds of Reglement sur la zone de protection marine XwaYeN (Race Rocks) Fondement legislatif Loi sur les oceans Ministere responsable Ministere des Peches et des Oceans RESUME DE L'ETUDE D'EvIPACT DE LA REGLEMENTATION Description La Loi sur les oceans (la Loi) est entree en vigueur le 31 Jan-vier 1997. La partie II de la Loi permet I'etablissement d'une stratdgie de gestion des oceans (SGO) basee sur les principes du developpement durable, de la gestion integree et de la prevention. Cette partie de la Loi prevoit aussi l'61aboration d'outils necessai-res a la SGO, notamment I'etablissement de zones de protection marine. L'article 35 de la Loi autorise le gouverneur en conseil a de-signer, en vertu de la reglementation, des zones de protection marines pour l'une ou plusieurs des raisons suivantes : a) la conservation et la protection des ressources halieutiques commerciales ou autres, y compris les mammiferes marins, et de leur habitat; (b) la conservation et la protection des especes en voie de dis-parition et des especes menacees et de leur habitat; c) la conservation et la protection d'habitats uniques; d) la conservation et la protection des espaces marins riches en biodiversite ou en productivity biologique; e) la conservation et la protection d'autres ressources ou habi-tats marins, au besoin, pour la realisation du mandat du minis-tre des Peches et des Oceans. En 1998, le ministre des Peches et des Oceans a annonce la creation de quatre projets pilotes concernant des zones de protec-tion marine sur la Cote du Pacifique canadienne. L'une d'elles 6tait la zone pilote de protection marine Race Rocks, qui satisfait aux exigences etablies aux alineas 35(1)6), d) et e) decrits ci-dessus. Par le biais de cette initiative reglementaire, on propose de designer formellement, en vertu de la Loi sur les oceans, les eaux avoisinant le secteur de Race Rocks comme zone de protec-tion marine (ZPM) de XwaYeN. De plus, le prelevement de res-sources marines vivantes a l'inteneur de la zone sera deTendu, sauf si ce dernier est relatif a des traites ou droits autochtones. XwaYeN (dont la prononciation est shwai'yen) est situe dans le ddtroit de Juan de Fuca, a 17 kilometres de la cote de 1'ile de Vancouver, au sud-ouest de Victoria. Les llots de XwaYeN (Race Rocks) forment la partie la plus mendionale de la Cote du Pacifi-que canadienne. XwaYeN (Race Rocks) doit son nom a ses courants de maree puissants et a ses recifs rocheux, et ses eaux avoisinantes abritent une riche vie marine : baleines, otaries, phoques, oiseaux et une grande diversite de plantes et d'animaux sous-marins. Les eaux de XwaYeN (Race Rocks) accueillent une communauuS foison-nante infralittorale d'invertetires, notamment des eponges, des Le 28 octobre 2000 Gazette du Canada Partie I 3365 barnacles, tunicates, urchins and sea stars adorn the underwater cliffs. Fish such as sculpin, rockfish and lingcod seek refuge in the rocky crevices and undulating kelp forests. The area's high velocity tidal currents — up to seven knots — in combination with the climate and the temperature and salinity of the water in the area supplies a generous stream of nutrients and promotes high levels of dissolved oxygen. These factors con-tribute to the creation of an ecosystem of high biodiversity and biological productivity. The waters surrounding XwaYeN (Race Rocks) are an impor-tant nursery and recruitment area for Northern abalone. In 1999, Northern abalone (Halliotis kamischatkana) was designated as a threatened marine species by the Committee on the Status of En-dangered Wildlife in Canada (COSEWIC). Protecting this nursery and recruitment area will aid the nurturing of this species. Fur-thermore, efforts to conserve and protect the biodiversity and biological productivity of the XwaYeN (Race Rocks) marine ecosystem will also enhance the protection of this threatened species. To provide long-term and comprehensive protection of the di-verse species and to maintain the biological productivity of the ecosystem, a prohibition of the harvesting of all living marine resources in the waters surrounding XwaYeN (Race Rocks) is being proposed. Although seasonal fisheries closures under the Fisheries Act have restricted all commercial fishing of finfish and shellfish in the area since 1990, recreational harvesting of salmon and halibut and harvesting of non-commercial species continues. The prohibition of living marine resource harvesting under the Oceans Act will provide a longer-term commitment to the conser-vation and protection of the XwaYeN (Race Rocks) ecosystem. In 1980, the province of British Columbia, under the authority of the provincial Ecological Reserves Act. established the Race Rocks Ecological Reserve, which provides for the protection of the terrestrial natural and cultural heritage values (nine islets) and of the ocean seabed (to the 20 fathoms contour line). Ocean dumping, dredging and the extraction of non-renewable resources are not permitted within the boundaries of the Ecological Reserve. However, the Ecological Reserve cannot provide for the con-servation and protection of the water column or for the living resources inhabiting the coastal waters surrounding XwaYeN (Race Rocks). The federal government is using its authority to complement the protection afforded by the Ecological Reserve by prohibiting the harvesting of living marine resources. Adopting an integrated management approach within the Race Rocks area will provide for a more comprehensive level of con-servation and protection for the ecosystem than can be achieved by either an MPA or an Ecological Reserve on its own. Desig-nating a Marine Protected Area within the area corresponding to the Ecological Reserve will facilitate the integration and increase the synergy of conservation, protection and management initia-tives under the respective authorities of the two governments. The Oceans Act mandates the Minister to lead and facilitate the development and implementation of plans for the integrated man-agement of all activities with other ministers and agencies of the Government of Canada, with provincial governments and with affected Aboriginal organizations and coastal communities for the purposes of conservation and protection of Canada's oceans. anemones de mer, des hydraires et des coraux mous. Des colonies de cirripedes, de tuniciers, d'oursins et d'&oiles de mer oment les falaises sous-marines. Des poissons comme des chabots, des s6-bastes et des morues-lingues cherchent refuge dans ies crevasses rocheuses et les peuplements d'algues brunes ondulantes. Les courants de maree a haute vitesse de la zone — jusqu'a sept noeuds — combines au climat, a la temperature et a la salinity de l'eau de la zone fournissent un apport genereux de nutriments et favorisent des niveaux d'oxygene dissous 61ev6s. Ces facteurs contribuent a creer un ecosysteme dont la biodiversity et la pro-ductivity sont importantes. Les eaux avoisinant XwaYeN (Race Rocks) constituent un secteur important pour la reproduction et le recrutement de l'or-meau nordique. En 1999, l'ormeau nordique (Halliotis kamis-chatkana) a ety designy espece marine menacee par le Comity sur le statut des especes menacees de disparition au Canada (CSEMDC). La protection de cette zone de reproduction et de recrutement favorisera la conservation de l'espece. De plus, les efforts deployes pour conserver et proteger la biodiversity et la productivity biologique des ecosystemes marins de XwaYeN (Race Rocks) contribueront egalement a la protection de cette es-pece menacee. Afin de foumir une protection complete et a long terme de ces diverses especes, et de maintenir la productivity biologique de l'ecosysteme, on doit mettre un terme au pryievement de toutes les ressources marines vivantes dans les eaux avoisinant XwaYeN (Race Rocks). Bien que les fermetures des peches saisonnieres en vertu de la Lai sur les peches aient restreint la peche commerciale des poissons et des mollusques et crustaces dans la zone depuis 1990, la peche du saumon et du fletan a des fins recreatives et la recolte d'especes non commerciales se poursuit. L' interdiction de prelever les ressources marines vivantes en vertu de la Loi sur les oceans correspondra a un engagement a long terme envers la con-servation et la protection de l'ecosysteme de XwaYeN (Race Rocks). En 1980, la province de la Colombie-Britannique, en vertu de 1'Ecological Reserve Act, une loi provinciale, a institue la reserve ecologique de Race Rocks, qui assure la protection du patrimoine naturel et culturel des neuf tlots terrestres et du fond oceanique (20 lignes de profondeur). Les rejets en mer, le dragage et l'ex-traction des ressources non renouvelables sont interdits dans les limites de la reserve ecologique. Toutefois, la rtserve ecologique actuelle n'assure pas la con-servation et la protection de la colonne d'eau ou des ressources vivantes des eaux cotieres avoisinant XwaYeN (Race Rocks). Le gouvemement fydyral exerce done son autority afin d'ajouter une protection complementaire a ce qu'offre dyja la reserve ecologi-que en interdisant le pryievement des ressources marines vivantes. L'adoption d'une approche de gestion integrye au sein de la zone de Race Rocks permettra de mieux conserver et proteger l'ecosysteme qu'une seule zone de protection marine ou reserve ecologique. La designation d'une zone de protection marine a l'interieur de la zone correspondant a la reserve ecologique favo-risera l'intygration et la synergie des initiatives de conservation, de protection et de gestion en vertu des pouvoirs respectifs des deux gouvernements. La Loi sur les oceans permet au ministre de guider et de facili-ter l'elaboration et la mise en ceuvre de plans de gestion integrye de toutes les activites entreprises de concert avec les autres mi-nisteres et organismes fydyraux, les gouvernements provinciaux. ainsi que les organisations autochtones et les collectivites cotieres concernyes, en vue de la conservation et de la protection des oceans au Canada. 3366 Canada Gazette Part I October 28, 2000 This proposal to designate the XwaYeN (Race Rocks) area as a Marine Protected Area under the Oceans Act provides the neces-sary foundation for the Minister to lead and facilitate the devel-opment of an integrated, cooperative ecosystem-based manage-ment regime utilizing: (a) a cooperative, integrated management approach involving several federal and provincial government agencies using their respective authorities to conserve and protect the area; (b) compliance based on best practices, stewardship and vol-untary guidelines; and (c) assessment of effectiveness of the voluntary initiatives and further restriction as warranted. Integrating the management of the terrestrial and marine com-ponents of the XwaYeN (Race Rocks) ecosystem will facilitate coordinated, effective and efficient management of the area. This cooperative management regime is the preferred approach to the conservation and protection of XwaYeN (Race Rocks) as deter-mined through the consultation process. Candidate activities for cooperative management include marine mammal watching, guided diving, research and education, ballast water management, National Defence and Transport Canada programs in the area. The designation of the XwaYeN (Race Rocks) as an MPA and the prohibition of harvesting of living marine resources are an important and necessary element in the overall conservation and protection of an ecosystem which is biologically diverse and highly productive. Alternatives The status quo was considered unacceptable because even though the area is currently afforded some protection under the Fisheries Act, an MPA designated by regulation under the Oceans Act provides an opportunity to use integrated management tools for conserving and protecting the biodiversity and biological pro-ductivity of the area and the threatened Northern abalone. The proposed option is the designation of the XwaYeN (Race Rocks) MPA by regulation with a prohibition on the harvesting of all living marine resources. This option will provide the primary element required to manage the MPA while allowing the Minister to lead and facilitate the development of an integrated manage-ment approach to comprehensive ecosystem management of the area. This alternative to comprehensive regulation conforms to Regulatory Policy by limiting regulatory burden on Canadians. However, should it become necessary, control of activities in the area by regulation would be considered. Benefits and Costs The primary benefit of the proposed Regulations establishing the XwaYeN (Race Rocks) Marine Protected Area is that the foundation will be set for ensuring the conservation and protec-tion of a highly diverse and productive ecosystem of Canada's oceans. It will aid in the prevention of potential ecological dete-rioration and protect the Northern abalone in that area. A subsidiary benefit of designating the XwaYeN (Race Rocks) MPA is the opportunity to initiate an integrated management regime based on a cooperative, integrated, ecosysiem-based management approach to conserve and protect the area involving several federal and provincial government agencies using their La proposition pour la designation de XwaYeN (Race Rocks) en tant que zone de protection marine en vertu de la Loi sur les oceans foumira le fondement necessaire au ministre pour diriger et favoriser la mise en ceuvre d'un regime de gestion integree et cooperatif fondS sur l'ecosysteme, et base sur les elements suivants: a) une approche de gestion integree et cooperative impliquant plusieurs organismes ttderaux et provinciaux qui exercent leur autorite respective pour conserver et proteger la zone; b) le respect volontaire fond6 sur les pratiques exemplaires, l'intendance et les lignes directrices volontaires; c) 1'evaluation de l'efficacite des initiatives volontaires et d'autres restrictions au besoin. L' integration de la gestion des composantes terrestres et mari-nes de l'ecosysteme de XwaYeN (Race Rocks) contribuera a une gestion coordonnee, efficiente et efficace de la zone. Ce regime de gestion cooperatif est I'approche privilegiee pour la conserva-tion et la protection de XwaYeN (Race Rocks) tel qu'il a Ste eta-bli par le processus de consultation. Les activites proposees pour une gestion cooperative comprennent 1'observation de mammi-feres marins, la plongee guidee, la recherche et l'&lucation, la gestion des eaux de ballast et les programmes des ministeres de la D6fen.se nationale et des Transports (niveau federal) dans le secteur. La designation de XwaYeN (Race Rocks) comme ZPM et l'interdiction de prdlever les ressources marines vivantes repre-sentent des elements importants et n&essaires pour la conserva-tion et la protection d'un ecosysteme tres productif et riche en biodiversite. Solutions envisagees Le statu quo 6tait considere inacceptable. En effet, meme si la zone est actuellement protegee d'une certaine facon en vertu de la Loi sur les peches, une ZPM designee par reglement en vertu de la Loi sur les oceans foumira l'occasion d'utiliser des outils de gestion integree pour conserver et prouSger la biodiversite et la productivite biologique de la zone ainsi que l'ormeau nordique, une espece menacee. La solution envisagee est la designation de la ZPM de XwaYeN (Race Rocks) par reglement, avec l'interdiction de pre-lever toute ressource marine vivante. Cette solution apportera l'Slement cle requis pour gerer la ZPM tout en permettant au mi-nistre de guider et de faciliter la creation d'une approche de ges-tion intdgree de l'ecosysteme dans son ensemble. Cette solution proposee pour la reglementation est conforme a la Politique de reglementation car elle r&luit le fardeau regle-mentaire des Canadiens. Cependant, si la situation l'exige, la so-lution qui consiste a controler les activites par la reglementation demeure possible. Avantages et couts L'avantage principal du reglement propose pour designer XwaYeN (Race Rocks) zone de protection marine est l'gtablis-sement des fondements n&essaires pour veiller a la conservation et a la protection d'un ecosysteme marin canadien fort productif et riche en diversite. Ceci contribuera a prevenir la deterioration 6cologique de la zone et a proteger l'ormeau nordique dans cette zone. Un avantage secondaire a la designation de la ZPM de XwaYeN (Race Rocks) est l'occasion d'instaurer un regime de gestion integree qui sera fonde sur une approche de gestion eco-systemique, cooperative et integree pour conserver et proteger la zone, et qui impliquera plusieurs organismes ftideraux et LAI 28 octobre 2000 Gazette du Canada Partie I 3367 respective authorities; and voluntary compliance through stew-ardship and cooperation with an alliance of stakeholder groups. The establishment of this MPA will also demonstrate Canada's resolve to fulfill its commitments under the United Nations Con-ference on the Law of the Sea (UNCLOS) and the Convention on Biological Diversity (UNEP 1994), as well as Canada's commit-ment to the IUCN World Commission on Protected Areas Program. The costs related to the administration and management of the MPA will be managed within existing budgetary allotments. Consultation Since its announcement in 1998, the pilot Marine Protected Area process has identified and galvanized strong local support for designation of XwaYeN (Race Rocks) as an MPA. The con-sultative process has developed new trust-based relationships and the regulatory designation of the MPA will maintain the level of momentum and stakeholder confidence that have now been established. To facilitate the consultative process, the Race Rocks Advisory Board was established with representation from: — the Department of National Defence — Parks Canada — Fisheries and Oceans Canada — the Ministry of Environment, Lands and Parks of British Columbia — the Lester B. Pearson College of the Pacific — Aboriginal groups through the Coast Salish Sea Council — the Scientific community — the Friends of Ecological Reserves — the Dive community — the Georgia Strait Alliance — the Sport Fish Advisory Board — Victoria, representing the recreational fishing community — local marina operators — the Canadian Parks and Wilderness Society — The Northwest Whale Watchers Association The role of the Race Rocks Advisory Board role was to: — represent key constituent groups or stakeholders; — provide advice to Fisheries and Oceans Canada and British Columbia Parks on the consultation process; — collate and analyze feedback from consultations; — make consensus-based, recommendations to Fisheries and Oceans Canada and British Columbia Parks for the establish-ment of a Marine Protected Area in the waters surrounding XwaYen (Race Rocks); and — ensure community involvement in the establishment and on-going management of XwaYen (Race Rocks) MPA. Four Coast Salish First Nations, Beecher Bay, T'souke, Song-hees and Esquimalt Nations, claim the eastern end of the Strait of Juan de Fuca as part of their traditional territory. Although the creation of the MPA does not restrict harvesting by First Nations for food, social or ceremonial purposes, they volunteered to forego this activity in support of the designation of the MPA. provinciaux aux pouvoirs distincts; de plus, la designation favo-rise la conformite volontaire au moyen d'activites d'intendance et de cooperation avec des groupes d'intervenants. La creation de cette ZPM demontrera aussi la volonte du Cana-da a s'acquitter de ses engagements en vertu de la Conference des Nations Unies sur le droit de la mer (UNCLOS) et de la Conven-tion sur la biodiversite (PNUE 1994), ainsi que ses responsabilites dans le cadre du programme des aires protegees de I'Union mon-diale pour la nature (IUCN). Les sommes necessaires a la gestion de la ZPM proviendront des affectations budgetaires existantes. Consultations Depuis son annonce en 1998, le processus de la ZPM pilote a recueilli et stimule un appui local considerable pour la designa-tion de la ZPM de XwaYeN (Race Rocks). Le processus de con-sultation a contribue" a tisser des liens bases sur la confiance, et la designation rdglementaire de la ZPM aidera a preserver l'elan et la confiance des intervenants. Le Conseil consultatif de Race Rocks a et6 cr£6 afin de faciliter le processus de consultation. Les representants sont les suivants : — le ministere de la Defense nationale — Pares Canada — Peches et Oceans Canada — le Ministry of Environment, Lands and Parks de la Colombie-Britannique — le College du Pacifique Lester B. Pearson — les groupes autochtones, par l'interm&liaire du Coast Salish Sea Council — la communaute scientifique — les Friends of Ecological Reserves — la communaute des plongeurs — la Georgia Strait Alliance — le Conseil consultatif de la peche recreative — Victoria (representant la collectivite de la peche recreative) — les exploitants de marinas locales — la Soci6t6 pour la protection des pares et des sites naturels du Canada — The Northwest Whale Watchers Association Le Conseil consultatif de Race Rocks remplissait les fonctions suivantes : — repr6senter les groupes ou les intervenants cles; — donner des avis a Peches et Oceans Canada et au ministere des Pares de la Colombie-Britannique sur le processus consultatif; — assembler et analyser les resultats du processus de consultation; — faire des recommandations consensuelles a Peches et Oceans Canada et au ministere des Pares de la Colombie-Britannique sur l'&ablissement d'une zone de protection marine dans les eaux avoisinant XwaYen (Race Rocks); — veiller a la participation de la collectivity a l'&ablissement et a la gestion continue de la ZPM de XwaYen (Race Rocks). Quatre Premieres nations Salish du littoral soit Beecher Bay, T'souke, Songhees et Esquimalt revendiquent la partie est du detroit de Juan de Fuca comme leur territoire traditionnel. Bien qu'on ne prevoie pas limiter les activites des Premieres nations en creant la ZPM, ces demieres ont offert, durant les consultations, de renoncer a leurs activitis de peche a des fins alimentaires et rituelles pour manifester leur appui a la designation de la ZPM. 3368 Canada Gazette Part I October 28, 2000 The Race Rocks Advisory Board provided an excellent forum for issue identification, discussion and resolution. It has func-tioned well and guided the development of the proposed coopera-tive management regime. The resulting commitment to steward-ship and cooperation in the protection of this area as an MPA has laid the groundwork for a management regime through voluntary compliance that is unprecedented. In discussing and developing recommendations for designation and management of the Race Rocks Marine Protected Area, all members of the Race Rocks Advisory Board and their constitu-ents clearly understood that, upon designation, the area would be closed to harvesting (commercial and recreational) of all living marine resources. It was also accepted that this would not prevent the removal of marine organisms for scientific or educational purposes as part of an ongoing research program to assess and monitor the long-term health of the XwaYen (Race Rocks) ma-rine ecosystem. The most direct impact of this prohibition is on the recreational fishing community who have endorsed the implementation of a "no-take" zone within the boundaries of the proposed Marine Protected Area. There will be no impact on the commercial fish-ing sector as the area has been closed to commercial fishing since 1990 and there is no expectation on the part of the commercial sector that the area will be re-opened in the future. Aboriginal groups have indicated their support to the Race Rocks Advisory Board for the creation of the XwaYeN (Race Rocks) Marine Protected Area by voluntarily choosing not to fish in the area. The recommendations reflect the outcome of a consensus-based process by the Race Rocks Advisory Board and directions expressed by the public, stakeholders and other partners through consultations conducted over a two-year period. In addition to sectoral consultations with stakeholders, two public sessions were conducted in February 2000. The public consultations were held to provide opportunities for information and discussion with those persons not represented by particular interest groups. With an attendance of 101 persons, the consulta-tions provided useful fora for the discussion of both the MPA and Ecological Reserve aspects of the initiative. Results of these dis-cussions indicated a high level of support for establishment of a Marine Protected Area at Race Rocks to complement the area's Ecological Reserve status. Media coverage since the initial announcement of the pilot ini-tiative at XwaYeN (Race Rocks) has been regular, positive and resulted in continued public discussion and interest. Ranging from local newspapers to the Knowledge Network and the Discovery Channel, the coverage has highlighted the ecological values of the proposed MPA and public support for it. Compliance and Enforcement Principal stakeholder groups have expressed a keen interest in not only developing "best practices" but also working towards ensuring a high degree of compliance. The development of stew-ardship initiatives and "best practices" guidelines has already commenced. The unanimous support for the creation of a Marine Protected Area in the waters surrounding XwaYeN (Race Rocks) suggests that enforcement interventions will rarely be required. XwaYeN (Race Rocks) has resident guardians and an Internet-based series of live video cameras strategically placed in the area. These Le Conseil consultatif de Race Rocks representait un excellent forum pour la definition, la discussion et la resolution des pro-blemes. II a bien fonctionnS et a guidS la mise sur pied du rfigime de gestion cooperatif proposed L'engagement resultant en matiere d'intendance et de cooperation pour la protection de cette zone en tant que ZPM, a jet6 les bases d'un regime de gestion par confor-mite volontaire sans precedent. Au cours des discussions et de I'elaboration des recommanda-tions pour la designation et la gestion de la Zone de protection marine de Race Rocks, tous les membres du conseil consultatif et leurs commettants ont bien compris qu'avec la designation, le prSlevement de toute espece marine vivante (commerciale et re-creative) serait interdit. Us ont aussi accepte que cette restriction n'empeche pas le pnilevement d'organismes marins a des fins scientifiques ou academiques dans le cadre d'un programme de recherche continu pour evaluer et effectuer le suivi de la sant6 a long terme de l'ecosysteme marin de XwaYen (Race Rocks). L'impact le plus direct de cette interdiction porte sur la collec-tivite de peche recreative, qui a accepts l'6tablissement de la zone sans pnSlevement a l'interieur des limites de la zone de protection marine proposee. Le secteur de peche commerciale ne sera pas touchd, car la zone est ferm e^ a la peche commerciale depuis 1990, et le secteur commercial ne s'attend pas a la reouverture de cette zone dans un avenir prochain. Les groupes autochtones ont manifest^  au Conseil consultatif de Race Rocks leur appui envers la cniation de la zone de protection marine de XwaYeN (Race Rocks) en optant volontairement pour ne pas exercer la peche dans ce secteur. Les recommandations traduisent le resultat du processus de concertation mene par le Conseil consultatif de Race Rocks et les opinions exprimees par le public, les intervenants et les autres partenaires au moyen de consultations qui ont dur£ deux ans. En plus des consultations sectorielles avec les intervenants, deux seances publiques ont eu lieu en fevrier 2000. Les consulta-tions publiques ont ete tenues afin de permettre aux personnes non representees par des groupes d'interet d'obtenir de l'in-formation et de discuter sur ces questions. Les consultations, aux-quelles ont participe' 101 personnes, ont represent^  un forum utile pour la discussion sur divers aspects de la ZPM et de la reserve ecologique. Les resukais de ces discussions temoignent d'un ap-pui considerable a la creation d'une zone de protection marine a Race Rocks comme complement au statut de reserve ecologique. Depuis l'annonce premiere de l'initiative pilote de XwaYeN (Race Rocks), la couverture mddiatique a 6ti positive, continue et a stimuli la discussion et l'int6ret de la part du public. Parmi les medias qui ont traite1 du dossier, on comptait des joumaux locaux et des emissions de television fiducatives (Knowledge Network et Discovery Channel) qui ont soulign£ les avantages ecologiques de la ZPM proposee et l'appui du public. Respect et execution Les principaux groupes d'intervenants ont manifest^  un vif in-teret, non seulement envers ('elaboration de pratiques exemplai-res, mais aussi envers l'atteinte d'un niveau elev6 de conformite aux exigences reglementaires. La mise sur pied d'initiatives d'intendance et de lignes directrices visant des pratiques exem-plaires a deja commence. L'appui unanime a la creation d'une zone de protection marine dans les eaux avoisinant le secteur XwaYeN (Race Rocks) sug-gere que des interventions coercitives seront rarement requises. Le secteur de XwaYeN (Race Rocks) compte des gardiens re-sidants et abrite une serie de cameras video en ligne (lifes a Le 28 octobre 2000 Gazette du Canada Partie I 3369 provide the foundation for a strong community-based compliance environment. Therefore, management will be achieved through voluntary compliance/best practices guidelines for a number of activities, such as recreational boating, eco-tourism activities, including marine mammal viewing, and diving activity. Monitoring and assessment of the effectiveness of these guidelines will take place over a two-year period. Depending on the results, activity regula-tions can then be considered if necessary. Contacts Camille Mageau, Director, Marine Ecosystem Conservation, Department of Fisheries and Oceans, 200 Kent Street, Ottawa, Ontario KI A 0E6, (613) 991-1285 (Telephone), (613) 998-3329 (Facsimile), mageauc@dfo-mpo.gc.ca (Electronic mail), or Mary Ann Green, Director, Legislative and Regulatory Affairs, De-partment of Fisheries and Oceans, 200 Kent Street, Ottawa, On-tario KI A 0E6, (613) 990-0162 (Telephone). (613) 990-0120 (Facsimile), greenma@dfo-mpo.gc.ca (Electronic mail). Internet) disposers strategiquement. Ces mesures contribuent a un environnement local propice a la conformity. Par consequent, la gestion sera assuree au moyen de lignes di-rectrices sur la conformity volontaire relative a un certain nombre d'acfivites telles les bateaux plaisanciers, les activites liees a l'ecotourisme y compris l'observation de mammiferes et la plon-gee. Le suivi et revaluation de l'efficacite de ces lignes directri-ces se feront sur une peiiode de deux ans. Selon les resultats, des reglements relatifs aux activites seront alors considered au besoin. Personnes-ressources Camille Mageau. Directrice, Conservation des ecosystemes marins, Ministere des Peches et des Oceans, 200, rue Kent, Otta-wa (Ontario) KI A 0E6, (613) 991-1285 (telephone), (613) 998-3329 (teiecopieur), mageauc@dfo-mpo.gc.ca (courriel), ou Mary Ann Green, Directrice, Affaires legislatives et reglementaires, Ministere des Peches et des Oceans, 200, rue Kent, Ottawa (Onta-rio) K1A 0E6, (613) 990-0162 (telephone), (613) 990-0120 (tele-copieur), greenma@dfo-mpo.gc.ca (courriel). PROPOSED REGULATORY TEXT Notice is hereby given that the Governor in Council, pursuant to subsection 35(3) of the Oceans Acf, proposes to make the an-nexed XwaYeN (Race Rocks) Marine Protected Area Regulations. Interested persons may make representations with respect to the proposed Regulations within 30 days after the date of publi-cation of this notice. All such representations must cite the Can-ada Gazette, Part 1, and the date of publication of this notice, and be addressed to Camille Mageau, Director. Marine Ecosystem Conservation. Fisheries and Oceans Canada, 200 Kent Street, Ottawa, ON, KI A 0E6. Telephone: (613) 991-1285; FAX: (613) 998-3329, E-mail: mageauc@dfo-mpo.gc.ca. Ottawa, October 19, 2000 MARC O'SULLIVAN Assistant Clerk of the Privy Council PROJET DE REGLEMENTATION Avis est donn6 que la gouvemeure en conseil, en vertu du pa-ragraphe 35(3) de la Loi sur les oceans", se propose de prendre le Reglement sur la zone de protection marine XwaYeN (Race Rocks), ci-apres. Les undresses peuvent presenter leurs observations au sujet du projet de reglement dans les 30 jours suivant la date de publica-tion du present avis. lis sont pries d'y citer la Gazette du Canada Partie I ainsi que la date de publication, et d'envoyer le tout a Camille Mageau, Directrice, Conservation des ecosystemes ma-rins, Ministfere des Peches et Oceans, 200, rue Kent, Ottawa (On-tario) KI A 0E6. Telephone : (613) 991-1285, Teiecopieur: (613) 998-3329, Courriel: mageauc@dfo-mpo.gc.ca Ottawa, le 19 octobre 2000 Le greffter adjoint du Conseil prive, MARC O'SULLIVAN XwaYeN (RACE ROCKS) MARINE PROTECTED AREA REGULATIONS DESIGNATION 1. The area within the 20-fathom (36.58 metre) contour line as shown on the chart set out in the schedule is hereby designated as the XwaYeN (Race Rocks) Marine Protected Area. PROHIBITION 2. (1) The definitions in this subsection apply in this section, "fish" has the same meaning as in section 2 of the Fisheries Act. (poisson) "fish habitat" has the same meaning as in subsection 34( 1) of the Fisheries Act. (habitat du poisson) REGLEMENT SUR LA ZONE DE PROTECTION MARINE XwaYeN (RACE ROCKS) DESIGNATION 1. L'espace situ6 a Pinterieur de la Iigne de contour de 20 bras-ses (36,58 m) dont le trace figure sur la carte hydrographique en annexe est designe comme la zone de protection marine XwaYeN (Race Rocks). INTERDICTION 2. (1) Les definitions qui suivent s'appliquent au present article. « habitat du poisson » S'entend au sens du paragraphe 34(1) de la Loi sur les peches. (fish habitat) « poisson » S'entend au sens de l'article 2 de la Loi sur les pe-ches. (fish) ' S.C. 1996.c. 31 * L.C. 1996, ch. 31 3370 Canada Gazette Part I October 28, 2000 (2) No person shall remove from XwaYeN (Race Rocks) Ma-rine Protected Area any (a) fish; (h) part of the fish habitat; or (c) living marine organism that forms part of the ecosystem of fish. (3) Subsection (2) does not apply to removal for scientific re-search for the protection and understanding of the XwaYeN (Race Rocks) Marine Protected Area. COMING INTO FORCE 3. These Regulations come into force on the day on which they are registered. , (2) 11 est interdit d'enlever de la zone de protection marine XwaYeN (Race Rocks): a) tout poisson; b) tout element de l'habitat du poisson; c) tout organisme marin vivant faisant partie de l'ecosysteme du poisson. (3) Le paragraphe (2) ne s'applique pas a l'enlevement aux fins de recherche scientifique visant la protection et la comprehension de la zone de protection marine XwaYeN (Race Rocks). ENTREE EN VIGUEUR 3. Le present reglement entre en vigueur a la date de son enregistrement. 

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