Report: University Victoria Law School MArch 2018

Murray & Anne Fraser Building PO Box 1700 STN CSC Victor ia, BC V8W 2Y2 Phone: 250.721.8188 Emai l : elc@uvic.ca Web: www.elc.uvic.ca 

 

January 24, 2018 

Ministry of Environment and Climate Change Strategy, 

BC Parks West Coast 

2080-A Labieux Road 

Nanaimo, BC V9T 6J9 

Dear Ministry of Environment and Climate Change Strategy, 

Re: Submission to the Ministry of Environment and Climate Change Strategy: Cowichan River Provincial Park, Park Management Plan

Prepared by the University of Victoria Environmental Law Clinic on behalf of the Cowichan River Neighbourhood Association

The purpose of this submission is to provide the Ministry of Environment and Climate Change Strategy with recommendations from the Cowichan River Neighbourhood Association1 (the “Association”) regarding the development of a Park Management Plan for the Cowichan River Provincial Park (“the Park”). In particular, the Association makes submissions to challenge the legitimacy of BC Parks’ decision to issue a long term park permit (PUP) to the Cowichan Fish and Game Association (“the Gun Club”) – the only gun range in operation in British Columbia in a provincial park. 

1 The Association is a registered non-profit society that advocates for residents who live near the Cowichan River and the Cowichan River Provincial Park. The Association’s members reside in three rural neighbourhoods: Glenora, Sahtlam, and North Cowichan. The purpose of the Association is to provide opportunity for local residents to maintain and advocate for improvements in the quality of life in the rural neighborhoods along the river corridor. 

This submission is divided into four parts. Following an introduction to the issues, Part I deals with how the Ministry of Environment is permitting activities that contravene section 8(2) of the Park Act, are inconsistent with the purpose of the Park Act, and conflict with the role of the Park as set out in the Park’s purpose statement and zoning plan. This part also highlights the fact that the Gun Club’s continued operation, and its PUPs, are inconsistent with provincial legal precedents on Gun Clubs and on permissible activities in parks. This part concludes with recommendations. 

Part II sets out how BC Parks determined that the Gun Club had violated the Closed Areas Regulation, BC Reg 76/84 (the “Closed Areas Regulation”), then the Ministry of Forests, Lands and Natural Resource Operations granted the Gun Club an exemption to continue the violating activity, which appears to contravene the same regulation the exemption was issued under. In addition, Part II details how BC Parks has failed to proactively enforce certain conditions in the Gun Club’s PUP. This part concludes with recommendations. 

Part III outlines health and environmental concerns regarding the operation of a gun range in a provincial park, with a focus on the impacts of lead pollution on the environment and human health. This part concludes with recommendations. Part IV contains a conclusion and final recommendations. 

In summary, this submission concludes that the gun range, an anomaly in the British Columbia parks system, should be phased out as soon as possible and under no circumstances beyond 2022. The PUPs the Gun Club is operating pursuant to, issued by the Ministry of Environment, contravene section 8(2) of the Park Act, are inconsistent with the purpose of the Park Act, and conflict with the role of the Park. In addition, the Gun Club’s continued operation in the park, and its PUPs, are inconsistent with provincial legal precedents on Gun Clubs and permissible activities in parks. Furthermore, government has exempted the Gun Club from compliance with provincial law, after it violated that law, and failed to proactively enforce certain conditions in the Gun Club’s PUP. Finally, potential lead pollution from the range may be posing a danger to human health and the environment both on the gun range, and in the surrounding Park area. 

Concluding recommendations are as follows: 

Recommendations respecting the problematic original and replacement park use permits: 

• Given that the Ministry permits gun range activities contrary to the purpose of the Park Act, and taking into consideration the case law about gun clubs and park activities in British Columbia, identify permitted park activities in the Park Management Plan that uphold the purpose of the Park Act

• Include explicit policies for the phase out of the Gun Club in the Park as soon as possible and under no circumstances beyond 2022; 

• Include policies for the operation of the Gun Club until its operations cease that help preserve or maintain the recreational values of the Park – for example by requiring significantly decreased operating hours and remediation of the site. 

 

Recommendations respecting the contraventions of the Closed Areas Regulation and its PUPs: 

• Enforce the PUP conditions issued under, and regulations relating to, provincial laws in the Park. 

 

Recommendations respecting health and environmental concerns: 

• Prohibit the use of lead ammunition in the Park; 

• Require and enforce the use of nontoxic ammunition until the Gun Club ceases operation in the Park; 

• Ensure that an assessment of current lead contamination in the Gun Club area and surrounding area is carried out, and ensure that the site is remediated. 

 

The factual information relied upon in this submission is provided by members of the Association. Other information may change our submission and the Association welcomes clarification on a number of facts that are not clear from information provided by the Ministry. 

Outline

Introduction to the issues ........................................................................................................................................3 

Part I – The problematic original and replacement park use permits .....................................................................5 

A. The Minister’s decision to issue the park use permits conflicts with section 8(2) of the Park Act, the purpose of the Park Act, and the stated role of the Park.....................................................................................6 

B. The park use permits are inconsistent with provincial legal precedents ........................................................9 

C. Recommendations........................................................................................................................................ 11 

Part II – Contraventions of the Closed Areas Regulation and the PUPs............................................................... 11 

A. Contraventions of the Closed Areas Regulation .......................................................................................... 11 

B. Contraventions of several PUP conditions................................................................................................... 13 

C. Recommendations........................................................................................................................................ 14 

Part III – Health and environmental concerns ...................................................................................................... 14 

A. Potential environmental contamination due to the use of lead ammunition ................................................ 17 

B. Potential health risks due to the use of lead ammunition ............................................................................. 18 

C. Recommendations........................................................................................................................................ 19 

Part IV – Conclusion and recommendations ........................................................................................................ 19 

Introduction to the issues

In 1991, BC Parks established the inter-agency Cowichan River Recreation Management Steering Committee (“the Committee”), headed by Dave Chater of BC Parks.2 During 1992, the Committee initiated and led a public consultation process about creating a park in the Cowichan River area.3 As a result of this consultation process, the Committee decided that creating a “Provincial Park corridor” was the best option for establishing a protected area in the Cowichan River area.4 They wrote a management plan, titled “Cowichan River Recreation Management Plan,” which includes their recommendation to create a Provincial Park along Cowichan River.5 The management plan states “BC Parks will acquire undeveloped private properties and assemble parcels of Crown Land for park designation, which are important for recreation and conservation. Land tenures such as Regional District parks, Indian Reserves, and small lots of developed private property will not be included.”6 

2 Cowichan River Recreation Management Steering Committee, Cowichan River Recreation Management Plan (December 1992) at page iii and 1, on file with the University of Victoria Environmental Law Centre [CRRMSC]. 

3 CRRMSC, supra note 2 at 1. 

4 Ibid at 2. 

5 Ibid at 2. 

6 Ibid at 2. 

7 BC Parks, “Cowichan River Provincial Park”, online: BC Parks <http://www.env.gov.bc.ca/bcparks/explore/parkpgs/cowichan_rv/>. 

8 Section 5(3) of the Park Act, RSBC 1996, c 344 dedicates Class A parks named in schedules C and D of the PABCA to the preservation of their natural environments for the inspiration, use and enjoyment of the public. 

9 Email from Don Closson, Area Supervisor (Cowichan), Protected Area Section (Goldstream), Ministry of Environment, to Kerri Skelly, Senior Contaminated Sites Officer (Surrey), Remediation Assurance & Brownfields Surrey, Ministry of Environment (24 November 2016), on file with the University of Victoria Environmental Law Centre [Closson]. For material confirming that the Gun Club has operated the gun range since the early 1930s, see Cowichan Fish and Game Association, Land Use/Occupancy Park Use Permit Application, Permit Number VI0510224 (30 September 2004), on file with the University of Victoria Environmental Law Centre [CFGA]; Email from Sean Pendergast, Section Head, Recreational Fisheries and Wildlife Programs, Ministry of Forests, Lands and Natural Resource Operations, West Coast Region to Bob Kopp (12 July 2016) on file with the University of Victoria Environmental Law Centre [Pendergast]. 

10 Letter from Dick Heath, Regional Environmental Stewardship Manager, Vancouver Island Region, Ministry of Water, Land, and Air Protection to Neil Banera, Regional Manager, Land and Water British Columbia (1 November 2002), on file with the University of Victoria Environmental Law Centre [Heath]. 

11 Jim O’Donnell, “History of Cowichan Fish and Game Club and Resident Opposition” (18 February 2016), on file with University of Victoria Environmental Law Centre [O’Donnell]. 

12 Letter from Dave Chater, District Manager, BC Parks to Jack Bone, President, Cowichan Fish and Game Club (6 February 2001) on file with the University of Victoria Environmental Law Centre [Chater I]. See also letter from Dave Chater, District Manager, BC Parks to Jack Bone, President, Cowichan Fish and Game Club (19 October 2001) on file with the University of Victoria Environmental Law Centre [Chater II]. 

13 Chater I, supra note 12. 

14 Chater II, supra note 12.

As a result of this planning process, the Province of British Columbia established the Park on July 12, 1995.7 It is a Class A park, established pursuant to Schedule D of the Protected Areas of British Columbia Act, SBC 2000, c 17 (“PABCA”).8 

In 1995, when the Park was established, the Gun Club was operating a sixty-year old gun range within what are now Park borders.9 It was operating under a 20-year lease, which began on November 20, 1981.10 In 1995, BC Parks announced its intention to take over the shooting range facility and incorporate it into the Park.11 In 2001, Dave Chater met with the President of the Gun Club at least twice, and proposed that “the current lease the club has with British Columbia Assets and Land Corporation (BCALC) be transferred to the administration of BC Parks and placed under a long term park use permit.”12 In a February, 2001 letter to the Gun Club, Chater stated that the Crown land that the club currently leased would be converted to provincial park status and included in Cowichan River Provincial Park.13 

In 2001, BCALC offered to grant the Gun Club a two-year lease extension to give BC Parks and the Gun Club more time to negotiate before the Gun Club’s lease expired on November 20, 2001.14 

In July, 2002, the Gun Club’s President James Thibideau agreed to relinquish their lease in return for a “Twenty (20) year renewable lease, with a land use permit, for a gun range,” and permission to issue a sub-lease to their 

resident caretakerfor his house. Thibideau stated“Ifwe can negotiate these items,we will turn our lease over toyour ministry.”15

On November 1, 2002,Dick Heath, Regional Environmental Stewardship Manager, Vancouver Island Region,wrote a letter to Neil Banera, Regional Manager ofLand and Water British Columbia,about the Gun Club’slease parcels.16In this letter, Heath statedthat the Environmental Stewardship Divisionwould like to“initiatethe process to see the status of these lease parcels become additions to the Cowichan River Provincial Park.”Hestatedthat the rationale for this course of action is found in the 1992 Cowichan River Recreation ManagementPlan,which identified the ongoing acquisition ofRiver corridor and associated strategic properties as a priority.A few weekslater, Neil Banera replied,statingthat Land and Water BritishColumbia had“no objection to thisleased land becoming part of Cowichan River Provincial Park,” as long as the arrangement satisfiedtheconditions in James Thibideau’s letter.17

Although theZoning Mapinthe2003Cowichan RiverProvincialPark PurposeStatementandZoning Plan,which theEnvironmental StewardshipDivisionprepared,showstheGun Clubareaas“naturalenvironment”that iswithin Park boundaries,BC Crown landregistryrecords show that the Gun Club’s lease area only became part of the Park on October 6, 2004.18

On September 30, 2004, theGun Club signed a park use permit application.19The Ministry of Water, Land andAir Protection marked this application as received on October 25, 2004.20The application is largely incomplete.For example, the application requires a detailed proposal description thataddresses certain issues, such as “impacts on the protected area(s) (environmental,social, economic changes including, but not limited to,vegetation,wildlife, access, aesthetics, effect on other users, etc) and actions thatwill be taken tomitigate theseimpacts on the protected area(s).”21The Gun Club’s application providesthefollowing information regarding this element: “[i]mpacts on the environment have alreadytaken place over the pasthalfcentury.”22This likely relates to itsstatement, inthe same application, that“[p]rior to the Association occupying the area the area wasused as an informalshooting area…”23

Despite the application’s incomplete nature, the Ministry appears to have accepted it.On March 23,2007,theBritish ColumbiaMinistry ofEnvironmentgranted theGun ClubPark Use Permit No. VI0510224(the“Original PUP”)for their gun range operation under the authority of theParkAct,for 31 years commencing May 1, 2005.24The Original PUP states,“This Permit is issued for the purpose ofLand Use/Occupancy tooperate the Cowichan Fish and Game Association as described in the application dated September 30th, 2004.”25By granting this park use permit, the Ministry authorized the Gun Club to operate the only gun range located in 

15Letter from James Thibideau,President, Cowichan Fish and Game Associationto Dick Heath,Regional EnvironmentalStewardship Manager, Vancouver Island Region, MinistryWater, Land, and Air Protection(2 July 2002)on file with theUniversity of Victoria Environmental Law Centre[Thibideau].16Heath,supra note 10.17Letter fromNeil Banera, Regional Manager, Land and Water British Columbiato Dick Heath,Regional Environmental Stewardship Manager, Vancouver Island Region,Ministryof Water, Land, and Air Protection (27November 2002)on filewith the University of Victoria Environmental Law Centre.18British Columbia Ministry of Environment, Environmental Stewardship Division, “Cowichan RiverProvincial Park–Purpose Statement and ZoningPlan,” March 2003,online:<http://www.env.gov.bc.ca/bcparks/planning/mgmtplns/cowich/cowich_ps.pdf?v=1499904000059> [ParkPlan]; BCGATOR database,GATOR Interest Details,Lot1 19268 and Lot 1 23914 ofSection 6, Range 10, Sahtlam District, on filewith the University of Victoria Environmental Law Centre [BC GATOR database].19CFGA,supra note 9.20Ibidat 1.21Ibidat 2.22Ibidat 4.23Ibid.

24March 23,2007 is thedate that Dick Health signed the OriginalPUP on behalf of theProvince; theMinistry ofEnvironmentsent the validatedpermit to theGun Club via email on March 26, 2007.See British Columbia Ministry ofEnvironment, Environmental Stewardship Division,Park Use Permit No.VI0510224,issued to Cowichan Fish and GameAssociation on March 9, 2007[Park Use Permit No. VI0510224]; see also Email from Kelsey Selbee, Permit Officer, ParkUsePermits, Ministry of Environment to Mike Flatt, Cowichan Fish and GameAssociation (26 March 2007), on file withthe University of Victoria Environmental Law Centre.25Park Use Permit No.VI0510224, supranote24at 4.SeePart I, Section A for more information.

In June 2013, the Ministry of Environment granted the Gun Club Park Use Permit No. 10213 (the “Replacement PUP”), which replaced the original permit.

The Replacement PUP, which has similar terms to the Original PUP, is also valid for a term of 31 years commencing on May 1, 2005 and ending on April 30, 2036.

Both the Original and Replacement PUPs grant the Gun Club the right to use a certain area of Park land described in the Management Plan Schedule of the permit. Under the current, replacement permit the Gun Club pays $950.00 (plus applicable taxes) per year to use 7.41 hectares of Park land.

a provincial park in British Columbia.26In June 2013, theMinistry of Environmentgranted theGun ClubPark Use Permit No. 10213(the “Replacement PUP”),whichreplaced the original permit.27TheReplacement PUP, which has similar terms to theOriginal PUP,is also validfora term of 31 years commencing on May 1, 2005and ending onApril 30, 2036.28Both theOriginalandReplacement PUPs granttheGun Clubtheright to usea certain area ofPark land described in the Management Plan Schedule of the permit. Under thecurrent,replacementpermittheGun Clubpays$950.00 (plusapplicabletaxes)peryearto use7.41hectaresofPark land.29

The Gun Clubhashad an impact on the area surrounding theClubsinceas early as 1980, and the scope of the disturbance continues toescalate.30TheGun Clubhasgrowncontinuously throughout its operation,fromapproximately 80 membersin 1974 to about 180 in 2009, and to almost 500members(more than 700 people–asthe500figure includes 150 families)by 2015.31It operates11 hours a day, 7days a week.32The concussivenoisefrom itsoperationsimpacts the Park, the adjacent regionaldistrict parks,and three residentialneighbourhoods.33This has been a problemfor a longtime: in 1980, therewas a petitionwithmore than ahundred signatures objecting to noise from theGun Cluband protesting its recent lease renewal and proposedrezoning and expansion;in 1984 thenArea E Director W. Taylor called for theGun Clubto movethe shooting range,stating that“I think for the benefit of all concerned,itwould be best if an alternate locationfor the clubwasfound. The problem ofnoisefrom theshooting rangehas been a long one.”34Althoughthe Association hasmade a proposal thattheGun Clubreduceitshours to 25 hours aweek,withlimits on the days/timeswhen theloudest shooting can take place, the Gun Clubhas indicatedthat it isnot interested inmeaningfullyreducingshootinghours or days.35TheGun Clubhas onlymademinor adjustments toitshours of operation,andit hasbeen undergoing a “noise/sound reading exercise.”36

In addition, governmenthas exempted the Gun Clubfrom compliancewith theClosed Areas Regulation, after it violated that regulation, andfailed to enforcethe Gun Club’s violation of certain conditions in its PUP.37Furthermore, theoperation of a gun range in a provincial park raises healthand environmental concerns, as theGun Club’suse ofleadammunitionmay be leading to pollution that endangers people’s health and theecosystem in the Park.38

Having provided an introduction to the issues,the followingPart I outlinesissues with theOriginalandReplacement PUPs.

Part I–Theproblematicoriginal and replacementpark usepermits

There are several issueswith the OriginalandReplacement PUPs:

•Thenature ofthe PUPsconflicts withsection 8(2) of thePark Act,the purpose of thePark Act,and thestatedroleof the Park;and,

•TheGun Club’s activitiesand itsPUPs are inconsistentwithprovincial legalprecedentson gun clubsand on permissible activities in parks.

 

26Emailfrom Jim Standen, Assistant Deputy Minister, BC Parks and Conservation Officer Service Division, to Bob Kopp(22 March 2016)on file with theUniversity of Victoria Environmental Law Centre.27British Columbia Ministry of Environment, BCParks West CoastRegion Haida Gwaii/South Island,Park Use Permit No.102138,issued to Cowichan Fish and GameAssociation on June10, 2013[Park Use Permit No. 102138]; O’Donnell,supra note11.28Park Use Permit No.102138, supranote27.29Ibidat Article III. Under the Original PUPthe feewas slightly different, at $1016.50 (GST included if applicable)peryear. In addition, theOriginalPUP is the document that states the property is 7.41 hectares. See Park Use Permit No.VI0510224, supra note24, at Article III and Management Plan Schedule,page 10.30For more information, seeO’Donnell,supra note 11.31O’Donnell, supranote 11.32Cowichan Fish and GameAssociation, “Gun Ranges / Rules,” online: Cowichan Fish and GameAssociation<http://cowichanfishandgame.com/gun-ranges-rules/>; see alsoO’Donnell,supranote11.33The Association maintains thatthe shootingnoise is causing significant nuisance.34O’Donnell, supranote 11.35Personal communication with Bob Kopp, Cowichan River Neighbourhood Association (7 March 2017).36Closson,supranote 9.37See Part II for more information.38See Part III for more information.

These issues are discussed in order in the sections that follow. 

A. The Minister’s decision to issue the park use permits conflicts with section 8(2) of the Park Act, the purpose of the Park Act, and the stated role of the Park

The Minister of Environment (the “Minister”)’s decision to issue the Original and Replacement PUPs conflicts with section 8(2) of the Park Act and the purpose of the Park Act, as well as the stated role of the Park. 

Sections 8(1) and (2) of the Park Act state: 

8 (1) An interest in land in a Class A or Class C park must not be granted, sold, leased, pre-empted or otherwise alienated or obtained or made the subject of a license except as authorized by a valid and subsisting park use permit. 

(2) A park use permit referred to in subsection (1) must not be issued unless, in the opinion of the minister, to do so is necessary to preserve or maintain the recreational values of the park involved. 

Section 5(3) of the Park Act is also relevant, as courts have considered it in the context of interpreting the purpose of the Park Act and other permitting provisions in the Park Act, discussed further below. Section 5(3) states: 

5 (3) The Class A parks named and described in Schedules C and D of the Protected Areas of British Columbia Act are dedicated to the preservation of their natural environments for the inspiration, use and enjoyment of the public. 

The British Columbia Supreme Court has considered these sections of the Park Act, along with the overall purpose of the Park Act, in several cases. 

In Society of the Friends of Strathcona Park v British Columbia (Minister of Environment, Lands & Parks), 1999 CarswellBC 2228 (“Strathcona I”) the Society of the Friends of Strathcona Park applied for judicial review of the Minister of Environment, Lands and Parks’s decision to grant a park use permit to a forestry company to build a logging road through a portion of Strathcona Park, a Schedule D, Class A park. In this case, the court states that section 5(3) of the Park Act “states the purpose for which public lands are set aside as parks.”39 The court goes on to state that section 20 of the Park Act gives the Minister the power to issue permits with regard to the use of the park, and section 8(2) provides a limitation on those permits, as a permit may not be issued unless, in the opinion of the Minister, “to do so is necessary to preserve or maintain the recreational values of the park.”40 The court summarizes the relationship between the two provisions as follows: “s. 20 permits the Minister to issue permits provided the issuing of those permits was in the best interests of the Park as described in s. 8(2).”41 The court ultimately found that the park manager who concluded that the decision to issue the permit was in the best interests of the park (and who made the decision to issue the permit on behalf of the Minister) had not made a patently unreasonable decision.42 The court did not provide detailed reasons for this conclusion. However, the court does set out the facts in its decision in such a way that the Minister’s decision to grant the park use permit is cast as a balancing of interests between the government and the timber company. The alternative to building a road through the park was to build one adjacent to the park, which would be visible from the park and unsightly. In addition, the government and timber company agreed that they would 

39 Society of the Friends of Strathcona Park v British Columbia (Minister of Environment, Lands & Parks), 1999 CarswellBC 2228 [“Strathcona I”] at para 29. Notably, in this case the court considered an earlier version of section 5(3), which read, “The parks named and described in Schedules A, B, C and D are continued as Class A parks, and are dedicated to the preservation of their natural environments for the inspiration, use and enjoyment of the public.” 

40 Ibid at para 33. 

41 Ibid at para 36. 

42 Ibid at para 36.

trade land parcels,andthe timber companywould give the governmentsome of the land that the companyownedwithin the park.43

In Friends of Cypress Provincial Park Society vBritish Columbia (Minister of Environment, Lands& Parks), 2000 BCSC 466(“Friends of Cypress”),the Friends of Cypress Provincial Park Societyappliedforjudicial review of the Minister of Environment, Lands and Parks’ decision to issue an amendment to a park use permit.The amendment allowed a companyto expand its ski resort facilitieswithin CypressProvincial Park.44TheFriends of Cypress Provincial Park Society also sought a declaration that the dominant purpose and object of thePark Actis the preservation and protection of thenatural environment of parks established under thePark Act.45In this case, the court did notconsider section 5(3),because the governmentcreated Cypress Provincial Park, a ClassA, category 6 park,by order-in-council,whichmeans it is not ascheduled park.The courtmentionedbutdidnot consider section 8. However, the courtdidaddress the purpose of thePark Act.The courtrefused todeclare that the dominant purpose and object of the Park Actwas“the preservation and protection of the naturalenvironment of parks.”46The courtstated that the purpose and object of the Park Actisthat“the Act providestheframeworkfor the creation and preservation of parkland for a variety of purposes to serve a broad cross-section of thecitizens of BritishColumbiawhose interests are as diverse as its landscape.”47

In West Kootenay Community EcoSociety v. British Columbia (Ministry ofWater, Land,& Air Protection),2005 BCSC 784(“West Kootenay”), the West KootenayCommunity EcoSociety applied for judicial review ofthe Minister of Water, Land andAir Protection’s decision tomove the entrance ofthe Grohman NarrowsProvincial Park.48Relocating the entrancewould require the construction of a new road insidethe Park toconnectthe newentrance to the existingparking lot.49Thiswould have an adverse ecological impact on the parkand in particular, on a population of provincially blue-listed (i.e. at risk) painted turtles.50The main provisionsat issuein this caseweresection9(5), 9(7), 5(3), and 12(3)of thePark Act.51At the time,section 9(5) precludedanyone (including the Minister) from disturbing, destroyingor damagingland in a park.52Section9(7) providedan exemption:

“Anatural resource [which includes land and the flora andfauna in and on it] in any park of any classmustnot be ...destroyed, disturbed, damaged ...unless in the opinion of theminister, thedevelopment,improvement and use ofthe park in accordance with section 12(3) will not be hindered byit.”53

Section 12(3) statesthat “Aperson must notcarry on, inany park, anyactivity that will restrict,prevent orinhibit theuse of the park forits designated purpose.”54

The court read these provisions, alongwithsection 5(3),together, and concluded that“in the courseof making decisions pertainingto the improvement, development and use of the park, the Minister may permit land(andthe flora and fauna on and in it) in the park to be destroyed, disturbed damaged etc. if, in his/her opinion, thatdestruction, disturbance, damage etc. does not restrict, prevent or inhibit the preservation of the naturalenvironment forinspiration, use and enjoyment of the public.”55The court also states that the Minister plays a stewardship rolewith respect tothe exercise ofhis or herjurisdiction to regulate and control the use of ClassAparks.56

43Ibid atpara 34.44Friendsof Cypress Provincial Park Society vBritish Columbia (Minister ofEnvironment,Lands& Parks), 2000 BCSC466[“Friends of Cypress”]at para 1.45Ibid.46Ibid atpara 86.47Ibid atpara 58.48West Kootenay Community EcoSociety v. British Columbia (Ministry of Water,Land,& Air Protection),2005 BCSC 784 at paras 1-2 [West Kootenay].49Ibidat para 2.50Ibidat para 2.51Ibidat paras 33-37.52Ibid at para 33.53Ibid at para 34.54Ibid at paras 35-36.55Ibid at para 38.56Ibid at para 64.

In the most recent case, Society of the Friends of Strathcona Park v. British Columbia (Minister of Environment), 2013 BCSC 1105 (“Strathcona II”), the Society of the Friends of Strathcona Park applied for judicial review of the Minister of Environment’s decision to issue a park use permit that would allow a company to conduct guided horse tours in Strathcona Park and make trail upgrades on an abandoned road.57 In this case, the court first reviewed and summarized the other three cases (outlined above) that have discussed the purpose of the Park Act.58 The court concluded that “the object or overall goal of the Park Act is the management of parks in the public interest.”59 The court further stated that the object of the Park Act “has public values in mind,” and, as the court in Strathcona I stated, the issuing of permits should be in the best interests of the Park as described in section 8(2).60 The court stated that whether the permit is issued under section 8 or section 9, “If the Minister reasonably holds the view that the permit is necessary for the preservation or maintenance of the recreational values, or is consistent with or complementary to the recreational values of the park involved, he or she may issue the permit.”61 

57 Society of the Friends of Strathcona Park v. British Columbia (Minister of Environment), 2013 BCSC 1105 [“Strathcona II”] at para 1. 

58 Ibid at paras 86-88. 

59 Ibid at para 89. 

60 Ibid at para 92. 

61 Ibid at para 92. 

62 See Part III of this submission for more information. 

63 BC Parks, “Cowichan River Provincial Park –About This Park,” online: BC Parks <http://www.env.gov.bc.ca/bcparks/explore/parkpgs/cowichan_rv/>. 

64 Park Plan, supra note 18.

In summary, according to Strathcona I, the Minister must not issue a park use permit under section 8 of the Park Act unless, in the opinion of the Minister, to do so is necessary to preserve or maintain the recreational values of the park. According to West Kootenay, the Minister plays a stewardship role with respect to the exercise of their jurisdiction to regulate and control the use of Class A parks. According to Friends of Cypress, the purpose and object of the Park Act is that the “Act provides the framework for the creation and preservation of parkland for a variety of purposes to serve a broad cross-section of the citizens of British Columbia whose interests are as diverse as its landscape.” Finally, according to Strathcona II, a more recent case that summarizes the above three cases, the object or overall goal of the Park Act is the management of parks in the public interest, and if the Minister reasonably holds the view that a park use permit is necessary for the preservation or maintenance of recreational values, or is consistent with or complementary to the recreational values of the park involved, they may issue the permit. 

Applying the law to the facts, the Ministry is permitting activities that appear to contravene section 8(2) of the Park Act and are inconsistent with the purpose of the Park Act, which is the management of parks in the public interest (Strathcona II). With respect to section 8(2), while the Gun Club’s activities are recreational in nature, the Gun Club does not engage in a form of recreation that preserves or maintains the recreational values of the Park (Strathcona I). It disturbs the environment and may be causing environmental contamination due to the use of lead ammunition.62 In addition, the Minister’s decision to grant the Gun Club a park use permit is not consistent with the Minister’s stewardship role with respect to Class A parks (West Kootenay), and is not consistent with the management of parks in the public interest (Strathcona II). 

Notably, the Park’s website – which provides a list of appropriate recreational activities available at the Park – does not mention the gun range.63 This is another discrepancy that demonstrates the conflict between the operation of a private Gun Club within the Park and the public recreational values of the Park. 

Overall, these contradictions raise the inference that the Minister issued both PUPs without complying with section 8(2) of the Park Act. Furthermore, the PUPs are inconsistent with the purpose of the Park Act. 

The operation of a gun range is also contrary to and in conflict with the stated purpose of the Park set out in the Cowichan River Provincial Park – Purpose Statement and Zoning Plan (the “Plan”), which members of the Ministry of Environment, Environmental Stewardship Division created in 2003.64 The document sets out the following three roles for the Park: 

COWICHAN RIVER PROVINCIAL PARK

Purpose Statement and Zoning Plan

Primary Role

The primary role of Cowichan River Provincial Park is to protect the natural values associated with a scenic and world-renowned salmon-bearing river… 

Secondary Role

The secondary role of this park is to provide a wide variety of land and water based recreation opportunities in a popular destination area of southern Vancouver Island… 

Tertiary Role

The tertiary role of the park is to protect and present significant cultural and historic values... 

The operation of a gun range in the Park conflicts with the stated roles of the Park. First, it contravenes the primary purpose of preserving natural values, because of its potential to cause pollution.65 Second, even if the Gun Club does provide a recreational opportunity as contemplated under the secondary role of the Park, this is a private recreational opportunity that may detract from other recreational activities in the Park due to its potential to cause physical and noise pollution. The Gun Club is also not mentioned in the list of recreation activities that follow the “Secondary Role” heading in the Plan, such as swimming, kayaking, hiking, and nature appreciation.66 Third, the Gun Club does not meet the tertiary role of protecting and presenting significant cultural and historic values similar to those listed under this heading in the Plan – such as Cowichan Tribes archaeological sites and remnants of a former transportation corridor to Lake Cowichan.67 Finally, the Plan does not recognize the Gun Club’s presence in the zoning map that forms part of the Plan. The zoning map depicts the area where the Gun Club currently operates as “Natural Environment” and “Protected Area Boundary.”68 

65 See Part III of this submission for more information. 

66 Park Plan, supra note 18 at 2. 

67 Ibid at 2. 

68 Ibid at 7. 

69 See Strathcona I, supra note 39; Strathcona II, supra note 57; Friends of Cypress, supra note 44, and West Kootenay, supra note 48. 

70 Milne v Saltspring Island Rod and Gun Club, 2014 BCSC 1088 at para 3 [Milne]. 

71 Lewis N Klar et al., Remedies in Tort, loose-leaf (Toronto: Thomson Reuters Canada, 1987) in chapter 17 at §32, as cited in Ibid at para 45.

In summary, the Minister’s decision to issue the park use permits conflicts with section 8(2) of the Park Act, the purpose of the Park Act, and the stated role of the Park. The next section considers how the PUPs are inconsistent with provincial legal precedents. 

B. The park use permits are inconsistent with provincial legal precedents

The purpose of this section is to outline why the Gun Club’s continued operation, and the Original and Replacement PUPs, appear to be inconsistent with British Columbia legal precedents. This section addresses a case where a court contended with a Gun Club causing nuisance in the surrounding community, and then moves on to address Strathcona I, Strathcona II, Friends of Cypress, and West Kootenay in further detail.69 

In Milne v Saltspring Island Rod and Gun Club, 2014 BCSC 1088 (“Milne”), the plaintiffs complained about noise and alleged lead contamination from a gun range adjacent to their property. The gun range had existed on Salt Spring Island since 1959; the plaintiffs moved into the neighbourhood adjacent to the gun range in 2006.70 The court decided the case based on the noise complaint and did not address the complaints about lead. 

The central issue in this case was whether the noise from the gun range, which could be heard on the plaintiffs’ property, was unreasonable. In its decision, the court emphasized the importance of the character of the locality, quoting a passage from Lewis N. Klar et al., Remedies in Tort, that states, in part, “…where personal discomfort is at issue, the character of the locality is of importance in determining the standard of comfort that an occupier may reasonably claim.”71 The court found that the neighbourhood, while not wilderness, was not high-density urban, and that it was a place people moved to for the peace and quiet offered by the neighbourhood when 

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The court accepted the plaintiff’s evidence that the noise “…is disturbing… is percussive… can be frightening,” and stated that “A landowner does not retain vested rights when a neighbourhood changes — he must comport himself in accordance with the character of the neighbourhood as it evolves.”

The court went on to find that the shooting constituted a nuisance, and imposed a limited injunction that required the Gun Club to develop an arrangement with the plaintiffs that included modifying some practices (i.e. reduce shooting hours, soundproof the indoor range, collect spent lead from the ground).

The court stated that the matter could be brought back before the court after a trial period if the arrangement was not satisfactory. 

compared to an urban environment.72Thecourt accepted the plaintiff’s evidence that the noise “…isdisturbing… is percussive… can be frightening,” and stated that “A landowner does not retain vested rightswhen aneighbourhood changes—he must comporthimself in accordance with the character of theneighbourhood as it evolves.”73Thecourtwent on tofind that theshooting constituted anuisance, andimposeda limited injunction that required theGun Clubtodevelop an arrangementwith the plaintiffs that includedmodifyingsome practices (i.e. reduce shootinghours,soundproof the indoor range, collect spent leadfrom theground).74The court stated that the matter could be brought back before the court after a trial period if thearrangementwas notsatisfactory.75

Although the court in Milnedid not dealwith the complaints related to lead, the Ministry of Environment subsequently ordered the SaltSpring Island Rod andGunClub to carry out asiteinvestigation, followingacomplaint by aneighbourwho alleged that lead pollution was leaching onto his property.76

There are similarities between the Cowichan Gun Clubandthe SaltSpring Island Rod and Gun Club. Both gun clubsdisturbthe surrounding neighbourhood,andhaveledtocomplaints regardingnoise. In addition,bothgun clubs haveneighbours thatare concernedaboutthegun clubs’potential contributiontolead pollution.Overall,Milnestandsfor the principal thatgun clubs that are disturbing theirneighboursmay not conform tothecharacter of their locality, andmayneed to have their operations limited or changed.

Severalother casesprovidea court’sview on which activitiesrelatedto parksare valid,andwhich are not.These cases are Strathcona I,Strathcona II, Friends of Cypress,andWest Kootenay.Allof these casesexceptWest Kootenay,involvea courtjudiciallyreviewingaministerial decisionto issue a park use permit.77

In WestKootenay, the court held that theMinistercan only permit land in a park to be disturbed, destroyed, ordamaged if, in the Minister’sopinion, it is required for the improvement, development, and use of the park, and,even then, only if in theiropinion that disturbance, destruction, or damage is not contrary to the designated purpose of the park.78The court found that theMinister’sdecision to move the entrance of the parkat issuewasnot for the improvement, developmentor use of the park.79Itwasa decisionto accommodate a certaincommercialdeveloper.80The court overturned theMinister’s decisionbecause itwould result in destructionanddamage to the park.

Incontrast, inFriends ofCypress, the court held thattheMinister’s decision toissue an amendment to a parkuse permit that would allow aski company to expand its operations inCypress Provincial Parkwasnot patentlyunreasonable.81The government had conducted an exhaustive public consultation process and commissionedseveral reports and investigations, andultimately the Minister’s discretionary decision balanced the competinginterests inCypress Provincial Park in an open democratic manner.82In Strathcona I, the court upheld a park use permitfor a timber company to build a logging road through Strathcona Park. The court determined that the park manager’s decision that granting the permitwas in the best interest of the park (with respect to preserving or maintaining the recreational values of the park)wasnot patently unreasonable.83The parkmanager reachedhis conclusion based on thefact that thegovernment and timber company’s agreementregarding theloggingroad had benefitsforStrathcona Park: itwould ensure thata visually unappealing roadwas not built adjacent tothePark(andin an area visible fromthePark),andthetimber companywouldgive thegovernment landitownedwithin Strathcona Park in return for the portion of land thatwould be cut offbythenew road.84In 

72Milne, supranote 70at paras 49-50.73Ibid at para 53.74Ibidat paras 54,57-58.75Ibidat paras 57-58.76Sam Batson, Gustavson School of Business,BC Wildlife Federation: Standards and Best Practices for Lead Management-an assessment ofapproaches to lead management for outdoor shooting ranges,(28 April 2016),online:<http://www.bcwf.net/files/ImplementationManual1_1.pdf> at page 9.77West Kootenaywas a case aboutthe Minister’s decision to move the entrance of Grohman NarrowsProvincialPark.78West Kootenay, supranote48at para 63.79Ibidat para 65.80Ibid.81Friends ofCypress,supranote44at 82.82Ibid at 81.83Strathcona I, supra note39at para 36.84Ibid at para 34.

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StrathconaII, the courtupheldapark usepermitto useanabandoned trailfor guided horse tours becausethehorsetourswerea recreationalactivitypermittedinthe parkbythe ParkAct,and the permit imposed strict conditions on theway the business conducted their tours.85

These cases are instructivewhen considering theGun Club’s PUPs. Like inWestKootenay, theoperation of agun range iscontrary to thedesignatedpurpose of the Park. Contrary toFriends of Cypress,the government did not conduct an extensive public consultation process regarding either of the PUPs, and theMinister’s decision toissue the Original andReplacement PUPs did not balancecompeting interestsregardingthePark in an open,democratic manner.Contrary toStrathcona I,the government and theGun Club’s agreement to include theGun Club lease area within the Park isnotclearly in the “best interests” of the Park (with respect to preserving ormaintaining the recreational values of the park),given thepotentialfor the Gun Club tocontaminatetherangearea and surrounding area with lead from lead ammunition.86Contrary toStrathconaII,a gun range,unlikeguidedhorse tours, is nota Class Apark recreational activity congruentwith thePark Act.If a court is asked toreview theMinister’sdecision to issue the Gun Club’sReplacement PUP, these caseswould supportthepropositionthat theMinister’sdecision was notreasonable.

C. Recommendations

•Given thattheMinistry permits gun range activitiesthat are likely contraryto thepurpose of theParkAct, and taking into consideration the case law aboutgun clubsand park activities inBritish Columbia, identify permitted park activities in the Park Management Planthatuphold the purpose of thePark Act;

•Include explicit policies for the phase out of theGun Clubin the Parkas soon as possibleandundernocircumstances beyond 2022;

•Include policies for the operation of theGun Clubuntil its operations ceasethathelp preserve ormaintain the recreationalvaluesof the Park–for example by requiring significantly decreasedoperating hours and remediation of thesite.

 

Part II –Contraventionsof theClosed Areas Regulationand thePUPs

The Ministry of Forests, Lands, and Natural Resource Operationshas exempted the Gun Club from compliancewith provincial law, after it violated that law, and BC Parks has failed toproactivelyenforce certain conditionsin the Gun Club’s PUP.

A. Contraventions oftheClosed Areas Regulation

 

TheClosed Areas Regulationis a regulation madeunder theWildlife Act,RSBC 1996, c 488 (“Wildlife Act”).In March2016, the AssociationaskedRegional DirectorDon Caddentoinvestigate whether the Gun Club’s traprange, situated within 100 metresofGlenora Trails Head Park,wascontraveningSchedule 3, section19(d)of theClosedAreas Regulation, whichestablishes“NoShooting orHunting Areas”within100mofaregionaldistrictpark in ManagementUnits1-1 to 1-15 and 2-1to2-19.87Section19(d),which isin Schedule3 “NoShooting or Hunting Areas,” of theClosed Areas Regulation,reads:

19 That portion of British Columbiawithin 100 m of

(a)a church, school building, schoolyard and playground,

(b)a dwellinghouse,

(c)a farm or ranch building that is occupied by persons or domestic animals, and

(d)a regional district park inManagementUnits 1-1 to 1-15 and 2-1 to 2-19.

 

According to the “Maps” section of the ManagementUnit Regulation,BC Reg 64/96, theGlenora Trails HeadPark (a regional district park adjacent to both the Park and the Gun Club)fallswithin Management Unit 1-4 andthuswithin the purview of this provision.

85Strathcona II, supranote57at paras 1, 78, 108, 117.86See Part III for more detail.87EmailfromAnne Blaney to Don Cadden, Regional Director, BCParks, West Coast, Ministry of theEnvironment (18 March 2016) on file with the University of Victoria Environmental Law Centre.

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Section 32 of the Wildlife Act states that “A person who discharges a firearm in a no shooting area commits an offence.” This means that the Gun Club was committing an ongoing offence by operating the trap range within 100 m of Glenora Trails Head Park. 

In April 2016, Regional Director Don Cadden confirmed his finding that the Gun Club had contravened the Closed Areas Regulation, Schedule 3 – No Shooting or No Hunting Areas; Section 19(d).88 The email communicating this finding also foreshadows that the Gun Club has the option of applying to the Ministry of Forests, Lands and Natural Resource Operations for a permit for an exemption to the Closed Areas Regulation.89 Soon after, the Ministry of Forests, Lands and Natural Resource Operations granted the Gun Club an exemption despite their continuous breach of the regulation.90 

88 Email from Don Cadden, Regional Director, BC Parks, West Coast, Ministry of the Environment, to Bob Kopp (28 April 2016) on file with the University of Victoria Environmental Law Centre. 

89 Ibid

90 Pendergast, supra note 9. 

91 Wildlife Act, RSBC 1996, c 488, s 19(1)(a). 

92 Under the Permit Regulation, two basic types of permits may be granted by the Minister. One type of permit authorizes people to conduct specific activities, and the other type exempts people from having to comply with certain regulations. 

The Association recognizes that the power to grant an exemption is valid – the Wildlife Act, section 19 gives the regional manager of the recreational fisheries and wildlife programs the statutory authority to issue a permit authorizing a person to do something that the person is prohibited from doing by the Wildlife Act or its regulations.91 Section 108 of the Wildlife Act gives the Lieutenant Governor in Council the statutory power to make various regulations exempting persons from complying with Wildlife Act provisions or regulations under the Wildlife Act, and pursuant to section 108(2)(k), government has established the Permit Regulation, BC Reg 253/2000 (the “Permit Regulation”) to allow people to exercise special privileges under the Wildlife Act.92 

Section 2(i) of the Permit Regulation states that: 

2 A regional manager may issue a permit in accordance with this regulation on the terms and for the period he or she specifies 

(i) authorizing a person to discharge a firearm in a no shooting area, 

However, the Permit Regulation also states that: 

Restrictions on issuing permits generally 

5(1) Before issuing a permit under section 2, 3 or 4 the regional manager or the director, as applicable, must be satisfied 

(a) that the applicant meets the specific requirements, if any, for the permit as set out in this regulation, and 

(b) that issuing the permit is not contrary to the proper management of wildlife resources in British Columbia. 

Finally, there is a time limit of five years on permits: 

22(1) Except as otherwise set out in this regulation, a permit issued under section 2, 3 or 4 must not be issued for a period of time greater than 5 years from the date of issue. 

The Section Head of Recreational Fisheries & Wildlife Programs for the Ministry of Forests, Lands and Natural Resource Operations cited the Wildlife Act section 19 and 32, the Closed Areas Regulation, Schedule 3, section 19, and the Permit Regulation section 5 and section 22 in his July 2016 email notifying the Association that the Gun Club’s exemption permit had been granted in June, 2016 for a five year term. The Gun Club likely obtained an exemption permit by making an application under section 2(i) of the Permit Regulation in order to operate their trap range within 100 metres of the regional district park contrary to Schedule 3, section 19(d) of the Wildlife Act

To summarize, the Gun Club committed an offence by contravening the Closed Areas Regulation. Then the government granted them a five year permit to continue doing the same activity that constituted the offence – operating the trap range within 100 metres of Glenora Trails Head Regional Park. The government granted this 

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permit despite the fact that the Permit Regulation states that issuing a permit should not be contrary to the proper management of wildlife resources in British Columbia. 

The Association seeks a clear explanation of why the Ministry of Forests, Lands and Natural Resource Operations granted this permit exempting the Gun Club from the Closed Areas Regulation. As part of this explanation, the Association would like clarification about A) the rationale for why granting this permit is not contrary to the proper management of wildlife resources in British Columbia, given the shooting ranges’ proximity to the regional park, and B) why it was deemed appropriate to permit this activity in a no shooting area. With regards to B), we can assume that Glenora Trails Head Park was designated a no shooting area for a reason. Therefore, there should also be a rationale why it is appropriate to grant an exemption to the Gun Club that removes that protection from this regional park. 

B. Contraventions of several PUP conditions

BC Parks has failed to proactively enforce certain conditions set out in the Gun Club’s current, Replacement PUP (notably, the conditions in both the Original and Replacement PUPs are exactly the same). 

ARTICLE VI – COVENANTS OF THE PERMITTEE

6.01 The Permittee must: 

(c) comply with all laws, bylaws, orders, directions, ordinances and regulations of any competent governmental authority in any way affecting the Permit Area, the Park, its use and occupation or the Permittee’s operations under this Permit; 

(h) not construct, erect, place, repair, maintain or alter any building, fixture, equipment, structure or improvement in the Permit Area except as may be permitted by this Permit or with the prior written consent of the Province; 

(n) not commit or allow any wilful or voluntary waste, damage or destruction in or upon the Permit Area; 

… 

With respect to condition 6.01(c), the Gun Club clearly has not complied with all government laws and regulations relevant to its operations under the permit, because it contravened the Closed Areas Regulation by operating its shooting range too close to the regional district park. As set out in the section above, after the Association raised this issue with BC Parks, BC Parks appears to have taken action to investigate. 

There is also evidence that both the Gun Club and BC Parks have not been adhering to permit condition 6.01(h). The Association has been documenting improvements that the Gun Club carried out beginning in 2014, which are corroborated by the Gun Club’s own reports to BC Parks. These improvements include: installed a new security fence and locking system at two of the outdoor ranges and the indoor ranges in 2014; made improvements to two of the outdoor ranges by adding a sand base to the range floors in 2014; replaced a wood stove in the indoor range with a heat pump; installed a new trap machine in 2015.93 

93 Email from Richard Buck, President Cowichan Fish & Game Association, to Don Closson, Cowichan Area Supervisor, BC Parks, West Coast Region (24 November 2014), “2014 Yearend Report,” on file with University of Victoria Environmental Law Centre; see also Cowichan Fish and Game Range Report for 2015 (17 Feb 2016), contained in email exchange from Don Closson, Cowichan Area Supervisor, BC Parks, West Coast Region, to Bob Kopp (14 April 2016) on file with University of Victoria Environmental Law Centre. 

94 Email from Bob Kopp to Don Cadden, Regional Director, BC Parks, West Coast (14 April 2016), on file with University of Victoria Environmental Law Centre.

The Association asked Don Cadden, Regional Director, BC Parks, West Coast, for documentation that prior approval was given for the listed improvements.94 Don Cadden referred this request to Don Closson, Cowichan Area Supervisor, BC Parks, West Coast Region, who replied via email to the Association confirming that “no formal approval was given to the improvements at the “trap range” such as trap house dispenser, concrete 

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alleyways.Improvementsfor safety purposes such asfencing areconsidered agood thingand approvalwasverbal.”95

Both theOriginal PUPand theReplacement PUPstatethat theGun Clubmustnot construct,erect, place, repair,maintain or alter anybuilding,fixture,equipment, structureor improvement in the Permit Area unless it ispermitted by the Permit orwith the priorwritten consentof the Province.96Therefore,BC ParksCowichan AreaSupervisorDon Closson’sadmission that there was a lack of formal approvalfor certain improvements atthetrap range and onlyverbal approvalof theconstruction of“good things”such asfencingisnot appropriate giventhe specific permitconditions. TheReplacement PUPdoes not allowfor verbal approvalin lieuof writtenapproval. BC Parks has the duty touphold theconditionsin theReplacement PUPtomaintain itsintegrityandpublic confidence.

Finally,withrespect to condition 6.01(n), theGun Clubmayhave violated this permit condition due to thesignificant body oflead ammunition thatis likely entering the environment at theGun Clubsitein the Park, andwhich may also be migrating into other parts of the Park,intoGlenora Trails Head Park, and/orintotheCowichan River. This issue is discussed further below, in Part III.

C.Recommendations

•Enforce the PUPconditionsissued under,and regulationsrelating to,provincial lawsin the Park;

 

PartIII–Healthand environmentalconcerns

The Association is concerned that the Gun Clubpermits its members touse lead ammunition,which can causesignificant environmentalandhealth concerns.Thefour types ofshooting that take place at theGun Club—rifleshooting, handgun shooting, and trap shooting(all outdoor), and indoor shooting—typically involve the use ofvarying typesof lead ammunition.97This meansthata great deal of lead islikelyentering the environment. In a2016 Resident’s Bulletin, theAssociation estimated the amount of lead that use of the trap rangealonedepositsinto the environment: 31.8 kilogramsof leadperweek, 1590 kilograms of leadper year, and 7955kilograms ofleadover five years.98The yearly amount,1590 kilogramsof lead,is equivalent inweight to an entireSubaru Outback (a midsize car).99

This is an estimate, because itappears thatnoone has carried out aninvestigation or studyexaminingleadcontamination of theGun Club’s operating area or the surrounding Park. Thefollowing government emailexchangemakes this clear. On November 21, 2016, KerriSkelly, a Senior Contaminated Sites Officerwith theLand Remediation Section, Ministry of Environment,wrote to Don Closson,theBC Parks Cowichan AreaSupervisor,with some questions about theGun Club’s operationsin the Park.100Her inquirywas spurred by acomplaint from amember of the Association. Kerri Skellywrotethat“we do have concernswith potentialcontamination issues related to the operation of aGun Clubin a potentiallysensitive area (a provincial park) andwould like to refer the complaintwe received regarding this site to youwith the possibility of including best

95Emailfrom Don Closson, Cowichan Area Supervisor, BCParks,West Coast Region to Bob Kopp (14 April2016), on filewith University of Victoria Environmental Law Centre.96Park Use Permit No.VI0510224, supranote24at Article VI,6.01(h);Park Use Permit No.102138, supranote27atArticle VI, 6.01(h).97Cowichan Fish and GameAssociation, “Gun Ranges / Rules,” online: Cowichan Fish and Game Association<http://cowichanfishandgame.com/gun-ranges-rules/>; personal communication with staffmemberat Island Outfitters (6September 2017).98The following calculation was used to arrive at these figures: If 20 members/guests each shoot two roundsof trap each week: 20x2x25 shots = 1000 shots per week. 1000 shots fired each weekfor 50 weeks = 50,000 shots per year and 250,000 in a fiveyear period. One shot contains1.12 ounces of lead shot size 7 ½, therefore, thequantities of lead accumulations are:one week = 1000 shots =1120 oz./70 lbs/31.8 kgs; one year = 50,000 shots =56,000 oz./3500 lbs./1590 kgs; fiveyears =250,000 shots = 280,000 oz/17,500 lbs/7955 kgs. See The Cowichan River Neighbourhood Association,What we knowaboutthe Trap Range in the Glenora section of Cowichan River Provincial Park,Resident’s Bulletin #3–last revised 11-2016,on file with University of Victoria Environmental Law Centre [Resident’s Bulletin#3].99Car and Driver,Subaru Outback–Specifications,online: <http://www.caranddriver.com/subaru/outback/specs#specifications>.100Email from Kerri Skelly, Senior Contaminated Sites Officer (Surrey), Remediation Assurance & Brownfields Surrey,Ministry of Environment to Don Closson,Area Supervisor (Cowichan),Protected Area Section (Goldstream), Ministry ofEnvironment (21 November 2016), on file with the University of Victoria Environmental Law Centre.

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management practices for outdoor shooting ranges in the parks permit.” On November 24, 2016, Don Closson responded, “Obviously this sitewhich has operated as a “gun range[sic]since the1930’s and will hostconsiderable lead and othercontaminants. Currentlythe gun range operators are using severalmethods tocapture dispensed, casings,lead and lead shot. Whether these would be considered bestpractices isdebatable.”101

In her November21 email, Kerri Skelly alsowrote that “As thissitehas operated for some timenow, it wouldalso be helpful to understand the current environmental conditionsin that areawhichwould involve an environmentalsite investigation conducted by a contaminated sites qualified professional. Perhaps a requirement for this investigation could also potentially be included in the permit.”OnNovember 24, 2016, DonClosson responded, stating:

“Iwould agree that an environmental site investigation conducted by a contaminated sitesqualified professionalwould be a good idea. Idoubt that the range operators would bewilling to fund and conduct such an investigation as it could be construed as only bringing forward negativenews, due tothe certainty that contaminants exist within the range boundaries. Iwould think thatthegovernmentwouldneed tofund the investigation.It could be made a condition ofthepermit butwith considerable angst… and require an amendment, they could be asked to fund andconduct but I suspect that theywould bock at such a request.”[Emphasis added].

As a result of this exchange,Kerri Skellywrotea letter toDon Clossonin January 2017. In her letter, shethankshim for his“November 24, 2016 email response tomy questions,” regardingtheGun Club’s operationwithin the Park.102Sheremarks that“the informationyou providedwashelpful to determine the current operatingstatusof the site.”Shethen states that“based on the informationwe have received to date, there is currently alackof scientific evidence confirming migration of contamination from the permitted CFGA [Gun Club] operating area or high-risk conditions as classified under Section 64(2)(i) of theEnvironmental Management Act.Therefore,wewon’t be pursuing this issue further at this time.”Her letter indicates thatherdecision tonot takefurther action isbased on two things: Don Closson’s November24, 2016 email and a lackof scientific evidencethat contamination ismigrating off the site or that the site is high-risk. However,while there may be a lack ofscientific evidence, Closson’s November 24, 2016 emailmakes it clear thatthere is contaminationwithin therange boundaries because the area has been a gun range since the 1930s.

In May2017,BC Parks indicated that itwas considering conducting a scientific assessment of contamination attheGun Clubsite.In a May2017,email totheChairoftheCowichan River Stewardship Roundtable,Don Cadden statedthat “BC Parks has confirmedwith the Cowichan River Neighbourhood Association thatwe areconsidering an assessment of the contamination levelswithin the park boundary thatwill include both theterrestrial aspects and potential ground and surface water contamination. That will identify if there are significant risks that BC Parks needs to take action on.”103

On November 21, 2017, the Association sent an email to Don Cadden, asking for an update aboutlead contamination at the gun range and reiterating the Association’s specific questions aboutwhatstepshave beencompleted to investigate the gun range area as a contaminated site.104Don Cadden’sNovember 24, 2017

101Closson,supranote 9.102Letter from Kerri Skelly, Senior Contaminated Sites Officer (Surrey), Remediation Assurance & Brownfields Surrey,Ministry of Environment to Don Closson,Area Supervisor (Cowichan),Protected Area Section (Goldstream), Ministry ofEnvironment (9 January 2017), on file with the University of Victoria Environmental Law Centre [Skelly].103Email from Don Cadden, Regional Director, BCParks, West Coast to Genevieve Singleton, Chair of the Cowichan RiverStewardship Roundtable (26 May 2017), on file with the University of Victoria Environmental LawCentre.104In April 2017, the Association emailed Kerri Skelly and Don Closson to ask for more information about sitecontamination –for example,whether any preliminary or detailed site investigations, or any science based tests like soil testing are planned, and what has been done so farwith respect to best practices at the gun range. SeeEmail from Bob KopptoKerri Skelly, Senior Contaminated Sites Officer (Surrey), Remediation Assurance & Brownfields Surrey, Ministry of Environment and Don Closson,Area Supervisor (Cowichan),Protected Area Section (Goldstream), Ministry ofEnvironment (13 April2017),on file with the University of Victoria Environmental Law Centre.In early May, the Association received a letter from Don Cadden, Regional Director,BC Parks, West Coast, stating that “BC Parks is currentlyconsidering options for investigating some of the concerns you raised in your email,” but giving no further specific details inresponse to the questions,other than the fact that BCParks contacted theGun Clubaboutbest practices, and Don Caddenbelieves they are working towards implementing the US Environmental Protection Agency’s best management practices.

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Letter from Don Cadden, Regional Director, BC Parks, West Coast to Bob Kopp, Cowichan River Neighborhood Association (2 May 2017), on file with the University of Victoria Environmental Law Centre. 

105 Email from Don Cadden, Regional Director, BC Parks, West Coast to Bob Kopp, Cowichan River Neighborhood Association (24 November 2017), on file with the University of Victoria Environmental Law Centre [Cadden]. 

106 Government of British Columbia, Determine if a Site is Contaminated, online: <https://www2.gov.bc.ca/gov/content/environment/air-land-water/site-remediation/contaminated-sites/the-remediation-process/determine-if-a-site-is-contaminated>. 

107 Cadden, supra note 105. 

108 Skelly, supra note 102. 

109 Email from Geoff Maxwell, President of the Cowichan Fish and Game Association, to Don Closson, Area Supervisor (Cowichan), Protected Area Section (Goldstream), Ministry of Environment (17 January 2017), on file with the University of Victoria Environmental Law Centre.

response stated that the provincial government is developing an Invitation to Quote for a site assessment as per the Contaminated Sites Regulations, BC Reg 375/96.105 Cadden is likely referring to a site investigation, which is “the primary method used for gathering detailed information about potentially contaminated sites,” in order to determine if a site is contaminated.106 Cadden stated that he anticipated that the assessment will start early in 2018 and “all results of the assessment will be provided to Cowichan Tribes, the CFGA [Gun Club], local residents and all other interested parties.”107 

In the meantime, the provincial government has suggested that the Gun Club manage ongoing contamination by applying best practices. Kerri Skelly suggested this in her January letter, which states that: 

“Our past experience with outdoor shooting ranges shows a need for the implementation of best management practices for operating facilities to reduce contamination. In addition, it is beneficial to minimize any adverse effects on the environment by determining current environmental conditions at the site, specifically, identifying the potential for the spread of contaminants into other areas of the CRPP.”108 

She further recommended that Don Closson refer to the US Environmental Protection Agency document, “Best Management Practices for Lead at Outdoor Shooting Ranges,” for guidance if developing an operational plan for the Gun Club, and recommended that measures be put in place to ensure that any contamination at the Gun Club site does not migrate to other parts of the park or neighbouring properties. 

Subsequent email correspondence between Don Closson and Geoff Maxwell, president of the Gun Club, indicates that Don Closson followed up with Geoff Maxwell about “best practices” by sending him the US Environmental Protection Agency report and a BC Wildlife Federation report as resources. In Don Closson’s email to Geoff Maxwell he also mentioned that he would like to have a discussion with Geoff Maxwell during his 2017 site inspection about efforts that have been undertaken to ensure these best practices have been implemented.109 In Don Cadden’s November 24, 2017 email to the Association, mentioned above, he stated that he “will check with the CFGA [Gun Club] on their progress to incorporate the best management practices for lead into their operation.” 

Together, these emails and letters suggest that studies have not yet been done to determine current environmental conditions at the site or the potential for the spread of contaminants into the Park. However, Don Closson has stated that there is contamination within the range boundaries because the area has been a gun range since the 1930s. Don Cadden has informed the Association that the government has initiated the process for a site investigation, which will take place early in 2018. This site investigation should produce more information about the existence and extent of contamination in the gun range area, and help BC Parks identify if there are significant risks that BC Parks needs to take action on. In the meantime, BC Parks has asked the Gun Club to follow US Environmental Protection Agency and BC Wildlife Federation best practices for the management of lead at gun ranges. 

Having outlined the current state of knowledge about lead contamination in the Park, the following sections discuss the implications that lead contamination has for the environment and human health. 

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A. Potential environmental contamination due to the use of lead ammunition

Government reports and recent scientific literature make it clear that the use of lead ammunition at firing ranges adversely impacts the environment. 

In 2011, in response to a request from Dr. Charmaine Enns, Medical Health Officer for the Vancouver Island Health Authority, regarding concerns that lead from the Courtney and District Fish and Game Protective Association’s firing range could be contaminating drinking water, the BC Centre for Disease Control (BCCDC) published a report reviewing current scientific knowledge about lead from firing ranges and its potential to contaminate drinking water supplies (“the BCCDC report”).110 

110 Sylvia Struck, BC Centre for Disease Control, Lead from Firing Range and the potential to contaminate drinking water supply, online: <http://www.ncceh.ca/sites/default/files/BCCDC-Lead_Shot_Drinking_Water_Nov_2011.pdf> [BCCDC Report]. 

111 Ibid at 2. One of the factors that makes the use of lead at firing ranges so problematic is that lead ammunition does not remain whole when shot. Shooting lead ammunition from a firearm can create airborne lead micro particles, and the ammunition may also “splatter,” or fragment when it hits backstops, floors, walls, baffles (barriers that contain bullets), and other surfaces; see National Shooting Sports Foundation, Lead Management & OSHA Compliance for Indoor Shooting Ranges, online: <https://www.usashooting.org/library/Youth_Development/HS_and_College_Programs/Lead_Management_-_NSSF.pdf>. 

112 BCCDC Report, supra note 110 at 2. 

113 Ibid at 3. 

114 Ibid at 4. 

115 Ibid at 5. 

116 Ibid at 5. 

117 Ibid at 5. 

118 Ibid at 6. 

119 Ibid at 6. 

120 Ibid at 2. 

121 Mariussen et al., “Accumulation of lead (Pb) in brown trout (Salmo trutta) from a lake downstream a

The report states that the use of lead ammunition at firing ranges poses a problem because lead bullets, fragments, and airborne micro particles can cause lead levels in and around a firing range that are several orders of magnitude higher than normal.111 Shot fall zones from skeet and trap ranges can cover 10-50 acres, or more, depending on range layout.112 This can lead to the accumulation of lead in soil, and to lead leaching offsite into water and sediment. 

Soil lead concentrations greater than 10,000 mg lead/kg soil have been found globally at shooting ranges in New Zealand, the United States, England, Germany, and Scandinavia.113 For reference, Canadian guidelines for soil lead levels in residential/parkland are 140 mg/kg for human health and 300 mg/kg for environmental health.114 

There is also potential for lead pollution to migrate to areas outside of the firing range. For example, one study of a small arms firing and skeet range in New York conducted by Lebare et al. in 2004 found elevated lead concentrations in soil, and found that the lead was leaching into nearby streams and sediment.115 The existence and extent of lead pollution surrounding the firing range depends on site-specific environmental conditions, such as rainfall intensity, ground slope, and soil type.116 For this reason, most scientific studies look at individual ranges.117 This is also why the BCCDC report states that current research suggests that firing range management should include assessment of contamination patterns and specific characteristics of the range, and, if there is potential for contaminants to migrate offsite, that soil, groundwater, and surface water sampling at the range and adjacent areas take place.118 Researchers have also recommended that periodic remediation of active ranges take place to reduce risk to local fauna.119 

Lead pollution of gun ranges and the surrounding areas has serious implications. The BCCDC report states that lead can be toxic for soil fauna, vascular plants, and small mammals, and that it poses the highest risk for small mammals and birds that may ingest lead shot while feeding.120 Scientific studies from around the world also point out the danger shooting ranges can pose to the environment. Researchers Mariussen et al. (2017) found that adult brown trout in a small lake within an abandoned shooting range in southern Norway were subject to increased stress due to chronic exposure to lead. The total water concentration of lead was elevated in the lake; the trout had high levels of lead in bone, kidney, and gills; lead accumulated in the shells of the trout’s eggs; and there were elevated levels of lead in the upper layer of lake sediments.121 Researchers Perroy et al. (2014) 

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former shooting range” (2017) 135 Ecotoxicol Environ Saf 327. 

122 RL Perroy, CS Belby & CJ Mertens, “Mapping and modeling three dimensional lead contamination in the wetland sediments of a former trap-shooting range” (2014) 487 Sci Total Environ 72. 

123 N De Francisco, JD Ruiz Troya & EI Agüera, “Lead and lead toxicity in domestic and free living 

Birds” (2003) 32:1 Avian Pathology 3. 

124 British Columbia Ministry of Environment, Burnaby Gun Club, Burnaby, BC, Profiles on Remediation Projects – 3, January 2009, online: <http://www2.gov.bc.ca/assets/gov/environment/air-land-water/site-remediation/docs/remediation-project-profiles/burnabygunclub.pdf> [BC MoE]; Jennifer Thuncher, “Encroachment on Squamish Rod and Gun Club”, The Squamish Chief (15 December 2016), online: http://www.squamishchief.com/news/local-news/encroachment-on-squamish-rod-and-gun-club-1.4623003 [Thuncher]. 

125 Thuncher, supra note 124. 

126 City of Burnaby, Parks, Recreation and Culture Commission Minutes, Wednesday, 2017 May 17, online: <https://eagenda.burnaby.ca/sirepub/cache/2/rvbc2qdoowy2bucjsa1bu5kz/85910252017025641862.pdf> at 7-8. 

127 BC MoE, supra note 124 at 1. 

128 Ibid at 2. 

129 Cement Association of Canada, Keystone Environmental Ltd. Selects Cement-based Solidification/Stabilization, online: <https://ceaa.gc.ca/050/documents_staticpost/cearref_8989/STP-0193.pdf>. 

130 Joe Rubin, “A Neighborhood Gun Range’s Legacy: Lead Contamination,” Huffington Post (12 August 2016), online: <http://www.huffingtonpost.com/entry/sacramento-lead_us_58499df4e4b0905b344235a6>. 

131 Resident’s Bulletin #3, supra note 98.

examined sediment samples from an urban wetland that was the site of a former trap shooting range in southwestern Wisconsin, United States. They found that over 31,000 m3 of sediment surpassed the United States Environmental Protection Agency’s contamination threshold of 400 mg/kg lead, with a maximum value of 26,700 mg/kg lead occurring near the center of the expected shot fallout zone from the range. Shot densities of more than 50,000 pellets/m2 were found in the shot fallout zone.122 De Francisco et al. (2003) estimate that lead shot can take between 100 and 300 years to completely degrade and disappear from an ecosystem.123 

The local example of the Burnaby Gun Club illustrates some of the above concerns. The Burnaby Gun Club operated a target and skeet range on the north side of Burnaby Mountain from 1954 to 1996.124 In 1996, the City of Burnaby decided to end the lease of the Burnaby Gun Club and convert the ranges to park use.125 The City decided to close the gun range because lead from its operations had leached and polluted the surrounding water system, and because the Burnaby Council and Parks, Recreation and Culture Commission also decided that a gun club was not a suitable use of the park and not congruent with the peace and quietness of the park.126 After the gun range closed, the area was so polluted that extensive remediation was necessary. The BC Ministry of Environment “Profiles on Remediation Projects,” backgrounder on the Burnaby Gun Club states that “After half a century of target practice, it was no surprise that the ground contained lead, copper, and coal tar pitch containing polycyclic aromatic hydrocarbons (PAHs) used to bind skeet birds,” and went on to state that “Site investigations showed that a 1.8 hectare area contained lead, zinc, copper, and antimony, with concentrations high enough to be designated hazardous waste under British Columbia's Hazardous Waste Regulation.”127 The City of Burnaby retained Keystone Environmental to remediate the site.128 Keystone completed the project at a cost of $1.85 million dollars.129 

There are other international examples that also point to the dangers posed by lead pollution from firing ranges. In Sacramento, California, a media investigation by a local paper spurred the City to conduct soil lead testing near a recently closed indoor gun range located within a park in a residential neighbourhood. The testing revealed that the ground around the gun range building was highly contaminated, with lead levels that were as high as 762 times above what California’s Department of Toxic Substances Control considers toxic.130 

As the Ministry staff themselves noted, it is certain that the Gun Club’s continuous use of lead ammunition has already contributed to lead pollution in the gun range area and the Park. The size of the Gun Club has grown over time, and it now operates with almost 500 members.131 If it continues to grow, so will the amount of lead ammunition deposited in the environment. Continuous, unregulated lead deposition could further endanger the many plants and animals in the Park ecosystem. 

B. Potential health risks due to the use of lead ammunition

The use of lead ammunition at firing ranges can also harm peoples’ health. 

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The BCCDC report states that “[i]n humans, lead exposure can affect the functioning of kidney, bone, thecentral nervoussystem, andhave other health impacts. In children, lead exposure hasbeen associatedwithdevelopmental delays and reducedIQ.”132

Several provincial government factsheets and reports confirmthe danger that use of lead ammunition can poseto peoples’ health, including the Manitoba government’s 2015 Environmental Health Factsheet aboutLeadExposure at Manitoba Firing Ranges.133The Manitoba government released this Factsheet after high levels oflead in blood were identified in several peopleworking or shooting at firing ranges in Manitoba.134Thefactsheetstates that significant lead exposure can lead toserioushealth effectssuch as heart disease, depression,fatigue, andmemory loss, and can impact kidney function,digestivefunction, concentration, and sleep.135Very highlevels can be fatal.136Children andunborn children are more sensitive tolead exposure, and low levels ofleadexposure cancause developmentaldelays,affectlanguage skills,andcause intellectualdisability.137The Factsheet recommends that firing ranges replace lead ammunitionwith lead-free ammunition and take othermeasures to limit lead exposure.138

Similarly, Public Health Ontario released a report about lead exposure among recreational shooters in 2014 aftera health care practitioner reported seeing a patient,who shoots twice weekly at an indoor firing range,with a blood lead level that exceeded the level atwhich Health Canada recommends public health action be taken tolimit exposure.139The report cites anumber of recent studies regardingshooting ranges and blood lead concentration, including a 2012 study by Grandahl et al. that studied Danish recreational shooters at two ranges,and found that 60% of the shooters had potentiallyharmful blood lead concentrations.140The report states that“The mosteffective methodforreducingleadexposure duringshooting istoencourage the use oflead freeammunition.”141

Visitors to the Parkand members of theGun Clubitselfmay already be vulnerable to lead exposure due to theGun Club’s use of lead ammunitionand prolonged deposition of lead in the soil.

C.Recommendations

•Prohibitthe use of lead ammunitioninthe Park;

•Require and enforcetheuse of nontoxic ammunition until theGun Clubceases operationin thePark;

•Ensure that an assessment of current lead contamination in the Gun Clubarea and surrounding area is carried out, and ensurethatthe site is remediated.

 

Part IV–Conclusion and recommendations

On behalf of the Association, the Environmental LawClinicsubmitsthat theCowichan River Provincial Park ManagementPlan mustidentify permittedpark activitiesthat upholdthepurpose ofthePark Act,beingthemanagementofparksin thepublicinterest.TheGunClubmustbe closed,withitsoperationsphased outassoon as possible and underno circumstances beyond 2022, in order toensure that the Minister does not continueto permit activities that contravene section 8(2)of the Park Act,the purpose of thePark Act,and the stated roleof the Park.Until theGun Clubcloses,BC Parks should ensure thatthe operation of the Gun Clubisrestrictedto significantlyreduceoperating hours.BC Parks should alsoenforce the Gun Club’s PUP conditions andprovincial laws that apply totheGun Club’s operations in the Park. In addition, BCParks shouldprohibit theuse of lead ammunition in thePark, and require theGun Clubto usenontoxicammunition until itceases

132BCCDC Report,supra note110at 2.133Manitoba,Lead Exposure at Manitoba Firing Ranges,Environmental Health–Factsheet, December 2015, online:<https://www.gov.mb.ca/health/publichealth/factsheets/leadfiringranges.pdf> [Manitoba].134College of Physicians & Surgeons of Manitoba, Fromthe College–Newsletter, Volume 52, Number 1,May 2016,online: <http://cpsm.mb.ca/cjj39alckF30a/wp-content/uploads/newsletter/May2016nsl.pdf> at 15.135Manitoba,supranote133at 1.136Ibidat 1.137Ibid at 1.138Ibidat 1.139Public Health Ontario,Lead Exposures Among Recreational Shooters,Rapid evidence review, October 2014, online:<https://www.publichealthontario.ca/en/BrowseByTopic/EnvironmentalandOccupationalHealth/Pages/Lead-Exposures-Among-Recreational-Shooters.aspx> at 1.140Ibidat 4.141Ibid.

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operation. Finally, BC Parks must follow through with the assessment of current lead contamination in the Gun Club area and surrounding Park area, and ensure that the site is remediated. 

Taking action through this planning process is imperative. The gun range is not an appropriate activity for a Class A park, and lead pollution from the Gun Club has the potential to compromise peoples’ use and enjoyment of the Park, and the integrity of its ecosystem.