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river@mb.sympatico.ca www.cpaws.org

December 19, 2001

Honourable Oscar Lathlin	
Minister of Conservation
Room 333 Legislative Building
Winnipeg, Manitoba
R3C 0V8

Dear Minister:

Re:	East Side Planning Initiative - Draft Phase One Report - Comments

Please find below our organizations’ joint comments on the East Side Planning Initiative Draft Phase One Report (the “Draft Phase One Report”).  This letter is in addition to our letters of November 30, 2001. We continue to call for an extension of the review period beyond December 31, 2001 and request that the inadequate distribution of the report to date be addressed.

Introduction

The Draft Phase One Report is the result of the Government’s commitment to create a large area sustainable development plan for the East Side of Manitoba, as per recommendations in the Report on the Consultation On Sustainable Development Implementation (COSDI Report) (e.g. see page 1 of the Draft Phase One Report). The Government of Manitoba formally accepted the COSDI recommendations on June 29, 2000.  Earlier endorsement occurred in June and September, 1999.  It is our position that the Draft Phase One Report misinterprets the intent and application of the COSDI Report recommendations.

The COSDI Report stated:

“Local planning and development decisions must take into account ecological as well as economic, social, cultural and human health considerations.  Development decisions must be made with knowledge of the physical and biological relationships that define those systems.” (at p. 18)

The COSDI Report indicates that the framework for large area planning “will ensure that . . . planning drives development, as opposed to development driving planning” (at p. 6). 

On August 9, 2000, you announced the beginning of a process for the creation of a large area sustainable development plan for the east side of Lake Winnipeg.  The East Side encompasses a huge area of pristine boreal forest and waterways.  The national and international importance of preserving the ecological health of this region cannot be overstated.  It is our organizations’ position that the creation of a land use plan for this region should be guided by the following:

•	Section 35 of the Constitution Act, 1982 - recognition and affirmation of Aboriginal and treaty rights;
•	The Sustainable Development Act of Manitoba - Principles and Guidelines;
•	COSDI Report recommendations and observations;
•	Canada Forest Accord, to which Manitoba is a signatory;
•	Canada’s Biodiversity Strategy, to which Manitoba is a signatory; and
•	Manitoba’s Action Plan for a Network of Protected Areas and your government’s protected areas commitments and consultation models.

Our organizations were and are concerned that the work of the three-member Phase One team was not being guided by these legislative and policy documents and commitments.  Accordingly, our organizations individually and jointly made several submissions, orally and in writing, to the Phase One team and yourself regarding Phase One of the Initiative.  In a final effort to have our concerns addressed prior to the release of the Draft Phase One Report, our organizations on October 1, 2001 provided you with a list of essential elements for a valid East Side land use planning process, those being:

1.	The East Side planning initiative encompass the lands and waters in natural regions 3, 4b, 4c and parts of 5c.
2.	Appropriate and meaningful participation by First Nation communities.
3.	An ecological base and full technical information to be used.
4.	All records, reports, documents, etc. be accessible and made public on a timely basis.
5.	A clear mission or goal statement, with terms of reference, which states that the most important outcome of the East Side Planning Initiative is a land use plan that ensures the ecological integrity of the East Side ecosystems is preserved.
6.	Definitions regarding land use planning to be enunciated in the Draft Phase One report, and to be part of the framework for this initiative. Such a framework would be clear about all values and objectives for the landscape, communities and waterways.
7.	Avoidance of significant development expansion, new agreements, or license alterations or licenses prior to the planning process. (Such actions prior to or during the land use planning process would create artificial benchmarks and create conflict among developers).
8.	That adequate time, information, and staff resources are available for an independent process that is not housed in any one department or subject to internal government alteration.

These essential elements were derived from several sources, including: our review of the above legislative and policy commitments; our review of other land use planning processes; our participation in various public process venues, including COSDI; and our appreciation and respect for the natural and cultural importance and uniqueness of Manitoba’s East Side.

A review of the Phase One process and resulting recommendations contained in the Draft Phase One Report reveals that our concerns were well founded.  The recommendations contained in the Draft Phase One Report, if followed, will do little to ensure that the large area sustainable development plan for the East Side fulfils the commitments and recommendations contained in the above legislation and policies.

A.	Planning before development (see our above essential element #7)	

The Draft Phase One Report exhibits a strong bias towards development before planning.  This is not in keeping with the COSDI Report and Manitoba’s national and international forest conservation commitments.  This bias stems from the Phase One team’s apparent misinterpretation of the COSDI Report and misunderstanding of how large area sustainable development planning should occur.

As the COSDI Report stated, “Conducting studies and developing sustainable development plans on the basis of natural boundaries such as watersheds or ecosystems will help [Manitobans] understand the environmental and physical restraints within which economic, social and cultural development, or the protection and enhancement of the natural environment and human health, are allowed to occur”(at p. 19).  In other words, one first determines what are the baseline parameters for the planning area – or as COSDI describes, the “threshold limits of the environment and natural resources”.  Once these parameters are known, ecological and cultural objectives, for example, are enunciated, i.e. no loss of woodland caribou habitat, no reduction of carbon sequestration, or destruction of culturally significant sites.  Once these objectives are determined, then issues associated with significant resource allocations (not a specific resource allocation), if any, for the planning area are discussed, leading to perhaps the “zoning” of the planning area.  Thus, the large area sustainable development plan is created in a step-by-step manner, based on a strong, accessible information base.

After the plan is created, it is then implemented (COSDI Recommendation 3-C(f)).  Significant resource allocations by Manitoba are then subject to the requirements of the large area sustainable development plan (COSDI Recommendation 3-C(g)).  The intent that specific resource allocations, if any, occur after instead of during the creation of the plan, is captured by the diagram on page 20 of the COSDI Report.

As a result of the Phase One team’s misunderstanding of the sequential process of large area sustainable development planning, Phase One was conducted in a manner that promoted development, without ecologically sustainable planning.  The clearest evidence of this is provided in the following statement:

“During the public discussions, the panel members raised for discussion a number of significant resource allocation issues and land use and infrastructure proposals that are presently being considered.”  (at p. 30 of the Draft Phase One Report)

As explained above, in the context of creating an ecologically sustainable land use plan, discussing resource allocation prior to determining baseline ecological, and other, parameters is putting the cart before the horse.  Finally, to achieve the COSDI vision of planning before development and to implement the Manitoba Principle of Sustainable Development - Conservation and Enhancement, which reads “Manitobans should: a) maintain the ecological processes, biological diversity and life-support systems of the environment . . .”, the Phase One team should have asked, “What is your vision of the East Side 50 years from now?”  

The bias of development over planning has shaped the entire Draft Phase One Report and its recommendations.  For example:

•	The proposed planning area was shaped by resource allocation issues, not ecological and political boundaries (Draft Phase One Recommendation #1).
•	The recommendation that the plan be completed within two years
(Draft Phase One Recommendation #21).
•	The recommendation that the East Side Planning process and highway planning and development occur simultaneously (Draft Phase One Recommendations #28-32).
•	No endorsement of the Poplar/Nanowin River Park Reserve or acknowledgment of other existing protected areas (Draft Phase One Recommendation #33).
•	The recommendation that forest allocations be increased in FML #1 prior to the completion of the large area sustainable development plan (Draft Phase One Recommendation #36).
•	Implied recommendation that timber allocations in existing IWSAs could be increased during the planning process (Draft Phase One Recommendation #37). This recommendation also inaccurately refers to allocations north of the IWSA East as if these exist. It also mis states the ‘historic level cut’ commitment during planning for inside the IWSA East, as if it applies to other FMUs.
•	The recommendations that planning for Manitoba Hydro’s BiPole III continue as normal (Draft Phase One Recommendations #42-44).
•	The recommendations that there be no moratorium on Crown land and resource allocations during the planning process (Draft Phase One Recommendations #45-46).
•	The recommendation that mining exploration and development continue as usual throughout the planning area and process (Draft Phase One Recommendation #48).

There is little purpose in participating in a land use planning process if most of the land use decisions have already been made.  Implementation of the above Draft Phase One recommendations will simply result in coordinated development planning, not ecologically sustainable land use planning.

The Phase One team’s pre-determination of what are important East Side issues is also inconsistent with some of the recommendations contained in their report.  Most important, Draft Phase One Recommendation #2 suggests that as one of their duties, the East Side Round Table will identify issues and concerns to be addressed.  If this is to be the duty of the Round Table, then why has the Phase One team already raised and discussed certain issues, and how did it know these were issues before conducting its public meetings?

Our Recommendations:

•	The East Side Planning Initiative will ensure planning drives development, as opposed to development driving planning.

•	The land use plan will be created in a step-by-step process, with decisions regarding specific resource allocations and developments being made based on and in conformity with, the plan.

•	Sustainable land use plans must be in place before significant development expansion, resource or land allocations, new agreements, or license alterations or licenses. (see our essential element #7and see COSDI vision at p.6 for the East Side re: planning driving development)

B.	Planning process (see our essential elements #5, #6, #8)

It is the position of our organizations that the purposes of Phase One of the East Side Initiative have not been fulfilled, i.e. development of a planning process, determining definitions and terms of reference. The development of the plan is not taking place in the proper sequence.  For these reasons, we suggest that the East Side large area sustainable development plan be developed in the following manner.

1.	The Minister sets broad terms of reference for the planning process and outcome of the plan.  These terms of reference must be consistent to various government policies and commitments, including COSDI.  Examples from these policies and commitments include:
•	planning drives development (COSDI, p. 6);
•	the plan must preserve the ecological health and biodiversity of the East Side forests and waterways;
•	aboriginal and treaty rights are recognized and affirmed with meaningful consultation to take place during and after the process (COSDI, p. 38);
•	the plan freeze or lower Manitoba’s greenhouse gas emissions and freeze or increase carbon sequestration; and
•	the plan be based upon the “precautionary principle” (COSDI, p. 21).

Phase One
2.	All existing baseline data, which includes environmental, social, economic, and land use information, for the planning region be gathered.  Steps be taken to fill obvious missing information gaps.  The information is then packaged into a standard, usable, and accessible format, with sources noted and public access assured.

3.	While the above information gathering is taking place, an interim independent facilitator is hired to meet with and identify all potential participants in the land use planning process.  The facilitator gathers basic information, based on the Minister’s broad terms of reference, from each participant, including:
a)	confirmation of planning area and planning sequence;
b)	values for the East Side;
c)	issues or concerns;
d)	requirements for participation;
e)	technical land use planning information they may have; and
f)	their approval of a final independent facilitator, who answers directly to the Minister.

4.	An independently facilitated planning retreat attended by planning participants is held to discuss and agree to:
a)	values to be shared and incorporated in the plan;
b)	participation model, process, and timelines;
c)	geographic scope;
d)	technical information and research priorities set;
e)	definitions and goals;
f)	decision-making model; and
g)	how information should be shared.

Phase Two
5.	Creation of a land use plan, based on the values and goals and planning model identified at the above planning retreat, which includes:
a)	formulation of objectives to achieve shared values and goals;
b)	creation of alternative land use scenarios to fulfil shared values and goals;
c)	analysis of alternatives to assess environmental, economic and social implications;
d)	selection of land use alternatives;
e)	drafting of implementation strategy; and
f)	preparation of draft plan.

6.	Seek approval of the plan from all participants and broader public through meaningful consultations and an independent public review process.

7.	Minister takes plan to cabinet for approval.

Phase Three
8.	Implementation, monitoring, and timely review of the plan.

9.	Specific resource allocations must be in compliance with the plan and with full public notification, licensing steps, and environmental assessment.

Our Recommendations:

•	The above planning steps be implemented.

•	The Minister will immediately enunciate the guiding principles for the land use planning process, including:  (see our essential element #5)

•	recognition and affirmation of Aboriginal and treaty rights;
•	the most important outcome of the planning process is the preservation of the ecological health and biodiversity of the East Side ecosystem; and 
•	the plan be created bearing the “precautionary principle” in mind.

•	An independently facilitated planning retreat for all potential participants will be held in the very near future.

•	The planning process will not be constrained by the suggested two-year time limit.

•	Adequate time, information, and staff resources will be available for an independent process that is not housed in any one department or subject to internal government alteration.  (see our essential element #8)

Recommendations specific to Draft Phase One Report model

It is our position that Phase One as conducted so far is incomplete (see our suggested model above). Broad terms of reference to guide the process and steps to arrive at goals and values for the East Side are essential for a credible process.

Our Recommendations:	

•	The Round Table and Review Committee as described in the Draft Phase One Report will be collapsed into one working group, which may then establish its own subcommittees and working groups.

•	Two non-government co-chairs will be chosen (Draft Phase One Report Recommendation #’s 5 and 12), who report to the Minister and to the working group or table.

•	No in-camera meetings are permitted (Draft Phase One Report Recommendation #6D).

•	The role of the Review Committee, should it remain, will be clarified so that it truly is an advisory, not a review, committee.

•	Any government committee involved is accountable to the public planning participants.  (For example, the Interdepartmental Working Group as recommended is not accountable to the planning participants)

•	No public planning participant should sit on any government committee (e.g. Manitoba Hydro). Staff from the Phase One team have confirmed that no government staff will sit on any planning table or committee.

C.	Participation by First Nation and Aboriginal communities and individuals
(see our essential element #2)

The Draft Phase One Report recommends the East Side Round Table include four members from local First Nation communities / organizations.  However, a review of the notes of community meetings held by the Phase One team suggests that many First Nation communities want their own community represented on the Round Table.  As such, we do not see how the proposed Round Table meets the desires of these communities.  This oversight is not in keeping with the Manitoba Principle of Sustainable Development - Shared Responsibility and Understanding, section 4, which states, “Manitobans should consider the aspirations, needs and views of the people of the various geographical regions and ethnic groups in Manitoba, including aboriginal peoples, to facilitate equitable management of Manitoba’s common resources”.

As well, we are not convinced that the proposed planning process meets the standard of meaningful consultation as set out in court decisions such as Sparrow, Delgamuukw, and Badger.  Meaningful consultation involves a process that is “well thought out” and attempts to determine the nature and scope of Aboriginal and treaty rights in an area and how infringement of those rights may be avoided. Legal scholars suggest that the duty to consult actually involves a requirement that the Crown attempt in good faith to negotiate an agreement that identifies the respective rights of the parties to the territory in question.  Such negotiation, rather than mere consultation, may help to avoid protracted legal disputes regarding Aboriginal and treaty rights.  Lumping all of the East Side’s First Nations together under four representatives on a Round Table implies that all of the communities share the same rights, aspirations and concerns regarding the East Side Planning Initiative.  Our organizations doubt this to be true.  As such, consultation and negotiation probably has to take place with all affected communities.

The Draft Phase One Report also makes no mention of Part 7 of the COSDI Report - Aboriginal 
Interface, or details how these particular COSDI recommendations will be fulfilled by the East 
Side Planning Initiative.  As the Canadian Nature Federation (CNF) noted in an earlier submission, “First Nation consultation guidelines for the government of Manitoba are an outstanding commitment that are needed for a variety of current decisions including for this Initiative.”

Our Recommendations:

•	All recommendations in Part 7 of the COSDI Report must be recognized, affirmed and implemented throughout the entire planning process. This has yet to be done.

•	The East Side Planning Review Committee, which could have a representative from each First Nation, will actually become the East Side Round Table.  (See Part B – Planning process, page 7)

•	The province will release its First Nation consultation guidelines, and provide a legal opinion outlining how the recommended planning process conforms to the Crown’s existing obligation to conduct meaningful First Nation consultations.

•	One of the explicit Terms of Reference/purposes of the planning process will be to record what each First Nation community believes its existing Aboriginal and treaty rights to be.  

D.	Access to information (see our essential element #4)

The Draft Phase One Report omits a full plan for public registries and dissemination of information.  It is unclear how information will be available to public participants in advance of meetings and discussions.  As well, our organizations have repeatedly called for the immediate creation of a dedicated public registry and are disappointed that one was not established very early during Phase One of the Initiative.  The failure to establish a public registry at the beginning of Phase One has resulted in much of Phase One being conducted without allowance for access to information by potential planning participants (see COSDI p. 29-30).

We recommend immediate action on the COSDI report’s recommendations regarding access to information, with continuation throughout the initiative. Public and community access to existing data and studies regarding the East Side will need to be built into the broad Terms of Reference.
One of the hallmarks of effective public participation is transparency of decision-making, based on access to information. Individuals and organizations turn away from public processes if they believe the outcome is fixed or if backroom negotiations and agreements are taking place.  For this reason, the minutes of all meetings, including within government, that have or will take place regarding the land use planning initiative should be placed on the public registry.

It is also important that the qualifications and associations of potential Round Table members be transparent.  Participants will have little confidence in the objectiveness of any land use plan if the planning table is stacked with members associated with a particular interest.

Our Recommendations:

•	All records, reports, documents, etc. will be accessible and made public on a timely basis.

•	Implement COSDI recommendations for access to information as they apply to this initiative and any subsequent Plan.

•	A dedicated public registry system containing hard copies of all information, starting at the beginning of the Phase One staff team’s work, will be immediately established. This includes the establishment of satellite registries in all East Side communities.

•	All information pertaining to the East Side Initiative, including meeting minutes, will be placed on the public registry on a timely basis.

•	Participants in the planning process will outline and document their various associations, affiliations and qualifications.

E.	Geographic scope (see our essential element #1)

It is our organizations’ position that the planning area recommended in the Draft Phase One Report is inconsistent with ecological and political boundaries, and as such is not “guided by appropriate geographical scale” (Canada Forest Accord - Actions).  For example, the proposed planning area:
a)	does not follow Manitoba’s Natural Region boundaries;
b)	does not capture what remains of Manitoba’s pristine and unallocated boreal forest (A Department of Conservation July 3, 2001 press release rightly described Manitoba’s East Side as being, “The largest unharvested area of boreal forest in North America”.);
c)	transects the Island Lake woodland caribou range;
d)	does not include entire trapline districts such as Oxford House and God’s Lake;
e)	does not encompass entire traditional areas for First Nation communities such as Norway House, Oxford House and Manto Sipi;
f)	appears to include the traditional lands of Sagkeeng, but not the community itself; 
g)	does not encompass the entire Forest Management Licence of Pine Falls Paper Company; and
h)	does not encompass all of the Upper Nelson River watershed.

Further to the inadequacy of geographical scope recommended, the authors of the Draft Phase One Report state that their proposed planning area will “encompass most of the immediate possible future developments the residents of the area and Manitobans will need to consider and address”.  This statement is inaccurate.  As the Canadian Parks and Wilderness Society - Manitoba Chapter (CPAWS Manitoba) noted in an earlier submission:

There are proposals for resource development in parts of natural regions 4b and 4c that are outside of the proposed planning area.  However, these developments will have an impact on the ecological health of the proposed planning region.  For example, the proposed hydro transmission line corridor does not originate in the proposed planning area, but would continue through the planning area.  As well, there is a huge amount of diamond exploration occurring just to the north of the proposed planning area.  Mining in this region could have a significant impact on the health of the remainder of the unallocated boreal forest in eastern Manitoba.  Failing to look at the unallocated boreal forest ecosystem as a whole will do little to maintain the “health of the boreal forest and waterways” (from East Side Planning Initiative Newsletter #1) in eastern Manitoba.

Our Recommendations:

•	The geographical scope of the East Side planning initiative will encompass the lands and waters in natural regions 4b, 4c, and parts of 3 and 5c;

•	For watersheds to be the basis for the boundaries for the planning area, the planning area should then also include: Bird River / Whiteshell River watershed, Whitemouth River watershed, Brokenhead River watershed, and the entire Upper Nelson River watershed.   

•	The appropriate inclusion of First Nation traditional lands and trapline districts will be determined by the affected communities.

•	A greater emphasis will be placed on planning for waterways, riparian zones and water ecosystem functions.

Regarding the geographic scope, an example of how the Draft Phase One Report is not in keeping with the COSDI Report is best captured by the following stated concern of the Phase One team:

“. . .  too large a planning area would result in a number of planning problems resulting from: the general lack of basic land use planning information for the more northerly areas . . .” (at p.7)

As stated by the COSDI Report, a purpose of large areas is to “provide a vehicle to assemble information/science respecting the ability of the environment to sustain and absorb, and rebound from the impacts of human activity, to know the threshold limits of the environment and natural resources” (at p. 19).  Planning is to drive the gathering of land use planning information – absence of this information does not mean planning should not occur.  

Given the suggested absence of this planning information, and the COSDI vision that planning occur before development, the Draft Phase One Report should have recommended that major resource developments in the area north of the proposed planning, such as diamond mining and hydro expansion, cease until a land use plan for this region is also developed.  The Draft Phase One Report contains no such recommendation.  As discussed earlier, there is a strong bias in the Draft Report’s recommendations to favour development before planning.  The above is another example of this bias.

F.	Gathering and use of technical information (see our essential element #3)

It is our organizations’ position that the recommendations contained in the Draft Phase One Report regarding the gathering and use of technical information are not consistent or appropriate.  To begin, Draft Phase One Recommendation #52 states that the East Side planning participants “identify, as soon as possible, [their] data needs, such that appropriate research may be initiated . . .”.  How these data needs can be determined prior to the completion of Draft Phase One Recommendation #51 – compilation of existing environmental, social, economic, etc. information for the East Side – is unclear.  Given that the Department of Conservation committed itself to prepare a land use plan for the East Side in the summer of 2000, it was our expectation that the above information would be gathered during the pre-consultation phase of the planning process.  This would have allowed all potential participants to have this information at the beginning of Phase II of the process, as well as having saved the East Side planning participants’ valuable time.  The delay in gathering the above information will make meeting the recommended two-year timetable that much more difficult.

Draft Phase One Recommendation #53 is highly problematic.  Its suggestion that the land use plan be prepared in two years using the best available information, and then be amended when new information becomes available, overlooks one very important fact.  Any land and resource allocations that may result from the land use plan are likely to be long term in nature.  Therefore, proceeding with the implementation of the land use plan without complete ecological knowledge for the region will most likely result in a land use plan that does little to preserve this forest ecosystem.

Our Recommendations:

•	Compilation of the information outlined in Draft Phase One Recommendation #51 will begin immediately with the aim of the information (not just a compilation) being made public and available to all planning participants.

•	The carrying capacity for the East Side ecosystem will be identified before the plan is drafted.

•	The cumulative environmental, social and economic impacts of existing developments within the planning area will be determined for use by planning participants.

•	Planning participants will be provided with technical information they request on a timely basis.

•	A full carbon inventory with budgets to show loss or release of carbon, sequestration services, weather mitigation, and impacts or benefits from various land use plan outcomes will be required data/information for use in drafting the plan.

•	The planning exercise should be ecologically based in its information base, and objectives or goals. This goal in the Terms of Reference would state: ‘the planning exercise will ensure the maintenance of all ecosystem function and services and diversity of species at current or improved levels.’ (Species or ecosystems already in decline should not be taken as being a norm, but identified with a planning goal for restoration.)

Conclusion 

Thank you for giving your time and attention to our letter and recommendations.  We ask that this letter be immediately added to the East Side Planning Initiative public registry.  We look forward to meeting with you in the near future and all the best this holiday season.

Sincerely,

ORIGINAL SIGNED BY:			ORIGINAL SIGNED BY:		ORIGINAL SIGNED BY:

Don Sullivan				Gaile Whelan-Enns		Scott Kidd
North American Coordinator		Manitoba Director		Conservation Director
Boreal Forest Network		Wildlands Campaign		Canadian Parks & Wilderness Society 
Canadian Nature Federation		- Manitoba Chapter

Note: Our previous correspondence is posted in the Draft Phase One Report.

Attachments:
•	BFN/CNF/CPAWS Essential Elements for a valid East Side planning process
•	Summary of recommendations by BFN/CNF/CPAWS

Copy to:
B. McTavish