Judicial Review and the Park Act

The case of the painted turtles at Grohman Narrows Provincial Park should be carefully studied by Berry Penner, the new Minister of the Environment. It involved a ministerial order that was overturned by a judicial review. The minister's decision would have allowed the entrance to the park to be moved so that a developer would not have to incur substantial costs to build an access road on his property directly opposite the existing park access road. The court found that the minister's decision benefited the developer, and did not benefit the park.

Following publicity over the case, Bill Barisoff, former Minister of Water, Land and Air Protection, and now Speaker designate, wrote to the Vancouver Province as well as community papers defending his overturned decision. His letter indicated that he appeared to have learned nothing from the judicial review. He wrote: "The entrance to Grohman Narrows Provincial Park and the property across the highway must align in order to meet highway safety standards. When the decision to move the park entrance was made, it was with the understanding that the impacts to the turtles could be mitigated, their habitat improved and an additional environmental benefit to the local amphibian population could be gained, all at no cost to the ministry." Those claims are contrary to the court record which indicates that although the respondents "… argue that this decision was made for the improvement, development and use of the Park because it was made for safety reasons. That argument was not supported by the Record. Rather, there is nothing in the Record (or in the other evidence for that matter) that disclosed that the present Park entrance was inherently unsafe and that MOT would not have required the Park entrance to move even if there had been no development on the other side of the highway." Evidence before the court also indicated that, contrary to Barisoff's letter, the ministry would incur costs and that the turtles' habitat would suffer.

Mitigation means to make something less harsh or severe. The mitigating measures proposed in the case of the painted turtles included having a biologist present during road construction and hoping that drainage conduits put under the road to maintain water flow would be used by the turtles. The court found that the proposed road would, "at the very least, disturb, if not destroy or damage a portion of the land (including the flora and fauna on it) in the Park." The court was assisted by the submission into evidence of the Minister's "Decision Note" which said "potential impacts of moving the entrance of the park have been reviewed through an impact assessment process and it has been determined that ecological impacts related to the turtle nesting sites in particular cannot be avoided but could be mitigated." The public servant who made the note available was subsequently fired only four hours before his scheduled retirement. The government might soon add the embarrassment of losing his appeal of that decision to their embarrassment of losing the judicial review.

We can hope that the Speaker designate will reflect on his errors in judgment, including writing letters to the editor that contradict the finding of the court.