As some clients behind a legal threat over the Islands Trust’s draft Policy Statement (TPS) publicly identified themselves, staff revealed the sheer volume of feedback has overwhelmed the document’s revision process — making it impossible to complete before the next election regardless.
Speaking before the Islands Trust Council on behalf of advocacy group Positively Forward on Tuesday, March 10, Salt Spring Island resident Maxine Leichter told trustees that group had “joined with others” to seek a now widely circulated legal opinion from Lidstone & Company senior partner Don Lidstone — and further entreated council to not advance the TPS’ current draft.
“The Trust’s legislative mandate is clear and unequivocal: to safeguard the natural environment in an area awarded special status by the Trust Act,” said Leichter. “To betray that responsibility in favour of greater development is short-sighted and reckless.”
The legal opinion outlined in Lidstone’s Feb. 17 letter to Trust Council warned planned revisions to the TPS risked running afoul of the object of the Trust — the often-cited preserve-and-protect “mandate” in the Islands Trust Act — on several points. Lidstone, who in the past represented the Trust in legal proceedings, wrote that an ordinary-meaning reading of the mandate’s language — and some legal precedent — partly pointed to a priority of protecting and preserving the natural environment, with the current TPS “aimed at protecting ecosystems from development and growth, specifically.”
“This can be contrasted with the language in the draft TPS,” wrote Lidstone, “which opens the door for growth and development without regard for the limits of the island ecosystems.”
After it was included as “correspondence received” on an Islands Trust agenda, the legal opinion mostly made the rounds within local policy enthusiast circles, where few likely found Leichter’s March 10 statement revelatory. The broader public learned of the letter’s existence Feb. 21 when it was posted online by an account associated with Saanich North and the Islands MLA Rob Botterell.
Botterell clarified for islanders at an ASK Salt Spring gathering March 6 that he was neither the author of nor impetus behind the letter, but had merely been among three people copied: himself, Minister of Housing and Municipal Affairs Christine Boyle and Islands Trust CAO Rueben Bronee.
“And when it was posted on the [Salt Spring] Exchange, there wasn’t a suitable explanation that I was simply republishing this out of a civic ‘openness and transparency’ approach,” said Botterell, “giving the impression I had written it.”
A retired lawyer, Botterell was a professional associate at Lidstone & Company for five years ending in 2019. The letter was addressed to trustee Laura Patrick as the chair of Trust Council, a standard for such correspondence that further confused many readers.
“So, lesson learned,” he said. “I need to put a bit of a preamble on anything I publish.”
At Trust Council Tuesday, language from both the meeting agenda and trustees themselves indicated the letter would be discussed during an in-camera session Wednesday morning. In response to a later question during the continued public meeting Thursday, Bronee told trustees they could share with constituents merely that the letter had been received, and staff would provide “communications support to address questions in your communities.”
But any reassurances Trust Council may have received from lawyers regarding the Trust’s legal footing was likely little consolation for task-oriented trustees, who had set a goal of completing the TPS revision process before the end of their elected terms. Trust Area Services director Clare Frater said Thursday the work would “inevitably” carry over past the election.
“I’m here to tell you today, I think we’re now in the place of advising you the project will not be able to be completed this term,” said Frater, citing an extraordinary number of responses to a call for feedback from Indigenous, local and regional governing bodies and agencies — and the general public, who sent more than 2,000 completed surveys, some 750 of which were “long-form” responses. All of that will need to be organized for trustees to digest.
“There is a vast amount of information that’s coming in, and we want to honour all the commitment and effort and passion that communities, other governments and staff have brought to this — such that we can then refine and polish the document in a way that reflects all the values and interests.”
That volume, combined with an indication from the Ministry of Housing and Municipal Affairs that their process may take longer than originally envisioned, will easily push the process well past October elections. The TPS has not seen meaningful revision in three decades, with the current iteration described as an attempt to address shortfalls in the guiding document — such as addressing the climate crisis, growing housing needs and a commitment to reconciliation with local First Nations.
Frater and Bronee said next steps would include bringing distilled feedback to Trust Council for their consideration — perhaps during a scheduled May 13 meeting of that body’s Committee of the Whole, or just as likely in a separate, dedicated and as-yet unscheduled meeting.
“This remains in your hands to advance as far as you can, and as far as you wish,” said Bronee. “If you can get it to the point where it’ll be with the minister, great; I don’t think we can or should presume what a new council may, or may not, choose to do with that.”