Deborah Curran
University of Victoria, Law, Faculty Member
- University of Victoria, Environmental Studies, Faculty Memberadd
- Professor of environmental studies and law with a focus on adaptation, water, growth management and Indigenous-state ... moreProfessor of environmental studies and law with a focus on adaptation, water, growth management and Indigenous-state interactions (particularly how reconciliation is expressed as jurisdiction).edit
The purpose of this paper is to describe how the water law and management regime in BC under the longstanding provincial Water Act exhibited signs of distress, and to evaluate whether the new WSA can address these issues. In the context... more
The purpose of this paper is to describe how the water law and management regime in BC under the longstanding provincial Water Act exhibited signs of distress, and to evaluate whether the new WSA can address these issues. In the context of contemporary water law reform, the question is whether the WSA adequately responds to the weaknesses of the water law regime in BC such that conflicts between those relying on water - the environment, indigenous communities, and water users - can be avoided and managed under the new regime.
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A Development Permit Area (DPA) is a set of development regulations pertaining to a specific area as specified by the Official Community Plan. Any proposed building and subdivision within a DPA requires the issuance of a development... more
A Development Permit Area (DPA) is a set of development regulations pertaining to a specific area as specified by the Official Community Plan. Any proposed building and subdivision within a DPA requires the issuance of a development permit. The authority for local governments to establish DPAs is set out in the Local Government Act, Sections 919.1 and 920.The purpose of a Development permit area (DPA) may be to:• protect development from hazardous conditions;• protect agricultural land;• protect the natural environment, its ecosystems and biological diversity;• revitalize an area in which a commercial use is permitted;• establish objectives for the form and character of intensive residential development, and/or to establish objectives for the form and character of commercial, industrial or multi-family residential development.• establish objectives to promote energy conservation, water conservation, and reduce greenhouse gases. The flexibility of DPA guidelines allow Council to fairly exercise its discretion in granting or refusing a permit on a case by case basis, while providing objective principles to guide Council's conditions for approving or refusing a DP application.
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Does the federal government commit a taking under the Fifth Amendment to the U.S. Constitution when it restricts water use in order to protect species under the Endangered Species Act (ESA)?' In Tulare Lake Basin Water Storage... more
Does the federal government commit a taking under the Fifth Amendment to the U.S. Constitution when it restricts water use in order to protect species under the Endangered Species Act (ESA)?' In Tulare Lake Basin Water Storage District et al. v. U.S. (Tulare Lake Basin), 2 the Court of Federal Claims became the first federal court to answer this question affirmatively when it granted the plaintiff water contractors' summary judgment motion. The court concluded that federally-mandated reductions of water deliveries under state contracts in response to ESA concerns were takings of property rights. This summary highlights the findings of the Tulare Lake Basin decision and takes issue with Its conclusions, arguing that it was incorrectly decided according to California water law, federal constitutional law, and public policy. Tulare Lake Basin concerned three California water institutions the State Water Resources Control Board (SWRCB}, the Department of Water Resources (DWR), and several water districts ("the water contractors") that contract with DWR for water. The SWRCB is the state agency with the "ultimate authority for controlling, appropriating, using and distributing state waters."3 It grants water permits to the DWR, which in turn contracts with the water contractors, "conferring on them the right to withdraw or use prescribed quantities of water. "4 In Tulare Lake Basin, the plaintiff water contractors sued over restrictions placed on water permits that the SWRCB had issued to the DWR under the State Water Project (SWP).' The
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The green-building revolution has seen the number of LEED accredited buildings in Canada increase from just five in 2001 to more than 1000 in 2010. South of the border, the US Green Building Council has certified more than 24,000 projects... more
The green-building revolution has seen the number of LEED accredited buildings in Canada increase from just five in 2001 to more than 1000 in 2010. South of the border, the US Green Building Council has certified more than 24,000 projects amounting to 149 million square metres (1.6 billion square feet) of space. What is remarkable about this exponential uptake is that it has come largely from the private sector, with little government incentive beyond voluntary requirements to reduce greenhouse gas (GHG) emissions. Improved energy efficiency is integral to most GHG action plans, but governments in Canada are failing to demand and capture the economic activity associated with building green. As impressive as the gains in green building may be, they are not necessarily tied to a broader vision for sustainable communities. This diverts our attention away from what is really required if the building sector is to contribute its all to sustainability.
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In 1995 the provincial government of British Columbia, Canada, passed new legislation encouraging regional districts to prepare Regional Growth Strategies. The strategies were to be means of coordinating municipal action on regional... more
In 1995 the provincial government of British Columbia, Canada, passed new legislation encouraging regional districts to prepare Regional Growth Strategies. The strategies were to be means of coordinating municipal action on regional issues. They were also meant to facilitate pursuit of sustainability objectives, including reducing urban sprawl, protecting environmentally sensitive areas, providing affordable housing and decreasing pollution. This paper examines the experience so far in one region that chose to prepare a growth strategy: the Capital Regional District (CRD) at the south end of Vancouver Island. Growth‐management planning in the CRD has been and remains both critical and difficult. The region expects a substantial population increase over the next couple of decades and has a limited land base for urban expansion. Many citizens recognise that their quality of life is high, but vulnerable and, as a result, public support for effective growth management is stronger in the CRD than in many other provincial growth areas. However, BC does not have a tradition of strong regional governance and the CRD as a regional authority is the creature of sixteen municipalities and electoral areas. Seven years into the process, effective growth management still faces substantial challenges, including the persistent jurisdictional protectionism of CRD municipalities. Nevertheless, there have been positive achievements and an admirable diversity of individuals, organisations and initiatives continue to push municipal and regional officials towards a more sustainable future.
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IN CANADA, we have always prided ourselves on the fact that our cities are more livable than their US counterparts. Canadian planners like to say that urban densities are higher here, car ownership is lower, transit use better and our... more
IN CANADA, we have always prided ourselves on the fact that our cities are more livable than their US counterparts. Canadian planners like to say that urban densities are higher here, car ownership is lower, transit use better and our downtowns, although sometimes troubled, never became the burnt-out, no-go areas they often did in the US. (1) But the 1990s saw a gradual shift of this picture. While senior governments in Canada were slashing their budgets for affordable housing and their support for transit services, US federal, state and municipal governments were investing massively in transit, housing, urban infrastructure and the revitalization of central cities. They have even bought up hundreds of thousands of hectares of conservation lands outside major cities to stop sprawl. Now, for the first time in decades, many US cities have seen their populations grow. The decline in transit use has been stemmed and downtowns are booming. US cities are showing more of that elusive quality that always characterized Canadian communities: livability.
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The purpose of this paper is to outline the impacts of big box retail land uses on communities in North America and to explore legal and integrated land use strategies to address the problems associated with big box retail. While it is... more
The purpose of this paper is to outline the impacts of big box retail land uses on communities in North America and to explore legal and integrated land use strategies to address the problems associated with big box retail. While it is beyond the scope of this paper to detail strategies that counter the effects of superstores on regional and national labor markets, many of the land use solutions proposed in Part 3 inherently address these issues. In Part 1, I briefly outline the smart growth metropolitan development framework in which big box sprawl is situated, and in Part 2 set out the problems with big box stores. In Part 3, I present the jurisprudence of land use and zoning that frames how local governments and citizens can control retail development in communities. In Part 4, I further discuss specific strategies employed by states, local governments, and citizens to control big box sprawl. Finally, Part 5 is dedicated to case studies of integrated legal and political approaches that have resulted in smart growth solutions.
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New social, economic and environmental priorities are challengeing the Canadian water law regime. Water law in western Canada, a direct product of the colonial legal system and European settlement, illustrates many of the emerging... more
New social, economic and environmental priorities are challengeing the Canadian water law regime. Water law in western Canada, a direct product of the colonial legal system and European settlement, illustrates many of the emerging tensions associated with a modern water management regime in flux. In an age of increasing hydrologic uncertainty with drier summers followed by more extreme storm events, lawmakers are seeking to increase resilience both for the environment and also for the institutions and the laws that govern freshwater resources. In Canada evidence of an evolving water law and management regime is already apparent—from developments in Aboriginal law that are changing how and who governs water, retreat by the federal government as an active participant in water resource management, to increased provincial efforts to fill that void.This chapter explains the structure and foundations of Canada’s approach to water law, in particular in western Canada; and explores how water law is changing, and what this reveals about the potential of a twenty-first century approach to water management and governance. It will explicitly review the primary allocation regimes that exist across Canada: modified common law riparian rights in the Maritime provinces and Ontario; Quebec’s civil law tradition; the authority management approach in the North; and the prior allocation system that underpins the prairie provinces and British Columbia. Through this discussion the chapter will set out the foundational principles that characterize the current approach to western water law. Investigation into the recent law reform in British Columbia provides the focus to better understand Canadian western water law and to identify characteristics of an emerging regime based on partnership and with an explicit emphasis on protecting water for nature. This case study explores how modern water governance requires a more collaborative approach where all governments, rights holders, and stakeholders have roles and responsibilities, with creative integration of top-down and bottom-up planning and decision-making. The example of British Columbia demonstrates how this water law regime is “changing the current”—evolving gradually toward a more collaborative and adaptable system with the promise of its new Water Sustainability Act.
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The green-building revolution has seen the number of LEED-accredited buildings in Canada increase from just five in 2001 to more than 1000 in 2010. South of the border, the US Green Building Council has certified more than 24,000 projects... more
The green-building revolution has seen the number of LEED-accredited buildings in Canada increase from just five in 2001 to more than 1000 in 2010. South of the border, the US Green Building Council has certified more than 24,000 projects amounting to 149 million square metres (1.6 billion square feet) of space. What is remarkable about this exponential uptake is that it has come largely from the private sector, with little government incentive beyond voluntary requirements to reduce greenhouse gas (GHG) emissions.
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This Jurisdiction Options Discussion Paper is one of the research reports providing technical information for the Green Building Leaders Project. The purpose of the Project is to generate technical and legal information to help... more
This Jurisdiction Options Discussion Paper is one of the research reports providing technical information for the Green Building Leaders Project. The purpose of the Project is to generate technical and legal information to help participating local governments (both municipalities and regional districts) understand how existing local government jurisdiction can be used to implement high energy performance in buildings, and to engage with the provincial government on possibilities to enable local governments to take leadership in this area. The ultimate goal is to increase energy efficiency in buildings, reduce the amount of energy the building uses, and reduce GHG production.The Green Building Leaders Project focuses on regulations for three promising green building policy approaches, and the law reform opportunities for their implementation. These priority green building policy approaches are:1. Energy labelling and energy efficiency standards for existing buildings;2. Renewable energy requirements for new buildings; and3. Higher energy performance standards for new buildings.The focus of this Discussion Paper is to describe existing local government jurisdiction for regulating buildings and renewable energy, and to propose law reform options for implementing the priority green building policy approaches.
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... The Authors Michelle Boyle is a doctoral student in Resource Management and Environmental Studies at the University of British ... Mark Hornell, Erik Karlsen, Misty MacDuffee, Michael M'Gonigle, Frank Mitchell, Susan... more
... The Authors Michelle Boyle is a doctoral student in Resource Management and Environmental Studies at the University of British ... Mark Hornell, Erik Karlsen, Misty MacDuffee, Michael M'Gonigle, Frank Mitchell, Susan Stovel, Geoffrey Thornburn, Anne Topp, Lyle Walker and ...
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The purpose of this report is to examine the Agricultural Land Commission’s ("the Commission") recent attention to the concepts of "regional responsiveness" and "community need" in light of its mandate to... more
The purpose of this report is to examine the Agricultural Land Commission’s ("the Commission") recent attention to the concepts of "regional responsiveness" and "community need" in light of its mandate to preserve agricultural land as set out in the Agricultural Land Commission Act (the "Act").The Agricultural Land Reserve (ALR) represents 5% of BC’s land base. Buying locally grown food supports BC’s farmers and minimizes transportation-to-market costs. Protecting scarce farmland from urbanization is therefore a key smart growth strategy.
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Field geoscience has made important scientific advances but has not consistently considered the impact of these geoscience results on communities where the fieldwork is conducted. A reconciliation-based approach calls for critical thought... more
Field geoscience has made important scientific advances but has not consistently considered the impact of these geoscience results on communities where the fieldwork is conducted. A reconciliation-based approach calls for critical thought about who defines, participates in, owns, and uses geoscience research, particularly in light of unresolved aboriginal rights and title claims and treaty rights throughout all of Canada. Geothermal research in the Canadian Cordillera has typically focused on hot spring systems and predicting maximum temperatures at depth, estimating fluid circulation depths, and investigating the distribution of hot spring systems and their relation to major geological features that often control thermal fluid flow. Detailed fieldwork to develop local and regional conceptual models of these systems has rarely been conducted and to our best knowledge, never in partnership with a First Nation. The scope of this project was working collaboratively with Xa’xtsa First N...
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Groundwater sustainability is challenged by the difference between legal and scientific understanding of groundwater as well as the lack of focused attention to regulatory design in the literature on groundwater institutions, governance... more
Groundwater sustainability is challenged by the difference between legal and scientific understanding of groundwater as well as the lack of focused attention to regulatory design in the literature on groundwater institutions, governance and management. The purpose of this paper is to use groundwater science to direct the necessary elements of regulatory design for the unique characteristics of groundwater. Using plain and interdisciplinary language that could be applied in any jurisdiction or region, the article describes seven groundwater characteristics as processes, functions, qualities, physical sustainability, scale, information and data, and physical state. Using the characteristics of groundwater embeds the scientific understanding of groundwater into regulatory design and enables the expression of new values, such as Indigenous rights to water. Applying these characteristics to a case study of new groundwater regulation in a sub-national jurisdiction in the global north - Br...
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While international instruments and a few state governments endorse the “free, prior and informed consent” of Indigenous peoples in decision-making about the water in their traditional territories, most state water governance regimes do... more
While international instruments and a few state governments endorse the “free, prior and informed consent” of Indigenous peoples in decision-making about the water in their traditional territories, most state water governance regimes do not recognize Indigenous water rights and responsibilities. Applying a political ecology lens to the settler colonialism of water governance exposes the continued depoliticizing personality of natural resources decision-making and reveals water as an abstract, static resource in law and governance processes. Most plainly, these decision-making processes inadequately consider environmental flows or cumulative effects and are at odds with both Indigenous governance and social-ecological approaches to watershed management. Using the example of groundwater licensing in British Columbia, Canada as reinforcing colonialism in water governance, this article examines how First Nations are asserting Indigenous rights in response to natural resource decision-ma...
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The Great Bear Rainforest (GBR) agreements are heralded as one of the most important conservation initiatives in the world. They are intended to result in the protection of eighty-five per cent of the coastal temperate rainforest... more
The Great Bear Rainforest (GBR) agreements are heralded as one of the most important conservation initiatives in the world. They are intended to result in the protection of eighty-five per cent of the coastal temperate rainforest landscape on the British Columbia coast and to see seventy percent of the rainforest returned to old-growth forest. A clear terrestrial environmental success, the negotiation process and agreements are equally important for their enlivenment of Aboriginal rights and the governance authority of the Indigenous communities of the central and north coasts within a colonial law context. After stakeholders wrangled largely over the details of ecosystem-based management, First Nations and the provincial government engaged in government-to-government negotiations that are yielding agreement on the exercise of Aboriginal rights across an intact landscape, funding and priority access for First Nations’ ventures as part of a conservation economy, and enhanced roles in...
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Research Interests: Environmental Economics, Conservation Biology, Conservation, Environmental History, Environmental Anthropology, and 15 moreEcological Economics, Conservation Ecology, Conservation Social Science, Environmental Ethics, Agricultural Water Management, Environmental Humanities, Conservation Science, Environmental Governance, Biological Sciences, Biodiversity Conservation, Biological Conservation, Coastal and Marine Spatial Planning, Conservation Laws, Conservation marketing, and Conservation Governance
1 Common law and public domain approaches to water governance – an Australian perspective 21 Douglas Fisher 2 A comparison of constitutional provisions on water-related rights in Southern African states 68 Ed Couzens and Meda Couzens 3... more
1 Common law and public domain approaches to water governance – an Australian perspective 21 Douglas Fisher 2 A comparison of constitutional provisions on water-related rights in Southern African states 68 Ed Couzens and Meda Couzens 3 Private and public ownership of water areas – structures and implications of the Finnish model 98 Pekka Vihervuori 4 Human right to water: Argentine cases, human rights – are they enforceable? 118 Maria Onestini 5 Struggle for water rights between the natives and the European settlers: a case study of Njoro Kubwa Springs (1947–56) 131 Ezekiel Nyangeri Nyanchaga
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Over the past decade or so, several Canadian jurisdictions have moved to integrate environmental considerations more effectively in land use planning. Many of the most promising initiatives have been in the southern parts of Ontario and... more
Over the past decade or so, several Canadian jurisdictions have moved to integrate environmental considerations more effectively in land use planning. Many of the most promising initiatives have been in the southern parts of Ontario and British Columbia, which face significant population increases and associated urban pressures. The approaches taken by government authorities and citizens in these two areas have differed significantly in their application of environmental assessment and planning principles, their adoption of authoritative and consensus-based processes and their response to provincial action and community initiatives. The Assessment and Planning research project, initially funded by the Social Sciences and Humanities Research Council of Canada, seeks to learn from experiences in the two provinces. Part of the work centres on a series of case studies covering a range of initiatives in the two provinces. The Capital Regional District Growth Strategy: Herding Cats onto t...
This report details the range of tools local governments are using to protect the agricultural working landscape, and directs readers to specific examples of local government bylaws and policies. Its purpose is to encourage local... more
This report details the range of tools local governments are using to protect the agricultural working landscape, and directs readers to specific examples of local government bylaws and policies. Its purpose is to encourage local governments to adopt effective tools for protecting the working agricultural landscape. This report is part of West Coast Environmental Laws Smart Bylaws Guide, a web-based resource that provides local governments and citizens with information on strategies local governments can adopt to create more compact, complete communities, and use tax dollars more efficiently.
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The green-building revolution has seen the number of LEED accredited buildings in Canada increase from just five in 2001 to more than 1000 in 2010. South of the border, the US Green Building Council has certified more than 24,000 projects... more
The green-building revolution has seen the number of LEED accredited buildings in Canada increase from just five in 2001 to more than 1000 in 2010. South of the border, the US Green Building Council has certified more than 24,000 projects amounting to 149 million square metres (1.6 billion square feet) of space. What is remarkable about this exponential uptake is that it has come largely from the private sector, with little government incentive beyond voluntary requirements to reduce greenhouse gas (GHG) emissions. Improved energy efficiency is integral to most GHG action plans, but governments in Canada are failing to demand and capture the economic activity associated with building green. As impressive as the gains in green building may be, they are not necessarily tied to a broader vision for sustainable communities. This diverts our attention away from what is really required if the building sector is to contribute its all to sustainability.
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Over the past decade hydraulic fracturing activities have rapidly transformed the landscape in some regions of Canada, with both public and private sector drives to expand the oil and gas industry taking precedence over long term water... more
Over the past decade hydraulic fracturing activities have rapidly transformed the landscape in some regions of Canada, with both public and private sector drives to expand the oil and gas industry taking precedence over long term water stewardship. Within the Canadian federation, provincial governments have devolved responsibility for both water management and the regulation of unconventional oil and gas. Provinces tend to issue renewable short-term water licences for fracking activities under regulatory review processes that are separate from normal water licensing processes. This separation of regulatory function, the sheer volume of water use involved, and the scale of fracking has resulted in conflicts over water use and unregulated storage and use of water for the industry. In addition, Indigenous communities’ aboriginal and treaty rights to water-based activities, such as fishing, are threatened by the extent of fracking activity and lack of hydrological data. These same First...
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This report is the culmination of many individuals’ efforts in researching, reviewing, and contributing to the understanding of B.C.’s new Water Sustainability Act.
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The purpose of this paper is to describe how the water law and management regime in BC under the longstanding provincial Water Act exhibited signs of distress, and to evaluate whether the new WSA can address these issues. In the context... more
The purpose of this paper is to describe how the water law and management regime in BC under the longstanding provincial Water Act exhibited signs of distress, and to evaluate whether the new WSA can address these issues. In the context of contemporary water law reform, the question is whether the WSA adequately responds to the weaknesses of the water law regime in BC such that conflicts between those relying on water - the environment, indigenous communities, and water users - can be avoided and managed under the new regime.
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On September 19, 2008, 63 lawyers from across British Columbia gathered for the first Continuing Legal Education Society course on public interest environmental law. Covering topics such as access to justic, environmental assessment,... more
On September 19, 2008, 63 lawyers from across British Columbia gathered for the first Continuing Legal Education Society course on public interest environmental law. Covering topics such as access to justic, environmental assessment, smart growth and climate change, the course provided a snapshot of this growing field. Public interest environmental law has burgeoned in North America in the past ten years, and B.C. is entering a new era of a more networked and collegial practitioner community.