The present study is undertaken to explore social aspects of divorce legislation in British Columbia. The specific areas of procedures, grounds, domicile, and children of the marriage are examined as they would appear to have most significance for social welfare. The study attempts to draw attention to the relationship between law and human relations and to critically examine British Columbia divorce legislation, its functions and dysfunctions, in terms of the ideal whereby the law acts as an enabling device aimed at problem-solving. Chapter I of the study reviews the historical significance of attitudes, customs, and law still affecting divorce legislation in British Columbia and points out areas where they may presently be divorced from social reality. Chapter II, III, IV, and V examine specific areas of divorce legislation and their significance in modern society in terms of a problem solving approach. Chapter VI involves a survey of expert opinion on matters pertaining to British Columbia divorce legislation. The purpose here is to lend credibility to social problems around divorce legislation outlined in preceding chapters based on library research. Chapter VII is a short survey of comparative divorce legislation in a variety of other jurisdictions. This survey indicates possible solutions to some of the social problems arising from legislation in British Columbia. Throughout, the study method essentially involves library research with the exception of Chapter VI. A small sample of experts in a variety of fields interested in the question of divorce were interviewed. Experts include clergymen, politicians, lawyers, judges, social workers, etc. The interviews were structured by means of an interview schedule. Initial exploration carried out in this study indicates that the adversary nature of British Columbia divorce legislation with its limited grounds is not conducive to problem-solving and appears instead to create new problems for those already suffering from damaged interpersonal relationships. A variety of social problems arising from the legislation are more closely defined and documented by reading and expert opinion. Some of these social problems involve the fact that in undefended divorce cases the true facts are unlikely to emerge. The adversary system prevents the parties concerned from taking a mature look at what caused the marital breakdown. The law penalizes those who attempt reconciliation due to factors involved in condonation. Collusion bars also discourage discussion of matters of mutual concern or serve to keep such discussion secret. In some cases even though all personal and social functions of marriage have ceased to exist, the legal tie must be maintained because neither partner has committed adultery or is willing to engaged in fraud. In other cases, those who have grounds for divorce are unable to obtain same because of legal costs and difficulties in establishing domicile or travelling to a court that has jurisdiction. Scant investigation of proposed plans for children of the marriage is carried out unless the custody is contested. In general, British Columbia divorce legislation does not provide for any investigation concerning what really causes a marriage to fail. It provides no relief for many whose marriages have broken down beyond repair and no impetus towards problem-solving for others who might become reconciled or at least divorced with a minimum of secondary damage and with a recognition of responsibilities involving children. Divorce legislation in other countries is suggested as offering possible solutions for many of the problems inherent in our own law. Literature from the United States of America concerning Family-or Matrimonial Courts is seen in this study as the most fruitful. Hopefully then, the documentation of social problems associated with British Columbia divorce legislation and suggested solutions for change will aid others in future research of a more specific nature. / Arts, Faculty of / Social Work, School of / Graduate

The reform of English law received is a matter of some importance today when the volume of law, particularly statute law, has created difficulties in determining what the law is in respect of a particular field of interest. The reception of English Law problem is stated within the British Columbia framework, but it is neither new or unique to British Columbia. It is timely, in that the Courts have occasion to refer to it with reasonable frequency on matters of some concern to individuals and to the public generally. It is timeless, in that it is a factor in the founding of the colonial empire of England and the evolution and development of colonies as independent nations. The primary consideration in this thesis is to state the problems relative to reception and to present their resolution by the Courts and by academics. What emerges is a pattern of fragmentary statement without definite parameters. Much of what is presented is relative not only to British Columbia but also to any other common law jurisdiction where reform has not already been accomplished. History is one parameter, but the problem is not historical. The primary thrust of the reception problem is to determine the impact of English Law in any jurisdiction and what English Law remains in force there. This is a modern legal problem, complicated in Canada by the complexities of the Federal jurisdiction. Part I states the questions that have arisen as to reception and the legislative history of the Province of British Columbia. Part II considers the reception of English law, as it has been developed by judicial reasoning and the interpretation of academics. Primarily, cases which affect British Columbia have been considered, particularly when they are at variance with the generally accepted position. The problems which remain unanswered and the conflicts presented in the various decisions are postulated with a view to establishing the need for legislative reform. Part III considers and summarizes the reform of the English Statutes and the reforms which have been effected in other jurisdictions. Their achievements and methods are referred to in order to assess the options for reform presented and their value as authority in another jurisdiction. Much scholarship has been devoted to this problem in other jurisdictions, particularly in Australia and in Africa. In Africa, emerging nationalism has focused the attention of the legislatures on the problems associated with reception which are not generally politically attractive. Relatively little has been done in Canada to assess the impact of English Law and to effect such reform. The Conclusion recommends reform legislation. / Law, Peter A. Allard School of / Graduate

The changes to the British Columbia Municipal Act repealing land use contracts in 1978 by Bill 42, and the subsequent amendments leading up to Bill 62 in 1985 and Bill 30 in 1987 have been both dramatic and comprehensive in their effect on land development and the approval process. Since the repealing of land use contracts and in spite of the new amendments, B.C. planning legislation has been increasingly criticized among developers, planners, and local governments for the lack of development agreement provisions and adequate flexibility in the municipal approval process. This thesis investigates the possibility of reintroducing land use contracts as a development agreement control in the context of current planning practices. A literature review of the evolution of municipal planning control in B.C. is conducted to provide background information for a theoretical and practical evaluation of the current system of controls in comparison to the former system of land use contracts. The theoretical evaluation is based on measuring both systems against normative criteria, whereas the practical evaluation is comprised of a local government/development industry survey and several case studies. The following conclusions are made in this research: - Land use contracts were introduced in response to a growing need among local governments for some legitimate legislative means of entering into development agreements with developers to require developers to assist in providing the municipal services associated with their development. - Local government support for the land use contract was based on the ability to regulate design, ensure regulation performance, and to enter into off-site servicing and amenity agreements. - The development industry was initially supportive of land use contracts because they offered unlimited flexibility during negotiations and the certainty of a legal contract immune to future zoning changes. Developers eventually withdrew their support for land use contracts complaining of large scale downzoning, lengthy approval delays and excessive impost fees. Many of these allegations are dispelled in this research, but the real weakness of the land use contract was that it was difficult to amend and could be used extensively to replace zoning, effectively "fettering" future council's planning powers. - In the absence of the land use contract, many municipal governments are continuing with a land use contract practice, but without a legislative or in some instances legal basis. - The theoretical analysis, survey and case studies determine that the current planning legislation is adequate for the most part. There is a need however, for a land use contract mechanism to accommodate mixed use, comprehensive or complicated developments. This type of control was determined to be superior in accommodating these types of projects to the current approach of using a variety of planning mechanisms. Generally there is support among local governments and the development industry in B.C. for new land use contract legislation as long as it is more clearly defined to avoid the mistakes of its use in the 1970's. On the basis of this analysis, the study recommends that land use contract reintroduced but in a much more controlled and limited way. / Applied Science, Faculty of / Community and Regional Planning (SCARP), School of / Graduate

The central concern of this dissertation is to understand the nature of political authority in pre-Confederation British Columbia through an examination of the colony's law and its courts. In British Columbia, as in other parts of the Anglo-North American world, the law was closely associated with maintaining and upholding political authority, by contributing to both its institutional and ethical foundations. The ability of states to do acts of a specified nature and to impose sanctions if impeded-- its authority -- rests on consent to the "rule of law." The rule of law encompasses the idea that everyone is subject to the same rules of conduct, sanctions and rewards regardless of his condition. Ultimately, the rule of law guarantees equality in an otherwise inequitable world. Commentators have pointed out that the rule of law is a fiction. Law is normative, and hence the authority it upholds is as well. In British Columbia the rule of law was firmly tied to the market, not the moral economy. British Columbia's law and courts bore the imprint of the colony's commercial economy and its geography. Colonial law and the courts provided a rule-bound arena in which to resolve disputes in a predictable, efficient and standardized manner that suited the demands of a market economy. Capitalism also profoundly shaped the ethical basis on which political authority in British Columbia rested. Commerce involved people in complex relationships. Trials to resolve commercial disputes reflected this complexity. They were lengthy affairs which generated masses of detailed and often technical information. If the demands of the commercial economy for predictable, efficient and standardized conflict resolution were to be met, the Intervention of experts, like lawyers, who could impose order on this mass of information was necessary. Political authority In British Columbia became less paternal and resident in the person of the Judge, and more textual and embedded in printed statutes, precedents and legal texts, as well as the experts who could interpret them. / Arts, Faculty of / History, Department of / Graduate

Zoning is a municipal land use control adopted to protect the public health, safety, general welfare and to provide the economic, social and aesthetic advantages resulting from the orderly planned use of available land» The concept of zoning has changed from a simple restriction to certain uses of land, to a key technique in the implementation of municipal planning policy. Logically the progress of a municipal plan would depend on how strictly its zoning by-law and other regulations are enforced; however, in some instances the strict enforcement of these regulations may cause undue or unnecessary hardship to the owner of a property. Just as the Chancellor's Courts arose in England in order to provide individual justice in cases where the harsh and universal mandates of the common law caused obvious hardship, the Zoning Board of Appeal has been created in order to provide flexibility in the administration of the zoning by-law, where its strict enforcement would cause undue or unnecessary hardship. Zoning enabling legislation provides some standards which are intended to guide a Zoning Board of Appeal in its operation; however the statutory standards specified under the enabling legislation for determination of "undue or unnecessary hardship" and the directions for issuance of the "Notice of Hearing" are vague. The enabling legislation does not indicate the details to be included in the "Notice of Hearing" or the details of information required in a "Notice of Appeal". In addition to the deficiencies of the legislation there generally exists an inadequate relationship between a Zoning Board of Appeal and its respective municipal planning department. The members of the Board are not supplied with adequate information about the zoning and planning objectives of the municipality. They do not feel concerned about such information and tend to confine themselves to the zoning by-law and to make decisions without full understand of the planning context; as such, their decisions tend to be inconsistent with the zoning and planning objectives of the municipality. The hypothesis is advanced that "a positive statement of zoning objectives and planning principles together with a uniform set of procedures to be followed by the Zoning Board of Appeal is necessary for effective implementation of municipal planning policy". Following a review of the traditional and contemporary concepts of zoning and planning, a Case Study is conducted to explore reasons for inconsistencies in the decisions of the Zoning Board of Appeal. For the Case Study three Zoning Boards of Appeal in the Vancouver Metropolitan Area of British Columbia are selected. The conclusions drawn from the Case Study together with observations based on a review of the contemporary experience provide evidence that members of the Zoning Boards of Appeal are not provided with a positive statement of zoning objectives and planning principles. Because of ambiguities in the enabling legislation and lack of definition of standards and format, every Zoning Board of Appeal tends to follow inconsistent procedure in its operation. It is also observed that the members of the Zoning Boards of Appeal are not appraised of the potential impact of their decisions, a situation which can work both ways, that is, it may help in the implementation of municipal planning policy or alternatively it may cause obstructions by granting incompatible relaxations. Investigation of the hypothesis has provided a needed focus in reviewing the position of the Zoning Board of Appeal in the implementation of municipal planning policy. It is concluded that the hypothesis appears to be a reasonable and practical solution for making the Zoning Board of Appeal an effective tool in the implementation of municipal planning policy. Certain feasible legislative and administrative improvements are recommended and a method of implementation of these recommendations at the provincial and municipal levels of government is suggested. / Applied Science, Faculty of / Community and Regional Planning (SCARP), School of / Graduate

The protracted crises of authority that characterized the 1960s and 1970s left their imprints on a number of institutions in Canadian society. The dispute resolution arena, for one, was affected by the turmoil of this age as more informal, 'empowering' alternatives were sought to replace the disempowering procedures of courtroom adjudication. The present thesis focuses on one aspect of an ensuing 'alternative dispute resolution' movement in the Canadian province of British Columbia; namely, community mediation. In particular, it begins by looking at the rhetoric and practices through which community mediation has been deployed. Advocates tout this process as an 'empowering' method of resolving disputes because it encourages individuals to work conflict out in the 'community', thus - so their reasoning goes - limiting state intrusion into people's everyday lives. By contrast, critics of the movement argue that the deployment of informal justice actually expands state control, and contend that it does so rather insidiously under the guise of 'restricting' state activities. Close scrutiny of this debate, however, reveals significant weaknesses in both positions, mainly relating to their unnecessarily narrow definition of the 'problem'; i.e., whether informal justice expands or reduces state control. This is a highly questionable formulation, for it demands a simple response from what is a much more complex and ambiguous event. Taking its cue from more recent developments in the literature, the following analysis reconceptualizes the 'problem' by asking: what is the logic of control embodied by mediation practices in a given context? It responds to the question by developing certain Foucauldian precepts into a theory that explicates the model of power through which mediation regulates action. Its implicit objective is to understand the political rationale of mediation in order to pursue how this might be used to further social justice. Various genealogical procedures are employed to formulate such a theory by responding to four central questions. What are the wider lines of descent that have helped to produce the particular version of community mediation that now colours British Columbia's landscape? What precise model of power does the rhetoric and practice of mediation reflect? How does this informal model of power link up with the formal power of the law/state? What are the implications of this for engaging politically with community mediation, if one's aim is to achieve social justice? Responding to each of these in turn supplies the basic thesis of the following text. In brief, I argue that community mediation has developed in British Columbia in tandem with a shift from Fordist to Post-Fordist modes of regulation (politics) and production (economics) that characterized the 1970s. Influenced by legal reforms and experiments with 'alternatives' to courts, community mediation has assumed an identity which incorporates a 'pastoral' model of power. This model is articulated to the state's 'law-sovereign' model as a 'complementary,' but subordinate, alternative. The association between these results in an indirect form of governance - 'government at a distance' - that may expand the state's potential to control people, but which is also considerably less predictable. This offers both opportunities and barriers to political action in the informal justice arena. Consequently, while the current deployment of community mediation in British Columbia tends to support the professionalised justice of the existing legal system, it may yet be possible to transform its identity through an 'alternative' politics of law that strives for social justice.

The purpose of this thesis is to critically examine elements of public participation in environmental decision-making and to propose that public participation processes may be made more meaningful through the provision of comprehensive and flexible procedural mechanisms coupled with a true ability to affect the outcome of the process, rather than through simply granting more rights. Over the years, natural resources management has grown as a response to ecological concerns over the state and future of our environment. The law too, has developed to accommodate environmental concerns and define legal rights and procedures. Public participation becomes a vehicle for ensuring that affected interests are taken into account in environmental decision-making. In Chapter 1, the established and traditional means of involving the public in environmental decision-making such as litigation and public hearings are examined; however, they have been characterized as too restrictive, not only in terms of the parties who are included, but also the issues. Furthermore, agency administration of complex resource management issues has fuelled public discontent, as many groups understand it is an inherently political process and doubt its legitimacy. In exploring this phenomenon, this paper is first placed in a theoretical context, drawing upon ecological, legal, and ethical philosophies. However, it is also informed by the perspectives of local environmental groups and residents. The turn to other techniques, or Alternative Dispute Resolution, may seem a logical and appropriate evolution, suggesting ways for all affected parties to be involved. Chapter 2 reviews different forms of Alternative Dispute Resolution which provide some principles about the use of mediation and agreements to supplement the regulatory processes of resource management. It is important to consider the mediation process itself, the desire to remedy what is considered to be the failings of the traditional adversarial system, the psychological dynamics of the process, and the parameters for successful negotiations leading to implementation. Chapter 3 commences with an analysis of the legal context of public participation in British Columbia. It determines the discretionary authority of the administrative agencies, and the formal window of opportunity for public input, under the (federal) Canadian Environmental Assessment Act and the (provincial) British Columbia Environmental Assessment Act. This chapter also discusses an additional and interesting vehicle for public participation, although not yet implemented in British Columbia - the Environmental Bill of Rights. Chapter 4 provides a more concrete setting for the use of public participation processes, through the use of a case study - the British Columbia Transit Sky Train Extension Project. The "NIMBY", or "Not In My Backyard" scenario involved has the potential to facilitate negotiation; however, real inroads will be made through improving existing legal avenues of participation such as consultation. In fact, this key concern has been the sore point with respect to the Sky Train Project for many residents of Vancouver. In conclusion, the utility of public participation processes expressed in environmental legislation is reliant not only upon the ability of the law to be flexible enough to serve the various natural resource interests of all stakeholders, but also to be conducted in a manner that is inclusory and substantive.

The protracted crises of authority that characterized the 1960s and 1970s left their imprints on a number of institutions in Canadian society. The dispute resolution arena, for one, was affected by the turmoil of this age as more informal, 'empowering' alternatives were sought to replace the disempowering procedures of courtroom adjudication. The present thesis focuses on one aspect of an ensuing 'alternative dispute resolution' movement in the Canadian province of British Columbia; namely, community mediation. In particular, it begins by looking at the rhetoric and practices through which community mediation has been deployed. Advocates tout this process as an 'empowering' method of resolving disputes because it encourages individuals to work conflict out in the 'community', thus - so their reasoning goes - limiting state intrusion into people's everyday lives. By contrast, critics of the movement argue that the deployment of informal justice actually expands state control, and contend that it does so rather insidiously under the guise of 'restricting' state activities. Close scrutiny of this debate, however, reveals significant weaknesses in both positions, mainly relating to their unnecessarily narrow definition of the 'problem'; i.e., whether informal justice expands or reduces state control. This is a highly questionable formulation, for it demands a simple response from what is a much more complex and ambiguous event. Taking its cue from more recent developments in the literature, the following analysis reconceptualizes the 'problem' by asking: what is the logic of control embodied by mediation practices in a given context? It responds to the question by developing certain Foucauldian precepts into a theory that explicates the model of power through which mediation regulates action. Its implicit objective is to understand the political rationale of mediation in order to pursue how this might be used to further social justice. Various genealogical procedures are employed to formulate such a theory by responding to four central questions. What are the wider lines of descent that have helped to produce the particular version of community mediation that now colours British Columbia's landscape? What precise model of power does the rhetoric and practice of mediation reflect? How does this informal model of power link up with the formal power of the law/state? What are the implications of this for engaging politically with community mediation, if one's aim is to achieve social justice? Responding to each of these in turn supplies the basic thesis of the following text. In brief, I argue that community mediation has developed in British Columbia in tandem with a shift from Fordist to Post-Fordist modes of regulation (politics) and production (economics) that characterized the 1970s. Influenced by legal reforms and experiments with 'alternatives' to courts, community mediation has assumed an identity which incorporates a 'pastoral' model of power. This model is articulated to the state's 'law-sovereign' model as a 'complementary,' but subordinate, alternative. The association between these results in an indirect form of governance - 'government at a distance' - that may expand the state's potential to control people, but which is also considerably less predictable. This offers both opportunities and barriers to political action in the informal justice arena. Consequently, while the current deployment of community mediation in British Columbia tends to support the professionalised justice of the existing legal system, it may yet be possible to transform its identity through an 'alternative' politics of law that strives for social justice. / Arts, Faculty of / Anthropology, Department of / Graduate

In recent years the problem of water pollution has been recognized as a meta-problem of unexpected magnitude and complexity. Early attempts to control pollution were stifled by the property-oriented common law of riparian rights and by the lack of Authorities possessing adequate jurisdiction and funds. The object of this paper is to delineate the proper legislative and administrative field of water pollution control, with particular reference to British Columbia's pollution control legislation. As a background, the common law relating to water pollution is sketched and its adequacy evaluated. Early British Columbia Pollution control legislation is outlined in an attempt to determine the roots of the present comprehensive legislation. The Pollution Control Act 1956 is examined, with particular attention to the administrative tribunal created thereunder. Board procedures are seen to be informal and dependent upon direct communication and negotiation with individuals concerned. An attempt is made to determine the criteria upon which the Board acts in setting effluent standards in waste disposal permits granted by it. These standards are found to be vitually completely in the Board's discretion, but necessary (with some limitations) for flexible policy administration. The Board has several means of enforcement at its command including prosecution under the Act, or under the Criminal Code and civil proceedings at the suit of the Attorney-General. To determine whether civil actions for pollution lie apart from the Act, the question of whether riparian rights have been abrogated in British Columbia by water appropriation legislation is considered. The evidence indicates that actions by riparian owners will continue to lie. The fact that parties hold either water licences or pollution control Board permits makes no difference if pollution in fact exists. The Board is an administrative tribunal; but it may at certain stages of its permit issuing procedure be required to act judicially. At those stages, the Board's decision is open to review by the courts. Under the present legislation a person who objects to the grant of a permit is not entitled to an oral hearing, though he is entitled to file written representations in support of his objection. There appears to be no conflict among the numerous pollution control provisions contained in various provincial statutes. The Pollution Control Act is clearly the governing legislation. Federal Legislation relating to pollution is validly enacted under Federal Fisheries and Navigation powers; and in a case of direct conflict will override the provincial legislation. From the preceding examination of the Act, it is concluded that while certain minor changes suggested might to some degree remedy the present legislation, what is required is a policy making, expert tribunal. An important recommendation is that to secure individual rights, a hearing should be granted every person who files an objection to a permit application. New legislation recently introduced in the British Columbia Legislature provides for appointment of a Director, who will undertake day-to-day administration of the Act. However, the Board will continue to be subject to direction by the Executive Council, and the right to a full oral hearing upon an objection will remain discretionary. / Law, Peter A. Allard School of / Graduate

The provincial parks of British Columbia have endured varying degress of resource exploitation since the creation of the first provincial park in B.C., Strathcona Park in 1911. B.C. Parks, the government agency which manages B.C.'s parks, administers the Park Act (R.S.B.C. 1979 C.309) and derives its dual goals for recreation and conservation from the Act. In addition to the Park Act, there are several levels of policy for B.C. Parks which guide decisions regarding resource use in parks, including "Striking the Balance - B.C. Parks Policy Statement," occasional policy statements in News Releases, and some conditions in resource use permits. This thesis examines the levels of policy which guide decisions regarding mining in parks in British Columbia and the consistency of the commitment to the goals of B.C. Parks through the policy levels. The approach to policy analysis taken is that a policy is both an output of the level above, and an input to the level below. Three criteria are derived from the definitions of policy in the literature. They are that policy should be clear and a guide to decision-making, that it should be forward-looking, and that it should be enforceable. The fourth criterion says that the goals of B.C. Parks stated in the Park Act should be traceable through the policy levels. Since 1973, there have been five policies regarding mining in B.C.'s parks which stand out as significantly altering the commitment of B.C. Parks to its goals. In two of these policies the recreation and conservation goals of B.C. Parks are apparent, while the goals are not apparent in three of the policies. Foreseeable decisions for mining in parks are examined, and the ability of the present policies to guide the decisions is tested. B.C. Parks retains little decision-making authority with respect to mining in parks. On a mineral claim in a recreation area, the Ministry of Energy, Mines and Petroleum Resources has jurisdiction. Off a mineral claim in a recreation area, B.C. Parks has limited authority over mining activities. The fundamental decisions which rests with B.C. Parks is whether or not the recreational values of the area are sufficiently impaired by mining to delete it from the park system. Surprises can occur when the results are different from what was expected, either because the cause is different, the behaviours are not what was anticipated, or an action produces the opposite result from what was intended (Holling 1986: p.294). Several surprises with regard to mining in Parks are imagined and the challenge to the goals of B.C. Parks through the policy levels is examined. A strong commitment to the goals at the upper levels of parks policy, and reflected through the levels is proposed to ensure that B.C.'s parks survive challenges from mining and from other sources. / Applied Science, Faculty of / Community and Regional Planning (SCARP), School of / Graduate