Edmonton’s Grade 1 students will come home from school with a tree-seedling in celebration of Arbour Day next week.

Along with instructions on how to plant and care for the tiny trees, the youngsters will learn, from provincially provided educational material, that trees provide oxygen, shelter and shade for humans and animals alike.

Just don’t tell that to Edmonton’s legal department.

When the prospect of a city-wide tree protection bylaw was brought up last December, the city’s legal department advised city council that the bylaw would likely be challenged and overturned in court because of the difficulty in proving that trees contribute to the health of residents.

“It’s always more complicated than it seems,” says city lawyer Steve Phipps.  “It’s all fine and good to say trees are good and we should protect them, but the reality is trees belong to the people who own the property. People will complain when their private property rights are infringed by the state.”

Linda Duncan, environmental lawyer and federal NDP candidate in Edmonton Strathcona, has picked up the issue, and with the city’s natural areas advisory committee, is trying to breathe new life into the bylaw. 

“It really hit me a couple years ago when I was flying back from Calgary,” she says. “It was in the fall and we flew over Edmonton and that’s when you can so profoundly see it, because you see all the trees with their leaves. I thought: Oh my god, this is so beautiful, and yet we are not doing anything to protect it.”

Under The Axe

There are several threats to Edmonton’s tree canopy. Some are natural threats, such as the recent drought that killed 26,400 city trees. But the biggest threat is development, especially on private lands.

One of the more famous examples is Little Mountain, a 30 acre site in northeast Edmonton. The site was sold to a developer in 1999, after the city decided it couldn’t afford to buy the land, even though it was one of the last patches of natural aspen parkland in the city and its loss caused considerable public uproar. 

More recently, during the extension of the south LRT to Heritage Mall, a stand of native trees was cut down during construction, which Duncan says was unnecessary. 

“The problem is transportation rules and transportation are luddites,” says Duncan. “The city talks the talk, but where’s the walk? We had that focus Edmonton consultation. I participated in that and everybody said they wanted to keep the mature areas, keep the tree-cover and allow some density. But where is the evidence of actually applying that to the department of transportation or the department of planning?”

Trees within neighbourhoods and on private property are also at risk, says Milton Davies, a forester with the city. Although many of the seedlings that Grade One students bring home are planted, he says once the kids leave home, the tree is often cut down. Older residents don’t want the hassle of cleaning up after a tree. Also, younger residents often remove their own trees in order to build bigger homes, or ask the city to remove public trees so that they can expand their driveway. That means many trees are cut down by the age of 40. “What a waste,” says Davies. Even short-lived trees like poplars can live to be 80 years old. 

He’s careful to say he respects resident’s property rights and the opinion of the city’s legal department, but there is “a whole litany of things that trees do that people don’t realize.

“Every time you reduce the canopy of a neighobuhrood,” he says, “you are starting to change the micro climate of that neighbourhood. We’ve developed neighourhoods that have incredible microclimates. You go out to the suburbs on a hot day and bake to death, but when you go into a heavily treed older neighbourhood, it can be as much as five degrees cooler. That’s way beyond shade.”

Trees on city property are safe from unnecessary removal and damage, but trees on private property have no protections whatsoever. Resident’s don’t need a permit to chop down trees of any size or age. 

Defining A “Public Good”

Legislative abilities are mixed across Canada. Cities in British Columbia and Ontario have specific bylaws to protect trees on private property, especially older trees.

The British Columbian tree bylaw serves a very specific purpose along the coastline, where erosion could mean loss of land, says city lawyer Phipps, which makes the law easier to defend as a public good.

As for Ontario, their municipal act was revised recently and specifically mentions the protection of trees, says Jodie Hierlmeier from the Environmental Law Centre here in Edmonton. “That political decision hasn’t been made yet in Alberta,” she says. 

Councillor Linda Sloan, who asked for a draft tree protection bylaw but was outvoted, says it’s hard to convince her colleagues that action is needed.

“If someone, a councillor or bureaucrat,” she writes via email, “doesn’t understand the multifaceted role that trees play in our environment, ecosystem and society then it is hard to champion that more money should be allocated.”

Edmonton could pass a tree protection bylaw, but it would likely be struck down if challenged in the courts, says Phipps. The city would have to prove that preserving trees is in the public good, and specifically serves the health and well-bring of residents, and that the contribution that individual trees on private land make to the rest of the city out weights individual property rights. That’s hard to do when Edmonton has lots of public trees which are already protected. (Edmonton boosts 306,000 to 310,000 trees on public land outside of the river valley. Edmonton’s urban forest is worth $1.67 billion.) 

Many cities in Alberta are struggling to protect trees and natural areas, says Grant Pearsell, Edmonton’s natural areas co-ordinator. St. Albert, Calgary and Strathcona Country have all attempted protective legislation, but are hampered by the municipal act.

“People get frustrated within their municipalities,” he says. “But you can see this is a pattern, and there’s something to this.”

However, he doesn’t think a tree protection bylaw is the best way to preserve Edmonton’s urban forest, especially if the bylaw includes privately owned trees. 

“It would be very difficult to administer,” he says. “What if people cut down the trees before we got a chance to have a conversation with them?”

The city has trouble protecting trees in the river valley, where rules already exist, and has had to crack down on landowners with homes on the top of the banks cutting down public trees. Private properties would be very difficult to monitor.

He also fears that if a bylaw protecting trees on private land was passed that people would proactively cut down their trees so that they could develop the land or sell it unhindered. 

Instead, he prefers to develop relationships with land landowners and convince them to preserve their own land or for the city to simply buy the land outright. 

On that at least, Duncan agrees. Edmonton should use everything within its power to protect trees and natural areas. 

“Let’s plan the city now,” she says. “Once we lose those mature trees, we are never going to get them back.”