Category Archives: PaperTrails

Victory in Supreme Court

Docks Bylaw Lawsuit Dismissed

THANKS TO COUNCIL
(April 4th, 2015) It’s been almost a year since Bowen Municipal Council passed the Docks Bylaw, preventing applications for new docks at Cape Roger Curtis. It was a controversial decision, taken under threat of a lawsuit. It’s a great time to thank Council for their decision, and congratulate them on weathering the storm so far.Write a message to all the councilors at once. Though not all councilors voted in favour of the bylaw, it reminds everyone of your support for it.

On March 31st, The Honourable Mr. Justice Punnett delivered his judgement on the case Shu Lin Dong and Zhen Wang vs. Bowen Island Municipality. He dismissed the lawsuit and awarded costs to the Municipality. For supporters of our current council and Stop the Docks, this is a clear victory and vindication of several years of effort.

The two Cape Roger Curtis waterfront property owners challenged the bylaw, claiming that:

  • the bylaw was inconsistent with the Official Community Plan,
  • therefore it was beyond the Council’s authority (‘ultra vires’),
  • it was passed too fast and in bad faith,
  • it was discriminatory,
  • public consultation on the bylaw was inadequate,
  • disclosure to the public before the bylaw was passed was deficient,
  • when the bylaw was passed, some councillors failed to consider the matter 
objectively,
  • and there was a lack of procedural fairness when the bylaw was passed.

Mr. Justice Punnett dismissed every one of these grounds. He upheld the bylaw and Council’s right to pass such a bylaw. See excerpts below.

In the 45-page B.C. Supreme Court decision, Justice Punnett explains the story behind the lawsuit, the applicable precedents, and his findings on each point.
View the decision (PDF)
or on the Courts of British Columbia website.

[79] While the petitioners assert they have been targeted or singled out, the evidence is that after the first three docks were built public concern grew and the petitioners’ applications to build docks increased that concern. In the context of the Official Community Plan and the prospect of numerous and substantial docks in the area, such concerns are understandable. This does not mean the petitioners were targeted. …

[81] In my opinion Bylaw No. 381 was within the jurisdiction of the Municipal Council under the Islands Trust Act, R.S.B.C. 1996, c. 239, the Islands Trust Policy Statement and the Local Government Act. The petitioner has failed to show that the public interest was not the basis for the decision of the majority of the Municipal Council who voted to adopt Bylaw No. 381. The petitioner has not shown there was some other motive or basis for adopting that bylaw. …

[82] The petitioner alleges that by refusing permission to Cape Roger Curtis property owners to build moorage structures Bylaw No. 381 is discriminatory and therefore illegal. [83] Zoning bylaws are by their nature inherently discriminatory, in that some uses are permitted and some are not. Section 479(4), formerly 903 (3) of the Local Government Act expressly authorizes bylaws that may be different for different zones. …

[93] There is no evidence that the councillors voting in favour of Bylaw No. 381 did so without regard for the public interest. Indeed the level of interest in the issue and the comprehensive information provided to the public and to council would accentuate the public interest. The evidence does not show that the council members ignored or failed to consider all relevant factors and issues. …

[97] … I find no discrimination in law. The evidence does not establish any improper motive, purpose or other irrelevant considerations by Municipal Council.

[125] There is no evidence that the Municipality limited or attempted to limit public debate. There is no evidence that anyone was prevented from saying anything at the public hearing. All who wished to speak were permitted to do so. …

[129] With respect to the allegation that the Municipality passed the bylaw as quickly as possible, which the petitioners say leads to the inference that they were trying to trump the tenure approvals and limit public debate, the evidence does not indicate that to be the case.

[133] The “legitimate expectation” relied on by the petitioners is that the existing regulatory framework would not be changed from the time they initially applied to build a dock and their approval and completion. The doctrine’s application however does not have the substantive effect the petitioners suggest.

[135] Because the decision in question was legislative as opposed to administrative the doctrine does not apply. As a result not only did the petitioners not initially have a “right” to the zoning that permitted a private moorage for every lot nor do they have a “right” to that zoning never being altered.

[137] I do not accept the petitioners submission that the overall situation is that the petitioners are “victims of a ruthless bylaw that was passed to target the petitioners for no justifiable reason”. In my view the bylaw, while prompted by concerns raised by the grandfathered docks and the petitioners’ proposed docks, does not target the petitioners nor is there “no justifiable reason”. The Official Community Plan encompasses broader issues affecting the public interest, an interest that is clearly of significance given the subject is the construction of moorage facilities on the foreshore and into the sea, areas that are Crown property and are open to public access. …

[138] Nor do I accept that the Municipal Council prejudiced and deprived the petitioners of rights because “subjectively” they did not like the view and on a “whim” they deprived the petitioners’ of substantive rights attached to their land. That characterization ignores the fact that the Official Community Plan includes the issue of viewscapes and public access.

[139] The petitioners’ argument in essence, as noted in para. 16(d) of the petition where they allege the Municipality “failed to come to a reasonable solution,” is that the Municipality was obliged to behave reasonably in a manner that favoured the petitioners. It is not for this Court to substitute its decision for that of the Municipal Council where they have acted lawfully and within their authority. As noted in Pollard at para. 51:
… A municipal council acting within its statutory powers is answerable to the electorate and to the Legislature. It is not answerable to this or any other Court.

[140] The petition is dismissed with costs to the respondent.

NOTE: an additional lawsuit filed by Zongshen (Canada), owner of lots 1 and 14 at the Cape, is still pending. Because it is based on very similar grounds to the previous actions, we’re optimistic that it too will be rebuffed.

Presentation to Islands Trust by Melissa Harrison

Read her insightful and articulate exposé on the Stop The Docks website.


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Dock Bylaw Passes Despite Widespread Opposition

Bowen Island Municipal Council gave third and final reading to the dock bylaw on Mon., Nov. 25, enacting a dock bylaw that fails to protect Cape Roger Curtis.

In a letter sent Nov. 26, Stop The Docks again appealed to Mr. Steve Thomson, Minister of Forests, Lands and Natural Resources Operations, because our municipal government has not listened:

“Please find attached another letter detailing the public’s continuing concerns and our request that your department take action to protect the public shoreline and sensitive ecosystems at Cape Roger Curtis, Bowen Island, BC. Specifically, there are at least two pending water tenure licence applications for private dock construction which should be denied and continuing failures of the first four approvals granted by your department that require remedy or retraction of approvals. Additionally, the province should act to formally ensure future dock applications at Cape Roger Curtis will not be considered until Bowen Island Municipality completes the second phase of its Land Use Bylaw amendment process. Thank you again for your consideration of this matter.”

Read more of this second request for a ministerial review.

BACKGROUND

July 22: Initial request for ministerial review

Aug. 17: Video record of damage to marine environment at Lot 13

Sept 21: Covenant violated at Lot 11

Nov. 12: Presentation on eelgrass damage at Lot 11

Nov. 12: Comments from Bowen Islanders opposed to the dock bylaw and copied to Stop The Docks

Nov. 12: Public hearing video link (Part 1)

Nov. 12: Public hearing video link (Part 2)

Nov. 12: All comments (101) from Bowen Islanders on the dock bylaw, virtually all opposed to the dock bylaw: summary with links to the original documents (Item 2.3 in the minutes)

Nov. 26: Who cares? Petition to Stop The Docks at Cape Roger Curtis

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Reply from Keith Anderson, Manager, Resource Authorizations

August 13, 2013

From Stop The Docks to Keith Anderson, Province of BC:

In reviewing the response to our requests for intervention, I wish to reflect some personal comments. Firstly, let me say how much I have appreciated the access and support from you and your team in responding to our multiple inquiries in our efforts to understand what happened, and when and who was responsible. I believe you have been both generous and fair in the process.

Ultimately, however, I am deeply disappointed by how the province has failed British Columbia residents with respect to the private docks at Cape Roger Curtis. Fundamentally, I reject the notion that BC has put forward that the responsibility lies solely with third parties such as Bowen Municipality, DFO, Transport Canada or First Nations. BC owns final responsibility for granting licences of occupation for private docks – your department decides. It’s not only a local government issue – we belong to the Islands Trust (an agent of BC) and there are numerous policies and regulations that are in place (provincial, Islands Trust, BIM) to ‘preserve and protect’ the unique features at the Cape. Yes, local bylaws could be strengthened, and yes the local government should have stepped in (and still should step in) to properly and responsibly exercise their powers, but the tools are essentially already in place for the province to properly deny the applications. We know this, you know this.

The harm to our public use and enjoyment and the environment of the Cape is now manifest. Less evident, but equally manifest, is the harm to our community. It is not an overstatement to say that the Cape docks have pierced the soul of our community – you’ve created anger, conflict, stress and … well, I guess, just simply profound grief. Your failure is also our failure – many of us tried, but faith and ignorance didn’t trump bad decisions. Maybe more of us needed to do more, or maybe you would have chosen to permit these docks, even if all 1300 of us had written to oppose these docks at the outset.

Understand what has been done: a large, ugly scar has been erected in the middle of our most sacred natural seascape – in the middle of three public parks and our only coastal trail. A place where families and individuals went to play, learn, reflect, create and heal and nourish themselves. A place that had been protected for generations by good stewards, wiser governments and more diligent public servants. Desecrated. Why? Because one person wanted something for himself, over the needs of the community, visitors and the plants & critters.

Shame on us for letting this happen.

From Keith Anderson to Stop The Docks:

I understand that you have received a letter from the Minister recently that addresses your appeal.

I also understand that the Bowen Island Municipality has initiated the process to establish zoning regulations for private moorage. We are currently waiting for a response from Bowen Island Municipality on how long they expect the process to take so that we can consider their request to defer our review of the applications for private moorage at Cape Roger Curtis.

I believe you have articulated your concerns and preferences on the docks fully and we have no doubt where you stand on the matter. The ministry’s position continues to be that if the residents of Bowen Island want to prohibit the construction of docks at Cape Roger Curtis, then the local government must implement the appropriate zoning bylaws, which they have the power to do, to reflect those community goals. [emphasis added]

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Reply from Minister

August 12, 2013

Doug Hooper, Representative
Stop the Docks Campaign

Dear Mr. Hooper:

Thank you for your letter of July 22, 2013, regarding private moorage licences and applications at Cape Roger Curtis.

I have addressed your inquiries in the order they were presented:

1. Cease work order:
The ministry only issues a cease work order to a tenure holder, where the tenure holder is not complying with the terms of the Land Act agreement. Ministry staff have not received any information to suggest that the client is either building the facility outside of their tenure boundaries, or that they are constructing it in a manner that is inconsistent with the purpose of their tenure. Therefore, there are no grounds to issue a cease work order.

2. Defer pending applications:
Bowen Island Municipality has advised the Surrey Regional Office that they are starting a process to amend their bylaw governing private moorage facilities (Bowen Island Municipality Land Use Bylaw No. 57, 2002, Amendment Bylaw No. 335, 2013). The municipality has requested that the ministry defer a decision on the two new applications until after the bylaw is approved. Ministry staff have asked the municipality when the bylaw is expected to be completed, as approval by the ministry to defer a review of the applications cannot be used to circumvent the bylaw process nor replace it.

3. Impose moratorium:
This is a local land-use issue and falls within the jurisdiction of local government. The municipality has various tools, including land-use zoning and building bylaws that they can use to control private moorage development. There is no need for the province to impose a moratorium.

4. Ministerial Review:
The application process followed to make a decision on the existing tenures and current applications has already been reviewed by Craig Sutherland, Assistant Deputy Minister, in response to inquiries from members of Stop the Docks in May 2013. The application review process is consistent with the review of other private moorage applications. A ministerial review is not required.

I have responded to your specific questions below:

Whether due process was followed:
Crown Land Authorizations followed the same process and considered the same criteria in reviewing and making decisions on these private moorage applications as they do on all private moorage applications. This includes sending referrals to Fisheries and Oceans Canada, Ministry of Forests, Lands and Natural Resource Operations – Ecosystems, Environment Canada, Navigable Waters, and Bowen Island Municipality; conducting First Nations consultation; as well as consideration of comments from the public. The review process did not identify any impacts to the environment that could not be mitigated, significant infringement on First Nations interests or contravention of any applicable legislation, including local zoning. Comments from the public were also considered in light of these agency responses.

Whether referral parties (specifically Bowen Island Municipality, Department of Fisheries and Oceans and Transport Canada) properly applied their policies and regulations and responsibly conducted their assessment of impacts:
The Ministry of Forests, Lands and Natural Resource Operations does not have any jurisdiction over federal agencies or municipal government and has no authority to evaluate their processes.

Whether adequate measures are in place for independent, professional experts to monitor and assure ‘Best Management Practices’ (BMP)are in fact followed in the design, construction of the private moorages:
Best Management Practices are recommended practices that have been demonstrated to be an effective and practical means of preventing or limiting harmful impacts associated with the construction and maintenance of private moorage facilities. These guidelines are not legislated and cannot be enforced by provincial staff. Provincial
staff do not actively monitor construction of private moorage facilities or facilities for other types of land use, including marinas, log dumps, and barge grids. The proponents advise that they intend to have a qualified professional environmental monitor on site during construction. Impacts to fish or fish habitat are under the jurisdiction of Fisheries and Oceans Canada and they have the jurisdiction and authority to take action where there is any harmful alteration or destruction of habitat.

Actual impacts of the private docks on public use, environment, navigation:
The private moorage tenures do not authorize dock owners to interfere with the public’s access along the foreshore. Based on the current designs provided by the applicants, the public will be able to walk and kayak under the dock approach ramps without any interference.

Impact ecological values:
The subject areas do not contain any recorded species or ecosystems at risk, according to the BC Conservation Data Centre website (http://www.env.gov.bc.ca/cdc/). A registered professional biologist conducted dive surveys for the application areas and determined that effective mitigation measures, best management practices and monitoring could be used to address impacts to aquatic values resulting in no net loss to the area’s productive capacity. Navigation is under the jurisdiction of Transport
Canada.

Based on the results of the foregoing, whether revocation of the water licences, and rejection of pending and future applications is appropriate:

The current licences are in good standing. As noted above, the ministry is waiting for further information from the municipality before giving consideration to defer decisions on new private moorage applications while the municipality proceeds with their bylaw amendments.

If you have any further questions, or would like clarification on the above, please contact Keith Anderson, Manager, Resource Authorizations by phone at 604 586-4323 or by email at keith.anderson@gov.bc.ca.

Sincerely,
Steve Thomson
Minister

pc: The Honourable Lisa Raitt, Minister of Transport
The Honourable Gail Shea, Ministry of Fisheries and Oceans
John Weston, MP, West Vancouver – Sunshine Coast- Sea to Sky
Jordon Sturdy, MLA, West Vancouver – Sea to Sky
Dave Peterson, Acting Deputy Minister, Ministry of Forests, Lands and Natural
Resource Operations
Craig Sutherland, Assistant Deputy Minister, Coast Area
Keith Anderson, Manager, Resource Authorizations
Jennifer Karmona, Land Officer, Resource Authorizations

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Request for Ministerial Review

July 22, 2013

Honourable Steve Thomson
Minister Forests, Lands and Natural Resources Operations
Province of British Columbia

Dear Minister Thomson,

Re: Private Docks at Cape Roger Curtis, Bowen Island

[ILMB Files: 2410700, 2410701, 2410702, 2410703, 2410880, 2410881]

Further to our correspondence to you on May 28, 2013, we are writing to follow up on the referenced subject and request your immediate intervention to prevent further impairment of public lands and waters on Bowen’s iconic southwest shores. Over 1,260 citizens have now expressed opposition to the construction of private docks on the shores of Cape Roger Curtis and we urgently request you to take immediate action to keep the Cape waterfront in its natural state.

The petition signatories and comments are attached herein (see Schedules II and III, respectively), and further information is available at: www.stopthedocks.ca. (Please consider all petition signatories and comments to be hereby submitted pursuant to the formal public comment period currently being conducted by your department for files 2410880 and 2410881.)

Given the location, scale and impact of the proposed development of at least 6 private moorage structures, this matter is of urgent concern to the Province of BC. We are seeking immediate intervention by you to stop further work and conduct a Ministerial inquiry regarding the approval of private docks at Cape Roger Curtis.

We have established, through a review of information released to date1, that there were significant failures in the review and approval process, and resultant conclusions reached to authorize the first four private docks at Cape Roger Curtis. We are concerned that consideration of two pending applications (and, possibly, more) will further compromise the public use and environmental integrity of our public shoreline at Cape Roger Curtis.

[Note 1: information was compiled from discussions with department staff (FLNRO, BIM, DFO and TC) and a review of documentation released to the public (both voluntarily, and pursuant to Freedom of Information requests).]

Specifically, we are requesting that the following steps be taken immediately:

  1. Cease Work Order: Place a ‘cease work order’ on the construction of private docks on the water licence tenures granted for four docks at Cape Roger Curtis, Bowen Island (files: 2410700, 2410701, 2410702, 2410703);
  2. Defer Pending Applications: Defer further consideration and processing of water licence tenure applications for two private docks at Cape Roger Curtis, Bowen Island (files: 2410880, 2410881);
  3. Impose Moratorium: Place a moratorium on any consideration of future water licence tenure applications for private docks at Cape Roger Curtis, Bowen Island; and
  4. Ministerial Review: Convene a Ministerial review of the four water licence tenures and two pending applications to consider:

i.         Whether due process was followed;

ii.         Whether referral parties (specifically Bowen Island Municipality, Department of Fisheries and Oceans and Transport Canada) properly applied their policies and regulations and responsibly conducted their assessment of impacts;

iii.         Whether adequate measures are in place for independent, professional experts to monitor and assure ‘Best Management Practices’ (BMP) are in fact followed in the design, construction of the private moorages;

iv.         Actual impacts of the private docks on public use, environment, navigation; and

v.         Based on the results of the foregoing, whether revocation of the water licences, and rejection of pending and future applications is appropriate.

We ask that the Ministerial review be conducted in an open and transparent manner, allowing for public input and peer review of expert evidence. The cease work order on existing water tenures (#1 above), the deferral of pending applications (#2 above) and the moratorium on future applications (#3 above) should not be lifted until a public hearing to receive the Ministerial report has been conducted.

We have provided a highlight of key findings in Schedule I to provide evidence that the foregoing Ministerial review, while an extraordinary intervention, is both warranted and appropriate. The findings submitted are only a partial list of errors, omissions, and failures in the integrity of the water licence review, approval and construction management issues that have been identified.

In summary, we have established that, in the review and approval of the four private dock applications at Cape Roger Curtis, that:

i.         BIM failed to properly observe its Official Community Plan (OCP) policies and enforce its Land Use Bylaw (LUB), and BC failed to uphold the terms and conditions of BIM’s OCP and LUB;

ii.         The Islands Trust failed to observe the terms and conditions of its Policy Statement, and BC failed to uphold such requirements;

iii.         DFO failed to review the moorage impacts, and BC failed to ensure a responsible assessment of environmental considerations was conducted;

iv.         Transport Canada failed to properly review the moorage impacts, and BC failed to ensure a responsible assessment of navigation and safety considerations was conducted;

v.         BC’s Forest, Lands and Natural Resource Operations (FLNRO) ministry failed to observe the terms of its private moorage policies;

vi.         BC and BIM have failed to properly consider the public interest and conduct their review processes in a proper manner; and

vii.         BC and BIM have failed to assure proper oversight of ‘Best Management Practices’ (BMP) to protect public access and environmental features in the design and construction of the moorages.

We ask that you meet with us, at your earliest convenience to discuss the issues in more detail and allow us the opportunity to more fully explain where the provincial review of the Cape Roger Curtis docks has failed, resulted in an improper decision to grant four water licences and why revocation of these tenures and abandonment of any further consideration of private docks at Cape Roger Curtis should be fully considered. To prevent any further compromise of the private landowners interests (e.g. by further expenditures on dock construction), and to address the pressing nature of our community’s concerns, we ask for your immediate attention to these matters.

Respectfully yours,

Stop the Docks Campaign

Doug Hooper, Representative

info@stopthedocks.ca

1-778-773-1122

CC:

  1. Mr. Jordan Sturdy, MLA – West Vancouver – Sea to Sky
  2. Mr. John Weston, MP – West Vancouver – Sunshine Coast – Sea to Sky Country
  3. Mayor and Council – Bowen Island Municipality
  4. Islands Trust Council
  5. Honourable Lisa Raitt, Minister of Transport
  6. Honourable Gail Shea, Minister of Fisheries and Oceans


SCHEDULE I: Key Findings – Cape Roger Curtis Dock Approvals

The following notes were compiled from discussions with department staff (FLNRO, BIM, DFO and TC) and a review of documentation released to the public (both voluntarily, and pursuant to Freedom of Information requests).

BC – Bowen Island Municipality

  1. 1.     Did the Bowen Island Municipality (BIM) and BC properly consider the land use policies (as set out in BIM’s Official Community Plan (OCP) and Land Use Bylaw (LUB), the Islands Trust Policy Statement and FLRNO’s private moorage policies), and abide by due process in their mutual review of the applications?

a)     BC wrote BIM to convey issues raised by public correspondence (56 opposed, 1 supporting) regarding the dock applications and directed BIM to determine whether the applications affected public use of the beaches and foreshore and adhered to our Official Community Plan (OCP). The province asked two direct questions in this regard and warned BIM of its responsibility to determine these matters. The email states:

“1. Are these applications consistent with the intent of the public amenity provisions of the Cape Roger Curtis subdivision plan, e.g. byways, access and enjoyment of beaches and foreshore?

2. Are these applications consistent with BIM’s OCP, e.g. objective 40, objective 68 policy152?

The Province looks to local government, in this case BIM, to interpret their own OCP and applicable bylaws.” (emphasis added) (May 30, 32013)

b)     BIM’s Official Community Plan (OCP) states:

Objective 40: To encourage the retention of portions of Cape Roger Curtis in a natural state accessible to the public, including ecologically sensitive coastal bluffs, other sensitive ecosystems such as Arbutus and Douglas Fir Woodland, portions of the shoreline, archaeological features, viewpoints, and significant marine shorelines.“ [Section 2.11]

Objective 68: To continue to promote the public interest in the development of the Cape Roger Curtis lands.

Policy 152: Notwithstanding that Cape Roger Curtis has an approved subdivision plan28, the Municipality continues to promote the public interest at Cape Roger Curtis by encouraging the development of the site to:

  • conserve the majority of the coastline for eco-system protection, but especially the south facing ecologically sensitive and unique coastal bluff;
  • where there are no adverse ecological impacts, develop public, waterfront, walking trails along the majority of the coastline, connecting to the cross-island greenway;
  • protect environmentally sensitive areas and rare species; …” [Section 3.4.6]

c)     BIM’s Land Use Bylaw (#57) states:

“moorage shall be located such that it will not limit use of or physically divide a beach, or negatively impact eelgrass meadows, kelp beds, clam beds or mussel beds”  [Section 14.13.1(1)]

d)     BIM is an island municipality within the Islands Trust. The Islands Trust was created by BC to:

  • Foster the preservation and protection of the Trust Area’s ecosystems
  • Ensure that human activity and the scale, rate and type of development in the Trust Area are compatible with maintenance of the integrity of Trust Area ecosystems
  • Sustain island character and healthy communities

The Islands Trust Act gives the Islands Trust responsibility for leading the preservation and protection of the Trust Area and invites the Islands Trust to cooperate with municipalities, regional districts, improvement districts, other persons and organizations and the government of British Columbia. It also requires Trust Council to adopt a Policy Statement with the policies it will use to achieve this goal. The ‘object’ of the Islands Trust is to:

“The object of the Trust is to preserve and protect the Trust Area and its unique amenities and environment for the benefit of the residents of the Trust Area and of British Columbia generally, in cooperation with municipalities, regional districts, improvement districts, other persons and organizations and the government of British Columbia.”

e)     BC’s Forest, Lands and Natural Resource Operations (FLNRO) Ministry provides the following policy guidelines for its review and approval of private moorage facilities:

“Protecting Our Shores and Coastlines

Crown land is a public asset and the Province has a responsibility to ensure it is managed to maximize and sustain the flow of economic, social and environmental benefits to British Columbians, now and in the future. Crown land is available for the use, benefit and enjoyment of all British Columbians.

The Private Moorage policy is intended to provide owners and Crown tenure holders of waterfront property an opportunity to occupy and use the Crown foreshore fronting their property for personal and private use, and guide that use so that it does not impact the environment, navigation, safety, community values, public and First Nation interests and the legal rights of others.” (emphasis added)

f)     BIM advised BC that “The rocky foreshore at Cape Roger Curtis is punctuated by a number of features at Collingwood Beach [sic Pebble Beach] and the Cape Roger Curtis Lighthouse which are enjoyed by the public. At the time of the approval of the Cape Roger Curtis subdivision, relief was provided from the provisions of the Local [Government] Act for public access to the sea every 200 metres, in exchange for public access in these areas and the design, size, and scale of these moorages and breakwaters would significantly impact the aesthetics of this coastline and the public enjoyment of the coastal trail and the key viewpoints.” (emphasis added) (July 27, 2012)

g)    BIM Council’s meetings to review and discuss the private docks at Cape Roger Curtis were all conducted in meetings closed to the public (various, 2012-2013)

h)    BC approved the four dock applications, stating that the “public amenity provisions of the Cape Roger Curtis subdivision plan (walkway, beach and lighthouse) will not be impeded by these moorage facilities”  (October 29, 2012)

FINDINGS:

                        i.         The Cape Roger Curtis private docks are not consistent with BIM’s OCP policies and objectives (e.g. because they fail to retain the Cape shoreline in its natural state, with public access and protection of environmentally sensitive areas);

                       ii.         The Cape Roger Curtis private docks will not conform to the requirements set out in BIM’s LUB provisions (e.g. because they do limit public use, physically divide a beach and negatively impact eelgrass, kelp and mussel beds);

                     iii.         The Cape Roger Curtis private docks are not consistent with the Island Trust object and policy statement (e.g. because they fail to preserve and protect the unique amenities and ecosystems, and the scale and type of development is incompatible with maintaining ecosystem integrity)

                      iv.         The Cape Roger Curtis private docks are not consistent with the BC FLNRO’s policy guidelines (e.g. because they negatively impact the environment, navigation, safety, community values of the public)

                       v.         BC’s conclusion that the docks “will not impede” public use is in conflict with BIM’s statement that the docks “will significantly impact” public enjoyment; BC did not accept BIM’s interpretation of its OCP and applicable bylaws;

                      vi.         With respect to (i) and (ii) above, BC and BIM made errors in fact;

                    vii.         With respect to (iii), (iv) and (v) above, BC did not ensure that current policies were upheld and that due processes were followed; and

                   viii.         With respect to the conduct of deliberations with regard to the Cape Roger Curtis private moorages in meetings closed to the public, BIM Council did not follow due process.

Environmental Impacts

  1. Did the Department of Fisheries and Oceans (DFO), or other referral agencies (e.g. FLNRO, BIM, other) properly consider the environmental impacts of the docks, and have government authorities properly ensured management and mitigation measures would be responsibly enforced?

a)     BC has advised that DFO has “primary mandate for fish and fish habitat in the marine environment” and that referrals with respect to environmental review were sent to “those government agencies who have jurisdiction over the application area.  In this case, DFO, Environment Canada,  FLNRO Ecosystems and BIM” (June 11, 2013)

b)     DFO has advised that “Fisheries and Oceans Canada (DFO) has not reviewed an application for these residential docks and has not issued any authorizations under the Fisheries Act” (emphasis added) (May 23, 2013)

c)     Islands Trust has announced its intentions to conduct an eelgrass survey in and around Bowen Island in the summer 2013 and release mapping results in 2014:

“The Islands Trust Fund is mapping nearshore eelgrass habitat in the Strait of Georgia and Howe Sound, in partnership with SeaChange Marine Conservation Society, the Mayne Island Conservancy Society and the Seagrass Conservation Working Group. 

Why we are mapping eelgrass

Seagrasses form large meadows that serve as nursery habitat and a refuge for juvenile fishes.  The leaves serve as a cornerstone for the marine food web, supplying nutrients to salmonids and other fish, shellfish, waterfowl and about 124 species of faunal invertebrates.  Eelgrass habitats within the Salish Sea provide the basis for the region’s commercial and recreational fisheries revenue.  The productivity of native seagrasses rivals the world’s richest rainforests.

Eelgrass habitats capture and store large amounts of carbon at much more efficient rates than terrestrial forests.  Scientists estimate the salt marshes and seagrass meadows of B.C. sequester the equivalent of the emissions of some 200,000 passenger cars.

Contaminates and shoreline development put pressure on fragile eelgrass meadow ecosystems.  To protect eelgrass, we need to know where it is.  We’re mapping eelgrass habitat so that we can better plan our strategies to conserve these valuable underwater ecosystems.  (emphasis added)

d)     BIM sent BC a letter which noted its requirement for dive surveys to assess compliance with the LUB Section 14.13.1 (April 5, 2012)

e)     No environmental review of the docks has been documented from either Environment Canada or FLNRO Ecosystems

f)      No independent, professional assessment of the dive studies (provided by the applicants) and the findings and recommendations contained therein has been documented from either BC or BIM

g)     No independent, professional assessment of the modified design of the private moorage at Lot 13 (which was altered to remove an unauthorized sun deck, but retained redundant footings and bracing features which negatively impact both environmental and public use) was conducted

h)     For works conducted between July 9-19 on the Lot 13 private moorage, the prescribed requirements for an Environmental Monitor to be present has not been upheld or enforced during active construction in the environmentally sensitive (kelp and mussel bed) areas

FINDINGS:

               i.         Based on established marine data and the submitted dive surveys, the Cape Roger Curtis docks will negatively impact known eelgrass, kelp and mussel beds in the area around, under or adjacent to the private moorages – this is contrary to Section 14.13.1(1) of the BIM LUB

              ii.         Dock approvals have relied entirely on environmental reports submitted by the applicants – no independent, professional assessment of the environmental impacts has been documented by any responsible government authority (BC, BIM, or DFO)

            iii.         Dock approvals have been granted in advance of important marine habitat surveys to be completed by the Islands Trust

             iv.         Environmental mitigation and management measures were recommended by the applicants – no independent, professional assessment of the environmental mitigation and management recommendations has been documented by the responsible government authorities (BC, BIM, or DFO)

              v.         No independent, professional assessment of the private moorage designs has been documented by any responsible government authority (BC, BIM)

             vi.         Mechanisms to monitor and oversee the construction processes and enforce conditions regarding independent, professional monitors and adherence of the works to approved designs, ‘Best Management Practices’ (BMP) and ‘mitigation measures’ required by the terms of approval of the Licences of Occupation are not fully in place and are not  functioning to properly control construction activity currently underway

Navigational Impacts

  1. 3.     Did Transport Canada (TC) properly consider the navigational impacts of the private moorages and properly ensure the safety of the marine users during the construction, operation and potential (catastrophic) failure of the private moorages?

a)     TC reviewed the initial private moorage applications and advised (on July 3) that:

i.         The applications originally submitted would require a review under Section 5.2 of the Navigable Waters Protection Act (NWPA) (http://www.dfo-mpo.gc.ca/regions/central/pub/municipal-class-niveaux-minicipaux-on/section5-eng.htm) as the breakwaters would impede the access to the sea from the lots adjacent to the planned breakwaters;

ii.         The docks and breakwaters were not seen to be of any consequence to the shipping lanes in general;

iii.         The potential impact of the docks on the visibility of the Cape Roger Curtis lighthouse was also reviewed. The planned docks were not found to be in any way constricting the visibility. The light source is 9 m above the high water line. The docks are 2 m above the high water line. According to TC this 7 m difference does not lead to any problems; and

iv.         Subsequently, the applicants went back to the drawing boards and re-submitted altered plans, without the breakwaters. These revised plans showed the docks in different configurations and dimensions compared to the previously submitted plans.

b)     After removing the breakwater features, the private moorages qualified as a “Minor Work Order” and, accordingly, TC did not conduct a review of the revised dock applications under the NWPA.

c)     The applicants may ‘bring back’ an application to approve breakwaters for their private moorages at a later date. Notably, the Licences of Occupation granted by the Province contain the original, large licence area applied for to accommodate breakwater features.

d)     Marine engineering experts have considered the revised private moorage designs and noted that the natural conditions may be extreme at times and the likelihood of catastrophic failure of the docks or moored vessels (i.e. partial or complete destruction during a storm event) is considered to be high:

“On reviewing the CHS charts of Bowen Island I see that the SW corner of Bowen has a very short shelf before dropping quickly into very deep water (>100m) Even the shelf itself appears to quickly drop to  at least 30m depths. To this end it might be useful to know that piles of over 20m~25m become extremely ‘flexible’ like spaghetti and, regardless, a floating breakwater would provide little (if any) protection to the docks and the attending yachts. Without a breakwater the results are predictable!  (Although on a much larger scale, this is something I deal with almost every day in my work).

I can guarantee that nothing short of a solid breakwater, with foundations on the seabed would provide the necessary protection for such an endeavour. Even then, because of its exposure to westerly environmental and surface conditions, the residual and reflected energy from the shore would make the facility unusable and unsafe for its intended use.

Herein lay a possible angle of meaningful criticism/attack. The risks to yacht/s moored in such an unstable, unsafe and exposed facility will without doubt lead to hull damage, breakaways and multiple sinking’s. This, by extension, will lead to repeated pollution events as a consequence of on-board oil and fuel being released into the sea. The damage to sea and bird life is likely to be extensive. Clean-up expensive.” (email July 10)

e)     A comprehensive review of the private moorage review and approval process, including detailed notes on navigation and safety issues, by Dr. Richard Wiefelspuett, Associate Dean, BCIT Marine Campus, is appended hereto in Schedule IV

FINDINGS:

i.         TC conducted a partial review of the private moorages at Cape Roger Curtis, including a preliminary assessment of:

a)     Impact on shipping lanes

b)     Impact on navigational aids (lighthouse)

                       ii.         Ultimately, TC did not conduct a review of the revised private moorage applications

                     iii.         No assessment of the impact of the private moorage designs on marine use has been documented by any responsible government authority (BC, BIM, TC) with respect to:

a)     Impact on recreational boating, kayaking, paddle boarding, swimming, diving

b)     Impacts on recreational/sport fishing

c)     Impacts on navigation (shipping lanes, aids) with the addition of large, moored vessels

No assessment of the impact of the private moorages on marine safety has been documented by any responsible government authority (BC, BIM, TC) with respect to the construction, use or (catastrophic) failure of the moorages.

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Council Over-ruled Staff Recommendation to Reject Cape Roger Curtis Docks

July 24, 2013

Editor
Bowen Island Undercurrent

Dear Editor:

COUNCIL OVER-RULED STAFF RECOMMENDATION TO REJECT CAPE ROGER CURTIS DOCKS

The Stops the Docks campaign has received BIM Documents on July 22, 2013 under a Freedom of Information Request.

In the Planning Department Report of June 25th 2012, BIM staff recommended that Council pass a resolution “that the Province be requested to withhold approval of all private moorage applications at Cape Roger Curtis” pending extensive studies (paid for by applicant) about the impact of dock applications along that coastline. This report was submitted to Council on June 25, 2012. Council elected to convene a closed meeting (no members of the public allowed) and, in that meeting, ignored the very clear recommendations of its planning staff and permitted the docks at Cape Roger Curtis. The report from staff included the following:

“In this case staff are of the view that while the uses are foreseen in the LUB, the cumulative impacts of this development may be in contravention of the zoning and of the OCP. The size and scale of the individual applications, their location immediately adjacent to the points for public access to the sea, their cumulative environmental and aesthetic effect if extended along the coastline, the precedent that their approval would set and the potential for significant impact to the CRC coastline are of significant concern. The incremental approval of applications in the absence of a vision for the future of the coastline is not a preferred solution.”

A full copy of the staff report will be placed on the stopthedocks website.

Through a copy of this letter, we are asking BIM Council to explain:

1. Why did Council reject staff’s recommendation to NOT APPROVE the Cape Roger Curtis private docks?
2. Why were Council’s meetings on the Cape Roger Curtis private docks held in secret sessions closed to the public?

Yours truly,

Nerys Poole
(on behalf of the stopthedocks campaign)

cc. Mayor and Council, BIM

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‘Do Not Proceed’

The following letter from Nerys Poole was published in the June 7th edition of the Undercurrent

In a half page ad (May 24 edition) from The Cape on Bowen Community Development (the Cape), I was pleased to see that they have come to “identify with and respect the Island’s core values” and that they have “sensitivity and respect for all.“

I was then left pondering the sincerity of those comments when I received information from Bowen Island Municipality (BIM) as a result of a freedom of information request, disclosing the following correspondence:

• Letter dated March 20 from Don Ho, the principal of The Cape and owner of lot 13, to BIM, announcing they are proceeding with the construction of the private moorage for lot 13 and attaching a copy of the site plan.

• Email reply dated March 22 from BIM to Mr. Ho noting that there is a concern “the information you provided is not sufficient for you to proceed.”

• Letter dated March 25 from BIM to Mr. Ho, reminding Mr. Ho that a condition of approval from the Provincial Ministry was that he “must consult with BIM prior to constructing your private moorage. . . “ and stating that Mr. Ho is required to “submit a complete set of plans.” The letter identifies a number of concerns, including the fact that the sketch sent to BIM differs from what was approved by Ministry, a reference to their site plan showing a contravention of the upland covenant, issues with the sundeck platform, concerns about the environmental requirements, etc. BIM concluded: “Construction on this project is not (bolded in letter) to proceed” until BIM has reviewed complete submission package as requested.

• Email dated April 3 from Province to Mr. Ho, noting that the revised site plan sent to BIM “is different than the site plan that accompanied your original application” and requesting “an explanation as to how public access will be maintained along the foreshore” and underlining the warning they he must comply with local bylaws prior to commencing construction.

• Letter dated April 24 from Mr. Ho to BIM, enclosing ”a complete set of plans” purporting to address concerns raised in the letter of March 25, 2013.

• Email from BIM bylaw officer, noting the April 24 report of a complaint about possible construction at lots 13 and 11, with bylaw officer attending on April 26 and confirming that forms were being built on the foreshore adjacent to lots 13 and 11.

Letter dated March 25 from BIM to Mr. Ho, reminding him of the original instructions NOT to proceed and that, contrary to this direction, he had started construction, and again asking for revised drawings to address BIM’s specific concerns, one being how mitigation measures will be achieved, and another asking for the Environmental Construction Management Plan as recommended by The Cape’s environmental consultants, Pottinger Gaherty.

• Letter dated May 6 from Mr. Ho to BIM, noting that his contractor will be providing various items addressing some concerns. No documents included.

Stay tuned, as to what good neighbours will do next – maybe listen to the pleas of the community to abandon this ill-conceived project and to demonstrate their “sensitivity and respect for all.“

Thank you, BIM staff, for being diligent in your pursuit of this matter. Please consider a “stop work order” as a necessary next step when builders do not comply.

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Legal Opinion from Bull, Housser & Tupper LLP

We sought the best quality legal advice and were fortunate to engage James Goulden, a partner at the downtown law firm of Bull Houser Tupper LLP (Bull Houser). Bull Houser has a large local government practice and acts for a number of municipalities, including North Vancouver, Sechelt and Coquitlam. James Goulden is co-leader of Bull Houser’s Local Government Group, he has experience in all types of local government disputes, and has appeared before all levels of court in BC as well as federal court.

May 23 2013 Legal Opinion

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May 24 Delegation to Council Report

On May 24th, Stop the Docks campaign presented Council recommendations regarding how to stop the construction of four private docks at Cape Roger Curtis, and prevent further and future private docks in this highly valued public use area.

Three key areas were covered in the presentation:

  1. Public Support – we demonstrated that there is a very high level of public
    support for Council acting now to prevent the construction of these docks;
  2. Legal Research – based on independent expert legal advice, we
    demonstrated how Council can exercise its powers to safeguard the public
    interest at Cape Roger Curtis;
  3. Actions Steps – we set out 3 precise steps that Council can take to keep the
    Cape in its natural state.

Read the Full Report

 

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