By Melissa Harrison
Bowen Island, BC – March 10, 2015
Presented to Islands Trust
I think we will all agree that beaches and shorelines are of prime importance to our enjoyment of our island homes. Many of us, especially those with young children, spend many hours on public beaches each year. Beaches are not only important for our well-being and enjoyment, but they are also vitally important for the economies of the islands; for attracting visitors and new residents, access to beautiful coastline is key.
1. The Situation on Bowen
The shoreline of Cape Roger Curtis has long been treasured by Bowen Islanders, because of its pristine, rugged, windswept beauty, with rock pools and many pocket beaches and swimming beaches as well as great nature watching. Located in the mouth of Howe Sound, with pockets of forage fish habitat amongst the cobbles and rocks, the Cape is a stop off for migratory fish, birds and marine mammals.
When the developers of the Cape applied for four large docks, the applications attracted significant opposition. Fifty six letters were written to the Province opposing the proposed docks. The municipality wrote with a number of concerns, including the specific mention in the OCP of protecting that stretch of coastline, and asked that some further studies be done, refusing to support the applications as they stood. Additionally, the applications seemed to conflict with the Province’s own dock policy, which says that docks should not negatively impact the environment, community values or public interest. Despite all this, the Province approved the licences, citing a lack of specific prohibitions in the municipal bylaws. The approval prompted a petition in opposition which gained 1345 signatures.
For context, private docks on Bowen tend to be below or up to 65 feet long, including the length of the float. The longest dock at the Cape is 431 feet long, and stands 27 feet above the beach. Please see the second photograph below. These industrial scale structures stand beside empty lots, essentially as a developer amenity. They have been used less than a handful of times, and as they are so exposed, they will likely never be used. And yet there they will stand, monuments to bad policy and process. And there are four more dock applications with the Province for this development alone.
2. The Issue for the Islands Trust
We are seeing increasing numbers of large docks being approved by the Province in the face of public and neighbourhood opposition. I have heard directly about one on Galiano, and we have all read about the 2500 sqft, Chip Wilson application in Sechelt. Islands Trustees need to recognize that megadocks seem to have become fashionable. I suppose that large docks are needed where you plan to own a large boat and you have chosen a home because it fronts a beach but would like to reach deep water. Whereas in the past, waterfront owners would have simply accepted that their property is not suitable for a dock, now people see that as a surmountable difficulty and are willing to spend the $100k plus to do it.
2.1 Concerns with the Dock Application Process
Short Timelines Imposed
What brings me here today is a letter that Bowen municipality received two weeks ago. In that letter, the FLNRO manager of authorizations, Keith Anderson, stated that FLNRO has ‘recently developed a 140 Day Turnaround Project’ where their ‘Performance Measures’ state that ‘80% of new Land and Water Act Tenure applications must have a decision made within 140 days from the acceptance of the application.’ Bear in mind that this includes: BC notifying local authorities, proponents publishing the required public notice, public responses to the proposal, assessment of those responses, instructions to staff, assessment of the site, consideration of the application as part of a public process, responses to FLNRO. It seems to me that this timeline is an impossible imposition for small authorities to meet, given that while some applications may be very straight forward, many are complex and time consuming for local jurisdictions to assess. And yet that complex work is vital to ensure public and private interests are appropriately balanced. To give one example, folk I know in Galiano spend the winter in warmer climes. The entire application process for their neighbour’s dock took place while they were away without their even hearing about it, and they came back to find a large dock had been approved and construction was underway, crossing in front of their property. They were devastated.
Default Approvals Encroach on Jurisdictional Right to Determine Land Uses
The 140 day processing time limitation becomes exceptionally problematic, given that FLNRO’s default seems to be to approve projects, as an implicit consequence of their ‘public commitment to cut red tape,’ rather than to take a precautionary approach, i.e. declining applications where a local jurisdiction cannot support them. In the case of the Cape Roger Curtis dock applications, the municipality refused to send a letter of support because they had asked for further studies and accommodations that were not fulfilled. Despite this, the Province chose to approve. In my view the Province is overstepping the mark with respect to land use, by developing their ‘Turnaround Project’ and ‘cutting red tape’ policy, without any consultation with, or even giving notice to, local jurisdictions, especially since the Crown is under no obligation to approve any land disposition. Unfortunately, by limiting the ability of local jurisdictions to adequately respond, the Province severely curtails its ability to fulfill its own duty to ‘maximize and sustain the flow of economic, social and environmental benefits to British Columbians, now and in the future,’ (from the Crown Land Use Operational Policy: Private Moorage, Appendix 3) given the significant negative impact on public recreational amenities that giant private docks on public beaches impose.
Undermining Environmental Protection
The Bowen Land Use Bylaw clearly states that docks should not ‘negatively impact eelgrass meadows, kelp beds, clam beds or mussel beds.’ This statement is both clear and absolute. The Cape biological dive surveys undertaken by the proponents showed two of the docks to be located in important kelp and eelgrass beds. However the Province decided that ‘effective mitigation measures, best management practices and monitoring can be used to address impacts to aquatic values resulting in no net loss to the areas’ productive capacities’ (from their ‘Reasons for Decision, Oct 29, 2012). In this statement, the Province is accepting mitigation measures where they have neither the capacity nor interest in assuring a) that the proposed mitigation is accepted practice, b) that the proposed mitigation is carried out, or c) that the municipality has the capacity to monitor mitigation. The reality is that many of the mitigations suggested, eg transplanting eelgrass, are neither proven nor were they carried out. So in this case, even a clear and absolute prohibition of negative environmental impact in the municipal Land Use Bylaw proved to be no protection at all, because the Province took it upon itself to interpret the bylaws and to err on the side of approval rather than precaution.
Public Consultation Failure
In the case of Cape Roger Curtis, the Province received significant negative feedback from the public, totaling fifty six letters. And yet this feedback had no impact on the outcome. As the Province described their ‘referral process’ to me, they refer the applications to a small number of agencies (principally Transport Canada, Department of Fisheries and Oceans, relevant First Nations and the local authority). But the Province’s interest in public comments extends only as far as riparian access and the legal right to apply for a moorage in that location. So every single one of those families and organizations which responded to the invitation to comment were wasting their time, but more importantly, they were mislead into believing that they were contributing to a consultation process that would be an opportunity to influence the outcome. It was not.
Given that the Province also ignored the municipality’s interpretation of their OCP, this means that in effect, the only opportunity for public input to influence the outcome of dock applications is through explicit prohibitions, nailed down in local bylaws, and even those, it seems, are subject to interpretation.
2.2 No Protection of Enjoyment of Beaches in the Islands Trust Policy
Moving on from the Provincial dock application process, in exploring the issues surrounding the Cape docks, I looked to the Islands Trust Policy Statement. In Part V: Sustainable Communities, the policy speaks to protection of ‘scenic values, views, distinctive features,’ the preservation of ‘natural amenities’ and ‘natural heritage’. All of these could apply to beaches and coastal viewscapes; yet in the directive policies and recommendations section, there is mention of preserving tree cover, but it says nothing about the aesthetic and recreational enjoyment of beaches, for just hanging out at the beach. Further, in Part IV: Stewardship of Resources, 4.5 Coastal Areas and Marine Shorelands, the policy says that development should not ‘restrict public access to, from or along the marine shoreline’ and should ‘minimize impacts on sensitive coastal environments.’ However, again it omits to refer to aesthetic and recreational enjoyment of beaches. Given the significance of beaches as a natural amenity to islanders’ social, cultural and economic wellbeing, this seems to me a significant omission which could be easily and uncontroversially addressed, and would provide better guidance and safeguards to the local trusts.
2.3 Recommendations for Trustees
In summary, I have a number of recommendations that I urge you to consider:
- All trustees should be informed about the risks posed to treasured beaches and shorelines by the growing trend for giant docks, as well as the Province’s new policies that are making it difficult for local jurisdictions to satisfactorily influence the outcome of dock applications.
- Trustees should consider updating local bylaws, zoning and OCPs, posthaste.
- The Trust as a whole should consider updating the Policy Statement to explicitly include the protection of aesthetic and recreational enjoyment of beaches, in the sections suggested above.
- That the Trust should inform the Province that:
- The 140 day ‘Turnaround Project’ is impossible for local authorities to administer.
- That the Province needs to consult with those who have jurisdiction over land use before adopting such policies.
- Beaches and coast aesthetics are important public amenities for the social, cultural and economic wellbeing and character of islands, and dock applications are complex to assess. Therefore BC should exercise their option to decline applications where they cannot be wholeheartedly supported by the local jurisdiction.
- Public process needs to have an impact to be valid, and the Province should either consider handing the responsibility for managing that to the local jurisdiction, or change their criteria for assessment to include the public interest.
- The Province should consider dealing with private and community docks in a completely separate process to that with which they manage mining, forestry, aquaculture, because these procedures and policies, geared towards industry, are proving to be too blunt an instrument to manage the subtleties of the disposition of local, residential shorelines.