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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