The interpretation of the province’s contaminated sites regulations will be the central question when the Gibsons Alliance of Business and Community Society’s (GABC) challenge of the development permits for the George Hotel and Residences goes before a judge next week.
The group’s BC Supreme Court petition will be heard over two days in Nanaimo, starting Jan. 15.
The court action, filed Oct. 13, claims a July 2017 letter from the Ministry of the Environment indicating support for the developer’s plans to remediate the site after decades of industrial activity is not a valid approval because the Town is required to do its own evaluation, and therefore the development permits issued in August 2017 should be quashed.
The Oct. 13 petition followed one filed last August by Gibsons resident Marcia Timbres, a petitioner in previous court actions with GABC. Timbres’ court action targeted only one of the permits, but it was also based on the interpretation of the July 2017 letter from the ministry.
GABC and Timbres are also challenging the letter before the Environmental Appeal Board (EAB).
The Town’s response said it acted properly because it opted out of parts of the provincial contaminated sites regulations in the 1990s, making the province the final authority. It also argues that Timbres’ court action contradicts what GABC has said to the EAB. “It is an abuse of process for [Timbres] to plead in this petition that section 557(2) [of the Local Government Act] has not been satisfied when taking the contradictory position before the Environmental Appeal Board.”
The Town response to the Oct. 13 petition makes similar arguments.
George Gibsons Development Ltd.’s response, filed Nov. 29, references the Timbres petition and Town response. It also calls the challenges an “abuse of process.”
“The petitioner is advancing a position in this proceeding that is irreconcilable and diametrically inconsistent with the position it has advanced in the EAB proceeding,” the response says.
Suzanne Senger, president of GABC, said the case could have province-wide implications.
“The Town contends that by opting out of assessing site profiles for contaminated sites, provincial contaminated site laws and regulations do not apply to them,” Senger said. “We say that the provincial system does apply to them. We are asking the BC Supreme Court to interpret and clarify the complex legislative regime that creates this administrative problem. This is not just a local issue. If Gibsons can simply opt out of the laws put in place to protect human health and the environment, what’s to stop every other local government in B.C. from doing the same thing?”
Gibsons Mayor Wayne Rowe calls it a “difference of opinion on the interpretation of some statutes and the process that needs to be followed.”
He said the Town contends that it met all the requirements laid out in the statutes and regulations around developing potentially contaminated sites.
“We’re certainly hopeful the court will see it the same way and maybe we can finally put a rest to this and move on with something more constructive,” he said.
Although it won’t be hearing the appeal until late October, after the municipal elections, the EAB has already ruled on two key questions:
Last October, the EAB confirmed it has jurisdiction to hear an appeal based on the letter of support because it can be considered an appealable decision under the Environmental Management Act, despite arguments from the ministry and the developer that it was not appealable.
In December the EAB denied GABC’s application for a stay against the developer acting on the letter.
The decision said, “It is speculative to assert that a stay would reduce the likelihood of the developer proceeding with remediation as proposed in the remedial plan and schedule, or reduce any associated risk of harm to the aquifer or the environment.”
Klaus Feurniss, the developer behind the project, said when the permits were first issued that he anticipated work could begin in the fall of 2017, and construction would take about 34 months. Some work, such as removing old buildings, has already taken place at the site.
Feurniss told Coast Reporter in an email this week that he plans to review the schedule soon and resume sales activity for the residences part of the project in the spring.
