History: The 2013 “Wall Incident”

In the summer of 2013 a contentious issue arose around the construction of a seawall on the north side of Roberts Bay, a site within the 1931 Migratory Bird Sanctuary. The new construction appeared to extend seawards beyond the ill-defined  “natural boundary” between land and ocean and thus in possible contravention of the existing “rules”. Efforts to get the full attention of the Town of Sidney and to clarify the situation failed. This  incident served to focus the energies of Friends of Shoal Harbour on advocating for a  management plan for Tsehum Harbour shared by both Sidney and North Saanich as the attached “history”  written in  2014 by K.J Finley will attest.

The launch of the Saanich Inlet Environmental Coalition (of which FOSH is one of the founding members) is described in a previous post. This initiative is a strengthening and extension  of advocacy going back to the 1981 recommendations of Abs and Lozoway (see reference in Finley’s report below). We  are encouraged by the interest shown in this larger initiative by the three Peninsula municipalities, North Saanich, Central Saanich and the Town of Sidney that at last some common ground may be found.

 

THE 2013 SEAWALL INCIDENT: WHAT FOSH LEARNED
October 2014

On July 17th, 2013 construction and excavation began for a flat-faced concrete seawall along the shore of Roberts Bay (within Shoal Harbour Migratory Bird Sanctuary – SHMBS). From prior photographic evidence and expert opinion, it appeared that the completed seawall would extend beyond the natural boundary, thereby damaging/destroying natural and protective plant communities, and increasing the potential for shoreline erosion by virtue of the wave-reflective qualities of the proposed vertical concrete wall. Furthermore, this project seemed to be in violation of the Official Community Plan of the Town of Sidney, in particular its policies and procedures for waterfront development in areas deemed to be environmentally sensitive.

The Friends of Shoal Harbour Society (FOSH) was also concerned that this proposal was proceeding without an adequate biophysical survey of the boundary between private and public lands, or necessary permits from the provincial Ministry of Forests, Lands and Resource Management.

Desperate on a Friday afternoon to have these apparent but serious shortcomings addressed before the concrete was poured on Monday morning, the RCMP was called to investigate what was believed to be a breach of the Migratory Bird Sanctuary regulations, and transgression of the natural boundary into public lands. This action turned out to be ineffective because the RCMP was put in a difficult position, having had neither the time nor the experience with which to evaluate the validity of the complaint. The seawall concrete was poured on July 23, 2013.

This incident and its reverberations were a frustrating setback to a principal initiative of the Friends of Shoal Harbour, because only two months earlier, members of FOSH had met with the mayors and CAO’s of Sidney and North Saanich to discuss a proposed SHMBS management plan, for which a key ingredient was the establishment of clear, enforceable and enforced “rules” for shoreline development within the Migratory Bird Sanctuary. Anxious to avoid further incidents of this nature, and to better understand the validity and limitations of our appeal, FOSH embarked on some research with the
assistance of the West Coast Environmental Law Foundation and has summarized the results in this report, which we share freely.

BACKGROUND

Canada’s system of national parks and wildlife sanctuaries has a long and proud history going back to John Macoun, Dominion Naturalist. Retired to Sidney BC, his chief haunts from 1911 to 1921 were the rich shoals, estuaries, beaches and mudflats of the Shoal Harbour area, what was to become in 1931, possibly because of his enthusiasm and influence, one of the first migratory bird sanctuaries on the Pacific Coast, part of this country’s commitment to habitat protection for migratory species. The Sanctuary is home to a wide variety of wildlife and numerous bird species, including murrelets, cormorants, gulls, shorebirds, seaducks, grebes, loons, brant, herons and eagles.

Over the decades, the Sanctuary’s habitats have been gradually diminished or damaged through development, dredging, alteration of the shoreline, and by erosion-causing armouring. Despite the damage to and loss of shoreline habitat and the decline of some species known to frequent the Sanctuary, a study by the Canadian Wildlife Service (1982) concluded that sufficient habitat still existed to support a diversity of migratory species dependent on estuaries.

In 1981, the Town of Sidney and the District of North Saanich requested that the Ministry of Environment, in cooperation with the federal Canadian Wildlife Service study the situation prevailing at that time. The study concluded that there was a chronic lack of communication and cooperation within a jurisdictional tangle involving the municipalities, the Province and the Federal Government, a situation maintained to this day. The inter-governmental tangle unresolved, it fell, and still falls to citizens to work with their Municipal Councils in updating their OCP’s, policies and procedures in recognition of the cultural and natural history of the area, known traditionally as Wsi-i-kem. Unfortunately, shore developments within the Sanctuary continued to be implemented.

In May 2005, a public showdown took place whereby the North Saanich Municipal Council withdrew its support for the expansion of the Oak Bay Marina facilities into the Tsehum Lagoon. On May 15th 2005, citizens and Wsi-i-kem leaders gathered in Lillian Hoffar Park and signed the Shoal Harbour Proclamation, addressed to all levels of government with the primary condition being no more habitat loss.

In response to the Shoal Harbour Proclamation and continued intrusions on the remaining habitat, citizens, with the leadership and support of the Mayor of North Saanich, organized a meeting on May 25, 2011, to consider a stewardship program to be jointly led by the District of North Saanich and the Town of Sidney. Present at the meeting were representatives of the local marine industry and interested citizens. The Town of Sidney withdrew its support after encountering strong opposition from some members of the marina industry, and the joint initiative collapsed.

Out of this disappointment arose the Friends of Shoal Harbour (FOSH), a purely citizen initiative, which after having been made aware of the need, commissioned a research project through the University of Victoria Environmental Law Clinic to examine the legal and administrative circumstances affecting the Shoal Harbour Migratory Bird Sanctuary. The outcome of this review was presented to the Mayors and CAO’s of Sidney and North Saanich in May 2013. It called for leadership, local cooperation and implementation of an integrated management strategy. At this meeting the Town of Sidney presented its policy and procedures for the construction of seawalls, after which FOSH congratulated them for forward-thinking policies and procedures.

Therefore, it was with dismay that FOSH learned of the excavation of the foreshore on 17 July. Despite numerous complaints and entreaties to halt construction, including the appeal to the RCMP, the Mayor of Sidney rescinded stop work orders, permitting concrete to be poured on 23 July and without submitting evidence that all the required inspections and permits were in place.
THE LEGAL SITUATION

In the fall of 2013, FOSH, with support provided by the West Coast Environmental Law Foundation, contracted the law firm of Janes Freeman Kyle Law Corp to advise the Society as to whether its perceptions of the 2013 seawall incident would be sufficient grounds to consider some form of legal challenge. The purpose of this investigation was not to reopen the unhappy matter of one contested seawall, but rather to establish what legal pressure, if any, a citizens’ group like FOSH could bring to bear when other persuasions failed.

The perceptions triggering this study are:

1. Publicly stated municipal policies and procedures (#2013.15.198, April 8, 2013) on seawalls in public lands designated as environmentally sensitive in the Town of Sidney’s OCP appear not to have been followed. In particular, It appeared that the finished seawall extended seawards of the natural boundary into the Migratory Bird Sanctuary itself, where its hydraulic characteristics could damage spawning habitat for forage fish.

2. FOSH has been unable to determine that the Provincial Government (Ministry of Forests, Lands and Natural Resource Operations) permitting requirements were met for this project.

3. Likewise, FOSH could not determine if Environment Canada (Canadian Wildlife Service) had been consulted or had responded to a loss of foreshore / backshore and littoral habitat in a migratory bird sanctuary, an apparent violation of section 10(1) of the Migratory Bird Sanctuary regulations.

4. The justification of the abandonment of best practices code of the Department of Fisheries and Oceans and provincial guidelines for Coastal Flood Hazards in order to permit the construction of a vertical concrete known to exacerbate erosion, was that the owner otherwise would be obliged to transport heavy boulder rip-rap from the street to the beach through his property, at greatly increased cost. FOSH considers this to be a weak justification, but was unable determine whether the abandonment of accepted best practice had been accepted by the Federal Department of Fisheries and Oceans.

THE FINDINGS OF THE JFK LAW CORPORATION
With regard to the likelihood of a successful legal challenge to the permitting of the seawall in question, JFK noted two main challenges, a time-limitation law that rules out any challenge in this instance, and several significant risks:
1) “evidentiary issues related to the difficulty of proving that the wall was below the natural boundary and therefore within the Sanctuary or that it would cause environmental damage through increase erosion to the foreshore;”
2) “legal issues related to the deferential standard that courts apply to the factual aspects of decision made by government bodies and the lack of significant protection for the Shoal Harbour Migratory Bird Sanctuary in Sidney’s Official Community Plan.”
3) A six-month time limit on litigation against local governments found in the Local Government Act now elapsed;
4) The financial cost of bringing a judicial review to court;
5) “an adverse costs award in which the court could order FOSH to pay the other side’s legal costs, and
6) If the court found against FOSH, that adverse precedent might hinder FOSH’s future advocacy efforts.

FOSH obtained an opinion from a respected geomorphologist that the seawall did infringe upon the Sanctuary, but was unsuccessful in obtaining a confirming opinion from a qualified land surveyor.

FOSH learned that legal challenges against municipalities deemed to have contravened the provisions of their Official Community Plans have only occasionally been successful, and then only if the wording of the reigning Plan was sufficiently strong and clear to make the breach apparent.

Had FOSH sought and received this advice prior to the expiration of the time limit (item 3 above), the lack of clear evidence (item1), the low probability of success (item 2), the financial risks (items 4 and 5) and importantly, the risk of torpedoing future advocacy initiatives (item 6) would reduced any enthusiasm for a legal challenge to near-zero.

Having pointed out the serious problems that would attend a legal challenge to the Town of Sidney’s decision to permit the construction of the seawall at 10459 Allbay Road, the JFK Law Corporation drew four conclusions from its research:

1) “(our research) has revealed the weakness of the federal legislation that protects migratory bird sanctuaries. It became clear that the protections of the Migratory Bird Sanctuary Regulations only apply to require a permit for “activities” within a migratory bird sanctuary that are harmful to migratory bird habitat. Activities that take place near the sanctuary, even if they may have negative effects on habitat within the sanctuary do not require a permit. Using this seawall as an example, this means that if the seawall had been built on the foreshore within the Shoal Harbour Migratory Bird Sanctuary, and thereby destroyed migratory bird habitat, the property owner would have required a permit. However, as the seawall was apparently built above the natural boundary and therefore not within the migratory bird sanctuary, no permit was required even if the seawall might cause erosion of the foreshore habitat over time. Overall, Canada’s migratory bird legislation is very weak on protecting migratory birds and their habitat from the indirect effects of development.”

2) “FOSH’s experience through this process has highlighted the reluctance of the three levels of government: municipal, provincial and federal to take responsibility for the protection of migratory bird sanctuaries when controversy arises. While this is something FOSH has long been aware of, FOSH’s interactions with all three levels of government brings this problem into stark relief.”

3) “Our (JFK) legal opinion highlights the weakness of Sidney’s Official Community Plan and the permissiveness on its Seawall Policy in protecting Roberts Bay. While the Official Community Plan recognizes Roberts Bay as an environmentally sensitive area, there is no explicit mention of the Shoal Harbour Migratory Bird Sanctuary or any explicit prioritization of related environmental concerns. The Seawall Policy is permissive, allowing property owners to deviate from best practices and privileging private property rights over environmental protection.”

4) “…this work has revealed to FOSH the difficulty in holding governments to their espoused policies and the importance of getting environmental protections enshrined in laws, bylaws or regulations in order to give them more force”

WHAT FOSH LEARNED FROM THIS ADVENTURE

The July 2013 seawall incident has made it clear to FOSH that its long-term goals are unlikely to be achieved through an adversarial approach that might include risky legal action. Nevertheless, FOSH should remain vigilant regarding activities impinging on the Migratory Bird Sanctuary and continue to seek answers to the difficult questions from the appropriate authorities.

FOSH’s principal effort should be to advocate for an integrated management plan for the Shoal Harbour area jointly directed by the Municipalities of Sidney and North Saanich, a plan that includes adequate protection for the Migratory Bird Sanctuary. Ultimately it will be public support and volunteer effort, along with a collaborative partnership with the various local, provincial and federal governments that will lead to success and the development and implementation of such a plan.

To this end, specific activities of FOSH should include:
• Friendly reviews of the Official Community Plans of both Sidney and North Saanich, pointing out ways in which the plans could be clearer and more protective regarding the foreshore environment and the Migratory Bird Sanctuary in particular.
• Efforts to publicize the existence and value of SHMBS and thereby to build a public clientele supportive of the joint management plan initiative.
• Cooperation with the Canadian Wildlife Service, Habitat Acquisition Trust, Peninsula Streams, Nature Canada and other environmental advocacy groups to educate the public and involve them in our programs. Reaching out to other groups will help to embed FOSH in a supportive environmental advocacy network.
• Persuading the Federal Government to extend the boundaries of SHMBS to include the offshore islets from Roberts Point to Rothesay Ave, and to include the Migratory Bird Sanctuary within the proposed Southern Strait of Georgia National Marine Conservation Area.
• Continuing to organize “unofficial” conferences, symposia, etc. promoting a joint management plan for Shoal Harbour, gatherings that include all stakeholders.
• Embracing, celebrating and investing in the legacy of the Shoal Harbour Migratory Bird Sanctuary.

REFERENCES

1981. Environmental problem analysis Tsehum Harbour, Vancouver Island. By Abs S, and K Lozoway Report by Ministry of Environment 183 p.

1982. Use of Shoal Harbour Bird Sanctuary by migratory birds. By N.K. Dawe, Canadian Wildlife Service, Environment Canada,

2005. Citizens proclamation on Shoal Barbour Sanctuary, signed by citizens and Tseycum elders, May 15, 2005, Lillian Hoffar Park, Tsehum Harbour.

2010. North Saanich and Sidney Summit, Habitat conservation in Shoal Harbour Migratory Bird Sanctuary / Salish Sea Important Bird Area. Agenda of meeting, February 1, 2010. Town of Sidney and District of North Saanich mayors

2011. Shoal Harbour (Wsi-i-kem) Stewardship Committee. Report of Steering Committee on Workshop held May 25, 2001, hosted by District of North Saanich, Mayor Alice Finall.

2013. Toward the integrated management of Shoal Harbour: legal analysis and next steps. Bauer, I. Report by the UVIC Environmental Law Clinic to FOSH presented to mayors of Sidney and North Saanich, May 2013

2013. Sharing Our Shores: towards a community-based vision for Tsehum Harbour and Shoal Harbour Migratory Bird Sanctuary. An integrated management plan for Shoal Harbour Migratory Bird Sanctuary. Summary on a public symposium, Winspear Centre, Oct 19, 2013

2014. Legal issues surrounding seawall in Roberts Bay, Shoal Harbour Migratory Bird Sanctuary. By Truesdale C.P. Final report to Friends of Shoal Harbour and West Coast Environmental Law Foundation. 19 p. & appendices

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