First Published on September 28, 2016 Written by Neryl Poole, LL.B.
The municipality recently released a ‘closing summary’ from the Ombudsperson’s office, concluding a complaint launched three years ago by a Bowen resident. The complaint originated as a result of the 2011-2014 Council’s actions when making decisions behind closed doors about the dock applications at Cape Roger Curtis. The summary closes this file and dismisses the complaint, but not without reminding Council and the municipality about the importance of openness in public decision making. The failure on the part of Council at the time to be open about their decision-making around the dock applications resulted in the eventual approval of four docks. These eyesores mar the “pristine coastline” of the Cape (quote from The Cape on Bowen Development Co. website).
The Ombudsperson complaint focused on a number of decisions of the previous Council relating to the dock applications. In my view, one of the most significant decisions made by that Council was the decision to close a meeting on June 25, 2012. The information presented to that closed meeting, and an open debate with the public listening and responding, might have influenced Council to take a stand in clear opposition to the docks. We only knew that Council discussed the dock applications at that closed meeting because of a brief press release issued soon after the meeting. The press release merely stated the resolution to allow the docks with conditions but gave the public no idea as to why Council made that resolution.
What we did not know, as it was not released until one year later as a result of a Freedom of Information request, was that the municipal head planner had issued a report outlining the reasons for opposing the dock applications and recommending that the municipality communicate its clear opposition to these docks to the Province. This report cited the environmental protection covenants along the coastline, the provisions in the Official Community Plan for protection of the Cape, the designated park area with public access to the beach, and the longtime public enjoyment of that coastline, etc.
The importance of releasing this report at the time when Council was debating the issue cannot be overstated. The public had a right to know that its municipal staff had communicated to Council clear justification to oppose the docks, and that the planner was recommending this as a course of action. This was not legal advice and therefore did not justify its non-disclosure to the public. Council could still have chosen not to oppose the applications but if the meeting had been open to the public, the public might have understood the reasons why.
The Ombudsperson’s closing summary refers to the municipality’s process as “generally reasonable” and goes on to state that the Community Charter “provides significant latitude for municipal councils to decide whether or not some subjects will be discussed in a meeting that is open to the public.”
The Ombudsperson concludes that the Municipality “appears to” have been authorized to close those meetings to the public and states “We discussed with the Municipality some best practices with respect to the implementation of the open meeting provisions in the Community Charter and drew attention to a guide produced by this office.” The Council of the day was not following best practices.
Why was this significant? As many of us remember, there was considerable public opposition to the dock applications. This opposition was met by statements from Council that they had “no jurisdiction” to do anything about the docks, and that the decision to issue tenures lay solely with the Province.
Why do we know these statements were wrong? The grassroots ‘stop the docks’ protest group took the initiative to commission an independent legal opinion from an expert municipal lawyer. This opinion demonstrated that the municipality had the legal jurisdiction to oppose the docks – it simply chose not to. Not surprisingly, we now have a B.C. Supreme Court decision (Dong v. BIM 2016 BCSC 553), emphasizing that Council does have jurisdiction over docks, stating that the docks bylaw enacted by the current Council is consistent with the Official Community Plan and upholding the docks bylaw that now prevents any future docks at CRC. Further, Mr. Justice Punnett emphasized that the provisions of the OCP were consistent with prohibition of docks at CRC, stating at paragraph 58: “The prohibition of docks is not incompatible with the objectives and policies . . . of the Official Community Plan.” Bowen Council had the power, and we had an OCP that provided clear policy guidance to support this community’s opposition to the docks.
So too little, too late – but we still do not know why the previous Council did not oppose the docks. We are left with the visible evidence of the previous Council’s failure – the broken docks at CRC scar the landscape and cannot be used. Perhaps nature will have the last word with these docks.
Addendum: B.C. Supreme Court heard a second case, Zongshen v. BIM on Sept.1 and 2. Decision reserved. Zongshen, an investor in the Cape, abandoned the challenge to the docks bylaw and argued for the right to construct a dock on lot 14, next to the lighthouse. More wasted, valuable time and public money that could have been avoided if the previous Council had exercised its jurisdiction to do the right thing and oppose the docks when the applications were made.