Supreme Court Justice Baird: “So a town is free to issue development permits without knowing anything, innocent like a new-born baby?”
By Margot Grant
NANAIMO — The lawyers for the Town of Gibsons and The George developer have asked B.C. Supreme Court to dismiss a petition by the Gibsons Alliance of Business and Community (GABC) to quash the development permits for The George Hotel and Residences project.
The lawyers told Justice Robin Baird that in their opinion, the petition is an abuse of the court: Justice Baird said he would render a decision in due course, but gave no indication of when that might be. The case concluded Wednesday after two days of arguments in Nanaimo.
The town has opted out of the contaminated-site profile process, giving the provincial government authority over such sites. All concerned, including the ministry, agree The George is planned on a high-risk site.
Senior contaminated-sites officer Vince Hanemayer of the provincial environmental ministry sent the developer a letter on July 12, 2017, with a copy to the town, saying the ministry supports the remediation plans for the site. The town then issued development permits.
GABC says the permits should not have been issued until requirements in the Local Government Act (LGA) and Environmental Management Act (EMA), which ensure that remediation is done to the satisfaction of the ministry, were fully met.
Lawyer Reece Harding, representing the Town of Gibsons, argued on Wednesday that the town had done no harm.”The developer will clean up the contamination on the site, so what is the problem?” he asked. “A developer cannot clean up a site without development permits. That’s why the town granted them.”
Aidan Cameron, lawyer for developer Klaus Fuerniss, argued that GABC had no right to bring the petition to court.
“There is insufficient evidence that the petitioner is acting in the public interest or even has a genuine interest in the matter,” she said. “There is nothing in the purpose of the society that relates to the matter before this court. There is no evidence who the members are, where they live, or what their connection is to the town.”
GABC president and director Suzanne Senger said in an interview she was sad to hear this. “We have fought hard to keep the aquifer safe with this project, and we were the first to raise the issue of tributyltin [contamination],” she said.
Developer Klaus Fuerniss was not in court Wednesday and could not be reached for comment.
Cameron told Justice Baird that if the petition is accepted, the project will be delayed and the developer will incur more costs. “It would be prejudicial against the company to quash the permits. Neither would it be in the public interest, because he is willing to clean up the site.”
When she argued again that the town had been within its rights to issue the development permits, Justice Baird exclaimed: “So a town is free to issue development permits without knowing anything, innocent like a new-born baby?”
Later, he pointed out that municipalities expose themselves to risk when they opt out of the site-profile process. “They are liable if they issue development permits and an environmental problem arises later.”
GABC lawyer Bob Kasting concurred: “Small communities without a lot of resources should not be put in a position where they can harm themselves. Regulation is clearly needed.”