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General News · 9th January 2012
Noba Anderson
Mediated Settlement Reached Between SRD and Island Sea Farms
Shortly after taking office three years ago, I learned that the previous Strathcona Regional District (SRD) Board had decided to take Island Sea Farms (ISF) to court over their mechanized operations at one of their deep water shellfish raft sites in Gorge Harbour. The assertion of that board decision was that mechanization was not a permitted use in the AQ-2 zone in which they were operating. The board wanted the courts to settle the matter. After reading all the SRD’s legal opinions and historical files on this issue, speaking with previous directors and meeting with staff, it was clear to me that the SRD did not have a strong legal case and that we would most likely spend a great deal of tax money in the process. Even if we won, the result would have been rendering a local source of employment and food production effectively out of business by requiring harvesting to be done manually.

A SRD staff report dated October 6th, 2011, regarding the Klahoose Shellfish Limited Partnership (KSLP) application in Gorge Harbour states “Mechanization is required by the applicant [KSLP] and the AQ-2 zone does not preclude the use of machinery as a component of passive aquaculture activities.” Furthermore, the Provincial and Federal governments are deeply committed to supporting the aquaculture industry and I did not want Strathcona to be the Regional District to push senior government’s jurisdictional authority to the point of being overridden such that foreshore zoning authority be revoked from local governments altogether.

Because I believed that a mediated settlement would have more enduring value and benefit to our island over time than a loss in the courts, I have been pushing the SRD board for two and a half years to set aside legal action and pursue mediation. I believe, regardless of past practices and attitudes, that compromise and cooperation amongst all users of Gorge Harbour is the preferred approach; one in which everybody is a little bit unhappy. After a painfully slow process, I believe we have arrived at an agreement that is the best we can reasonably achieve. Some of you, I know, will be deeply disappointed by this settlement, but most I believe will find it to a reasonable middle-ground. It will also provide a greater degree of certainty for all involved – something that I hope will be useful even to those who are not pleased with the outcome.

To read the formal Strathcona Regional District media release, please find it attached to this article.

The main points to the mediated settlement agreement are as follows:
• The SRD will discontinue BC Supreme Court action against ISF;
• ISF shall meet or exceed recommended practices in the 2001 BC Shellfish Growers Association ‘Environmental Code of Practice;’
• ISF shall ensure that noise caused by mechanization and harvesting operations will not exceed 65 decibels* at any point in time as measured from the nearest property line;
• ISF shall take immediate steps if economically viable to acquire a new harvesting vessel with noise reduction capabilities;
• Both parties will meet on a regular basis to work together to resolve issues and complaints.

* 65 decibels is about as loud as a normal conversation between two people and is very close to permitted noise levels within a quiet district in the City of Victoria.

The only viable alternative available to the SRD board at this time is to impose, fund and enforce a noise regulation bylaw that would not be substantially different in content than our settlement agreement. This option is still available to Cortes in the future if this is the desired route.

Applicability More Broadly Within the Gorge
My sincere hope is that the substance of this settlement between the SRD and ISF is something that can be agreed to by all operators in Gorge Harbour. I commit to making sure that this request is indeed made to all Gorge shellfish growers and to work with them to craft the best possible agreement. I am also very interested to explore how involvement of the upland owners and other users of Gorge Harbour may also lead to some Gorge-wide agreement. We are beginning this process through the creation of the ‘Coastal Harbours’ designation and ‘development approval information areas’ in the draft Official Community Plan which apply to both the surface of the water and the 50 meter area extending upland from the natural water boundary.

Provincial Report on Environmental Conditions in Gorge Harbour
When I met with the Minister of Agriculture and Lands in January of 2010 about the Klahoose Gorge shellfish application, one of my main requests was that, prior to making a decision on this application, the Ministry undertake a scientific study of the ecological carrying capacity of the Gorge. The fieldwork for that study was undertaken in the fall of 2010. After continual dogging of the ministry to publish their results for the public’s consideration prior to the SRD going to public hearing for the Klahoose rezoning application, now scheduled for January 14th, they have just released their findings which influenced their approval of the provincial tenure.

The report concludes that “The proposed Klahoose Shellfish Limited Partnership site will not exceed the carrying capacity of the Gorge Harbour, even taking into account the broader transition to mussel culture. The current survey indicated that the proposed site was suited to shellfish farming, with a suitable depth, currents and location.” It goes on to say, “From a perspective of biological feasibility and environmental suitability, it is recommended that the proposed application for a deep water shellfish tenure for 11.0 ha, suitable for up to 90 rafts, be considered for tenure issuance.” The full report, with all its scientific detail, can be viewed in an earlier release at www.cortesisland.com - Special Sections Tab – Regional Director’s Reports.

Klahoose Shellfish Gorge Application
In 2003, the Province conducted a study and wrote the Cortes Shellfish Management Plan, which stated that the Province would cap the number of deep water shellfish rafts in Gorge Harbour at 557. This number would be reached by expanding existing licenses by 146 rafts and through an allocation of 90 rafts for a new license for the Klahoose First Nation. Klahoose then signed a memorandum of understanding with the Province where certain sites within their territory would be held for their potential aquaculture use. It was into one of these MoU sites within Gorge Harbour that Klahoose Shellfish Limited Partnership (KSLP) applied to all appropriate levels of government for their proposed 11 hectare deep water shellfish application to the north side of Ring Island. They have received all required approvals from senior governments, and await only the rezoning at the Regional District level. The public hearing, where we want to hear the public’s view on this application, is scheduled for 1 pm, January 14th at the Gorge Hall. The full public hearing binder with all relevant information about this application can be found at www.strathconard.ca – top of the ‘notice board’ on the right side of the front page.

While the SRD was in the final stages of negotiation with Island Sea Farms, we also undertook negotiations with Klahoose Shellfish Limited Partnership to see if they would be willing to enter into a similar agreement regarding their Gorge application. As stated in a letter from KSLP to the SRD dated November 18th, they did not want to sign an agreement that “would impose operational restrictions on KSLP that are over and above those required under any Federal or Provincial law or SRD bylaw.” That being said, they go on to write “there are valuable elements of the Agreement that KSLP is prepared to commit to.”

They state that, and that they are “as well prepared to take reasonable steps to manage machinery noise, and to work with the SRD and local landowners to identify and address, through reasonable measures, any concerns on an ongoing basis. In our view” they continue, “these are the essential interests identified in the draft Agreement, and KSLP is prepared to set out these commitments in a letter to the SRD.”

On December 13th, they presented a letter of commitment to the SRD promising the following two points:
• To meet or exceed the BC Shellfish Growers Association’s” Environmental Management System Code of Practice” (2001);
• Taking reasonable steps to manage machinery noise, and to work with the SRD and local landowners to identify and address, through reasonable measures, any concerns on an ongoing basis;
They will designate a KSLP contact person to address operational concerns and are willing to meet with the SRD twice a year to review and discuss any operational concerns or issues. To read the full commitment letter, visit www.strathconard.ca as noted above or attached to this article.

Conclusion
I have spent much time over the past three years meeting and speaking with many of the interested parties in the Gorge about the ongoing situation at many levels. I believe at long last we may be reaching a better degree of cooperation and communication and at very least greater regulatory certainty. I anticipate that the conclusion of the Official Community Plan review will help with this process as will the subsequent updating of the zoning bylaws which is planned for 2013. I do see a day when we recognize that a more constructive approach with each other is more beneficial to all, and a day when the bitterness of the divisive past is behind us. I have taken the matters of intergovernmental cooperation, jurisdictional authority and sequencing of foreshore approvals to Ministers and their senior staff in Victoria and Nanaimo and will continue to do so as necessary. However, the more we can sort these matters out at home, the more local control we will ultimately have. I am grateful to all of you who have shown patience, cooperation and moderation in this long and complex story.

In Gratitude, Noba Anderson
250-935-0320, directorcortesisland.com