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General News · 2nd January 2017
Ron Kroeker
I would like to respond to the portion of Director Anderson’s recent post sub-titled “Bylaw Enforcement” with a few comments and questions. Please note that my comments and concerns have nothing to do with any operators in the Gorge. The concerns being raised on this issue apply to many other areas of Cortes Island.

“The Regional District can and does enforce its bylaws. There are a couple situations where we are very challenged to do so, including in the Gorge Harbour, where bylaws are very out of date, where there are complex overlapping jurisdictions or where legal presidents (sic) have been set that override our ability to enforce.” Director Anderson

The first statement and the last phrase of the quote are contradictory. If the “ability to enforce.” has legally been removed, then by definition the Regional District cannot enforce the bylaw. Given that we are embarking on a review of these bylaws, we should have the “very out of date” bit fixed shortly. Could we please have a comprehensive written summary of specific areas where the complex overlapping jurisdictions effect enforcement and where legal presidents (sic) have been set that override the Regional District’s ability to enforce?

In the matter of aquaculture, Right to Farm legislation has the potential to seriously undermine if not completely negate any ability the Regional District has to enforce aquaculture bylaws. The only exception might be the siting of new operations and the expansion of the physical size of an existing tenure.

In simple terms, Right to Farm legislation (RTF) is a provincial act that protects those who produce the food we eat from being forced out of business by encroaching or neighbouring residential or other development which forces the farmer or grower to change their farming practices in a way that negatively impacts their operation. The best example that I know of is that of greenhouse operations located on ALR directly beside residential areas in and around Delta, BC. After noise complaints from local residents, Delta tried to enact and enforce a bylaw limiting the noise of ventilation systems, backup generators, forklifts, trucks, etc. Sound familiar? Also at issue was the bright light emitted from the greenhouses. The province stepped in using RTF and threatened to completely remove the city’s right to zone greenhouse operations. The city backed off.

It doesn’t take a law degree to see that the province has the final say in what can and cannot be done on an aquaculture lease. “Local governments, First Nations, ministry staff and industry peer advisors continue to participate in efforts to resolve concerns.” At best, the RD is a “participant” in “resolving concerns”. If Director Anderson’s comments on this matter reflect the official position of the SRD, i.e. that the SRD can legally enforce the bylaws if challenged in court, I fear that some very expensive lessons were not learned following the airstrip fiasco.

As we review the bylaws, is it not a better approach to recognize the jurisdictional and legal limitations up front and only spend scarce time and resources developing and implementing bylaws that the Regional District can actually enforce? Does this not allow all interested parties to proceed with greater certainty, either purchasing or developing a residence, or investing in, developing and expanding an aquaculture operation?

“That being said, our enforcement regime is entirely complaint-driven, and we receive very few complaints.” Director Anderson
Why does the regional district receive very few complaints? Some people provided one of the reasons at the opening bylaw meeting. In general, the people who live on Cortes Island take a “live and let live” approach. They used different words, but I think I have captured the intent of their comments accurately. I also agree with their assessment. I would suggest that specific to the aquaculture bylaws, there are several other reasons that very few people file formal complaints.

Many upland properties are not occupied by their owners, or anyone for that matter, for the majority of the year. Given that activity on intertidal and other aquaculture operations needs to occur year round and sometimes takes place in the middle of the night, do we really think upland property owners want to engage in a process that has the potential to raise the ire of those who rightfully spend considerable time in close proximity to their property while they are not there?

If you think I’m being overly dramatic, more than one of my part-time neighbours have in the past cited this reason for not wishing to file a formal complaint about flagrant aquaculture bylaw violations that they object to. One specifically cited a former Island resident’s (also a shellfish grower) comments at a public meeting dealing with a situation in the Gorge: “Houses do burn you know.”

A second reason there are few formal complaints may be the initial interaction people have/had with Regional District staff regarding the bylaws. How would someone know if they have a legitimate issue that warrants a formal complaint when, as seen below, the regional district declines to even interpret the bylaws, much less investigate and enforce them?

“Indeed I am attempting to decline interpreting AQ-1 at this time, the reason being that we are in a legal proceeding that involves zones in the Cortes Zoning Bylaw.” From an email 25/06/2009 from Russ Hotsenpiller, Manager, Planning Services and Emergency Programs in response to a request for clarification of what is permitted in AQ-1 zoning.
For clarity, neither Mr. Hotsenpiller nor any other member of the staff of the Regional District ever responded to this request for clarification and interpretation of the bylaws.

A third reason for the lack of complaints may be some taxpayers get frustrated by the costs being rung up “investigating” ... while it appears that nothing is done to actually enforce the bylaw. It takes a full day for a staff member to come over to Cortes Island and have a look at the situation. In one case (not the Gorge) the Regional District has racked up thousands of dollars of staff time costs “investigating” without effecting any change to the aquaculture operation in question. This doesn’t include expenses; staff needs lunch, the ferry costs money and they need a vehicle to get here. It also does not include the time to discuss and document their findings once back at the office, the time it takes for others in the Regional District to read, consider, and provide feedback to the report, the time and costs of any legal consultation regarding the matter, the time to consult with the leaseholder, the time to consult with the BC Shellfish Growers Association (yes, they somehow knew about the complaint), the time to consult with the Province, the time to write a report for the next meeting of the directors, etc, etc. All these costs each time they “investigate” and in this case, no response, in any way, shape or form to the complainant other than the original letter saying, yes, there is a bylaw violation happening here. And now there are more rafts in this AQ-1 lease than there were at the time the complaint was filed.

I wish to make one final comment on the “few complaints” positioning. Other than from an enforcement resourcing perspective, how is this related to or relevant to the Regional District’s record on bylaw enforcement or ability to enforce? Is the statement an attempt to somehow rationalize the lack of enforcement in some cases? Does this mean that if only two or three drivers are traveling around Cortes Island at 100 kilometers per hour, we shouldn’t really worry if the RCMP are not enforcing the speed limit? Would Director Anderson acknowledge that the Regional District’s lack of enforcement of aquaculture bylaws based on past complaints could be playing a role in the small number of complaints? Why would anyone bother to file a complaint if there has been little or no enforcement in the past?

I think many upland property owners would disagree with Director Anderson’s assessment of bylaw enforcement as it relates to their personal experiences regarding aquaculture bylaws on Cortes Island. I also understand and appreciate that these matters are not always completely black and white. I would respectfully ask that Director Anderson provide the requested comprehensive written summary of specific areas of overlapping jurisdictions and legal precedents on Tideline for all to read so that all stakeholders may have a more informed and enlightened discussion of the new aquaculture bylaws moving forward.
Comment by Barry Glickman on 5th January 2017
This is a de cent review of some very complicated local situations but it really does not provide workable solutions. That requires that people want solutions when they can not even agree on the problem.
Rational Thinking
Comment by Jim Weber on 4th January 2017
One doesn't see this often : a well thought out and RATIONAL discussion of an ongoing issue of public importance . I am anxious to hear any response by director Anderson !!
Well said
Comment by Jeremy Hope on 3rd January 2017
Well said Ron

Great post
Comment by Shirley on 3rd January 2017
Great post. I personally believe the very reason people don't complain is that they think nothing will happen if they do. Also in such a small community complaints can lead to the person being harassed publicly or targeted in other ways (like vandalism).