TRANSPARENCY AND ACCOUNTABILITY REASONS THE APPLICATION SHOULD BE REJECTED
The BC Government has principles and policies in place to ensure, among other things, that Crown land allocation decisions are well-considered and transparent and that public accountability is maintained during the allocation of Public land. The George Gibsons Hotel Ltd applicant and application 2411955 fail to meet the test of transparency and accountability. In turn, this affects the transparency and accountability of the Crown land allocation process. Further, approval of this application could place FLNRORD in the unfortunate position of enabling violations of the BC Community Charter, Environmental Management Act (EMA) and Contaminated Sites Regulation (CSR), Land Act and Properties Act as well as Agreements between multiple parties and agencies.
Prior to any decsion on this file, the Province should test and verify the validity of the information provided to FLNRORD by the Applicant and confirm whether the proponent is compliant with the terms and conditions set by other agencies.
Disposition of Town’s Lease Agreement DL 5327 Lease Agreement 237789
- In 2011, the Province allocated District Lot 5327 (lease no. 237789) to the Town of Gibsons for use as park and recreation area. In a letter sent to FLNRORD on May 10, 2018, the Town of Gibsons secretly abandoned its interest in DL 5327 to The George without public consultation or compensation to the Town. There is currently no evidence on the public record that a decision to dispose of the asset was made by Gibsons Council. Disposition of a public asset without informing the public, and providing a financial benefit to a business by abandoning to it a highly valued Crown lease resulted in several violations of the BC Community Charter. E.g. Section 24 of the Charter compels a Council to give notice of its intention to provide assistance to a person by disposing of land or improvements, or any interest or right in or with respect to them, for less than market value. Notice must be published before the assistance is provided and must (a) identify the intended recipient of the assistance, and (b) describe the nature, term and extent of the proposed assistance. No such notice to provide assistance by disposing of our interest in the land for less than market value was given to the public by the Town. The Town should have consulted the public prior to abandoning its interest in DL 5327 to The George applicant. This mistake needs to be corrected and the public needs to be consulted about this disposition before the Province makes a decsion on this file.
Crown Agreements and Provincial Legislation - Hyak Marine
- In 2004, the applicant purchased the Hyak Marine Services business and property, including a commercial lease agreement (238162) for a boat repair and maintenance facility, what is now the site of the proposed The George Complex. Transfer of ownership of the lease tirggred section 7.4 of the Lease Agreement. A Site Profile should have been submittied to the BC Ministry of Environment (MoE) under the EMA and CSR at this time. On April 8, 2004, a Stage 2 Preliminary Site Investigation Report was issued to the applicant by Keystone Environmental. Among other things, the 2004 report identified migration of toxic contamination from the Hyak site onto adjacent Crown and metals in soils exceeding the Contaminated Site Regulation (CSR) standards. Metals typically found in anti-fouling paints applied to the hulls of boats, likely to have originated from the Hyak boat repair shop. Identification of likely offsite migration was a legal trigger under the BC Contaminated Sites Regulation that required the applicant to file a “Notice of Migration” (NoM) to affected property owners and the BC MoE within 15 days (April 23, 2004). However, the 2004 report was buried, and the applicant neglected to meet this statutory requirement to notify the Crown and the Town of Gibsons (within 15 days) about offsite migration of toxics onto public land until July 2017. I.e. The applicant was wittingly in violation of BC’s environmental laws - put in place to protect human health and the environment - for thirteen years.
- In 2012, the applicant commissioned a new Environmental Assessment of the Hyak Site by a new consultant, Balanced Environmental. But the 2012 assessment omitted to identify the offsite migration onto Crown land identified by Keystone in 2004. Instead, the 2012 report asserted that “upland soil samples collected along the southern boundary of 385 Gower Point Road were uncontaminated indicating that contaminants were not migrating down slope”. This report was submitted to the Town of Gibsons with the applicant’s ‘The George’ zoning and development permit applications on February 1, 2013. The 2004 Report was included in the file as it was refernced in the 2012 Report. Given that the 2004 report identified offsite migration, its submission to the Town as part of the develppment package once again triggered the NoM requirement and the submission of a Site prilfe to the BC MoE. Hower, the development permit application submitted to the Town indicated that a Site Profile had been submitted to the BC MoE, when it had not. It appears the applicant deceived the Town and the Crown, to avoid submission of a Site Profile (in 2004 and again in 2014) to the BC MoE because submission of the SP would have triggered a local government zoning and permitting freeze, until the site was properly remediated.
- In 2014, Impact Assessment and Water Treatment Specialist, André Sobolewski, Ph.D. of Clear Coast Consulting reviewed the 2012 Balanced Report. Dr. Sobolewski confirmed deficiencies in the study and identified the fact that Balanced had neglected characterize a highly toxic contaminant – tributyltin TBT – or sample sediments to be dredged in the harbour. (TBT is 14 x more toxic than mercury.) Site samples taken by Clear Coast identified high risk TBT concentrations on the Site. Consequently, Dr. Sobolewski filed a formal complaint informing the BC MoE that contamination at the Hyak site had not been properly assessed and that the proposed development presented an “unknown, and potentially significant, risk to the environment.”
- In 2014, the Town of Gibsons asked the applicant to file a Site Profile with the BC MoE. The applicant did not do so.
- The applicant avoided submission of the Site Profile to the BC MoE from 2014-2016. Consequently, the Province had no formal mechanism to engage or oversee remedial planning or address offite migration of toxics onto Town land. In April 2016, the applicant decommissioned the (Schedule 2) boat repair facility, directly triggering the Site Profile requirement. Again, the Site Profile was not submitted to the Province.
- After a great deal of public pressure on the Town, the MoE and the applicant, on December 12, 2016 the Site Profile was finally submitted and the legal trigger for MoE involvement in remediation was pulled. Over the next six months, a series of investigative reports were requested and submitted to the Ministry, including a detailed Site Investigation Report (DSI) which confirmed offsite migration and 10x high risk levels of TBT in foreshore sediments. Yet the applicant neglected to inform the Town and the public for another six months that the poisonous TBT had migrated onto the Crown foreshore. Citizens and visitors remained in the dark about the fact that a public park/recreation area (DL 5327) - used by children, families and tourists - contained high risk levels of highly poisonous TBT.
- Finally, on June 15, 2017, the BC MoE sent a letter infroming the applicant that “high risk conditions are present” on the Town's waterlot DL 5327 (lease # 23789) due to migration of contamination from the Hyak site. And, that the applicant was “out of compliance with the Environmental Management Act (the Act) and the Contaminated Sites Regulation (CSR)." Thirteen years later, the MoE had to enforce the legal requirement to provide written notification to the owners of the neighbouring site (the Town), and a copy to the Ministry within 15 days of becoming aware of likely migration. In its deliberations on this application FLRORD must take into account the fact that George applicant was wittingly in violation of BC environmental laws put in place to protect human health and the environment for thirteen years and chose time and time again not to inform affected parties when he knew high risk levels of tributyltin had migrated onto public park land. In our view, it is planily obvious that this applicant cannot be trusted to manage Crown lands to benefit the public.
Crown Agreements and Provincial Legislation - 243907
- In 2011 a License of Occupation Agreement for personal, non-commercial use (no 243907), part of the develppment site, was assigned to the applicant. He currently holds a specific permission agreement (no 243097) for private moorage at this site. It appears the applicant was not required to submit a Site Profile for the Land at the time it was allocated, nor when the specific permission was granted. Given that the applicant wants to convert this license into a lease, and that Artcile 7.4 of the Licence Agreement states, “Prior to considering a request for our consent under section 7.1, we may require you to meet certain conditions, including without limitation, that you submit to us a “site profile…” for the Land…” we feel it is critical that FLNRORD now require the applicant to submit a Site Profile for this water lot, prior to any decison being made on this application.
Crown Agreements Gibsons Marina... coming soon.