Tuesday night (February 4th) the City of Chilliwack passed a bylaw intended to allow the development of a controversial hazardous waste recycling facility immediately adjacent to the Fraser River. That’s a mistake on so many levels – but the law allows local governments to make mistakes.
But the law does require the City of Chilliwack to hear from the public in a fair and open way.
That’s why Chilliwack resident, Glen Thompson, asked West Coast Environmental Law to write to the City of Chilliwack to recommend that it hold off passing the bylaw, and instead re-open public hearings into the contentious rezoning. Our letter was faxed on Tuesday, prior to the Council meeting (and we’re flattered to see it mentioned in the Chilliwack Times coverage of the meeting).
On advertising a public hearing
In our letter, we suggest that the City of Chilliwack did not appropriately advertise the public hearing it held about the rezoning back on December 3rd, 2013.
Certainly the reality is that many people didn’t hear about it at all, and even those who made it, had only heard about it at the last moment:
Few even knew about the proposal and the public hearing until it was nearly too late.
"Local First Nations were unaware of both the rezoning application and the proponents plan for the site," Sto:lo Tribal Council fisheries advisor Ernie Crey told the Times. … Sheila Muxlow of Chilliwack-based environmental group The WaterWealth Project expressed a similar frustration with the proposal she knew nothing about until the last minute.
But what did Chilliwack actually do wrong in terms of advertising the public hearing? It was published in the Chilliwack Times, as required. It showed a map of the property, etc. But look at how it described the rezoning proposal:
The proposal is to rezone a 1.78ha portion of the subject 9.1ha property, as shown on the map below, from an M4 (Heaw Industrial) Zone to an M6 (Special Industrial) Zone to facilitate the construction of a waste recycling and transfer facility. [Emphasis added]
The central question we raise is whether members of the public should be expected to know that the phrase “waste recycling and transfer facility” means a facility that handles hazardous waste. The Local Government Act requires that the notice describe the purpose of the rezoning “in general terms” – a phrase that the courts have interpreted as meaning including the main and important features of the development. We write:
Based on the public uproar that has occurred since the public hearing, it is clear that many residents of Chilliwack, as well as others in the region, are deeply troubled by the fact that the facility in question will be handling toxic substances. The facility will apparently require approvals to handle hazardous waste from the BC Ministry of Environment. And so it is striking that the Notice makes no mention of hazardous waste, toxins or any other term that might flag for a member of the public that the facility is not handling newspapers, bottles and cans, or other non-hazardous materials.
What do you think? If you read the notice above would it occur to you that you should just double-check with City Hall that the recycling facility was not going to be handling a highly toxic substance such as mercury? Or would you (as many in Chilliwack apparently did), skip ahead to the next page of the Chilliwack Times?
We also ask whether the sketches of the property should have reflected the fact that the Fraser River is in close proximity to the (hazardous) “waste recycling and transfer facility”.
On disclosure
Local governments are also required to provide the public with documents that it will be considering in its decision on the rezoning. The idea is that the public should be able to provide information and perspectives on the actual information before Council. Chilliwack’s public notice specifically mentions two of those documents:
The proposal includes the registration of a restrictive covenant to restrict the range of uses, as well as a good neighbour agreement, to provide a process to deal with any complaints with respect to the operation of the facility.
However the covenant and the good neighbour agreement were only finalized in January. So the final versions were clearly not available to the public at the hearing in December.
That’s not necessarily fatal to Chilliwack’s public process, as long as there were detailed drafts or similar information about the contents of these documents for people to comment on. And at this stage we’re not aware of what information was available to the public. As the letter says, we’ve asked and are awaiting a response.
Conclusion
One of the frustrations of environmental law that sometimes the law is much better at protecting public process than the environment, and you’re left trying to make sure that environmental concerns were fully heard, rather than that they were fully addressed. Nonetheless, these laws requiring transparency and disclosure of documents are important tools for those who seek to raise environmental concerns. We are disappointed that Chilliwack did not take a step back, and give the public a fair opportunity to be heard.
Chilliwack’s approval of the rezoning does not guarantee that the hazardous waste recycling facility will go ahead. Approvals from the Ministry of Environment are still required. And opponents of the facility will need to decide whether to put their energy into challenging Chilliwack’s rezoning decision in court or in opposing the Ministry of Environment approvals (or both).
But we agree that the edge of the Fraser is no place for a hazardous waste recycling facility.
By Andrew Gage, Staff Lawyer