A Regional District has the ability, granted to them through the province, to impose a more stringent standard than a provincial enactment requires.
There is case law being sited throughout BC that suggests a bylaw is not in conflict simply because it imposes a more stringent standard than provincial legislation. A party could comply with both laws by complying with the stricter requirement. This has even been extended to cases where a bylaw prohibited something that a Provincial law allowed, but did not require.
The CVRD is responsible for this exceptional piece of legal work. In Cowichan Valley (Regional District) v. Norton the Courts upheld the power of a Regional Government to impose, with bylaws, more stringent standards that coincided with Provincial enactments. This decision was upheld at appeal in 2009.
This was the case of the aggregate mine operation in Cobble Hill that with a bylaw was prevented from processing the aggregate on site. Thus putting to the challenge the concept of dual compliance that suggests a bylaw is not in conflict simply because it imposes a more stringent standard than provincial legislation.
The CVRD cannot create a bylaw stating that no contaminated soil can be dumped in their Region. However, a bylaw that prohibits contaminated soil being imported into a watershed that either now or sometime in the future serves as a source of drink water for any of the residents of that area seems to be an excellent compromise. (A simplistic suggestion)
It was the exceptional knowledge and talents of the CVRD’s planning department that was responsible for this case law that is now being sited throughout BC. We are lucky to have this sort of talent and we should be utilizing it. The question is why arent we?
Brent Beach said:
Interesting suggestions.
Even the first suggestion, that no processing of gravel be allowed on site or within the watershed, would changed the economics of this pit significantly.
During the OCP process, this option was mentioned by one of the CVRD planners. At the end of the process, the CVRD choose not to include this restriction within the OCP.
While a member of the steering committee, I thought my input would make a difference to the final document. Turns out that is not the case. The steering committee, at least for Shawnigan Lake, was ineffective. We were unable to make significant changes that would protect the watershed.
In spite of the previous CVRD success in this area, the proposed ByLaws for the watershed expressly permit processing. This is the draft bylaw:
9.9 RUR-3 RURAL RESOURCE QUARRY/AGGREGATE 3 ZONE
Subject to compliance with the general regulations set out in Parts 4, 5, 6 and 7 of this Bylaw, the following regulations apply in the RUR-3 Zone:
1. Permitted Uses
The following principal uses and no others are permitted in the RUR-3 Zone:
a. Management and harvesting of primary forest products, excluding sawmilling and manufacturing;
b. Mineral and aggregate processing, crushing, washing, screening and related uses;
13.8 I-4 AGGREGATE INDUSTRIAL 4 ZONE
Subject to compliance with the general regulations set out in Parts 4, 5, 6 and 7 of this Bylaw, the following regulations apply in the I-4 Zone:
1. Permitted Uses
The following principal uses and no others are permitted in the I-4 Zone:
a. Asphalt batch plant, concrete batch plant and accessory pre-cast concrete products manufacturing;
b. Gravel processing;
The term gravel processing is not defined. The term aggregate processing is defined. I assume they are meant to be the same.
So, the CVRD has backed off the general prohibition against on site processing.
There will be meetings on the ByLaws. Perhaps we can ask.
Richard Hughes said:
Yes you can ask although better that you insist that the
bylaw is amended to reflect the concerns contained in the original steering committee suggestion.
Why were they changed and watered down? Who oversaw that at the political level?
Brent Beach said:
Who oversaw on the political level?
Well, Ken Cossey was the area B director at the time. However, he almost never attended a steering committee meeting. Harrison and Gilles were there regularly but took no position on the issue, I guess.
It happens that Mike Tippett, the author of the draft bylaws, was the CVRD planner who explained to me that we could prevent on site processing. He never mentioned the legal case mentioned in the article during our discussions, but I assume he knew all about it.
In spite of that, the draft bylaws permit processing – washing of the rock before shipment. This is the part of the process that produces the most pollution (sediment type pollution). This is the part of the process that the Owl Road quarry got so wrong for so long. The result was sediment in Shawnigan Creek. That quarry was being supervised by MoE and Mines through the whole ordeal. It was protests from property owners down stream of the quarry that finally got action, not any supervision by MoE or Mines.