IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
Eagleridge Bluffs v. HMTQ, |
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2006 BCSC 815 |
Date:
20060515
Docket: S062849
Registry: Vancouver
IN THE MATTER OF THE JUDICIAL REVIEW PROCEDURE ACT, RSBC, 1966, C. 241
AND IN THE MATTER OF THE ENVIRONMENTAL ASSESSMENT ACT, S.B.C. 2002, C. 43,
THE CANADIAN ENVIRONMENTAL ASSESSMENT ACT, 1992, C. 37
AND THE CANADA-BRITISH COLUMBIA AGREEMENT ON ENVIRONMENTAL ASSESSMENT COOPERATION (2004)
AND
IN THE MATTER OF ENVIRONMENTAL ASSESSMENT CERTIFICATE T04-01 GRANTED TO THE MINISTRY OF TRANSPORTATION (THE MoT) FOR THE SEA TO SKY HIGHWAY IMPROVEMENT PROJECT (THE PROJECT)
Between:
Eagleridge Bluffs & Wetlands Preservation Society
Petitioner
And:
Her Majesty the Queen in Right of the Province of British Columbia as represented by the Ministry of Transportation, the Minister of Transportation, the Ministry of Environment, the Minister of Environment, Sea to Sky Highway Investment Limited Partnership, and Peter Kiewet Sons Co.
Respondents
Docket: S062778
Registry: Vancouver
Between:
Peter Kiewit
Sons Co.
and Sea-to-Sky Highway Investment Limited Partnership
Plaintiffs
And:
Dennis Perry,
Bruce McArthur,
John Doe and Jane Doe
Defendants
Before: The Honourable Mr. Justice Grist
Oral Reasons for Judgment
In Chambers
May 15,
2006
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Counsel for Peter Kiewit Sons Co. |
D. A. Brindle,
Q.C.
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Counsel for Sea-to-Sky Highway |
I.
MacIntosh | |
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Counsel for AGBC |
N. Brown
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Counsel for Eagleridge and McArthur |
D. C. Harbottle
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Counsel for Perry |
A. C. Ward
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Place of Trial/Hearing: |
Vancouver, B.C. |
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[1] THE COURT: Both of the applications before the court, the first in the Kiewit action and the second in the judicial review proceedings brought by the Eagleridge Bluffs & Wetlands Preservation Society, seek interlocutory injunctions.
[2] In the first action, the construction company Peter Kiewit & Sons Company asks for an order preventing protesters from obstructing its construction crews from beginning work on the southernmost stage of the Sea‑to‑Sky Highway, a piece of four‑lane highway to be constructed over the 5.7 kilometres near Horseshoe Bay in the district of West Vancouver.
[3] The preservation society's proposed injunction would halt work on this portion of the highway pending the hearing of its petition. The petition asks for a variety of relief. Among the relief requested is an order quashing the environmental assessment certificate granted for the entire 95‑kilometre‑long highway project and an order quashing the Ministry of Transportation's decision to proceed with its preferred option over the first 5.7‑kilometre stage, that being a four‑lane highway cut into the hillside above Horseshoe Bay. The society supports other construction options and notably options that include construction of a tunnel to accommodate at least a portion of the roadway.
[4] The process resulting in the issuance of the certificate involves numerous instances of public consultation, identification of environmental and other impacts of the project, and the implementation of safeguard conditions which have to be met during the construction. A better description of the process is found in the decision of Mr. Justice Lemieux of the federal court of Canada in West Vancouver v. The Province of British Columbia, a decision which upheld the process as it related to the adequacy of measures taken to deal with blow‑down of trees in an area just beyond the one presently under consideration.
[5] In the preliminary planning stages, the Minister of Transportation narrowed various construction options to four. They ranged from options involving a tunnel to options involving a new two‑lane or four‑lane roadway cut into the hillside above Horseshoe Bay. Ultimately two of these, a tunnel option and the option finally chosen, the four‑lane roadway cut into the hillside, were submitted to the joint federal-provincial environmental assessment process. Neither option was found to be likely to cause significant adverse environmental effects.
[6] The certificate issued is conditional on a number of objectives being met during the completion of the project. This is to be safeguarded by the construction company submitting environmental management plans before work is done on the roadway for acceptance by various regulating agencies. If a plan is found deficient by any of the agencies, they are entitled to make comment, a process which would then promote a dialogue towards satisfying the concern.
[7] Nothing put forward by the preservation society challenges the legality of the federal-provincial process resulting in the environmental assessment certificate. Nor can there be a challenge of the Minister of Transportation's ability to determine the construction option ultimately chosen. The decision to choose the new four‑lane highway over the option that included a tunnel was clearly that of a government committing Crown resources to one of two alternate public projects and is not a decision subject to judicial review. The most that can be said of the society's material is that, firstly, the process required in designing and submitting environmental management plans to responsible regulatory agencies is called into question in respect of the planning submitted for this stage of the construction. Specifically, the society says that there is a requirement for a single comprehensive environmental management plan addressing all identified concerns and not the staged plans actually prepared by the contractor and received by the responsible agencies.
[8] And secondly, that the staged plan now in place for the construction of the southernmost portion of the new four‑lane roadway is said to be insufficient in that the plan does not deal with mitigation of lost arbutus habitat, the impact on a sensitive species, the red‑legged frog, and that the plan does not address work to be done on a 200‑metre stretch of fire access road known as the Black Mountain trail head. A right‑of‑way has been secured over this trail head area, and the initial construction work includes planned improvements to the road to permit access of construction vehicles from the existing Highway 99 to portions of the new construction.
[9] The preservation society says that the Ministry of the Environment has accepted the environmental management plan filed in respect of the first work to be done on this section of the project and has agreed to the process of submitting segmented plans rather than a single plan for each section. The society says that the ministry should not have acquiesced in either matter, and ultimately the proper action by the ministry may involve withdrawal of the environmental assessment certificate. At the very least, the society says the work the contractor is attempting to commence should be enjoined, because the challenged acceptance of the segmented planned process and acceptance of the latest of these plans are the subject of judicial review and pose triable questions for relief. The society also says the matter is not compensable in damages and that the balance of inconvenience supports the injunction application because important environmental issues are engaged.
[10] The first assertion that there should be a single environmental management plan for the section makes reference to wording in the two contracts delegating the construction work under provisions of the public-private project. The adoption of staged plans, however, is not contrary to the conditions of the environmental assessment certificate, which is the governing provision. The parties to the agreements with the approval of the regulating agencies are free to amend the method of compliance with the certificate. Further, the evidence supports the segmented planning process as better able to deal with time‑sensitive concerns individual to project stages. This fact bears on the balance of inconvenience that needs to be shown to support injunctive relief. The society has not shown any relative advantage to the single plan system capable of demonstrating harm through the change.
[11] The second assertion that the particular phase 2 stage 1 environmental management plan is deficient in the three respects identified ‑‑ planning for arbutus mitigation, possible harm to a sensitive species, and negative affects of using the trail head to provide access ‑‑ is contrary to the evidence presented at this hearing. The evidence of Isabelle Doyle, the environmental manager for the Ministry of Transportation responsible for plan compliance, with the conditions of the certificate, clearly refutes the allegation of lack of planning for lost arbutus habitat. Further, from the onset the approved plan is for protection of replacement habitat at locations away from the construction site. If measures were required to see the creation of these habitat replacements, no halt to construction would be required.
[12] The evidence relating to red‑legged frog habitat begins with the affidavit of one of the respondents, Mr. McArthur, who reported a likely sighting. A biologist, Linda Dupuis, was sent to investigate the sighting. She could not confirm the sighting but reported that the upper reach of Larson Creek, a creek the highway project is to cross over, may constitute a breeding ground. This, however, would be outside of the main habitat area and, to quote from her report, "the proposed highway works at this location are not expected to cause a noticeable decline in the local meta‑population". She recommends appropriate construction safeguards to ensure minimal impact on the possible habitat. Again, this evidence does not support the contention that the application presents a triable issue. Possible environmental harm is manageable and a recognized concern to be dealt with as part of the planning process.
[13] The last alleged deficit in the phase 2 stage 1 plan is focused on the work to be done on the Black Mountain trail head. The work scheduled for this section is limited to grubbing and brushing and improving ditches and the road surface over this stretch of existing roadway. The application does not identify a significant triable issue or substantial harm.
[14] Submissions were also received relating to the sufficiency of the society's petition. Proposed amendments were introduced during the hearing by counsel for the society. The petition is deficient in a number of respects. I have not considered these on this application, as I felt the matter needed to be heard if possible on the merits and on the causes of action as amplified by counsel. For many good reasons, this is often not the best course, but it would not be in the public interest to have the matter come on again after refiling or amendment. For the reasons indicated, I decline to make the order enjoining the construction.
[15] I turn now to the application in the Kiewit action. This application is for an injunction prohibiting the personal respondents and others who have been given notice of the order from coming onto the lands and rights‑of‑way dedicated to the construction of the roadway. The order sought would also extend the perimeter of the prohibition 25 metres beyond these lands to provide a construction safety zone and at times 75 metres or 300 metres beyond the lands in respect of activities of fallers in dealing with problem trees, and blasters when conducting construction blasting. The evidence on this application is that on the 25th and 26th of April the construction manager came to the two access sites to the project lands and notified the protesters present there, including the two named personal respondents, who he was and his purpose in commencing work. He asked the protesters to stand aside to give him and his workers access. The personal respondents and the other protesters refused. The evidence was captured on a video recording. It was clear that the protesters were determined to put themselves between the construction crew and the project lands in order to block access. The evidence also indicates that the construction project is time sensitive and that the applicants are subject to increased costs and penalties through delay. The fiscal consequences are beyond the ability of the respondents to pay.
[16] The protest of the government's decision to construct the roadway above Horseshoe Bay has been ongoing for a considerable time. Until the incidents described above, the protesters have acted responsibly in expressing their views with signs, by erecting tents and by their physical presence. I am mindful that the Supreme Court of Canada in the Retail, Wholesale and Department Store Union v. Pepsi‑Cola Canada has directed that an injunction application such as the one presently before the court has to take into account Charter section 2 rights of expression. The injunction must not issue until the applicant demonstrates that the protesters are involved in illegal action and, even if this should be shown, the Charter rights must be respected in fashioning the appropriate order.
[17] The applicants allege various civil forms of illegality. I will not discuss the various torts indicated, because one statutory provision really says it all. The relevant portion of Section 64(1) of the Transportation Act provides:
A person must not … directly or indirectly interfere with or obstruct the … construction … of a provincial public undertaking or of any related land or improvement that is authorized under this Act another enactment or at law.
The applicant construction company is entitled to the benefit of this provision in undertaking the construction of the highway, and the protesters' actions in blocking access constitute a clear breach.
[18] The form of injunction needs consideration. It should be limited in its duration and geographical extent to what is needed for construction to proceed safely. It should not stifle the ongoing legitimate protest. In this respect, the court has been given assurances from the Ministry of Transportation that sites nearby the Eagleridge parking lot offering good visibility proximate to the site will be made available.
[19] As for the injunction, it will restrain the defendants and any others having knowledge of the order from physically obstructing, impeding or otherwise physically interfering with construction and related works conducted by the plaintiffs, their contractors, employees or agents, in constructing a highway and related civil works on the project lands and rights of way situate within the municipality of West Vancouver. It will restrain except with the express written consent of the plaintiff Peter Kiewit & Sons Company or the Minister of Transportation for the Province of British Columbia those individuals from occupying the project lands and rights‑of‑way from the Eagleridge parking lot to Larson Creek excepting the junction of the upper portion of the Black Mountain trail and the Baden‑Powell trail.
[20] It will enjoin them, in addition, in respect of the Eagleridge parking lot, the west port pit location of the Peter Kiewit & Sons site office and the Black Mountain trail head parking lot, and a 25‑metre perimeter around the project lands and rights‑of‑way except where this perimeter might extend past Larson Creek and the junction between the upper portion of the Black Mountain trail and the Baden‑Powell trail. During active tree‑falling operations, this perimeter will extend out 75 metres from the project lands and rights‑of‑way except again not to extend beyond Larson Creek or the intersection of the two trails. During active drilling and rock blasting operations, the perimeters will extend out 300 metres.
[21] A map will be prepared by the applicant and posted at the two trail heads and the other locations mentioned in the application. Peter Kiewit & Sons will post public notices of the times and locations of active tree‑falling operations and drilling and blasting operations at least 24 hours in advance.
[22] The lands surrounding the project lands and rights‑of‑way are private lands owned by BP Properties. These lands are in their natural state, and BP Properties had not excluded the public from entry onto the lands. In fact, a fairly extensive trail system has been built in the area. I am aware that the effect of this order extends to users of these private lands. In allowing the order in this form, I have judged safety concerns to be paramount. BP Properties has had notice of this application without formal objection to the order sought. In any event, there will be liberty to BP Properties to apply, should they subsequently want to apply to set aside the strictures of the order. The injunction will remain in effect for 12 months or until further order of the court with liberty to apply to extend its duration.
[23] As a last matter, the defendants argued that the court should resile from ordering an injunction in favour of other forms of enforcement of this statutory provision. It is enough to say that this is not a case where the applicant has a direct statutory means of regulating the protesters' behaviour. Further, without an injunction establishing the illegality of protesters' actions, the police are unlikely to intervene. I hesitate to add to the judicial debate about the proper role of the courts in entertaining interlocutory injunctive relief except to say that this process at least offers a forum for protesters to argue the legality of their actions and to invoke Charter rights of expression. That forum would not be available prior to direct police enforcement.
[24] Is there anything further, counsel?
[25] MR. BRINDLE: [Indiscernible] Your Lordship's not mentioned a map to be attached to the order, and I assume that Your Lordship has expressed in words a sufficient description. But if you were inclined to exceed to attaching a map to your order, then this is something that ‑‑ it would be iteration number 1 that was handed up to you at the end of last day.
[26] THE COURT: Yes.
[27] MR. BRINDLE: It is dated May the 8th, 2006.
[28] THE COURT: I have that here, Mr. Brindle, and on my examination of this map it needs of course to also indicate the 300‑metre blasting perimeter, which is not on this ‑‑ on this particular map.
[29] MR. BRINDLE: Yes.
[30] THE COURT: But in respect of the project lands and rights‑of‑way, the yellow portion I think properly describes the injunction area, and I think the extra perimeters are clear from the order that I have given.
[31] MR. BRINDLE: Yes. May I ask for a clarification? You will see just between the junction of Larson Creek and the northernmost edge of the Black Mountain trail right‑of‑way –
[32] THE COURT: Yes.
[33] MR. BRINDLE: ‑‑ there is a diminishing space, if you will. That was designed to indicate to users the boundary of the lands.
[34] THE COURT: Yes.
[35] MR. BRINDLE: It is somewhat a modification in this small area of the 25‑metre boundary, but it was thought by Kiewit to be more readily apparent to people in the area.
[36] THE COURT: Yes. It is also clear that in the area on the opposite side of the lands there is an irregular marking of the construction safety zone.
[37] MR. BRINDLE: Yes. So the option is available to Your Lordship to –
[38] THE COURT: My order will be amended to reflect those particular lines.
[39] MR. BRINDLE: Yes. I will draft that accordingly.
[40] THE COURT: All right.
"W.G.
Grist, J"
The Honourable Mr. Justice W.G.
Grist