Sunbury Neighbourhood Association

Delta OPTIMIST - Aug 29, 2009

Delta could have done more to protect the bog: legal opinion
Organization maintains highway alignment could have been disputed
Sandor Gyarmati
The Delta Optimist

Construction of the South Fraser Perimeter Road has begun.
CREDIT: photo by Sandor Gyarmati
Construction of the South Fraser Perimeter Road has begun.

Delta could have done more to dispute the alignment of the South Fraser Perimeter Road, according to a legal opinion obtained by the Burns Bog Conservation Society.

The conservation group released an opinion from West Coast Environmental Law this week that concluded the Corporation of Delta had the right to invoke a dispute resolution procedure contained in an agreement between the four purchasing partners -- the federal, provincial, regional and municipal governments -- of the environmentally sensitive Burns Bog.

The Burns Bog Conservation Society and others had wanted Delta council to invoke the dispute resolution clause of the conservation covenant, citing concerns the new highway would impact the delicate hydrology of the adjacent wetlands.

The legal opinion by West Coast Environmental Law states, "While covenants ordinarily only apply to lands on which they are registered, the broad language of the covenant, the management agreement and the management plan support the view that the Burns Bog agreements do apply to actions by the government that have a direct impact on the bog even if they take place outside the local government and provincial government lands."

The opinion also notes "a covenant holder would have no recourse if an adjacent property owner's actions negatively affects the covenanted property" and that the right of adjacent property owners to use their property "does not extend to the right to negatively impact their neighbour's property."

The legal opinion concludes, "B.C.'s actions in building the SFPR could indeed violate the agreements and pose a nuisance to the ecological features of Burns Bog to the extent that they directly infringe on the function of the Bog ... Delta would be quite within its rights under the agreements to request mediation and to attempt to address any concerns it may have on the impacts of the SFPR on the hydrology or other environmental features of the bog."

Burns Bog Conservation Society president Eliza Olson told the Optimist the legal opinion reiterates what many have said all along, that the municipality could have initiated the dispute resolution process, instead of falling back to the excuse the new highway would be built on land outside the designated ecological conservancy area.

However, Delta CAO George Harvie said he reviewed the opinion and the questions raised were already answered in a report to council last year.

Harvie said Delta knew it had the ability to initiate a dispute resolution, which would require mediation, but only if the environmental certificate wasn't deemed satisfactory or if its terms weren't being lived up to by government.

"We've gone through the process. We rely on our scientific advisory panel and also our Burn Bog Management Plan staff ... None of the Burns Bog management planning team agencies have identified any disagreements regarding contraventions of the covenant as a result of the SFPR," he said.

Part of the Gateway Program, the $1 billion SFPR is now under construction. It will be a new four-lane, 80-kilometre route along the south side of the Fraser River, connecting Highway 1 in Surrey to the ports at Roberts Bank.

The road will cut through South Delta farmland and will also run along the edge of Burns Bog.

In a highly critical report two years ago, Environment Canada expressed "serious" concerns over the impact the new highway would have on the bog. The federal agency's report to the B.C. Ministry of Transportation concluded the project would have "permanent negative impacts that cannot be mitigated or compensated" and "would impact rare and unique habitats and wildlife."

In response, Gateway announced several mitigation measures, including a slight shift in the highway's alignment to be further away from the bog's edge, a move some advocates say still isn't good enough.

According to the B.C. Ministry of Transportation, the Environmental Assessment Office concluded the effects from the project would be within acceptable levels, subject to implementation of the mitigation measures and commitments agreed to by Gateway.

Harvie noted, "We rely on our professional staff that sit on those committees. We also rely on the scientific advisory panel, and it's a non-political recommendation they are giving us and based upon that, we felt the concerns raised by the public were addressed through the environmental certificate."

Harvie also pointed out a letter to Delta council this year by federal Environment Minister Jim Prentice noted Environment Canada stated its concerns had been substantially addressed by the commitment to implement the mitigation and monitoring measures.

"If these concerns are addressed, the project would not be considered to be in breach of the covenant," Prentice wrote.

Harvie added he feels the new highway will benefit the sustainability of the bog.

 The Delta Optimist 2009


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