Legal precedent doesn't favour Lower Mainland municipalities looking to block new coal-handling facilities at Port Metro Vancouver (PMV), according to a local legal expert.
In recent weeks, the City of White Rock, the City of Surrey, the City of New Westminster and the Corporation of Delta have all raised health and environmental concerns with the PMV about a proposed coal facility at Fraser Surrey Docks. Taking an even more aggressive stance, the City of Vancouver earlier this month passed a motion asking its staff to "report back on a bylaw to prevent the expansion of, or creation of new, coal export infrastructure within the City of Vancouver."
However, municipal lawyer John Alexander, a partner with Victoria-based Cox Taylor, told Business in Vancouver that local municipalities face an "uphill battle" in trying to block the expansion of coal-handling facilities on PMV land.
Alexander said that in a previous jurisdictional struggle over port land use, Canada's highest court in 2007 upheld the port's jurisdiction and "paramouncy" in approving Lafarge Canada Inc.'s plan to build a ship offloading and concrete batching facility on port lands.
In British Columbia (Attorney General) vs. Lafarge Canada, the Burrardview Neighbourhood Association argued that, when the Lafarge project was being considered, the City of Vancouver declined to exercise jurisdiction over the lands. The association argued that the municipality ought to have insisted that Lafarge obtain a city development permit.
What was then the Vancouver Port Authority (VPA) – prior to the 2008 merging of three port authorities to create the PMV – argued that no city permit was necessary. The Supreme Court of Canada ruled in favour of the port. It stated that, because of federal jurisdiction over navigation and shipping, the City of Vancouver's zoning bylaw didn't apply to port lands.
Alexander said that not only did the court uphold the port's jurisdiction in the matter – but that at the time, the City of Vancouver didn't contest the port's jurisdiction over port lands.
"The way it started out was that the City of Vancouver admitted or rolled over and didn't purport to say they could control [port lands]," he said. "So if the City of Vancouver these days is saying 'No, we think we have some control,' that would be a reversal of the position they took in 2005 through 2007 with respect to VPA lands."
Alexander said that approaching the issue from a health and environmental standpoint wouldn't necessarily help Vancouver gain leverage over port land decisions.
He said the 2007 decision considered more than zoning.
"The court turned their minds not just to the zoning issues but to things like noise and pollution standards," he said. "That would telegraph to me that, at least in 2007, our highest court was saying, 'Look, if the Vancouver Port Authority has a bona fide port plan that's been properly approved by federal authorities under the Canada Marine Act, that's their set of bylaws, and they're paramount to local city bylaws."
Alexander didn't reject the idea that the City of Vancouver could win a jurisdictional tug-of-war with the port. But he said it would be "an uphill battle" for the municipality.
"They may be able to find some areas where they do have jurisdiction that is not integral to shipping and navigation," he said. "The problem there is that municipal governments have limited authority themselves – they can't stray too far out of land-use planning, that kind of thing. They don't have direct jurisdiction over health issues that hasn't been delegated by the province."
More than a half dozen other local municipal lawyers contacted for this story either declined to comment or did not respond to interview requests by press deadline.
