A rural internet provider in the North Okanagan has successfully argued its case in BC Supreme Court, convincing a judge to overturn a ruling by the B.C. government.
In a decision made Tuesday, Justice Bruce Elwood found the Ministry of Water, Land and Resource Stewardship lacked “coherent and consistent reasoning” when it ordered that Stephen Francis remove all of his internet providing equipment from four sites in the North Okanagan and pay nearly $40,000 in fees.
The issue dates back to 2017, when Gallagher, who runs MyBC Datacom, applied to obtain licences of occupation for four sites on Crown land, near Armstrong, Bastion Mountain, Salmon Valley and Seymour Arm.
MyBC provides internet service to remote communities throughout the Shuswap, Westwold and Armstrong areas, using a series of towers that act as “repeaters,” delivering a wireless signal to the final site in the chain.
The four sites are located at previously harvested cut blocks, where Gallagher has constructed sheds, with solar panels, gas generators and wireless communication equipment. His company has also cleared trails to the sites, connecting them to pre-existing forestry roads.
The sites currently serve about 200 customers who otherwise wouldn't be able to access internet or phone service.
But Gallagher never received final approval from the Ministry to construct the infrastructure.
'Racing against the weather'
After applying for approval back in 2017, a senior land officer with the Ministry recommended approval for three of the four sites in the summer of 2018, with a 20-year term and an annual rent of $676 per site and $500 per road.
Gallagher was then required to complete some paperwork, pay licensing fees, provide security deposits and obtain insurance, before a final decision would be made by the Ministry.
But Gallagher did not complete the required steps by the Oct. 31, 2018 deadline, and instead proceeded with installing the equipment without the required permission.
Gallagher said he mailed the signed licence documents along with the fees for the first years' rent to the Ministry in February 2020, and the following month, the senior land officer he'd been dealing with discovered from satellite imagery that MyBC had already built the roads and towers.
When confronted, Gallagher admitted to the unauthorized work, saying he “failed to find the funds to complete the paperwork” and that he “was racing against the weather and the approaching winter.”
Gallagher apologized for his actions and said he was still hoping to re-apply and go through the proper approval process.
But in February 2021, the Ministry's Enforcement Branch issued Notices of Trespass, requiring Gallagher remove all equipment from the four sites and remediate the lands by July 1, 2021. Additionally, the ministry levelled occupation fees against him totalling $39,950.
The Ministry then issued further Notices of Seizure in October 2021, indicating they were seizing all of Gallagher's equipment that was left at the four sites.
Taking matter to court
The day after the Ministry filed the Notices of Seizure, Gallagher took the matter to the courts, seeking a judicial review of the government's decision.
In his decision released Tuesday, Justice Elwood called the Ministry's decision “illogical and unnecessarily punitive.”
“Respectfully, it made no sense for the Ministry to require MyBC to first clear and remediate the sites before it would consider an application to approve much the same construction at the same locations,” Justice Elwood wrote.
“My concern is that the Ministry compartmentalized its decision-making and focussed on enforcement to the exclusion of other relevant factors. In doing so, the Ministry failed to give any or adequate consideration to the previous decisions in which it had approved the same or very similar activities, found public benefits from MyBC’s use of the lands, and did not identify any safety concerns or significant impacts on the environment. From this perspective, the decision as a whole lacks coherent and consistent reasoning.”
While the judge didn't go so far as to order the Ministry to approve Gallagher's applications, he overturned the notices of trespass and seizure and ruled the Ministry should consider Gallagher's applications.
He noted that should the Ministry approve the applications, they're not bound by the rental fees that were offered in 2018.
