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Follow-up petition regarding a federal environmental assessment of the Boundary Bay Airport expansion in British Columbia

Petition

BOUNDARY BAY CONSERVATION COMMITTEE
Box 1251, Delta, B.C.
V4M 3T3
604-946-2438 or 604-943-6406
taitt@telus.net or susanj@dccnet.com

21 October 2006

Office of the Auditor General of Canada and the
Commissioner of the Environment and Sustainable Development
Attention: Petitions
240 Sparks Street
Ottawa, Ontario
K1A 0G6

Dear Madam Fraser:

RE: Boundary Bay Airport Expansion, Delta, BC—Additional Questions

Please accept this petition under Section 22 of the Auditor General Act.

The Boundary Bay Conservation Committee (BBCC) sent you a petition on August 7, 2006 expressing our concerns over the expansion plans of Alpha Aviation for Boundary Bay Airport in Delta, B.C. Specifically we were concerned that federal government departments appear to be ignoring protection of the vital habitats and wildlife around the airport. The globally significant wildlife values of Boundary Bay were key concerns of the 1979 federal environmental assessment review process of Transport Canada's proposal to re-activate Boundary Bay Airport.

The 1979 Federal Environmental Assessment Review (FEAR) Panel and the follow up Boundary Bay Airport Review Committee clearly stated that any change in the airport reactivation application parameters (Table 1) would require a new Environmental Review Process.

The Regional Director General, Pacific Region, Transport Canada, J.M.Duncan, on May 26, 1993 again reiterated the conclusion of the 1979 FEAR Panel by stating that "any future changes to the airport, such as the runway length or encroachment into open areas off the existing lease, would be subject to the Environment Review Process".

1. When and under what process was Transport Canada (TC)'s accountability to the FEAR Panel recommendations dissolved?
2. When did the Minister of Transport give "the authority to approve an exemption for multiple use" of aircraft outside the limits in Table 1?
3. Was Environment Canada consulted? Are they in support of no Canadian Environmental Assessment Act (CEAA) review for the proposed, fundamental changes to the type of aircraft that will be operating in the most significant Important Bird Area in Canada?
4. Were members of the 1979 FEAR Panel and the participating public consulted?
5. Since the TC reactivation application was very specific (Table 1) and since the FEAR Panel's recommendations were a consequence of and dependent on these specifics, how can TC hand over its accountability to a private corporation that plans a fundamental change in the parameters of use of Boundary Bay Airport (Table 1) and at the same time ignore CEAA accountability?

We enclose a copy of a letter* to [name and information withheld] from [name and position withheld] that strongly suggests that TC has dissolved its accountability this may be the case (see Attachment*). In our previous submission we omitted our analysis of problems and questions arising from this letter:

6. How and when was this letter solicited? Was [name withheld] a former public servant with this department?
7. The restrictions in Table 1 are quite clear on the size and type of plane that was to be allowed to fly in the reactivated airport. As pointed out by environmental consultants and others in the FEAR Panel review in 1979, the size and type of aircraft are highly significant when considering the hazard to birds and to passenger safety. How could [name withheld] conclude on the basis of no new studies and in the face of current airport hazard procedures to keep birds away from larger and faster planes, consider removing this restriction for Alpha Aviation at Boundary Bay Airport?
8. All follow up studies were done on the light, non-jet powered, slow planes that were permitted to use the reactivated airport. No studies were done in the trial period of small jet use of the airport. How can Transport Canada (TC) contemplate lifting the restriction to allow even larger faster jet aircraft with no environmental assessment?
9. What is relevance is paragraph 2 on page 2 of the letter (Attachment*) to the issue of the hazard of larger, faster jets to birds and passengers?
10. What is the meaning of paragraph 5 on page 2 (Attachment*)? "As a consequence of the National Airport Policy, TC's involvement in the operations of Boundary Bay Airport has changed significantly since its reactivation, from responsibility as stakeholder to that of regulatory oversight". How does this change accountability to federal policy for the environment and passenger safety? How does it change TC's accountability to the former FEAR Panel recommendations of 1979?
11. Why has there been a change from the 1979 FEAR policy that "specific airport operational procedures (that) should be adopted to minimize deleterious impact on birds" to one that could now see harassment and possibly shooting of birds because there is "extensive bird activity due to the airports close proximity to a landfill and wildlife areas" (Attachment* bottom of page 3).
12. Is the federal government going to allow the fact that the Corporation of Delta "is actively supporting the removal of the restriction as well as promoting the new airport development plan" to change federal policy and accountability to environmental assessment and public safety? Attachment* paragraph 2 on page 3).
13. How can TC—Environmental Services (Attachment* paragraph 3 on page 3), based on no environmental assessment and no ministerial approval, "conclude that there is no requirement for a separate environmental review" remove the restriction of jet traffic at Boundary Bay Airport"?
14. Can TC delegate/abandon its former (at least up to the May 26, 1993 letter by the Regional Director General, Pacific Region, Transport Canada, J. M. Duncan) responsibility for federal environmental policy to restrict turbojet traffic, to "the sole prevue of the airport operator", namely the airport developer and the local government?
15. Can the accountability of federal departments (TC and Environment Canada) to protection of wildlife and habitats as well as public safety be waived when a local government and a developer ignore environmental assessment evidence of the conflict of proposed airport activities with environmental and human values?

We look forward to Reponses to our 15 questions as soon as possible because the local government and Alpha Aviation are proceeding rapidly with these and other future developments at Boundary Bay Airport that threaten vital Canadian wildlife habitats.

Yours respectfully,

[Original signed by Mary J. Taitt]

Mary J. Taitt
Director, BBCC

Attachment*:

Letter 28 April 2006, Transport Canada to [information withheld]

*[attachment not posted]

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Minister's Response: Environment Canada

2 March 2007

Ms. Susan Jones
Director
Boundary Bay Conservation Committee
P.O. Box 1251
Delta, British Columbia
V4M 3T3

Dear Ms. Jones:

I am pleased to provide the response of Environment Canada and the Canadian Environmental Assessment Agency to your Environmental Petition No. 177B to the Commissioner of Environment and Sustainable Development, concerning the Boundary Bay Airport Expansion project in Delta, British Columbia. Environment Canada received a copy of your Environmental Petition on November 3, 2006.

Please find attached Environment Canada's detailed response, which addresses the issues that fall within the Department's mandate.

I understand that the Minister of Transport, Infrastructure and Communities will be responding separately to questions that fall under Transport Canada's mandate.

I appreciate this opportunity to respond to your petition and trust that you will find this information helpful.

Sincerely,

[Original signed by John Baird, Minister of the Environment]

John Baird, P.C., M.P.

Enclosure

Environment Canada and the Canadian Environmental Assessment Agency Response to Environmental Petition No. 177B Pursuant to Section 22 of the
Auditor General Act

Question 3

Was Environment Canada consulted? Are they in support of no Canadian Environmental Assessment Act (CEAA) review for the proposed, fundamental changes to the type of aircraft that will be operating in the most significant Important Bird Area in Canada?

Response

Environment Canada was not consulted regarding changes to aircraft use at the airport and, as described in the response to Question 8, a federal environmental assessment is not required. However, Environment Canada is working to prevent possible undesired environmental outcomes from the proposed aircraft activities at Boundary Bay Airport. Environment Canada officials intend to meet with Alpha Aviation and the Corporation of Delta to ascertain their intentions to manage airport activities in a manner that does not significantly impact migratory bird populations or their conservation.

Question 4

Were members of the 1979 FEAR Panel and the participating public consulted?

Response

Members of the FEAR Panel and the participating public were not consulted when ownership of the Boundary Bay Airport lands was transferred to the Corporation of Delta in December 1997, as part of the National Airports Policy. The Canadian Environmental Assessment Act (the Act) came into effect in 1995, and replaced the earlier Federal Environmental Assessment Review Process Guidelines Order. An environmental assessment is required under the Act when a federal authority makes certain decisions which would allow a project, as defined in the Act, to proceed. In this case, an environmental assessment was not required in 1997, when the lands were transferred to the Corporation of Delta, as there was no defined project as required under the Act. Thus, there was no requirement to consult the FEAR Panel or the public.

Question 8

All follow up studies were done on the light, non-jet powered, slow planes that were permitted to use the reactivated airport. No studies were done in the trial period of small jet use of the airport. How can Transport Canada (TC) contemplate lifting the restrictions to allow even larger faster jet aircraft with no environmental assessment?

Response

Transport Canada indicated in its April 28, 2006 letter appended to the petition that removal of the current restrictions on operation of the Boundary Bay Airport would meet all of the present safety standards and regulations required for certification. Transport Canada transferred ownership of the Boundary Bay Airport lands to the Corporation of Delta in 1997.

Under subsection 5(1), the Canadian Environmental Assessment Act applies to federal authorities when they contemplate some action in relation to a project that would enable the project to proceed in whole or in part. A federal environmental assessment may be required when a federal authority:

1. is the proponent of a project;
2. provides financial assistance to the proponent;
3. makes federal lands available for the project; or
4. issues certain permits or licences, or other approvals.

The current expansions are planned by Alpha Aviation, a private corporation, on private lands leased from the Corporation of Delta. These planned actions do not require any federal government involvement in order for the project to proceed. Thus, a federal environmental assessment is not required.

Question 11

Why has there been a change from the 1979 FEAR policy that "specific airport operational procedures (that) should be adopted to minimize deleterious impact on birds" to one that could now see harassment and possibly shooting of birds because there is "extensive bird activity due to the airport's close proximity to a landfill and wildlife areas" (Attachment, bottom of page 3).

Response

The Federal Environmental Assessment Review Process Guidelines Order was replaced in 1995 with the Canadian Environmental Assessment Act. The planned actions of Alpha Aviation do not require a federal environmental assessment; however, they are required to meet present standards and regulations required for certification by Transport Canada through implementation of a Bird and Wildlife Management Plan. As stated in the response to Question 3, Environment Canada continues to work toward preventing possible undesired environmental outcomes from proposed airport activities and intends to meet with Alpha Aviation and the Corporation of Delta in the near future.

Question 12

Is the federal government going to allow the fact that the Corporation of Delta "is actively supporting the removal of the restrictions as well as promoting the new airport development plan" to change federal policy and accountability to environmental assessment and public safety?(Attachment, paragraph 2 on page 3).

Response

The Corporation of Delta's desire for lifting the restrictions on jet aircraft was a stimulant for revisiting the restrictions on operation of the Boundary Bay Airport. Federal policy and accountability to environmental assessment and public safety must still meet regulatory requirements and safety of the public.

As noted above, in response to question 8, Transport Canada, Aviation Safety Branch, found that the Boundary Bay Airport currently meets all of the present safety standards and regulations required for certification.

The current expansions planned by Alpha Aviation, a private corporation, on private lands leased from the Corporation of Delta do not require any federal government involvement as per the requirements of the Canadian Environmental Assessment Act in order for the project to proceed. Thus, a federal environmental assessment is not required.

Question 15

Can the accountability of federal departments (TC and Environment Canada) to protection of wildlife and habitats as well as public safety be waived when a local government and a developer ignore environmental assessment evidence of the conflict of proposed airport activities with environmental and human values?

Response

As stated in response to Question 8, the planned actions by Alpha Aviation, a private corporation, on private lands leased from the Corporation of Delta do not require any federal government involvement in order for the project to proceed. However, Environment Canada continues to work with local conservation groups, industries, First Nations, land owners, and land-use planners to ensure the conservation of wildlife habitats in the region. This includes working with partners in developing a network of conservation areas in the Fraser River delta and estuary through various stewardship and acquisition initiatives. Environment Canada intends to work with the Corporation of Delta and Alpha Aviation to minimize possible undesired environmental outcomes from the proposed aircraft activities at Boundary Bay Airport.

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Minister's Response: Transport Canada

19 February 2007

Ms. Mary J. Taitt
Director, Boundary Bay Conservation Committee
Box 1251
Delta, BC
V4M 3T3

Dear Ms. Taitt:

I am writing in response to your letter to the Commissioner of the Environment and Sustainable Development of Canada seeking information surrounding rehabilitation of the Boundary Bay Airport in Delta, British Columbia. Your letter was forwarded to the Honourable Lawrence Cannon, Minister of Transport Infrastructure and Communities, on November 3, 2006, as an environmental petition (177B) pursuant to Section 22 of the Auditor General Act.

Your petition has been reviewed in relation to Transport Canada's mandate and responses are provided below to those questions relevant to our mandate. I understand that other federal Departments may also respond to your letter according to their mandates and legislative responsibilities.

Q1—When and under what process was Transport Canada's accountability to the FEAR Panel recommendations dissolved?

Since the time the Federal Environmental Assessment Review (FEAR) Panel Report made the recommendation that a new FEAR panel review would be required should further expansion of the Boundary Bay Airport be considered, the Boundary Bay Airport has been transferred from Transport Canada to the Corporation of Delta. Transfer of the Boundary Bay Airport by sale to the Corporation of Delta was conducted in 1997 as part of the National Airports Policy. Transport Canada's involvement in the operation of the Boundary Bay Airport changed from that of owner to that of regulator.

In 1995 the Canadian Environmental Assessment Act (CEAA) replaced the Federal Environmental Assessment and Review Process under which the FEAR Panel assessment was conducted. Project review under the CEAA is triggered when a federal department is the proponent of a project, makes or authorizes payment or any other form of financial assistance to the proponent, sells, leases or otherwise disposes of lands, or issues a permit, or licence or other form of approval pursuant to a statutory or regulatory provision referred to in the Law List Regulations of the CEAA.

None of the CEAA triggers for a project review are present in the current plans for the Boundary Bay Airport. Therefore, an environmental assessment for changes to the airport is not required.

Q2—When did the Minister of Transport give "the authority to approve an exemption for multiple use" of aircraft outside the limits in Table 1?

Transport Canada first established an exemption process to permit single time or limited aircraft operations in 1985. Transport Canada approved a request from the province of British Columbia to operate jets up to 12,500 lbs into Boundary Bay Airport for a six-month trial period commencing November 1987. An extension of this trial period was granted to October 1988 with the endorsement of the Corporation of Delta. Additional extensions were granted until February 1992.

Transport Canada transferred ownership and operational responsibility of the Boundary Bay Airport to the Corporation of Delta in 1997. An Airport Wildlife Planning and Management document meeting the regulatory requirements for mitigation of wildlife related safety concerns was developed and as a result, on April 28, 2006 Transport Canada rescinded the 12,500 lb turbojet restriction from the Boundary Bay Airport's operating certificate. Prior permission from the airport operator is still required for aircraft exceeding 12,500 lbs and turbojet traffic.

Q3—Was Environment Canada consulted? Are they in support of no Canadian Environmental Assessment Act (CEAA) review for the proposed, fundamental changes to the type of aircraft that will be operating in the most significant Important Bird Area in Canada?

Environment Canada was not consulted on the changes to the type of aircraft to be operated at the Boundary Bay Airport as an Environmental Assessment under the CEAA is not required for these changes.

Q4—Were members of the 1979 FEAR Panel and the participating public consulted?

Since a review under the CEAA is not required for the changes to the Boundary Bay Airport and the FEAR legislation is no longer in place, Transport Canada did not consult the FEAR Panel or the public with respect to the changes to the airport. In November 2005 Alpha Aviation, the current operator of the Boundary Bay Airport, and the Corporation of Delta held a public consultation meeting to make their new development plans known.

Q5—Since the TC reactivation application was very specific (Table 1) and since the FEAR Panel's recommendations were a consequence of and dependent on these specifics, how can TC hand over its accountability to a private corporation that plans a fundamental change in the parameters of use of the Boundary Bay Airport (Table 1) and at the same time ignore CEAA accountability?

As stated in response to Question 1, the proposed change in parameters of use of the Boundary Bay Airport does not trigger the requirement for an environmental assessment under the CEAA.

Transport Canada's role is to ensure regulatory compliance of airports such as the Boundary Bay Airport and to ensure safety of the public. The Boundary Bay Airport currently meets all of the present standards and regulations required for certification.

Q6—How and when was this letter (letter from Transport Canada to Alpha Aviation dated April 28, 2006) solicited? Was [name withheld] a former public servant with this Department?

Through discussions and correspondence during February and April 2006, Alpha Aviation requested that Transport Canada remove the operational restriction imposed in 1983 that limited the operation of jet aircraft and aircraft exceeding 12,500 lbs gross take off weight. A formal request that the operational restriction be lifted was received from Alpha Aviation on April 4, 2006. The past employment history of [name withheld] is protected under the federal Privacy Act.

Q7—The restrictions in Table 1 are quite clear on the size and type of plane that was to be allowed to fly in the reactivated airport. As pointed out by environmental consultants and others in the FEAR Panel review in 1979, the size and type of aircraft are highly significant when considering the hazard to birds and to passenger safety. How could [name withheld] conclude on the basis of no new studies and in the face of current airport hazard procedures to keep birds away from larger and faster planes, consider removing this restriction for Alpha Aviation at Boundary Bay Airport?

As stated above in response to Question 5, Transport Canada ensures regulatory compliance of airports and safety of the public. The Boundary Bay Airport currently meets all present standards and regulations required for certification including an appropriate Airport Wildlife Planning and Management document. The previous restriction is no longer applicable and has subsequently been rescinded.

Q8—All follow up studies were done on the light, non-jet powered, slow planes that were permitted to use the reactivated airport. No studies were done in the trial period of small jet use of the airport. How can Transport Canada contemplate lifting the restriction to allow even larger faster aircraft with no environmental assessment.

As stated in response to Question 1, a project review under the CEAA is triggered when a federal department is the proponent of a project, makes or authorizes payment or any other form of financial assistance to the proponent, sells, leases or otherwise disposes of lands, or issues a permit, or licence or other form of approval pursuant to a statutory or regulatory provision referred to in the Law List Regulations of the CEAA. As Transport Canada is not required to undertake any of these actions to allow the restriction to be lifted to allow larger and faster aircraft, an environmental assessment is not required.

Q9—What relevance is paragraph 2, on page 2 of the letter to the issue of the hazard of larger, faster jets to birds and passengers?

Transport Canada recognizes that issues related to use of jet aircraft at the Boundary Bay Airport may include noise and interactions between birds and air traffic. Transport Canada rescinded the restriction on turbojet traffic or larger than 12,500 lb aircraft operations from Boundary Bay Airport's operating certificate based on receipt of a satisfactory Airport Wildlife Planning and Management document as well as based on recommendations from Transport Canada. These recommendations include monitoring of wildlife issues and incidents by Alpha Aviation along with modification of mitigation measures as required, proactive public information and consultation by the Corporation of Delta and Alpha Aviation, and establishment of an airport noise committee to address noise concerns and implement mitigation procedures as required.

Q10—What is the meaning of paragraph 5 on page 2? "As a consequence of the National Airport Policy, TC's involvement in the operations of Boundary Bay Airport has changed significantly since its reactivation, from responsibility as stakeholder to that of regulatory oversight". How does this change accountability to federal policy for the environment and passenger safety? How does it change TC's accountability to the former FEAR Panel recommendations of 1979?

The Boundary Bay Airport was owned by Canada and was under the administration of the Minister of Transport until its transfer by sale to the Corporation of Delta in December 1997 as part of the National Airports Policy. As such Transport Canada's involvement in the operation of the Boundary Airport has changed from that of owner to that of regulator.

The FEAR process was replaced in 1995 by the Canadian Environmental Assessment Act (CEAA). None of the triggers for a project review under CEAA are present in the current plans for rehabilitation or changes in parameter of use of the Boundary Bay Airport. Therefore, an environmental assessment under the CEAA is not required.

Transport Canada's responsibility is to ensure regulatory compliance of airports such as Boundary Bay Airport and to ensure safety of the public. The Boundary Bay Airport currently meets all of the present standards and regulations required for certification.

Q11—Why has there been a change from the 1979 FEAR policy that "specific airport operational procedures (that) should be adopted to minimize deleterious impact on birds" to one that could now see harassment and possibly shooting of birds because there is "extensive bird activity due to the airport's close proximity to a landfill and wildlife areas".

Environment Canada will address this question in its response to the petition.

Q12—Is the federal government going to allow the fact that the Corporation of Delta "is actively supporting the removal of the restriction as well as promoting the new airport development plan" to change federal policy and accountability to environmental assessment and public safety?

Although Transport Canada no longer owns the Boundary Bay Airport, Transport Canada ensures the regulatory compliance of airports including the Boundary Bay Airport and safety of the public. The Boundary Bay Airport currently meets all of the present standards and regulations required for certification.

As stated in response to Questions 1 and 8, an environmental assessment under CEAA is not required for the proposed plans for the Boundary Bay Airport.

Q13—How can TC-Environmental Services, based on no environmental assessment and no ministerial approval, "conclude that there is no requirement for a separate environmental review" remove the restriction of jet traffic at Boundary Bay Airport?

Project review under the CEAA is triggered when a federal department is the proponent of a project, makes or authorizes payment or any other form of financial assistance to the proponent, sells, leases or otherwise disposes of lands, or issues a permit, or licence or other form of approval pursuant to a statutory or regulatory provision referred to in the Law List Regulations of the CEAA. As none of these federal actions were required for removal of the restriction of jet traffic at Boundary Bay Airport by Transport Canada, a review under the CEAA is not required.

Q14—Can Transport Canada delegate / abandon its former (at least up to the May 26, 1993 letter by the Regional Director General, Pacific Region, Transport Canada, J.M. Duncan) responsibility for federal environmental policy to restrict turbojet traffic, to "the sole purvey of the airport operator", namely the airport developer and the local government?

As stated in response to questions above, lifting of the restriction on turbojet traffic is not subject to an environmental assessment. Transport Canada retains the responsibility to ensure regulatory compliance of airports such as the Boundary Bay Airport and to ensure public safety.

Q15—Can the accountability of federal departments (TC and Environment Canada) to protection of wildlife and habitats as well as public safety be waived when a local government and a developer ignore environmental assessment evidence of the conflict of proposed airport activities with environmental and human values?

As stated in response to questions above, plans for the Boundary Bay Airport are not subject to an environmental assessment. However, Transport Canada retains the responsibility to ensure regulatory compliance of the Boundary Bay Airport and to ensure public safety. As stated above in response to other questions, the Boundary Bay Airport currently meets all of the present standards and regulations required for certification.

Thank you for bringing your concerns to Transport Canada's attention. I trust that the foregoing has clarified Transport Canada's involvement in Boundary Bay Airport rehabilitation plans.

Yours truly,

[Original signed by Lawrence Cannon, Minister of Transport, Infrastructure and Communities]

The Honourable Lawrence Cannon, P.C., M.P.