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Protecting Cat Stream and Jingle Pot Marsh in Nanaimo, British Columbia
Petition: No. 225
Issue(s): Environmental assessment, governance, human health/environmental health, and natural resources
Petitioner(s): Rory Rickwood and Roger Giles
Date Received: 12 December 2007
Status: Completed
Summary: The petitioners allege that the Government of Canada’s commitment to protecting a fragile ecosystem was ignored during a screening carried out in accordance with the Canadian Environmental Assessment Act. During 2005 and 2006, an asphalt trail (berm) and fencing were built in an environmentally fragile aquatic environment that is registered in the government’s Sensitive Ecosystem Inventory. The petitioners claim that the asphalt trail contains toxins that are known to be very harmful to mammals, birds, fish, amphibians, and invertebrates and that the page-wire fencing is known to harm low-flying migratory birds. The petitioners ask the responsible departments to provide information about the decisions that led to the building of the trail and fencing. They also question what the departments will do to rectify the situation.
Federal Departments Responsible for Reply: Environment Canada, Fisheries and Oceans Canada, Natural Resources Canada
Petition
ENVIRONMENTAL PETITION TO THE COMMISSIONER OF THE ENVIRONMENT AND SUSTAINABLE DEVELOMENT
(OFFICE OF AUDITOR GENERAL OF CANADA)
Re: Application of Government of Canada Guidelines to Protect a Fragile Ecosystem
called SEI Polygon N0157/Jingle Pot Marsh/Nanaimo BC
December 12, 2007
Federal ministers from whom a response is requested:
The provisions of the Auditor General Act that are relevant to our petition includes Section 21.1
Table of Contents
LIST OF APPENDICES
1. Our petition.
During 2005/2006, the Government of Canada's commitment to protecting a fragile ecosystem was ignored during a Canadian Environmental Assessment Act screening process (CEAA) when a harmful asphalt trail/berm and fencing development was put across an environmentally fragile aquatic environment that is a government registered Sensitive Ecosystem Inventory (SEI). The asphalt trail contains polycyclic aromatic hydrocarbons (PAHs), which are persistent, carcinogenic aquatic toxins that are known to be bioaccumulative and highly harmful to mammals, birds, fish, amphibians, and invertebrates. The page-wire fencing is known to harm low-flying migratory birds. The asphalt trail is part of the Trans Canada Trail system, and the fencing/trails approval was inappropriately added to the Cat Stream Detention Pond approval (CEAA Ref. No.:05-01-10543).
We have competing environmental values at play in Nanaimo, BC. Wildlife stewards working hard to protect the environment and a city that believes they are supporting the environmental by encouraging people to use trails to move about. Instead of designing a trail system to encourage people to walk around an environmentally sensitive area, a shorter and more economical short-cut route was wrongly put across a fragile ecosystem. This failed to protect an ecosystem, hurt our community, failed to respect nature, and remains a shameful chapter in the Nanaimo's civic history.
The outcome of the CEAA process was a major SEI disturbance which contravened government guidelines that encourage us not to put developments into fragile ecosystems, and the process ignored government officials who have made clear objections about seeing any development in a SEI. Alarming SEI data statistics about Nanaimo did not guide the CEAA processes nor serve as a red flag that should have stopped this development from going into this sensitive ecosystem. Canada espouses environmental leadership and encourages others to follow their lead with federal department websites, intergovernmental websites, and collaborative initiatives such as the Community Involvement Program, the North American Waterfowl Management Plan, Canadian Streamkeepers Handbook, Wildlife Habitat Canada, and the national Stewardship Canada program. Dedicated community stewards are directed to these many government sponsored websites for information and to guide their volunteer activities at the local level.
The Government of Canada's obligation is clear, if you communicate to the public an important pro-environmental message through plans, policies, and guidelines, then there is an expectation by the public that government agencies will follow through on what has been communicated. The Ministers and Government of Canada can use the Fisheries Act, the North American Waterfowl Management Plan, Memorandum of Understanding with Nanaimo, and environmental guidelines to issue an enforcement action to remove the asphalt trial/fencing. We then can work collaboratively with the City of Nanaimo to initiate a habitat recovery and rehabilitation of the SEI/Jingle Pot Marsh area.
Environmental stewardship is not sustainable when the federal government is inconsistent in following their stated guidelines and commitment to the environment. Instead, community stewards are presented with conflicting responses or a lack of response to their enquiries, and feel the federal government is disingenuous about protecting our precious SEIs and wetlands. The management of fragile ecosystems and the environment should be held to a high level of environmental accountability. Under the present model, wildlife stewards are devalued when they raise an alarm about the need for all stakeholders to follow good environmental practices and use due diligence when implementing government guidelines to protect our environment. If the stewardship model initiated by the federal government allows community wildlife stewards to be debased, then the commitment for all of us to work cooperatively to ensure environmental sustainability has failed. A protracted conflict between community stewards and civic politicians/municipal staff further compromises our ability to be effective, and is a sign that the system is not healthy. All levels of government need to be on the same page of applied stewardship ethics and committed to best management practices.
A real threat to sustainable development occurs when federal agencies' commitment to federal guidelines for a registered sensitive ecosystem is ignored or the agencies apply only a half measure to what should have been done. We contend and can prove that the Nanaimo CEAA screening process was not thorough, transparent, and that conclusions drawn from the formal environmental assessment did not reflect the best and most current scientific information available. Also, community involvement and scientific bases of environmental concerns were ignored by Fisheries and Oceans Canada. The federal government's failure to address those concerns is evolving into a form of de-stewardship and weakens Nanaimo's stewards' ability to protect species and to ensure a pristine habitat for fish, wildlife, and future generations.
When we reviewed past environmental petitions to the Commissioner, we were somewhat dismayed because government agencies' responses seemed to be vague, non-committal, or indicate it is really hard for federal departments to admit a mistake – or they deny responsibility for the environmental concerns that have been raised. We pondered whether the environmental petition process was worthwhile effort because it would mean we would be questioning one of our partners (the federal government's stated obligations and mandate to protect the environment). We are motivated to try for a better outcome for the environment by the words of Rachel Louise Carson: "Only within the moment of time represented by the present century has one species – man – acquired significant power to alter the nature of his world." We request that the departments of responsible Ministers answer our questions in a manner that helps resolve the Nanaimo environmental abuse issue. Our joint passion for protecting vulnerable wildlife and concerns for environmental sustainability means we should all be prepared to put forth a collaborative and sustained effort for the environment.
The federal government established a unique role for all stakeholders for the environment when it put an emphasis on a stewardship model versus a regulatory model. This petition demonstrates that there is a real need for the federal government to look into the failings of the present stewardship model as it relates to environmental sustainability. We request that the above stated Ministers investigate the progress of their environmental policies and guidelines to ensure environmental sustainability is happening; and, ensure we are on the right course when supporting community stewards in their efforts to protect our environment.
This is a formal petition under the Auditor General Act where in we ask the following be undertaken:
Investigate the Sensitive Ecosystem Inventory disturbance
1. Will the Ministers of Fisheries and Oceans and the Environment investigate the Nanaimo Sensitive Ecosystem Inventory disturbance to determine whether federal law or regulations were/are being enforced or contravened?
Furthermore, please investigate whether the CEAA screening process ignored the federal government's stated guidelines and commitment to environmental sustainability as outlined in General Background No. 10 (below), and by looking into and answering the following about the SEI disturbance:
2. In light of the background material and attachments, how did the responsible department determine that the siting of the asphalt trail through or immediately adjacent to fish habitat, with ongoing harm from PAHs, was not a violation of the Fisheries Act (ss. 34 and 35)? Why was this allowed and what actions will Fisheries and Oceans Canada take to remedy the situation?
3. In light of the background material and attachments, how did the responsible department determine that the siting of the berm and asphalt trail through or immediately adjacent to fish habitat, with the resulting harm from alteration and disruption of salmonid channel migration, was not a violation of the Fisheries Act (ss. 34 and 35)? Why was this allowed and what actions will Fisheries and Oceans Canada take to remedy the situation?
4. In light of the background material and attachments, would you agree that the siting of the asphalt trail, which will disburse harmful PAHs in migratory bird habitat, was a contravention of North American Waterfowl Management Plan? Why or why not? If it is determined a contravention, why was this allowed and what actions will Environment Canada take to remedy the situation?
5. In light of the background material and attachments, would you agree that the placement of page-wire fencing to flank the asphalt trail, which will harm low-flying migratory birds, is in contravention of the North American Waterfowl Management Plan? Why or why not? If it is determined a contravention, why was this allowed and what actions will Environment Canada take to remedy the situation?
6. In light of the background material and attachments, would you agree that the placement of the berm, asphalt trail, and page-wire fencing, through a Sensitive Ecosystem Inventory and sensitive wetland contravenes government guidelines that are presented to the public through many publications and government websites. Why or why not? If so, why was this allowed and what actions will Environment Canada and Fisheries and Oceans Canada take to remedy the situation?
7. In light of the background material and attachments, would you agree that the alarming SEI statistic about the City of Nanaimo's past SEI disturbances (Environment Canada June 20, 2006 letter) that conservation of the remaining sensitive ecosystem should have been a priority, and that it was wrong for any development to go into it? Why or why not? If so, why was this allowed and what actions will Environment Canada and Fisheries and Oceans Canada take to remedy the situation?
8. In light of that this Sensitive Ecosystem Inventory disturbance involves the Trans Canada Trail system, can the responsible Department contact the [position withheld] to confirm that the original Nanaimo Trans Canada Trail routing and that the re-routing should have involved BC Trails and local volunteers? If Trans Canada Trail policies were not followed, are the Ministers Environment Canada and Fisheries and Oceans Canada concerned?
Save and restore our local Sensitive Ecosystem Inventory
9. Will the Ministers of the Environment and Fisheries and Oceans take action to have a timely and environmentally-sound removal of the asphalt segment of the Trans Canada Trail and page-wire fencing from SEI Polygon N0157/Jingle Pot Marsh; and, if necessary remove, re-design or reposition the berms based on sound science?
10. Will the Ministers of the Environment and Fisheries and Oceans specify and commit to timelines for the start and completion of the said removal of asphalt, berm material, and page-wire fencing?
11. Will the Ministers of the Environment and Fisheries and Oceans take action to have a timely and scientifically-based review of the disrupted wildlife corridor and traditional fish channels in order to determine the best way to support the natural traveling mode of animal between the South Marsh, DFO fish habitat ponds to the East Marsh/Pond?
12. In light of the background material and attachments, would you agree for example, that when Red-legged frogs or a Rough-skinned newts traverses up a berm and over an asphalt trail that they will be exposed to harm by the walking, biking and motorcycling public? Why or why not? If it does, why were guidelines/good science not followed and what actions will Environment Canada take to remedy the situation?
13. Will the Minister of Environment take action under the North American Waterfowl Management Plan to prohibit the high-volume of people and dogs from entering the protected area for migratory birds that is located near and within a Sensitive Ecosystem Inventory?
14. In light of the background material and attachments, would you agree that a large traffic of people (300+ a day), un-leashed dogs, and roaring motorcycles traveling through a migratory bird habitat was a contravention of North American Waterfowl Management Plan? Why or why not? If it was, why was this allowed and what actions will Environment Canada take to remedy the situation?
15. Will the Minister of the Environment commit to working with the BC provincial government (BC Minister of Environment) and community stewards to resolve the Nanaimo SEI disturbance and to expand the Sensitive Ecosystem Inventory process?
That a science-based audit be conducted
16. Will the Ministers of the Environment and Fisheries and Oceans take action to have a timely and thorough audit of the scientific information that was presented in the Cat Stream Detention Pond environmental assessment, and that the audit be conducted by an independent engineering firm or professionals? And, can the Ministers contact us to receive contact information for one of Canada's foremost chemical experts on poylnuclear aromatic hydrocarbons and a PhD level expert in hydrology and inland fish habitat?
It is fundamental to an effective CEAA screening process that the requisite science and stewardship guidelines be followed to ensure sustainable development and a respect for nature. Therefore in the audit it is important to review related information (J.C. Lee & Associates, M.C. Wright & Associates, and C. Zamora reports) that are available. We request that you contact these professionals to hear their concerns about the asphalt trail, berms, and detention ponds that were constructed. The Nanaimo stewardship group called the Buttertubs Marsh Liaison Committee recorded in their meeting minutes of November 19, 2006 a PhD expert stating the: "berm project was badly `over built', that water control structures may adversely effect marsh water levels, that during the recent heavy rain no water hold back was noted, and he was not sure what the berms were really intended to accomplish."
The science-based audit needs to clearly review the City of Nanaimo's engineering report and consult with an external Engineering firm to confirm the science that determined the location and size of the berms that were built; and, answer the following:
17. In light of the background material and attachments, would you agree that a science-based audit would provide clear information on the effectiveness of federal laws, regulations, and guidelines, and show how they are being contravened? Why or why not? If there is a need, what actions will Environment Canada and Fisheries and Oceans Canada take to initiate a science-based audit?
18. In light of the background material and attachments, would you agree that a science-based audit would provide clear information on what degree our wildlife habitat and ecosystem has been harmed? Why or why not? If you agree, what actions will Environment Canada and Fisheries and Oceans Canada take to remedy the situation?
19. Will Fisheries and Oceans Canada confirm salmonid are still accessing the fish habitat ponds or the Cat Stream south of the asphalt trail?
20. Will the Minister of Fisheries and Oceans Canada explain why Mr. Magnon did not respond to this correspondence? Will the Minister have Mr. Magnon respond to our correspondence?
21. Will the Ministers of Environment Canada and Fisheries and Oceans Canada bring in professionals from outside of Nanaimo to investigate our concerns, conduct a thorough assessment, and report to us through responsible department?
22. Why was the Virginia Rail Expert's information that was received in 2001 not acted by Fisheries and Oceans Canada and Environment Canada during the CEAA screening process? Can that expert information be applied during the restoration of the Nanaimo SEI?
23. If Mr. Smith and Mr. Kluckner had serous concerns, why didn't Environment Canada state these concerns to Fisheries and Oceans Canada, act on their no-development in our SEI Polygons statements, and request the application of good science during the CEAA screening process?
24. Will the Ministers of Environment Canada and Fisheries and Oceans Canada look into and determine if the City of Nanaimo's engineering report was tailored to meet the city's trail system design instead of following good science?
25. Will the Ministers of Environment Canada and Fisheries and Oceans Canada receive our list of professionals who have guided our stewardship activities and contact them to receive the sound science related to the issues presented in this petition?
26. Will the Minister of Fisheries and Oceans Canada confirm if Mr. Sprout read the Ursus Environmental report which says fencing "contributes to the mortality of Virginia Rail"? If not, will the Minister improve the process that determines the application and review of good science during the CEAA screening process?
27. Does scientific information exist that shows putting asphalt above the 1:100 year flood level that there is no risk to fish and/or fish habitat? Will the Minister of Fisheries and Oceans Canada give that information to us?
28. Will the Minister of Fisheries and Oceans Canada explain why DFO/ Rob Russell, A/Senior Habitat Biologist was not involved in the design of a drainage system that can affect Coho fry at the arena area of the Nanaimo Third Street property?
29. In light that peat accumulates over many years at the surface of a wetland water table will the Ministers of Environment Canada and Fisheries and Oceans Canada inform the petitioners if the disturbance of marsh peat and release of C02 gas was considered during the CEAA screening? If not, why not?
30. Will the Ministers of Environment Canada and Fisheries and Oceans Canada determine and inform us if the disturbance of marsh peat and the resulting release of C02 gas were considered during the CEAA screening?
31. Will the Ministers of Environment Canada and Fisheries and Oceans Canada inform us whether the Government of Canada and it various departments and programs are obligated to follow the principles and guidelines espoused in the following websites outlined in Background 10 and appendix 19?
Improve the CEAA process and public consultation
32. Will the Ministers of the Environment and Fisheries and Oceans take action to review and improve our CEAA process to ensure inter-departmental environmental assessment referrals are effective, that the piggybacking of multiple developments within one CEAA application not be allowed?
There is evidence that the consultation process needs to be reviewed, improved and should involve all stakeholders. The federal government needs to provide adequate staffing resources for the CEAA process to ensure that the most current and accurate science can be found and integrated into the CEAA screening of development referrals. There is a need to move from a "Stewardship" model to a "Regulatory" model that will guarantee the development of a "no net loss" of a Sensitive Ecosystem Inventory policy that will ensure that Canada's fragile ecosystems will not be harmed contrary to government guidelines; and, answer the following question:
33. In light of the background material and attachments, would you agree that adequate staffing at the Canadian Wildlife Service is a problem when handling complex CEAA referrals, and that an improved regulatory model will help solve problems? If you agree it is problematic, why was this allowed and what actions will Environment Canada and Fisheries and Oceans Canada take to remedy the situation?
Respond to the February 14, 2007 Complaint and March 2 & 27 2007 Emails
34. Will the Minister of Fisheries and Oceans address our concerns by taking action to have the complaint and above-referenced emails properly answered and issues effectively addressed?
We hope that DFO has not summarily dismissed the complaint; and, therefore ask the following question:
35. In light of the background material and attachments, would you agree that a formal complaint and communications by stewards associated with DFO's Community Involvement Program, should be treated with respect by all departments and personnel? If the Minister agrees, why was this not done and what actions will Fisheries and Oceans Canada take to remedy the situation?
Initiate a Mediated Solution to any unresolved Trail/Berm/Ecosystem Issues
36. The Minister of Fisheries and Oceans can address the concerns of the petitioners and use his discretionary powers to refer unresolved issues relating to the environmental assessment to a mediator. In light of the petition's information, would the Minister agree to do this?
Investigate the failings of the Memorandum of Understanding (public trust issue)
37. The Minister of Fisheries and Oceans Canada take action to improve the Memorandum of Understanding (MOU) between the different levels of government?
It is evidence that community stewards (the public) do not trust the MOU agreement because it is lacking in effectiveness, fails to involve the public in the CEEA screening process, and does not allow the public to register concerns about a lack of fairness, sound science, and accountability; and, answer the following question:
38. In light of the background material and attachments, would you agree that a new MOU needs to be agreed to by all parties that builds public trust, allows for an Integrated approach to planning, guarantees no-net loss of SEIs, must follow federal environmental guidelines, and provide accountability? If this is a good idea, what actions will the Minister of Fisheries and Oceans Canada take to remedy the situation?
39. In light of the background material and attachments, would the Minister of Fisheries and Oceans Canada agree that that the land development guidelines and requirements of conservation manuals outlined in MOU Application No. 9 were not followed when an asphalt trail/fencing development was put across a Sensitive Ecosystem Inventory? Can you inform us why the provisions of the MOU were not followed?
Initiate a formal audit of the Green Municipal Funds regarding the Nanaimo trail
40. Will the Minister of Natural Resources take action to have a timely and thorough financial audit of the City of Nanaimo's use of Green Municipal Funds for several studies/project in Nanaimo, and investigate if the city improperly diverted funds to help build the harmful asphalt trail project?
The Mayor of Nanaimo has clearly stated funding to build the controversial Nanaimo asphalt trail came from the Green Municipal Fund. There is no record of a funding request or funding granted by the Federation of Canadian Municipalities for the building of the harmful asphalt trail that has caused a major SEI disturbance. There is a concern that the City of Nanaimo may have used funds from another Green Municipal Funded project and misdirected that funding to the asphalt trail-building project. Any Green Municipal Funds used inappropriately on the asphalt trail should be returned to the Federation of Canadian Municipalities. We ask the Minister of Natural Resources to answer the following question:
41. In light of the background material and attachments, would the Minister of Natural Resources agree that the Green Municipal Fund should be used in a way that it does not disturb wildlife, not go against government guidelines, and that GMF funding for Nanaimo asphalt trail was wrongfully diverted to build a harmful asphalt trial, and that this should be investigated? Why or why not? If the GMF was used inappropriately, why was this allowed and what actions will the Hon. Minister take to remedy the situation?
And finally, please answer:
42. Will the Minister of the Environment personally read this petition, background material and attachments; also, will the Minister of Fisheries and Oceans Canada read this petition, background material and attachments; and, will the Minister of Natural Resources read this petition, back-ground material and attachments?
We request that the responding Ministers answer each of the 44 question/requests listed above.
Please note that some of the petition questions are restated or asked rhetorically in the following background section in order to give context to why they are being asked in the above petition.
We respectfully outline the circumstances giving rise to the petition and hereby present general background information in support.
Sincerely
[Original signed by Rory R. Rickwood and Roger Giles]
Rory R. Rickwood and Roger Giles
2. General Background
Rory Rickwood and Roger Giles are volunteer Nanaimo wildlife/habitat stewards who own property and live next to a meandering municipal stream know as the "Cat Stream" – a federally registered fish-bearing stream. We both are active stewards of the Friends of the Cat Stream, a registered volunteer group with the City of Nanaimo and with the Community Involvement Program, Ocean, Habitat and Enhancement Branch, Fisheries and Oceans Canada. Our brochure is available on the City of Nanaimo's website at:
http://www.nanaimo.ca/uploadedfiles/Site_Structure/
Development_Services/Engineering_and_Environmental_Services/
Environmental_Services/CatStream.pdf (or see Appendix 1)
The scope of our volunteer activities is guided by government policy and guidelines, and by our group's mission "to restore, preserve, and promote the environmental health of the Cat Stream and its watershed (Jingle Pot Marsh); and through our stewardship we will ensure a pristine habitat for fish, wildlife, and future generations." Our stewardship role is also clearly outlined in the federal/provincial publication, "Stream Stewardship – A Guide for Planners and Developers", which guides us in our role as an "Environmental Watchdog" with responsibilities to inform and influence. Both Rory Rickwood and Roger Giles have been the recipients of the City of Nanaimo and Nanaimo Area Land Trust, "Community Stewards" awards. Rory Rickwood brings a wealth of understanding of healthy community and efficient government processes. Mr. Rickwood has chaired a Healthy Community Task Force for the Capital Regional District, and as a former federal employee received three awards for improving the efficiency of the federal public service. As front-liners in the stewardship model, we are in a unique collaborative role to present information.
Jingle Pot Marsh has 39 acres critical wetland is within the property located at 1651 Jingle Pot Road. Approximately a third of the wetland is a government registered SEI (see Appendix 2)
Jingle Pot Marsh has a diversity of native vegetation (e.g., Bidens amplissima) and structural complexity that supports a wide range of bird species in their need for cover, foraging and/or nesting. Some of the wildlife values found in the marsh mud-flats and the area of the sensitive ecosystem inventory are: Virginia rails, Marsh wrens, American coot, Common snipes, Wood ducks, Mallard ducks, Ring-neck ducks, Ruddy duck, American Wigeons, Ring-necked pheasant, Red-tailed hawks, Great Blue herons, Green herons, and Canada goose. This marsh riparian area is also used by a number of mammal species for cover and/or foraging, including American beaver, muskrat, raccoon, river otter, White-footed deer mouse, Townsend's vole, and shrews. The wetland ponds are also vital to the life stages of amphibians (e.g., Red-legged frogs, Pacific tree frog, Rough-skinned newt and salamanders with aquatic larval and terrestrial adult stages) and reptiles such as the garter snake, painted turtle, and Northern alligator lizard. Fisheries Oceans Canada has designated the Cat Stream and waters within the marsh with the following signage: "CAUTION, Salmon at work, This stream supports spawning and rearing salmon and trout, Please protect your resource – Fisheries and Oceans, CANADA" (see appendix 3).
The above species play an important role as indicators of a sustainable environmental health. The Canadian Government website: http://www.ec.gc.ca/water/en/nature/wetlan/e_wild.htm clearly states, "These species can be important to humans economically or as indicators of environmental health." Any development into a Sensitive Ecosystem Inventory (Canada's most fragile lands) is wrong because we may affect a valued indicator for securing our future Canadian environment. The Government of Canada should not be disconnected from this enviro-principle.
The Nanaimo Field Naturalists presented the following statement to the City of Nanaimo in 2001: "As we see it, our role in this process is to provide pertinent information on the natural history of the Jinglepot Marsh area…The Nanaimo Field Naturalist have been using this area for their entire 30 year history, as an outdoor classroom and as a recreational site. We have put countless hours into caring for it and over the years have hauled many, many loads of refuse out of this are to the local dump. This site is also a key area in our X-mas bird count due to the large number of Virginia Rails and other species using the area. We are dedicated to doing as much as we can to preserving this habitat for the creatures that live there and the people who enjoy them."
3. Background regarding the Sensitive Ecosystem Inventory disturbance
The City of Nanaimo Land Use Plan for the property located at 1651 Jingle Pot Road called the "Third Street Land Use Plan"(see Appendix 4) originally considered the environmental sensitivity of the area when it planned for a 1.5 m raised wooden boardwalk for the area. It was understood by local stewards that the boardwalk was a low intrusive means for the public to enter the marsh area and Sensitive Ecosystem Inventory. A boardwalk is perfect for birders who quietly go about their birding recreation. A raised boardwalk has the design feature that allows small animals to move safely under the boardwalk as they travel between the different wetland areas. The wooden construction materials of a boardwalk is approved by the BC Trails organization for entering sensitive wetland areas, and follows the Stewardship Series, booklets of best practices developed by the federal and provincial governments, which lays out the aims for "Access Near Aquatic Areas". The original 1.5m boardwalk was designed under the City's Trail Master Plan which states that trailways may vary in width depending if the area they are going through is of "particular environmental sensitivity".
However, in mid October 2006, a 3m wide asphalt trail flanked by page-wire fencing was put across the SEI and marsh (see Appendix 5) instead of the promised boardwalk. It was clear that the Land Use Plan was contravened along with federal guidelines regarding SEI and access to aquatic areas, as well as the government's commitment to wetland habitat. Equally disturbing to us was the clear indications that the Canadian Environmental Assessment Act screening process was flawed because the integrated approach to planning resulted in an inappropriate asphalt trail to be approved – that CEAA approval failed to follow guidelines that promote our collective roles as trustees of enormous wetland resources. The comprehensive protection for fish habitat under the federal Fisheries Act and Canada's obligations under the North American Waterfowl Management Plan where not followed, nor the consideration of sound science that warns against polluting our fragile wetland ecosystems with harmful poylnuclear aromatic hydrocarbons.
When the Nanaimo Trail story was reported in the Globe and Mail on November 20, 2006 (see Appendix 6), Chair of Friends of the Cat Stream (Rory Rickwood) received two significant emails.
Trails BC emailed (22 Nov 2006) to state, "Trails BC was not consulted on the trail construction techniques in the Nanaimo area", and the Trans Canada Trail Foundation emailed (26 Nov 2006) to inform us, "our organization would not want any section of Trans Canada Trail to be an environmental problem or to disturb wildlife." We ask the Ministers to contact us to receive the names of the senior officials of those organizations. It is clear to us that the City of Nanaimo worked in a non-collaborative fashion, but was prepared to created leverage for their CEAA approval by inferring the multi-use asphalt trail was a condoned and a mandated part of the Trans Canada Trail system.
A Trans Canada Trail Foundation representative visited Nanaimo to see the asphalt trail. The Trans Canada Trail representative explained to Rory Rickwood that the Nanaimo Trans Canada Trail route shown in the trail plan they received from the City of Nanaimo (and featured in the map in the Trans Canada Trail Pavilion next to Jingle Pot Marsh) was different from what was supposed to happen. It is obvious that the City of Nanaimo avoided the planned longer route and instead took a shortcut route across the marsh cutting a SEI in half. During the audit review, can the Ministers confirm the original Nanaimo Trans Canada Trail routing and that the trail was not to go near the SEI/Marsh by contacting the [postion withheld]? It was improper for the City of Nanaimo to imply in their referral to the CEAA screening officials that there was real and valid involvement of Trans Canada Trail Foundation and its BC wing (Trails BC) when seeking CEAA "environmental" approval to put a berm/asphalt trail across a SEI.
4. Background regarding the call for a science-base audit
An important responsibility of Nanaimo community stewards is to protect local ecosystems and ensure sustainability through our due diligence in following good science – and to actively seek the advice of professionals. The North American Waterfowl Management Plan supports our approach by stating "Sound science is critical to wildlife conservation". Using current and accurate science is critical in locally-based stewardship activities, and we request that the information presented below be considered during an audit.
The US Environmental Protection Agency provides clear good science and up-to-date referenced literature about poylnuclear aromatic hydrocarbons (PAH). This is highly important information because asphalt was laid across a SEI and fish-bearing marsh. Please see science by visiting:
http://www.epa.gov/R5Super/ecology/html/
toxprofiles.htm#pahs (or see Appendix 7)
If you further review information from the U.S. Environmental Protection Agency, you will discover that PAHs adversely affect mammals, birds, fish, amphibians, invertebrates, and plants. In aquatic environments the effects of PAHs on invertebrates include "inhibited reproduction, delayed emergence, sediment avoidance, and mortality, and the effects on fish include fin erosion, liver abnormalities, cataracts, and immune system impairments" (U.S. Environmental Protection Agency 2003).
A Times-Colonist article about "asphalt on sensitive wetland" (see Appendix 8) quoted several professionals including a pre-eminent forensic scientist and analytical chemist who said that "the use of asphalt is a bit of a travesty" because asphalt is a "known carcinogen and known endocrine disrupter." After reviewing SEI Information and the routing of the asphalt trail, the same forensic scientist conveyed to us that the asphalt trail and its proximity to an environmentally sensitive area and fish habitat was a serious concern because PAHs can make their way into the marsh even after a simple raining event. The scientist suggested that we read current scientific information and referred us to the February 2007 issue of Chemical & Engineering News. On page 61 the article focuses on stream pollution and concerns over PAHs. Some excerpts are as follows:
"The National Toxicology Program classifies 15 PAHs as 'reasonably anticipated to be human carcinogens' and says at least eight of these are present in coal tar...
"When they wash into waterways, PAHs end up attached to particles of sediment, because the compounds do not dissolve easily in water. According to ATSDR [Agency for Toxic Substance & Disease Registry], microorganisms can break down PAHs in soil or waterways in weeks to months. A number of studies have shown that PAHs harm freshwater species, including amphibians...
"Summer temperatures and the sun's ultraviolet rays also can cause cracks in pavement. 'Some of the lighter oils and compounds are cooked out' of binders in asphalt, leading to fissures in the pavement where water can seep."
Jingle Pot Marsh is the headwaters of the Cat Stream, which is a valued tributary of the Chase River. The Cat Stream is recognized as the rearing grounds for Coho, which is an important food source and resource for Snuneymuxw First Nation.
As shown in Appendix 3, fish habitat ponds are in the vicinity of the asphalt trail. When the Cat Stream detention berms were built, we observed several channels of water that flowed from the DFO fish habitat ponds to the East Marsh/Pond were blocked. We don't believe the small culvert system is an effective in replacing the many natural salmonid water channels. Can DFO confirm salmonid are still accessing the fish habitat ponds or the Cat Stream south of the asphalt trail? We expressed our concerns to DFO through a letter to Al Magnon dated August 29, 2005 (see Appendix 9). Can DFO explain why Mr. Magnon did not respond to this correspondence?
We believe the diking for stormwater retention, and chemicals from the asphalt trail have already reduced the number of Coho fry that should be there. If there has been a harmful alteration, disruption or destruction of fish habitat (i.e., reduced channel migration), we need to act. Also, Section 36 of the federal Fisheries Act prohibits "deposit of a deleterious substance" (including chemical PAH discharges) to waters frequented by fish, unless permitted under regulations. Section 38 states the Inspector can take action to counteract or remedy adverse effects from the deposit of a deleterious substance. Can DFO professionals from outside of Nanaimo be brought in to investigate our concern, conduct a thorough assessment, and report to us through the Minister responsible? During a formal audit, there is a real need to review the government commissioned J.C. Lee & Associates report regarding this area.
The whole 39 acres of wetlands is also a nature park and a protected area for the migratory Virginia Rail. This area is known to have one of the highest densities of wintering Virginia Rails in Canada. Functioning within the present stewardship model, we endeavor to ensure that development decisions are based on sound science. We have consulted one of North America's foremost experts on the Virginia Rail. After reviewing the Third Street Land Use Plan/map for the area, the expert recommended that an appropriate buffer to any development be put in to reduce the impact on the skittish rails. He responded with the following information: "I documented home range size of both breeding and wintering Virginia Rails in Arizona in my MS Thesis. . . One might want to protect a buffer equal to the radius (or diameter) of the average home range size for Virginia Rails (1.64 ha during breeding season, and 2.41 ha in winter). If you assume a typical home range is a circle, then the radius of a 1.64 ha home range would be about 65m and the diameter would be about 130m. If you use the 2.41 ha winter home range (perhaps more appropriate for your situation), a circular home range of 2.41 ha would have a radius of about 80m and a diameter of about 160m. Any development that affects the water regime in the marsh is of more importance. Virginia Rails need soft mud or sand within emergent marsh vegetation for foraging and nesting. A drop in the water table could lead to reduction in preferred habitat." We shared the Virginia Rail Expert's information with the City of Nanaimo in 2001; however, the information was not considered nor acted upon by DFO and Environment Canada during the CEAA screening process: raising the question, Why not?
A City of Nanaimo commissioned report by Ursus Environmental, entitled "Conservation Planning for the Virginia Rail (Rallus limicola) in Jingle Pot Marsh, Nanaimo" (December 15, 2005) factually states (on page 8) that fencing contributes to the mortality of the Virginia Rail. It is clear that fencing (like hard-to-see page-wire) can cause the direct killing of the skittish low-flying Virginia Rail. With fencing flanking the asphalt trail, community stewards have observed the public releasing their dogs from their leashes because of the containment. Many waterfowl frequent what is now a dangerous wetland area because they can be frightened by charging dogs. This is a contravention of the Migratory Birds Convention Act and North American Waterfowl Management Plan which obligates Canada to act in a protective role.
Environment Canada received a review referral from DFO during the CEAA process. A serious flaw with the CEAA screening process became apparent when email correspondence to us from Barry D. Smith, A/Regional Director, Canadian Wildlife Service (Pacific Region) stated his concerns about the page-wire fencing, "The nature of the fence was not discussed during the CEAA screening. We are concerned that the fencing that has been erected may negatively impact wildlife movement through the area, especially the low-flying Virginia Rail known to occur there." (for full text see Appendix 10). We believe the fencing and asphalt trail does negatively impact wildlife movement across the SEI and marsh, and now a gapping hole in the SEI allows domestic cats, dogs, and many loud motorcycles to scream across this environmentally sensitive area (see Appendix 11).
Six years ago Environment Canada stated their position to us in a letter dated July 25, 2001 that, "any further development within them [SEI polygons] is not condoned", and we clearly presented our concerns about protecting wildlife habitat in the SEI to Environment Canada in June 15, 2006 (see Appendix 12). Also, a June 30, 2006 letter from Paul Kluckner, Director of the Canadian Wildlife Service acknowledged our concerns and presented alarming SEI disturbing statistics that "make it clear that conservation of remaining sensitive ecosystems [in Nanaimo] should be a priority" (see Appendix 13). With the City of Nanaimo having the worst record on Vancouver Island for SEI disturbances, we expected a conservation priority imperative would have been applied. In our role as Nanaimo stewards we acted on the information we received from the federal government to raise the stewardship alarm. If Mr. Smith and Mr. Kluckner had serous concerns, why didn't Environment Canada state these concerns to DFO, act on their no-development in our SEI Polygons statements, and request the application of good science during the CEAA screening process?
At the local level, a required public meeting to give input into the berm development/water detention project was held in February 2005. The BC Ombudsman's Office has investigated a complaint and reported that the City of Nanaimo failed to mention the asphalt trail and fencing when advertising for public input through the Cat Stream Detention Pond February 2005 open house. As the Federal regulator, DFO was the Responsibility Authority (CEAA Ref. No.:05-01-10543) and should have known that concerned citizens were denied an opportunity to question the harmful aspects of an asphalt trail/fencing and disruption of a wildlife corridor within a fragile sensitive ecosystem.
Our concerns and call for a review of the City of Nanaimo's engineering reports for the berms and asphalt trail construction is based on our historical review of information. As early as 2001, we saw development drawings for the Jingle Pot Marsh property that showed a low intrusive boardwalk trail following the overgrown old Centre Road path. However, the location of the berm and asphalt trail is coincidentally positioned exactly were the early drawings of a boardwalk marsh trail would be, which means the berm location was determined before the water detention calculations and engineering report. Was the city's engineering report tailored to meet the city's trail system design? We need to know if good science was applied. The water detention calculations for a berm/dike would determine the location and size of the berm. It would be wrong for the location of the berm to be based on the city's need to connect a city-wide trail system. An external Engineering firm can review the science and calculations to determine if the location and size of the berms that were constructed are correct or that the berm should have been placed elsewhere (i.e., placed 25' to the South or 50' to the North) in order to meet the water detention purposes.
We urgently request that responsible action be taken to remove this PAH/fencing threat to wildlife. This action can be supported by good science. We jeopardize a fragile wetland ecosystem the longer we leave the Nanaimo asphalt trail there. We can not allow one PAH molecule to runoff into fragile wetland (Polygon No: 157), especially when the area is a known salmon habitat and a government Sensitive Ecosystem Inventory. During the requested audit, can the above stated Ministers receive our list of professionals who have guided our stewardship activities and contact them to receive the sound science on the issues presented? It is also important to review whether the science was "sound" for putting in an asphalt trial and page-wire fencing into a SEI and marsh. For example, The City of Nanaimo's environmental consultant for the berm/trial was Lanarc Consultants Ltd. Lanarc Consultants has communicated what we believe to be non-scientific justification for putting an asphalt trail across an SEI in their email dated March 12, 2007:
"In general, I am not in favour of removing the asphalt, and I support the design as installed. There are a few clarifications that you should be aware of when in discussing the tradeoffs with the City, environmental groups, or Trails BC:
1. the berms are constructed for flood detention purposes during periods of extreme storm events to protect downstream homes and stream habitat, not for a pathway. One of the berm tops was left without public access. The other is the Trans Canada Trail. The design of the berms with relatively flat side slopes is to make them stable against floodwaters and erosion. The top of the berm width is designed for emergency machine access (excavator) to clear pipes or the overflow 'dip' if required. Most boardwalk designs would not accommodate such machine access. The culvert piping and environs is designed for fish passage and to not change the 'normal' hydrology of the wetlands.
2. the width of the Trans Canada Trail in this section is narrower than City policy for a multi use trail (the trail pavement as-built is +/- 3m, whereas City standard is 4M). This standard is in common use in many municipalities, and is a National standard. The width has been derived to minimize conflicts between cyclists and pedestrians strolling down such a multi-use path. The same City standard encourages a paving that will allow passage by the targeted users, including pedestrians, bicyclists, disabled and in-line skaters." Lanarc Consultants did not explain how dividing a wildlife corridor in half (stopping small wildlife movement) and their failure to follow government guidelines about putting a harmful development into a wetland area or a Sensitive Ecosystem Inventory.
In providing justification for the asphalt trail and page-wire fencing, Paul Sprout, Regional Director General, Pacific Region of Fisheries and Oceans, explained the following in a January 31, 2007 letter (see Appendix 14), "As the asphalt trail identified in the project was above the 1:100 year flood level of the Cat Stream, DFO concluded that leaching of PAH from the trail into the Cat Stream was not a risk to fish and/or fish habitat. The chain link fence adjacent to the pathway was originally constructed as a means to protect wildlife in the area (including the Virginia Rail), to keep pets out of the environmentally sensitive area and to protect the riparian vegetation." Did Mr. Sprout read the Ursus Environmental report that says fencing "contributes to the mortality of Virginia Rail"?
To learn more about the science (1:100) that DFO had selected to support their decision, we contacted Al Magnan, Project Assessment Biologist (Nanaimo) by email on March 2, 2007 by writing:
"Rob Russell, A/Senior Habitat Biologist has suggested that it would be advisable to have you join us for a walk-a-bout on the asphalt trail with myself and [name and position withheld] this March 9, 2007 (to be confirmed). Is it possible for you to join us? Rob also informed me that you drafted the Regional Director (Mr. Sprout), January 31, 2007 letter to us which he wrote, `As the asphalt trail identified in the project was above the 1:100 year flood level of the Cat Stream, DFO concluded that leaching of PAH from the trail into the Cat Stream was not a risk to fish and/or fish habitat'. It would be helpful for us to learn what scientific information and source you learned that PAH is not a risk to fish and/or fish habitat when asphalt is above a 1:100 year flooding event. Your sharing of this information by email will help us prepare for our upcoming meeting." To date we have not had Mr. Magnon or DFO provide the scientific source information for flooding events as requested. Does scientific information exist that shows putting asphalt above the 1:100 year flood level that there is no risk to fish and/or fish habitat, and can it be provided to us?
Also, if you refer to the sixth paragraph of Mr. Sprout's January 31, 2007 letter you will see his reference to the "chain link fence". Good science existed from Ursus Environmental and a Masters Thesis on the Virginia Rail indicate that no fencing should be in the buffer zone for the rails, yet the Regional Director General claims the fencing is necessary to keep pets out and to protect riparian vegetation. The berm/trail development has created a huge gapping swath across the marsh which now allows a free flow of domestic cats into the area because the can easily walk through the page wire fencing. Cats and unleashed doges are one of the biggest threats to Virginia Rails in the SEI and Jingle Pot Marsh according to a professional biologist and wetland expert with the Buttertubs Marsh Committee who has studied the issue. Upon request we can supply the name of the biologist to confirm his observations and concerns. It is important to note that if good science was following and fencing was not put in, then it follows that the asphalt trail development would not have likely been approved because DFO feels there is a need to keep pets out of this environmentally sensitive area.
In the Times-Colonist article (refer to Appendix 8), Rob Russell, DFO Senior Habitat Biologist said, "I do have concerns. It's a sensitive area, there's no question…Personally my choice would have been a different covering for the trail…DFO would certainly support a boardwalk or crushed stone or brick or much. Those sorts or things perhaps should have been considered instead of asphalt."
During a March 23, 2007 meeting (walk along the asphalt trail) Mr. Russell pointed to an area of the trail construction and said to Mr. Rickwood that he didn't like a meter deep dissipation trench with drain rock sloping down from the trail. Stewards know that an oil separator would be a better method for catching oil residue runoff from asphalt. Why wasn't DFO involved in the design of a drainage system that can affect Coho fry? This needs to be further investigated through the requested audit and an oil separator put in.
There should not be contradictory concerns about the application of good science after a CEAA screening process has concluded. In Nanaimo we have seen poor science trump good science – a government sponsored audit will prove that and provide the justification for altering the berms, removing the asphalt trail/fencing, and rehabilitating our local SEI wetlands and fish habitat.
There is also science that supports wetland loss contributes to climate change as reported at the following website:
http://www.wetlands.org/articlemenu.aspx?id=
ae774022-0c1a-4293-a107-a73225128e75.
Peat disturbances contribute to C02 greenhouse gas emissions. With Canada holding 14% of our world's wetlands, we have greater international obligations to error on the side of not developing anything in out precious wetlands. While Jingle Pot Marsh and the Sensitive Ecosystem Inventory located in Nanaimo may be viewed as insignificant compared to other wetland/peat disturbances around the world, we can not contribute to the cumulative effect. Peat accumulates over many years at the surface of a wetland water table. Was the disturbance of marsh peat and release of C02 gas considered during the CEAA screening?
5. Background regarding need to improve the CEAA process and public consultation
During enquiries by Rory Rickwood with Environment Canada about the CEAA process, a federal employee with Environment Canada (EC) agreed to look in to our concerns. The employee reported back to us that they were involved in a CEAA referral (Ref. No.:05-01-10543) regarding the Cat Stream Detention Pond/Berm approval. It was explained that the Detention Pond/Berm approval did involve a Trans Canada Trail asphalt trail and fencing; however, with it being piggy-backed onto the Cat Stream Detention Pond approval process, it became so buried in the technical information that it was not obvious or questioned by staff.
The EC employee also explained that there is not sufficient staff at the Canadian Wildlife Service or time to properly catch everything. There was agreement that it would have been more proper to have had a separate CEAA referral for the asphalt trail/fencing due to it going directly across a SEI. This concerns was also confirmed when Barry D. Smith, A/Regional Director, Canadian Wildlife Service (Pacific Region) wrote to us to report, "The nature of the fence was not discussed during the CEAA screening. We are concerned that the fencing that has been erected may negatively impact wildlife movement through the area, especially the low-flying Virginia Rail known to occur there."
Adding to the flawed CEAA screening process was the failure of the environmental consulting group, Lanarc Consulting (contracted by the City of Nanaimo to do all the design and supervision of the work) to allow us to make comments and lobby for environmental due diligence at an earlier stage. Lanarc Consulting met with Friends of the Cat Stream to discuss the flood control berms before the CEAA application was made. During the meeting there was no discussion about putting an asphalt trail on top of the berms. Surprisingly, we later learn from a Dec. 4, 2006 letter from a manager within the City of Nanaimo's Engineering Department that, "From the very beginning the plan was to construct a paved pathway along the top to the new berm and fence off the area to the west".
We request that during the audit of the CEAA screening process, that the City of Nanaimo's Engineering Department be contacted at: (250) 755-4409 to enquire how their consultation process and information failed the process and local stakeholders. Stakeholders such as the Buttertubs Marsh Liaison Committee presented their concerns in a letter dated September 27th, 2007 to the General Manager, Parks, Recreation and Culture, City of Nanaimo with this comment:
"Regarding issues at Jinglepot we are very concerned by the process and the result that is now in place. These have a long gestation period that goes back to before this property was purchased by the City of Nanaimo. By the time the Buttertubs Committee became fully aware of the developments in place, or proposed for the Jinglepot wetlands, the sport fields, trail system, and water control berms were largely a `fait accompli'. The President of the Nanaimo Field Naturalists was very concerned from the beginning and we had some inkling of what was taking place but the Buttertubs Committee came on the scene rather late in the process. What is `in place' now is quite different from what we believed was to take place. Somewhere along the development time line, consultation failed to provide us with a clear understanding of what works were to occur on-site and for what reasons."
6. Background to the February 14, 2007 Complaint and March 2 & 27 2007 Emails
An attempt to discuss and work cooperatively with Fisheries and Oceans Canada was made with a letter to the Regional Director General dated February 8, 2007. The Regional Director General was unresponsive – as a result a formal public complaint was made in a letter to DFO dated February 14, 2007, and follow-up requests for information in emails dated March 2 and 27, 2007 to DFO staff (see appendix 15). DFO acknowledged receipt of our February 14, 2007 letter with a letter dated February 28, 2007; however, we have not received any further communication that DFO is willing to help resolve the matter. And, we have not received any acknowledgements or received the information requested from our March 2 and 27, 2007 emails. As DFO partners registered through the Community Involvement Program, Ocean, Habitat and Enhancement Branch, Fisheries and Oceans Canada, we should receive fair treatment and procedural fairness when raising a complaint. The lack of response gives the impression that Fisheries and Oceans Canada has summarily dismissed the complaint. We request meaningful dialogue, due process, and a successful resolution to the issues we have raised.
7. Background regarding the call for a Mediated Solution to any unresolved Trail/Berm/Ecosystem Issues
The Minister of Fisheries and Oceans can refer an unresolved issue to a mediator. We request mediation on the unresolved issues related to the environmental assessment if the corrective action by the Ministers named in the petition are not satisfactory. It may be in the mandate and capacities of the Trans Canada Trail Foundation to play a mediation role because of their collaborative mandate and respect for the environment. Please consider contacting the President and CEO of Trans Canada Trail Foundation.
8. Background on the Memorandum of Understanding (public trust issue)
When Fisheries & Oceans Canada (DFO) signed the Memorandum of Understanding (MOU/see Appendix 16) with the City of Nanaimo and BC Environment, a streamlined coordination process was established involving the three levels of government. The review framework included responsibilities in Clause 9, which lists documents that must be reviewed at the time of the development berm/asphalt trail development application. MOU Clause 10 states, "the City of Nanaimo may approve "developments that varies" from the above documents, in consultation with BCE and DFO as set forth in the Review and Response Process." DFO's role and connection to the proposal is their decision to agree during the "Review and Response Process" not to follow the guidelines listed in the Clause 9 and the websites information (see No. 10 "website list" below). We request that you further audit the minutes of meetings of the Review and Response Process to ensure procedures were followed and to seek further clarification why the City of Nanaimo was not obligated the follow guidelines and conservation manuals listed in Application No. 9. Can the Minister of Fisheries and Oceans Canada explain to us why the land development guide-lines and requirements of conservation manuals outlined in MOU Application No. 9 were not followed when an asphalt trail/fencing development was put across a Sensitive Ecosystem Inventory?
As community stewards, we do not trust the MOU that streamlines referrals of land development application in the City of Nanaimo. The MOU is not open or transparent; and, has accountability issues that need to be resolved. We request that action be taken by the Minister of Fisheries and Oceans Canada to improve the provisions of the MOU in order to build public trust in such a document.
9. Background regarding the call for an audit of the Green Municipal Funds regarding the harmful Nanaimo trail
To encourage Canadian municipalities to pursue environmental infrastructure initiatives, the Government of Canada endowed the Federation of Canadian Municipalities (FCM) with $550 million to establish the Green Municipal Fund (GMF), and the government gives up to $750,000 annually to the GMF Capacity Building program. The Green Municipal Fund offers a range of resources, grants, and funding services to municipal governments that specifically identify ways for protecting the environment. After presenting our serious concerns about an asphalt trail harming a Sensitive Ecosystem Inventory, the Mayor of Nanaimo responded to our local MLA, Leonard Krog with a letter dated June 4, 2007, which stated, "The trail in question was approved by all required agencies through the development process. The hard surface is key to promoting alternative transportation whether it is bicycles or wheelchairs and in fact, funding for the trail was received from the Green Municipal Funds."
In order to understand how it was possible that the GMF would be used to fund a project that can harm the environment, we contacted Federation of Canadian Municipalities; and, received an email response from Ms Margaret Satke, Project Officer (Green Municipal Fund) that said, "FCM's Green Municipal Fund has supported a number of studies and a project in Nanaimo. In a quick search of the titles of each of the approved proposals, a `trail' does not specifically appear to be a central feature in any of those." We sent a letter to the FCM dated October 30, 2007 (see Appendix 17) to specifically ask that FCM "take action to audit the City of Nanaimo to see if any of the Green Municipal Funds were inappropriately diverted into the harmful asphalt trail project by the city". We received a response from the Director, Centre for Sustainable Community Development dated November 9, 2007(see Appendix 18), which failed to respond to our request for a formal audit of the City of Nanaimo's use of the GMF. This question still needs answering: "did the City of Nanaimo rob Peter Green to pay Paul Blacktop?"
We are sure the Canadians would not want the Green Municipal Fund to be delivered in a way that would harm wildlife with carcinogenic aquatic toxins (PHAs), inappropriate fencing, or cause a major Sensitive Ecosystem Inventory disturbance. We need to know through a formal audit if we have received correct information from the GMF Project Officer, that GMF was used appropriately by the City of Nanaimo, and that there is effective oversight by the Federation of Canadian Municipalities and the Ministry of Natural Resources.
10. Government websites that guide community stewardship and conservation:
The Government of Canada's policy is clear, in Canada we are all trustees of enormous wetland resources. We all share the same objectives of promoting the conservation, enhancement, and restoration of wildlife habitat in order to retain the diversity, distribution, and abundance of wildlife in Canada. There should be no half-measures to the application of the Government of Canada's policies for wildlife habitat protections. As local community stewards, our stewardship activities and ethics is guided by the following websites. Is the Government of Canada and it various departments and programs obligated to follow the principles and guidelines espoused in the following websites?
http://www.cws-scf.ec.gc.ca/hsp-pih/
default.asp?lang=En&n=2D1DA0C5-1
("Partnerships are the key to making stewardship a successful conservation tool in Canada. Federal and provincial governments encourage action by providing scientific information, technical assistance, and economic incentives. Non-governmental organizations help private landowners and concerned citizens identify and implement effective stewardship activities. Many other partners are also involved, including resource users, fishers, Aboriginal organizations, educational institutions, and community organizations.")
http://www.nawmp.ca/
("North American Waterfowl Management Plan, in part, states: Sound science is critical to wildlife conservation… Each local conservation project, no matter how small, is linked to the Plan's continental waterfowl population and habitat goals… Successful conservation depends on strong partnership. The North American Waterfowl Management Plan has pioneered a public-private partnership approach, forging alliances with other sectors and communities to achieve sustainable landscape management. The Plan's progress has relied on conservation organizations joining forces with federal, provincial, and state governments, industry, private companies, individuals and private landowners." For more information see:
http://www.nawmp.ca/pdf/04update-en.pdf)
http://www.pskf.ca/publications/Module10.pdf
("Canadian Streamkeepers Handbook, in part, states, "Objective of the Streamkeepers Program is to encourage communication and cooperation in watershed management… As a volunteer, you can share the responsibility for protecting aquatic habitats in your community.")
http://www.qc.ec.gc.ca/faune/AtlasTerresHumides/html/
AtlasTerresHumides_e.html
("One of the responsibilities of the Canadian Wildlife Service (CWS) is to co-ordinate the implementation of the Federal Policy on Wetland Conservation and to promote the conservation, enhancement and management of wetlands in Canada and of all their roles, particularly as bird habitat.")
See Appendix 19 for many more federal departments and agency websites that guide us.
11. Conclusion
The information presented in our petition clearly shows the land development referral to the CEAA screening in the City of Nanaimo involving a SEI was not carried out in a thorough and transparent way, and that the conclusions drawn from the environmental assessment did not reflect the best and most current science available – or best management practices! A cogent argument can be made that the CEAA screening process failed in protecting a fragile ecosystem and that a major SEI disturbance occurrence in Nanaimo was a result of Canada failing to apply its own guidelines and meet its international obligations under the North American Waterfowl Management Plan. It is wrong for the federal government to present a CEAA screening process and stewardship model when it is evident environmental degradation continues to happen to the wetlands of Canada.
The vulgarization of community stewardship by the City of Nanaimo is absolutely wrong and works against environmental sustainability. Also at stake is the efficacy of stewardship and community involvement program of Fisheries and Oceans Canada. When community stewards follow the advice of government officials, federal department websites, and find that municipalities are thumbing their noises at stewardship guidelines and sound science, then there is a serious disconnect with the present model that is designed to respect nature. The Government of Canada can take a lead role in helping shift a civic culture's abusive approach to ecosystems to a culture that embraces conservation.
The government ministries listed above must not deny their responsibility and need to commit to take immediate action for the environment. It would be truly responsible for us all to take collaborative action to remove the asphalt trail from the SEI and re-route the trail around the SEI. Such meaningful action is "key" to the principles of environmental sustainability.
We all can play an important role in protecting our natural legacy, and failure to act on this petition will be a tell-tail sign that wetland ecosystems in Canada will suffer the "death of a thousand cuts".
Regarding our environment: "The time of half-measure has passed. We are entering a period of consequences," says Al Gore, Nobel Peace Prize winner, quoting Winston Churchill.
Minister's Response: Environment Canada
15 April 2008
|
Mr. Rory R. Rickwood |
Mr. Roger Giles |
Dear Messrs. Rickwood and Giles:
I am pleased to provide Environment Canada’s response to your Environmental Petition no. 225, to the Commissioner of the Environment and Sustainable Development, regarding the application of Government of Canada guidelines to protect a fragile ecosystem called SEI Polygon N0157/Jingle Pot Marsh/Nanaimo BC. Your petition was received by the Department on December 18, 2007.
Please find enclosed Environment Canada’s response to questions that fall within the mandate of the Department. I understand that the Ministers of Fisheries and Oceans Canada and Natural Resources Canada will be responding separately to questions that fall under the mandates of their respective departments.
I appreciate this opportunity to respond to your petition, and I trust that you will find this information useful.
Sincerely,
[Original signed by John Baird, Minister of the Environment]
John Baird, P.C., M.P.
Enclosure
c.c.: The Honourable Loyola Hearn, P.C., M.P.
The Honourable Gary Lunn, P.C., M.P.
Mr. Ronald C. Thompson, Interim Commissioner of the Environment and Sustainable Development
Environment Canada’s response to Environmental Petition no. 225,
pursuant to section 22 of the Auditor General Act, regarding
the Application of Government of Canada Guidelines to Protect a Fragile Ecosystem called SEI Polygon N0157/Jingle Pot Marsh/Nanaimo BC.
Prefacing Comments to the Specific Questions
Some points of clarification and context are provided below in order to more effectively address the questions concerning matters of jurisdiction and federal laws and/or regulations. These clarifications are intended, in part, to avoid repetition in the answers provided.
I. Designation of Sensitive Ecosystems
The joint federal/provincial Sensitive Ecosystems Inventory (SEI) for East Vancouver Island and the Gulf Islands identified and mapped remaining rare and fragile terrestrial ecosystems in the region as an aid to land-use planning by the appropriate jurisdiction. It is important to note that designation as a Sensitive Ecosystem in SEI mapping does not confer any measure of formal protection of mapped sites. SEI mapping is intended as an information tool to inform decision makers of ecologically significant areas within their jurisdiction. Although the conservation of remaining sensitive ecosystems is strongly encouraged and advocated by senior governments, it remains the decision of local governments to decide whether or not to protect ecosystem values of mapped sites through available by-law legislation.
Contravention of federal guidelines regarding sensitive ecosystems is mentioned in the petition’s questions. The SEI project included the publication of a Conservation Manual, in which management recommendations and guidelines for sensitive ecosystems were provided to land-use decision makers. However, these guidelines are not supported by legislative or regulatory powers, and cannot be enforced unless a local government chooses to enact and follow by-law legislation based on the guidelines.
There has been a sustained outreach and education program as part of the SEI, and good working relationships have been established between staff associated with the Inventory and many members of the planning community throughout Inventory study areas. In 2005, the City of Nanaimo designated Sensitive Ecosystems as Environmental Development Permit Areas in their Official Community Plan (ESDPA 24). Justifications, objectives, guidelines, and exemptions are provided for so-designated areas, effectively limiting activity in these sensitive areas. The City of Nanaimo has exercised its legislative powers to protect remaining sensitive ecosystems and habitat for species at risk.
II. North American Waterfowl Management Plan
The North American Waterfowl Management Plan is a public/private waterfowl conservation action plan, not a piece of legislation. Therefore, it is not a law or regulation that can be contravened, as was implied several times in the petition’s questions. The Plan is a partnership of Canadian federal, provincial/territorial and municipal governments; United States federal, state and municipal governments; non-governmental organizations; private companies; and many individuals—all working toward achieving better wetland habitat for the benefit of migratory birds, other wetland-associated species, and people. The Plan’s goal is to return waterfowl populations to their 1970s levels by conserving wetland and upland habitat. Canada and the United States signed the Plan in 1986 in reaction to critically low numbers of waterfowl. Environment Canada’s participation in the North American Waterfowl Management Plan is enabled by the Department of Environment Act but, as mentioned previously, the Plan is not subject to enforcement or compliance activities.
Over 165 000 hectares of habitat has been secured in British Columbia with funding from the North American Waterfowl Management Plan and the United States North American Wetland Conservation Act. In Canada, the Plan has a long history of success, and has resulted in the securement of almost 6 million acres (2.4 million hectares) of wetland and wetland-associated habitats that support not only waterfowl, but a host of other species.
III. Jurisdiction
In general, the federal government does not have jurisdiction over private land use. The majority of land-use decisions regarding private land rests within the jurisdiction of local governments. However, within the mandate of Environment Canada, persons still must comply with the Migratory Birds Convention Act, the Species at Risk Act, and the Canadian Environmental Protection Act on private or public land.
Questions and Responses
Question 1: Will the Ministers of Fisheries and Oceans and the Environment investigate the Nanaimo Sensitive Ecosystem Inventory disturbance to determine whether federal law or regulations were/are being enforced or contravened?
Environment Canada is not aware that any federal laws or regulations within its mandate have been contravened by the construction of this project at this site (see Comment I above).
Question 4: In light of the background material and attachments, would you agree that the siting of the asphalt trail, which will disburse harmful PAHs in migratory bird habitat, was a contravention of North American Waterfowl Management Plan? Why or why not? If it is determined a contravention, why was this allowed and what actions will Environment Canada take to remedy the situation?
The siting of the asphalt trail is not in contravention of the North American Waterfowl Management Plan for reasons explained in Comment II (above).
Question 5: In light of the background material and attachments, would you agree that the placement of page-wire fencing to flank the asphalt trail, which will harm low-flying migratory birds, is in contravention of the North American Waterfowl Management Plan? Why or why not? If it is determined a contravention, why was this allowed and what actions will Environment Canada take to remedy the situation?
Although fencing was mentioned in the proposal, no details were provided as to the nature of the fencing. While not in contravention of the North American Waterfowl Management Plan (see Comment II), fencing may impede movement of the low-flying Virginia Rail. Environment Canada would have preferred that there be no fencing.
Question 6: In light of the background material and attachments, would you agree that the placement of the berm, asphalt trail, and page-wire fencing, through a Sensitive Ecosystem Inventory and sensitive wetland contravenes government guidelines that are presented to the public through many publications and government websites? Why or why not? If so, why was this allowed and what actions will Environment Canada and Fisheries and Oceans Canada take to remedy the situation?
Please refer to Comment I with respect to ‘contravention’ of guidelines, and Comment III with respect to jurisdiction.
Question 8: In light of the background material and attachments, would you agree that the alarming SEI statistic about the City of Nanaimo’s past SEI disturbances (Environment Canada June 20, 2006 letter) that conservation of the remaining sensitive ecosystem should have been a priority, and that it was wrong for any development to go into it? Why or why not? If so, why was this allowed and what actions will Environment Canada and Fisheries and Oceans Canada take to remedy the situation?
Environment Canada strongly encourages the conservation of remaining sensitive ecosystems, and advocates this through formal and informal relationships with other orders of government.
Please refer to Comment III with respect to lack of Environment Canada jurisdiction over land-use decisions at this particular site.
Question 9: In light of that this Sensitive Ecosystem Inventory disturbance involves the Trans Canada Trail system, can the responsible Department contact the [position withheld] to confirm that the original Nanaimo Trans Canada Trail routing and that the re-routing should have involved BC Trails and local volunteers? If Trans Canada Trail policies were not followed, are the Ministers Environment Canada and Fisheries and Oceans Canada concerned?
Please refer to Comment III with respect to lack of Environment Canada jurisdiction over land-use decisions at this particular site.
Question 10: Will the Ministers of the Environment and Fisheries and Oceans take action to have a timely and environmentally-sound removal of the asphalt segment of the Trans Canada Trail and page-wire fencing from SEI Polygon N0157/Jingle Pot Marsh; and, if necessary remove, re-design or reposition the berms based on sound science?
Please refer to Comment III with respect to lack of Environment Canada jurisdiction over land-use decisions at this particular site.
Question 11: Will the Ministers of the Environment and Fisheries and Oceans specify and commit to timelines for the start and completion of the said removal of asphalt, berm material, and page-wire fencing?
Please refer to Comment III with respect to lack of Environment Canada jurisdiction over land-use decisions at this particular site.
Question 12: Will the Ministers of the Environment and Fisheries and Oceans take action to have a timely and scientifically-based review of the disrupted wildlife corridor and traditional fish channels in order to determine the best way to support the natural traveling mode of animal between the South Marsh, DFO fish habitat ponds to the East Marsh/Pond?
Please refer to Comment III with respect to lack of Environment Canada jurisdiction over land-use decisions at this particular site.
Question 13: In light of the background material and attachments, would you agree for example, that when Red-legged frogs or a Rough-skinned newts traverses up a berm and over an asphalt trail that they will be exposed to harm by the walking, biking and motorcycling public? Why or why not? If it does, why were guidelines/good science not followed and what actions will Environment Canada take to remedy the situation?
The existing paved trail through the wetland poses a potential risk to wildlife and may impede movement of wildlife, including species at risk. As a general approach, Environment Canada prefers that travel corridors are available for wildlife.
Question 14: Will the Minister of Environment take action under the North American Waterfowl Management Plan to prohibit the high-volume of people and dogs from entering the protected area for migratory birds that is located near and within a Sensitive Ecosystem Inventory?
Environment Canada has no authority to take action under the North American Waterfowl Management Plan in an area where it has no jurisdiction. Please refer to Comment II with respect to the Plan.
Question 15: In light of the background material and attachments, would you agree that a large traffic of people (300+ a day), un-leashed dogs, and roaring motorcycles traveling through a migratory bird habitat was a contravention of North American Waterfowl Management Plan? Why or why not? If it was, why was this allowed and what actions will Environment Canada take to remedy the situation?
This activity is not in contravention of the North American Waterfowl Management Plan. Please refer to Comment II with respect to the Plan, and Comment III with respect to jurisdiction.
Question 16: Will the Minister of the Environment commit to working with the BC provincial government (BC Minister of Environment) and community stewards to resolve the Nanaimo SEI disturbance and to expand the Sensitive Ecosystem Inventory process;
Environment Canada is working with and encouraging local governments to enact legislation to protect remaining sensitive ecosystems by providing scientific and technical support. The Department is achieving this through the provision of practical tools, such as the recently released Green Bylaws Toolkit for Conserving Sensitive Ecosystems and Green Infrastructure. Please refer to Comment I (third paragraph) for an example of practical application of SEI mapping in land-use planning by a local government. Environment Canada has no authority to take action regarding the disturbance of this SEI site, or any other SEI sites in the Nanaimo area.
Question 17: Will the Ministers of the Environment and Fisheries and Oceans take action to have a timely and thorough audit of the scientific information that was presented in the Cat Stream Detention Pond environmental assessment, and that the audit be conducted by an independent engineering firm or professionals? And, can the Ministers contact us to receive contact information for one of Canada’s foremost chemical experts on poylnuclear aromatic hydrocarbons and a PhD level expert in hydrology and inland fish habitat?
No federal laws or regulations within the mandate of Environment Canada were contravened by the project at this site (refer to Comment I), and the Department does not have the legal authority to request such an audit.
Question 18: In light of the background material and attachments, would you agree that a science-based audit would provide clear information on the effectiveness of federal laws, regulations, and guidelines, and show how they are being contravened? Why or why not? If there is a need, what actions will Environment Canada and Fisheries and Oceans Canada take to initiate a science-based audit?
No federal laws or regulations within the mandate of Environment Canada were contravened by the project at this site (refer to Comment I). As such, a scientific audit would not be informative of the effectiveness of federal laws or regulations.
Question 19: In light of the background material and attachments, would you agree that a science-based audit would provide clear information on what degree our wildlife habitat and ecosystem has been harmed? Why or why not? If you agree, what actions will Environment Canada and Fisheries and Oceans Canada take to remedy the situation?
Although a science-based audit may provide data and information on the current state of SEI Polygon N0157/Jingle Pot Marsh, Environment Canada has no authority to take action regarding the disturbance of this SEI site.
Question 22: Will the Ministers of Environment Canada and Fisheries and Oceans Canada bring in professionals from outside of Nanaimo to investigate our concerns, conduct a thorough assessment, and report to us through responsible department?
Please see responses to questions 17, 18 and 19.
Question 23: Why was the Virginia Rail Expert's information that was received in 2001 not acted by Fisheries and Oceans Canada and Environment Canada during the CEAA screening process? Can that expert information be applied during the restoration of the Nanaimo SEI?
Environment Canada’s role in this screening-level environmental assessment was to provide specialist or expert information and knowledge available within the Department to the responsible authority (Fisheries and Oceans Canada). The responsible authority then considers this advice in rendering an environmental assessment decision and any regulatory permitting instruments, if appropriate. The information on the Virginia Rail that Environment Canada, or any person, might provide to the project proponent (in this case, the City of Nanaimo) through the Canadian Environmental Assessment Act screening is advice only and does not carry the force of legislation or regulation.
Question 24: If Mr. Smith and Mr. Kluckner had serious concerns, why didn’t Environment Canada state these concerns to Fisheries and Oceans Canada, act on their no-development in our SEI Polygons statements, and request the application of good science during the CEAA screening process?
The Canadian Environmental Assessment Act screening process sufficiently communicated the ecological significance and environmental sensitivity of the SEI polygon. The City of Nanaimo had the authority to build the trail as it did.
Question 25: Will the Ministers of Environment Canada and Fisheries and Oceans Canada look into and determine if the City of Nanaimo’s engineering report was tailored to meet the city’s trail system design instead of following good science?
Environment Canada has no mandate or jurisdiction to undertake this action.
Question 26: Will the Ministers of Environment Canada and Fisheries and Oceans Canada receive our list of professionals who have guided our stewardship activities and contact them to receive the sound science related to the issues presented in this petition?
There is a body of information and reports related to this site, due in part to the efforts of the petitioners. The Ministers of Environment and Fisheries and Oceans are aware of this information and are of the opinion that no further science is required to inform decision makers.
Question 27: Will the Minister of Fisheries and Oceans Canada confirm if Mr. Sprout read the Ursus Environmental report which says fencing "contributes to the mortality of Virginia Rail"? If not, will the Minister improve the process that determines the application and review of good science during the CEAA screening process?
Please refer to the answer to question 33.
Question 30: In light that peat accumulates over many years at the surface of a wetland water table will the Ministers of Environment Canada and Fisheries and Oceans Canada inform the petitioners if the disturbance of marsh peat and release of C02 gas was considered during the CEAA screening? If not, why not?
Environment Canada did not provide any comment or advice concerning the release of carbon dioxide (CO2) gas to Fisheries and Oceans Canada for the screening.
Question 31: Will the Ministers of Environment Canada and Fisheries and Oceans Canada determine and inform us if the disturbance of marsh peat and the resulting release of C02 gas were considered during the CEAA screening?
Please refer to our answer to the above question.
Question 32: Will the Ministers of Environment Canada and Fisheries and Oceans Canada inform us whether the Government of Canada and it various departments and programs are obligated to follow the principles and guidelines espoused in the following websites outlined in Background 10 and appendix 19?
The Government of Canada and its departments take seriously its espoused principles, policies, guidelines, conservation initiatives and programs. These initiatives include undertaking science, stewardship, outreach, and advocacy programs to advance federal objectives on behalf of Canadians.
Question 33: Will the Ministers of the Environment and Fisheries and Oceans take action to review and improve our CEAA process to ensure inter-departmental environmental assessment referrals are effective, that the piggybacking of multiple developments within one CEAA application not be allowed?
Federal environmental assessments are carried out pursuant to the Canadian Environmental Assessment Act. In 1999, the Minister of Environment launched a review of the Act. One of the goals was to ensure more meaningful public participation in environmental assessment. Following the review process, amendments to the Act came into force in October 2003. In 2005, the government put in place the Cabinet Directive on Implementing the Canadian Environmental Assessment Act, which intended to ensure that the administration of the Act results in a timely and predictable environmental assessment process that produces high quality environmental assessments so that federal decisions about projects safeguard the environment and promote sustainability.
As stated in the Canadian Environmental Assessment Act, within seven years of assent of the amendments (2003), a comprehensive review by a parliamentary committee of the provisions of the Act will be undertaken.
Question 34: In light of the background material and attachments, would you agree that adequate staffing at the Canadian Wildlife Service is a problem when handling complex CEAA referrals, and that an improved regulatory model will help solve problems? If you agree it is problematic, why was this allowed and what actions will Environment Canada and Fisheries and Oceans Canada take to remedy the situation?
Fulfilling a department’s mandate, within the confines of available resources, is an ongoing consideration throughout government. Environment Canada continually evaluates both its capacity (number of staff) and processes (interdepartmental communications) for managing the number and complexity of referrals pursuant to the Canadian Environmental Assessment Act, including those referred to the Canadian Wildlife Service of the Department. These evaluations include consideration of several aspects of the environmental assessment process, including staffing, risk assessment, prioritization, policy considerations, regulatory approach and requirements, and legislation.
Question 44: Will the Minister of the Environment personally read this petition, background material and attachments; also, will the Minister of Fisheries and Oceans Canada read this petition, background material and attachments; and, will the Minister of Natural Resources read this petition, background material and attachments?
Consistent with provisions of the federal Interpretation Act, as well as widely accepted common law principles (for example, the Carltona doctrine), where reference is made to a “Minister” in an Act, such as the provisions under the Auditor General Act (sections 22 to 24), this includes his or her employees where it is reasonable to assume so based on the circumstances. As such, the petition has been reviewed and addressed by appropriate staff and managers within Environment Canada.
Minister's Response: Fisheries and Oceans Canada
21 May 2008
Mr. Rory R. Rickwood
519 Pine Street
Nanaimo, British Columbia
V9R 2C6
Mr. Roger Giles
515 Pine Street
Nanaimo, British Columbia
V9R 2C6
Dear Mr. Rickwood and Mr. Giles:
I am pleased to provide the Department of Fisheries and Oceans’ (DFO) response to your Environmental Petition No. 225—to the Interim Commissioner of the Environment and Sustainable Development regarding the Application of Government of Canada Guidelines to Protect a Fragile Ecosystem called SEI Polygon N0157/Jingle Pot Marsh/Nanaimo, British Columbia. Your petition was received in the Department on December 18, 2007.
You will find enclosed detailed responses to questions that were addressed to my Department, and that fall within the Department’s mandate. I understand that the Ministers of the Environment and Natural Resources will be responding separately to questions that fall under their mandates.
I appreciate this opportunity to respond to your petition, and I trust that you will find this information helpful.
Sincerely,
[Original signed by Loyola Hearn, Minister of Fisheries and Oceans]
Loyola Hearn, P.C. M.P.
Enclosure
c.c. The Honourable John Baird, P.C., M.P.
The Honourable Gary Lunn, P.C., M.P.
Mr. Ron Thompson, Interim Commissioner of the Environment and Sustainable Development
Petition 225—Application of Government of Canada Guidelines to Protect a Fragile Ecosystem called SEI Polygon N0157/Jingle Pot Marsh/Nanaimo BC
QUESTIONS AND RESPONSES
1-a) Will the Ministers of Fisheries and Oceans and the Environment investigate the Nanaimo Sensitive Ecosystem Inventory disturbance to determine whether federal law or regulations were/are being enforced or contravened?
Response: Fisheries and Oceans Canada is of the opinion that no federal laws or regulations within the mandate of Fisheries and Oceans Canada are contravened by the construction of this project as proposed.
1-b) Furthermore, please investigate whether the CEAA screening process ignored the federal government's stated guidelines and commitment to environmental sustainability as outlined in General Background No. 10 (below), and by looking into and answering the following about the SEI disturbance:
Response: The Canadian Environmental Assessment Act (CEAA) screening undertaken by Fisheries and Oceans Canada (DFO) was undertaken in accordance with the CEAA and its regulations. As the Lead Responsible Authority, DFO undertook the CEAA screening for this project based on a review of the project including collection of information from the City of Nanaimo and their consultants, comments received by Environment Canada, Canadian Wildlife Service and expertise within DFO. Information received from the public was also reviewed and considered in reaching a decision in this CEAA screening. DFO considered all relevant factors required by Section 16 of CEAA, including the environmental effects of the project and their significance. DFO also considered measures that would mitigate the potential environmental effects of the project.
2) In light of the background material and attachments, how did the responsible department determine that the siting of the asphalt trail through or immediately adjacent to fish habitat, with ongoing harm from PAHs, was not a violation of the Fisheries Act (ss. 34 and 35)? Why was this allowed and what actions will Fisheries and Oceans Canada take to remedy the situation?
Response: The asphalt trail has been placed on an engineered berm elevated above the 1:200 year flood level for the Cat Stream. Consequently, the asphalt is not within a wetted portion of a watercourse and it is not inundated by flood water on a yearly basis. Based on this assessment, the risk of PAH’s leaching into Cat Stream was deemed to be low.
Construction of the trail was included as part of the Fisheries Act S. 35(2) Authorization for Harmful Alteration, Disruption and Destruction (HADD) of fish habitat issued to the City of Nanaimo for this project. The City of Nanaimo identified mitigation and compensation measures including extensive landscaping to mitigate the physical impacts associated with the trail construction.
The combination of the proposed mitigation and habitat compensation provided for this project will result in a no net loss of fish habitat. As the HADD of fish habitat was authorized, it is not a violation of the Fisheries Act.
3) In light of the background material and attachments, how did the responsible department determine that the siting of the berm and asphalt trail through or immediately adjacent to fish habitat, with the resulting harm from alteration and disruption of salmonid channel migration, was not a violation of the Fisheries Act (ss. 34 and 35)? Why was this allowed and what actions will Fisheries and Oceans Canada take to remedy the situation?
Response: Included within the Fisheries Act S. 35(2) Authorization identified in Question 2, for construction of the berms was installation of culverts within the berms to ensure continued downstream flow of the watercourse and unimpeded fish migration both upstream and downstream of the culverts. As part of the Fisheries Act S. 35(2) Authorization issued, there is a requirement for the City of Nanaimo to monitor the site for a period of three years commencing in 2005 to ensure fish usage upstream of the culverts. The results of the post construction monitoring are to be submitted to DFO on a yearly basis.
4) In light of the background material and attachments, would you agree that the siting of the asphalt trail, which will disburse harmful PAHs in migratory bird habitat, was a contravention of North American Waterfowl Management Plan? Why or why not? If it is determined a contravention, why was this allowed and what actions will Environment Canada take to remedy the situation?
Response: DFO relies on Environment Canada to provide advice regarding the North American Waterfowl Management Plan. In discussions with the City of Nanaimo, the asphalt trail is located above the 1:200 year flood level which reduces the potential of the asphalt trail to be frequently inundated by stream flows, thereby mitigating the potential for release of significant levels of PAHs to the aquatic environment.
5) In light of the background material and attachments, would you agree that the placement of page-wire fencing to flank that asphalt trail, which will harm low flying migratory birds, is in contravention of the North American Waterfowl Management Plan? Why or why not? If it is determined a contravention, why was this allowed and what actions will Environment Canada take to remedy the situation?
Response: DFO relies on Environment Canada to provide advice regarding the North American Waterfowl Management Plan. The City of Nanaimo has confirmed with DFO that much of the chain link fence will be removed in 2008.
6) In light of the background material and attachments, would you agree that the placement of the berm, asphalt trail, and page-wire fencing, through a Sensitive Ecosystem Inventory and sensitive wetland contravenes government guidelines that are presented to the public through many publications and government websites? Why or why not? If so, why was this allowed and what actions will Environment Canada and Fisheries and Oceans Canada take to remedy the situation?
Response: In discussions with the City of Nanaimo, the asphalt trail is located above the 1:200 year flood level which reduces the potential of the asphalt trail to be frequently inundated by stream flows, thereby mitigating the potential for release of significant levels of PAHs to the aquatic environment. The City of Nanaimo has confirmed with DFO that much of the chain link fence will be removed in 2008.
8) In light of the background material and attachments, would you agree that the alarming SEI statistic about the City of Nanaimo’s past SEI disturbances (Environment Canada June 20, 2006 letter) that conservation of the remaining sensitive ecosystem should have been a priority, and that it was wrong for any development to go into it? Why or why not? If so, why was this allowed and what actions will Environment Canada and Fisheries and Oceans Canada take to remedy the situation?
Response: Construction of the berms and the trail were undertaken by the City of Nanaimo following completion of a CEAA screening and issuance of a Fisheries Act S. 35(2) Authorization. Based on the information provided at that time and from the public registry, a decision was made by DFO that the project was not likely to cause significant adverse environmental effects.
9) In light of that this Sensitive Ecosystem Inventory disturbance involves the Trans Canada Trail system, can the responsible Department contact the [position withheld] to confirm that the original Nanaimo Trans Canada Trail routing and that the re-routing should have involved BC Trails and local volunteers? If Trans Canada Trail policies were not followed, are the Ministers Environment Canada and Fisheries and Oceans Canada concerned?
Response: The primary purpose of the City of Nanaimo project was for construction of a storm water detention facility to protect downstream properties and to reduce downstream bank erosion for the Cat Stream. As part of this project, the City of Nanaimo identified an opportunity to construct a trail on top of one of the two berms constructed that provide a pedestrian corridor through this City of Nanaimo Park. As the entire project was located within City of Nanaimo property, the ultimate location of the trail was the responsibility of the City of Nanaimo. Consequently, the onus is on the City of Nanaimo to ensure that the trail meets the required Trans Canada Trail standards. DFO’s role with the project was to determine the potential impacts of the berms and trail on fish and fish habitat and work with the City of Nanaimo in identifying mitigation strategies to reduce the risks of potential impacts.
10) Will the Ministers of the Environment and Fisheries and Oceans take action to have a timely and environmentally-sound removal of the asphalt segment of the Trans Canada Trail and page-wire fencing from SEI Polygon N0157/Jingle Pot Marsh; and, if necessary remove, re-design or reposition the berms based on sound science?
Response: Construction of the berms and the trail were undertaken by the City of Nanaimo following completion of a CEAA screening and issuance of a Fisheries Act S. 35(2) Authorization. In addition, the City of Nanaimo applied for and received the required Water Act approvals from the Province of British Columbia. During and following construction, the City of Nanaimo incorporated numerous mitigation and compensation measures to mitigate potential impacts to fish and wildlife. As both the trail and the berm were constructed in accordance with the Fisheries Act S. 35(2) Authorization, there is no basis for DFO to order the removal of the trail.
In regards to the fence, the original purpose of the fence was to protect the riparian vegetation and local wildlife from impacts associated with human and dog intrusion within this area. The intent of the City of Nanaimo was to maintain the fencing for a brief period of time to allow the new riparian vegetation time to establish. The City of Nanaimo has confirmed with DFO that large sections of the fence will be removed in 2008.
11) Will the Ministers of the Environment and Fisheries and Oceans specify and commit to timelines for the start and completion of the said removal of asphalt, berm material, and page-wire fencing?
Response: As noted in our response to Question 10, there is no basis for DFO to order the removal of the asphalt trail or berms. Large sections of the fence are to be removed by the City of Nanaimo in 2008.
12) Will the Ministers of the Environment and Fisheries and Oceans take action to have a timely and scientifically-based review of the disrupted wildlife corridor and traditional fish channels in order to determine the best way to support the natural traveling mode of animal between the South Marsh, DFO fish habitat ponds to the East Marsh/Pond?
Response: Refer to the answer to Question 3 in regards to the traditional fish channels. The City of Nanaimo is undertaking a three year post construction monitoring of fish usage and fish habitat within the Cat Stream at the point of project impact and upstream of the recently constructed ponds. This study will identify fish usage and passage through the culverts.
17) Will the Ministers of the Environment and Fisheries and Oceans take action to have a timely and thorough audit of the scientific information that was presented in the Cat Stream Detention Pond environmental assessment, and that the audit be conducted by an independent engineering firm or professionals? And, can the Ministers contact us to receive contact information for one of Canada's foremost chemical experts on polynuclear aromatic hydrocarbons and a PhD level expert in hydrology and inland fish habitat?
Response: A review of the Cat Stream Detention Pond project was conducted by DFO based on information submitted by independent qualified environmental consultants. Based on the information provided at that time and from the public registry a decision was made by DFO that the project was not likely to cause significant adverse environmental effects. There is no intention by DFO at this time to undertake a secondary independent audit of the scientific information used as part of the environmental assessment for this project.
18) In light of the background material and attachments, would you agree that a science-based audit would provide clear information on the effectiveness of federal laws, regulations, and guidelines, and show how they are being contravened? Why or why not? If there is a need, what actions will Environment Canada and Fisheries and Oceans Canada take to initiate a science-based audit?
Response: As per the answer to Question 17, there is no intention by DFO at this time to undertake a secondary independent audit of this project.
19) In light of the background material and attachments, would you agree that a science-based audit would provide clear information on what degree our wildlife habitat and ecosystem has been harmed? Why or why not? If you agree, what actions will Environment Canada and Fisheries and Oceans Canada take to remedy the situation?
Response: Please refer to the answer to Question 17.
20) Will Fisheries and Oceans Canada confirm salmonid are still accessing the fish habitat ponds or the Cat Stream south of the asphalt trail?
Response: Please refer to the answer to Question 3. The City of Nanaimo is undertaking a three year post construction monitoring project to identify fish usage within the Cat stream upstream of the recently constructed ponds. The results of the study are to be submitted to DFO on a yearly basis.
21) Will the Minister of Fisheries and Oceans Canada explain why Mr. Magnan did not respond to this correspondence? Will the Minister have Mr. Magnan respond to our correspondence?
Response: The intent of the e-mail correspondence was to request a site visit with Mr. Magnan, DFO Habitat Biologist. Due to conflicting schedules and because the scheduled meeting date was changed several times, Mr. Magnan was not able to attend the site visit. In his absence, Mr. Magnan’s supervisor attended the site visit with Mr. Rickwood. During the meeting, Mr. Magnan’s supervisor reiterated DFO’s review of information related to this project including the potential toxicity of the asphalt trail. The information provided by DFO during the site meeting was in addition to the previous information provided to Mr. Rickwood verbally by Mr. Magnan and from Mr. Paul Sprout, Regional Director General, DFO Pacific Region. DFO staff believed this to be a substantial response to the correspondence and have indicated they will follow up on any further matters that may need to be addressed.
22) Will the Ministers of Environment Canada and Fisheries and Oceans Canada bring in professionals from outside of Nanaimo to investigate our concerns, conduct a thorough assessment, and report to us through responsible department?
Response: The CEAA screening and the Fisheries Act S. 35(2) Authorization were completed in accordance with the applicable acts and regulations. There is no intention by DFO at this time to bring in outside professionals to investigate this project.
23) Why was the Virginia Rail Expert’s information that was received in 2001 not acted by Fisheries and Oceans Canada and Environment Canada during the CEAA screening process? Can that expert information be applied during the restoration of the Nanaimo SEI?
Response: DFO staff did take into consideration the potential for impacts on Virginia rail during the CEAA screening, due to its local significance.
24) If Mr. Smith and Mr. Kluckner had serious concerns, why didn’t Environment Canada state these concerns to Fisheries and Oceans Canada, act on their no-development in our SEI Polygons statements, and request the application of good science during the CEAA screening process?
Response: Please refer to Environment Canada’s response to this question.
25) Will the Ministers of Environment Canada and Fisheries and Oceans Canada look into and determine if the City of Nanaimo's engineering report was tailored to meet the city's trail system design instead of following good science?
Response: The requirement for a storm-water detention pond on the Cat stream originated from a 1981 City of Nanaimo drainage study. In 2002 the City of Nanaimo retained the services of Earth Tech (Canada) Inc to complete conceptual designs of the proposed Cat Stream detention ponds. In 2005 the City retained the services of Kerr Wood Leidal and Associates Ltd Consulting Engineers (based on a competitive process), to finalize the detention pond design drawings and assist with the collection of the required permits. The location of the berm on which the trail is located was partially based on an impact assessment undertaken of the subject property. The berm location is situated on top of what used to be an access road which was situated through the wetland. Local residents used this previously disturbed area as an informal trail to gain access through the wetland. The proposed trail location appeared to be an appropriate option, and we have found no basis to question the engineering reports.
26) Will the Ministers of Environment Canada and Fisheries and Oceans Canada receive our list of professionals who have guided our stewardship activities and contact them to receive the sound science related to the issues presented in this petition?
Response: Decisions made by DFO are based on the best information and science available at the time. Should your contacts have any published and peer reviewed studies, DFO would be interested in reviewing these documents. Please feel free to send any such studies to your local DFO Habitat Management office in Nanaimo, BC.
27) Will the Minister of Fisheries and Oceans Canada confirm if Mr. Sprout read the Ursus Environmental report which says fencing "contributes to the mortality of Virginia Rail"? If not, will the Minister improve the process that determines the application and review of good science during the CEAA screening process?
Response: DFO staff did take into consideration the potential for impacts on Virginia rail during the CEAA screening, due to its local significance. This species is not considered endangered, threatened or rare at the national or provincial levels. During the CEAA review of the project, DFO reviewed the environmental impact assessment completed by LGL Limited. The LGL report provided mitigation measures for possible impacts to the Virginia rail. The LGL report did not identify any information on the fencing. Following completion of the project, DFO contacted the City of Nanaimo and requested that the fencing be removed to alleviate concerns due to potential harm of low flying birds. The City of Nanaimo has confirmed with DFO that much of the chain link fence will be removed in 2008. The 2007/08 Christmas bird count found an unusually high number of 18 Virginia Rails in and around this area (Nanaimo News Bulletin, Jan 8, 2008). Based on the protection that the fence provided to the newly planted riparian vegetation allowing the plants to establish safely, it appears as though the chain link fence was a useful temporary mitigation measure.
28) Does scientific information exist that shows putting asphalt above the 1:100 year flood level that there is no risk to fish and/or fish habitat? Will the Minister of Fisheries and Oceans Canada give that information to us?
Response: The January 31 response to the Friends of the Cat Stream provided by Mr. Paul Sprout, RDG, DFO Pacific Region regarding the 1:100 year flood level was based on the report submitted by Mr. Rickwood for his review pertaining to the toxicity of asphalt. The report provided for review to DFO stated that submerged asphalt has the potential for releasing PAH’s to the environment. However, the report’s conclusions were that “keeping asphalt out of rivers, streams and natural waters to the extent possible” would mitigate the potential release of PAH’s. In response, Mr. Sprout indicated that the asphalt trail was sited above the 1:100 year flood level which would consequently result in minimal inundations of the asphalt and thus mitigate the impact of this substance. In further discussions with the City of Nanaimo, the asphalt trail is actually located above the 1:200 year flood level which further reduces the potential of the asphalt trail to be inundated by stream flows.
29) Will the Minister of Fisheries and Oceans Canada explain why DFO / Rob Russell, A/Senior Habitat Biologist was not involved in the design of a drainage system that can affect Coho fry at the arena area of the Nanaimo Third Street property?
Response: The City of Nanaimo in constructing the arena at the third street property maintained a minimum 30 m riparian setback from the winter high water level of the Cat Stream. In regards to storm water management, DFO staff have been working with the City of Nanaimo in developing integrated storm water plans for local watersheds. Where integrated storm water plans are not yet completed, DFO’s role is limited to recommending that municipalities utilize the BC Ministry of Environment Storm Water Guidelines.
30) In light that peat accumulates over many years at the surface of a wetland water table will the Ministers of Environment Canada and Fisheries and Oceans Canada inform the petitioners if the disturbance of marsh peat and release of C02 gas was considered during the CEAA screening? If not, why not?
Response: DFO did not undertake to estimate the levels of CO2 gas that will be released from peat or compare that to reductions in CO2 gas from automobiles by local citizens choosing to use this trail system rather than driving. The Cat Stream ponds provide an integral link between nearby residential developments and the Nanaimo Ice Centre, the Nanaimo Aquatic Centre, a local high school and Malaspina University College. It was the intention of the City of Nanaimo to allow all types of pedestrian traffic through this area including wheelchairs to gain access to one or all of these public amenities. To determine the contribution of local CO2 to the global environment, all of these factors would have to be estimated, which was beyond the scope of the Environmental Assessment.
31) Will the Ministers of Environment Canada and Fisheries and Oceans Canada determine and inform us if the disturbance of marsh peat and the resulting release of C02 gas were considered during the CEAA screening?
Response: Please refer to answer to Question 30.
32) Will the Ministers of Environment Canada and Fisheries and Oceans Canada inform us whether the Government of Canada and it various departments and programs are obligated to follow the principles and guidelines espoused in the following websites outlined in Background 10 and appendix 19?
Response: As stated in the ninth (of sixteen) web sites in Appendix 19 (DFO), “In Pacific Region, Fisheries and Oceans Canada has a long history of stewardship and community involvement through initiatives such as the Salmonid Enhancement Program. The concept of stewardship goes beyond legal obligations to encompass moral obligations and a sense of responsible care. It refers to a wide range of actions and activities of individuals, communities, groups and organizations acting alone or in partnership, to promote, monitor and conserve and restore freshwater and oceans ecosystems.”
33) Will the Ministers of the Environment and Fisheries and Oceans take action to review and improve our CEAA process to ensure inter-departmental environmental assessment referrals are effective, that the piggybacking of multiple developments within one CEAA application not be allowed?
Response: Environmental assessments carried out pursuant to the Canadian Environmental Assessment Act (CEAA) are subject to the Cabinet Directive On Implementing The Canadian Environmental Assessment Act which provides direction to federal departments for determining an appropriate project scope. A copy of the Cabinet Directive is available at: www.ceaa-acee.gc.ca/013/010/directives_e.htm
CEAA includes provisions for public consultation in screening level environmental assessments (CEAA s. 18(3)). It is the discretion of the responsible authority(ies) to make a determination if public consultation is appropriate.
34) In light of the background material and attachments, would you agree that adequate staffing at the Canadian Wildlife Service is a problem when handling complex CEAA referrals, and that an improved regulatory model will help solve problems? If you agree it is problematic, why was this allowed and what actions will Environment Canada and Fisheries and Oceans Canada take to remedy the situation?
Response: Please refer to Environment Canada’s response to this question.
35) Will the Minister of Fisheries and Oceans address our concerns by taking action to have the complaint and above-referenced emails properly answered and issues effectively addressed?
Response: In regards to the February 14, 2007 letter to Fishery Officer Angelo Loggia that DFO place charges against the City of Nanaimo and Mr. Paul Sprout, RDG, DFO Pacific Region, the reason that charges were not laid is that there were no grounds for charges. The project was thoroughly reviewed by DFO, a complete and thorough CEAA screening was completed, a Fisheries Act S. 35 (2) Authorization was issued and all applicable mitigation and compensation measures were implemented.
In regards to the March 2, 2007, correspondence from the Friends of the Cat Stream to Mr. Alain Magnan, RP.Bio., CPESC, Project Assessment Biologist, Habitat Management, please refer to the answer to Question 21.
In regards to the March 27, 2007, e-mail from Mr. Rickwood to Mr. Rob Russell, this issue is addressed in the answer to Question 28.
36) In light of the background material and attachments, would you agree that a formal complaint and communications by stewards associated with DFO's Community Involvement Program, should be treated with respect by all departments and personnel? If the Minister agrees, why was this not done and what actions will Fisheries and Oceans Canada take to remedy the situation?
Response: The information submitted by the Friends of the Cat stream was reviewed and considered during the CEAA screening process. Following issuance of the Fisheries Act S. 35(2) Authorization, DFO has responded to numerous requests by the Friends of the Cat Stream that included undertaking post construction site visits to follow up on their views and concerns. DFO staff put significant effort into responding to the requests of the Friends of the Cat Stream, which we believe indicates a level of respect by DFO for the views and concerns of stewards. DFO values our relationships with stewards and has established partnerships with community based organizations, including providing funding, to improve delivery of DFO’s Habitat Management Program.
37) The Minister of Fisheries and Oceans can address the concerns of the petitioners and use his discretionary powers to refer unresolved issues relating to the environmental assessment to a mediator. In light of the petition's information, would the Minister agree to do this?
Response: Please refer to the answer on Question 17.
38) The Minister of Fisheries and Oceans Canada take action to improve the Memorandum of Understanding (MOU) between the different levels of government?
Response: The City of Nanaimo, BC Ministry of Environment and DFO Habitat Management were previously signatories to a Memorandum of Understanding. The MOU established with the City of Nanaimo was one of the first MOU’s established in BC and became a template for other MOU’s within BC. The current MOU has expired as of October 2006 and is under review, which is an opportunity to consider options for improvement. Currently, the Province of BC is reviewing the MOU to determine if they have the necessary resources to properly service this agreement and meet the expectations that are associated with the MOU.
40) In light of the background material and attachments, would you agree that a new MOU needs to be agreed to by all parties that builds public trust, allows for an Integrated approach to planning, guarantees no-net loss of SEls, must follow federal environmental guidelines, and provide accountability? If this is a good idea, what actions will the Minister of Fisheries and Oceans Canada take to remedy the situation?
Response: MOU’s are voluntary agreements between the respective partners, their goals and objectives vary with each agreement. DFO continues to support the original objectives of the City of Nanaimo MOU which were:
- To clarify responsibilities and areas of jurisdiction regarding environmental issues in the City of Nanaimo.
- To improve co-ordination and expedite decision-making within the various levels of government on matters of environmental concern in Nanaimo.
- To clarify the objectives and standards to be met with respect to achieving a sustainable and healthy natural environment in Nanaimo.
- To share information and technical support.
- To provide a forum for collaboration among the parties to improve environmental protection.
41) In light of the background material and attachments, would the Minister of Fisheries and Oceans Canada agree that that the land development guidelines and requirements of conservation manuals outlined in MOU Application No. 9 were not followed when an asphalt trail/fencing development was put across a Sensitive Ecosystem Inventory? Can you inform us why the provisions of the MOU were not followed?
Response: The various Federal and Provincial BMP and land development guidelines identified in Application No. 9 provide many useful mitigation measures to be used to protect fish and fish habitat. However, during many projects, guidelines can not be used due to project specific requirements. When this occurs, DFO undertakes a specific review of the project and identifies other appropriate and applicable mitigation measures to protect fish and fish habitat. If not all impacts can be mitigated and a residual harmful alteration, disruption or destruction (HADD) of fish habitat occurs, the Minister of Fisheries and Oceans, may consider issuing an Fisheries Act S. 35(2) Authorization. For this project, an S. 35(2) Authorization was required which identified specific mitigation measures and compensation measures to ensure that the project resulted in a no net loss of fish habitat. Despite an S. 35(2) Authorization being required for this project, the objectives of the MOU were maintained between the City of Nanaimo and DFO as discussed in the answer to Question 40.
44) Will the Minister of the Environment personally read this petition, background material and attachments; also, will the Minister of Fisheries and Oceans Canada read this petition, background material and attachments; and, will the Minister of Natural Resources read this petition, background material and attachments?
Response: The Minister’s signature constitutes his acknowledgement and understanding of the issues raised in the petition.
Minister's Response: Natural Resources Canada
31 March 2008
Mr. Rory R. Rickwood
519 Pine Street
Nanaimo, BC
V9R 2C6
Mr. Roger Giles
515 Pine Street
Nanaimo, BC
V9R 2C6
Dear Messrs Rickwood and Giles:
I am pleased to provide the response of Natural Resources Canada to your Environmental Petition no. 225, to the Interim Commissioner of the Environment and Sustainable Development, regarding the application of Government of Canada guidelines to protect a fragile ecosystem called SEI Polygon N0157/Jingle Pot Marsh/Nanaimo BC. Your petition was received in the Department on December 18, 2007.
Enclosed are Natural Resources Canada’s responses to questions that were addressed to my department. I understand that the Honourable John Baird, Minister of the Environment, and the Honourable Loyola Hearn, Minister of Fisheries and Oceans, will be responding separately to questions that fall under their mandates.
I trust that you will find the information provided by these responses useful.
Yours sincerely,
[Original signed by Gary Lunn, Minister of Natural Resources]
The Honourable Gary Lunn, P.C., M.P.
Enclosure
c.c.: Mr. Ronald C. Thompson, FCA
Interim Commissioner of the Environment and Sustainable Development
The Honourable John Baird, P.C., M.P.
Minister of the Environment
The Honourable Loyola Hearn, P.C., M.P.
Minister of Fisheries and Oceans
9 June 2008
Mr. Rory R. Rickwood
519 Pine Street
Nanaimo, BC V9R 2C6
Mr. Roger Giles
515 Pine Street
Nanaimo, BC V9R 2C6
Dear Messrs. Rickwood and Giles:
I am pleased to provide Natural Resources Canada’s response to question no. 44 of your Environmental Petition no 225: “Will the Minister of the Environment personally read this petition, background material and attachments; also, will the Minister of Fisheries and Oceans Canada read this petition, background material and attachments; and, will the Minister of Natural Resources read this petition, background material and attachments?”
The duties and powers of ministers are normally exercised under their authority by responsible officials of the Minister’s department. This widely accepted principle of common law has been codified in the Federal Interpretation Act. The Minister’s signature constitutes his acknowledgement and understanding of the issues raised in the petition.
I trust that you will find the information provided by this response useful.
Yours sincerely,
[Original signed by Cassie J. Doyle, Deputy Minister of Natural Resources Canada]
Cassie J. Doyle
c.c.: Mr. Scott Vaughan,
Commissioner of the Environment and Sustainable Development
Ms. Joanne Kellerman
General Counsel, Legal Services, NRCan
Environmental Petition 225
NRCan Response to Questions 42 and 43
Question 42:
Will the Minister of Natural Resources take action to have a timely and thorough financial audit of the City of Nanaimo's use of Green Municipal Funds for several studies/project in Nanaimo, and investigate if the city improperly diverted funds to help build the harmful asphalt trail project?
NRCan Response:
The Green Municipal Fund (GMF) is an arms-length endowment from the Government of Canada to the Federation of Canadian Municipalities (FCM), an independent, non-profit organization. By the terms of the GMF Agreement between Canada and the FCM, the money does not belong to the federal government but solely to the FCM.
NRCan participates in the decision-making process regarding allocation of the funding from the GMF through comments and recommendations made to the FCM Board of Directors by a 15 member GMF Council. Five of the Council members are representatives from the federal government. Two of the five are from Natural Resources Canada.
To date, the FCM reports that it has approved two GMF feasibility studies and one capital GMF project for the City of Nanaimo as follows:
GMEF 3006—Green Hydro Power Production from Domestic Water Supply,
GMEF 0057—Cedar Road Landfill Gas Utilization Study, and
GMIF 1464—Gas Capture and Flare, Cedar Road Landfill Site.
These reports can be found on the public FCM database of approved projects at: http://www.sustainablecommunities.ca/Search/Search/Search.aspx?lang=e
The FCM is responsible for the actual approval of funding for GMF studies and projects and for doing due diligence in regard to GMF activities. NRCan has no authority to conduct an audit of the City of Nanaimo’s use of the GMF and, therefore, will take no action.
Question 43:
In light of the background material and attachments, would the Minister of Natural Resources agree that the Green Municipal Fund should be used in a way that it does not disturb wildlife, not go against government guidelines, and that GMF funding for Nanaimo asphalt trail was wrongfully diverted to build a harmful asphalt trial, and that this should be investigated? Why or why not? If the GMF was used inappropriately, why was this allowed and what actions will the Hon. Minister take to remedy the situation?
NRCan Response:
According to the terms of the GMF Agreement between Canada and the FCM, GMF funding is provided based initially and mainly on environmental benefits, and subsequently on economic and social benefits, as stated in Articles 2.03 and 2.04 of the GMF Funding Agreement as follows:
“2.03 Eligible Project Characteristics. FCM shall disburse funds from the Fund Assets in the form of grants, loans and/or loan guarantees to Eligible Recipients carrying out Eligible Projects which, in the opinion of the Board, have the potential to result in significant environmental improvement on air, water and soil quality, including greenhouse gas emissions reduction…” and,
“2.04 Eligible Project—Additional considerations. The Board shall consider in addition to potential environmental benefits from Eligible Project, the potential for economic and/or social benefits…”.
NRCan is not aware, nor has NRCan any reason to believe, that any GMF funds have been wrongfully diverted. The FCM is responsible for doing due diligence in regard to GMF activities. Therefore, NRCan will take no action in this regard.