VAPOR – A Society For Vancouver Airport Fuel Project Opposition For Richmond v. Otto Emil Langer, 2015 BCSC 1086

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: VAPOR v.

British Columbia (Environment), 2015 BCSC 1086 Date: 20150624 Docket: S143182 Registry: Vancouver In The Matter of the Judicial Review Procedure Act R.S.B.C. 1996, c. 241 Between: VAPOR – A Society For Vancouver Airport Fuel Project Opposition For Richmond and Otto Emil Langer Petitioners And Her Majesty the Queen in Right of the Province of British Columbia as represented by the Minister of Environment for the Province of British Columbia, the Minister of Natural Gas Development for the Province of British Columbia, the Attorney General of the Province of British Columbia, and The Executive Director of the British Columbia Environmental Assessment Office, and The Vancouver Airport Fuel Facilities Corporation Respondents Before: The Honourable Madam Justice Dillon Reasons for Judgment Counsel for the Petitioners: J.D.

Cliffe Q,C. C.J. Tobias Q.C. J.H.M. Patterson Counsel for the Respondents: Attorney General of British Columbia on behalf of the Minister of Environment, the Minister of Natural Gas Development, and the Executive Director of the Environmental Assessment Office D.G. Cowie Counsel for the Respondent: The Vancouver Airport Fuel Facilities Corporation D.W. Bursey Place and Dates of Trial/Hearing: Vancouver, B.C. November 26-27, 2014 February 10-13, 2015 Place and Date of Judgment: Vancouver, B.C.

June 24, 2015 Introduction [ 1 ] The petitioners seek an order declaring that the environmental assessment of the Vancouver Airport Fuel Delivery Project (the “project”) conducted pursuant to the Environmental Assessment Act , S.B.C. 2002, c. 43 (the “ EAA ”) failed to satisfy the public consultation requirements of the EAA and regulations including the Public Consultation Policy Regulation, B.C. Reg. 373/2002 and the Prescribed Time Limits Regulation , B.C. Reg. 372/2002.

In the alternative, the petitioners seek an order declaring that the Assessment Report and Recommendations of the Executive Director made pursuant to s. 17 (2) EAA and the issuance of the Environmental Assessment Certificate #E13-02 (the “certificate”) by the Minister of the Environment and the Minister of Natural Gas Development on December 11, 2013 to the Vancouver Airport Fuel Facilities Corporation (“VAFFC”) for the project failed to comply with the requirements of natural justice and procedural fairness.

The petitioners seek an order in the nature of certiorari quashing the environmental assessment certificate. The respondents oppose all of the orders sought. [ 2 ] The airport fuel delivery project proposed by VAFFC involves transporting jet fuel by tanker up the south arm of the Fraser River and then by pipeline across the City of Richmond (“Richmond”) to the Vancouver International Airport (“YVR”). An environmental assessment of the project was undertaken by the Environmental Assessment Office (“EAO”) over a period of four years.

The petitioners allege that the public was denied the meaningful participation mandated by the EAA in the environmental assessment undertaken by the EAO through an accumulation of defects including not having reasonable access to materials generated for the environmental assessment before being called upon for input, not having sufficient opportunity to provide input, and not having the

public input adequately conveyed to the responsible ministers before a decision was taken. The petitioners say that the executive director exceeded his power in determining how the public consultation would occur and the consultation process was severely flawed, leading to failure to properly apply the EAA and regulations and also resulting in a denial of procedural fairness. In short, the petitioners allege that procedures followed in the environmental assessment of the project did not meet the statutory standard for public consultation and were not fair.

The public was not properly informed and the process of public consultation was superficial. [ 3 ] The Minister of Environment, Minister of Natural Gas Development, the Executive Director of the EAO, and the Attorney General (collectively called the “respondents”) say that the public was given meaningful opportunity to participate in the environmental assessment at all key stages of the process and that expressed public concerns had a demonstrable impact upon the information that the proponent, VAFFC, was required to produce and on the shape of the project itself.

The respondents say that the petitioners were well informed and active in the process and provided significant input such that it cannot be said that they were denied meaningful opportunity to participate. The respondents deny that there was a denial of procedural fairness or improper exercise of discretion by the executive director. [ 4 ] VAFFC, the proponent of the project, says that the certificate was supported by a comprehensive review process that was more than sufficient to support the ministers’ decision.

There was extensive input from the public through three formal rounds of consultation conducted by the EAO, as well as informal consultation by VAFFC. The broad discretion to decide on the nature and scope of public consultation given to the executive director of the EAO was exercised according to the EAA and related regulations and was in accord with procedural fairness. Any defect was minor, inconsequential, and did not affect the petitioners’ opportunity to participate. Facts (

a) The Parties and the Project [ 5 ] The VAFFC is a company owned by a consortium of commercial airlines that operate out of YVR. It owns and operates aviation and fuel storage and distribution facilities at YVR to receive, store, and fuel airplanes at YVR. It is the developer and proponent of the project to develop a new aviation fuel delivery system for YVR to meet the long term needs of YVR for aviation fuel.

The project consists of upgrades to an existing marine terminal owned by VAFFC on the south arm of the Fraser River to receive delivery of aviation fuel by marine vessels, a new aviation fuel receiving and storage facility on land adjacent to the marine terminal, a new 0.5 kilometer pipeline to transfer aviation fuel from the marine facility to the new receiving facility, and a new 15 kilometer pipeline from the receiving facility to YVR through existing transportation and utility corridors in Richmond. [ 6 ] The south arm of the Fraser River is an important wildlife habitat and recreational area.

The marine terminal is located near residential and recreational areas in Richmond, including a large entertainment complex. The proposed pipeline route travels through residential areas of Richmond. [ 7 ] The Environmental Assessment Office is responsible for coordinating the environmental assessment of major development proposals in British Columbia under the oversight of its executive director. The framework for the environmental assessment process is set out in the EAA and its associated regulations, including the Reviewable Projects Regulation , B.C.

Reg. 370/2002, the Prescribed Time Limits Regulation , and the Public Consultation Policy Regulation . Briefly outlined, the process is as follows. The executive director establishes the procedures to be followed in the assessment of the project, including the information that must be provided by the proponent for review prior to an application proceeding and including the public consultation that must take place. A proponent then prepares and submits its application for evaluation. The EAO formally reviews the project and prepares an assessment report.

The executive director provides a recommendation to the Minister of Environment and the minister whose portfolio includes responsibility for the project under review. The process results in a ministerial decision as to whether an environmental assessment certificate should be issued to allow the project to proceed to subsequent permitting processes. [ 8 ] In 2007, VAFFC began informal consultation with governments, First Nations, businesses and the public respecting the project. The project did not constitute a reviewable project pursuant to s. 6 EAA or the Reviewable Projects Regulation .

By letter of November 28, 2008, VAFFC requested that the project be designated a reviewable project under s. 7(3) (

a) EAA . In January 2009, VAFFC submitted a project description to the EAO. On February 10, 2009, the executive director issued an order under s. 7(3)(

a) EAA designating the project as a reviewable project on the basis that the project had the potential to result in significant adverse environmental, economic, health, heritage, or social effects. This order started the review process. [ 9 ] VAPOR stands for “A Society for Vancouver Airport Fuel Project Opposition for Richmond”. A group of concerned citizens came together in March 2011 and incorporated VAPOR as a society on May 11, 2012.

The membership consists of residents of Richmond, some with technical backgrounds in biology, systems safety, and electrical mechanical engineering and some with ties to other local environmental organizations. Most of the members lack time because of employment and responsibilities outside of the organization and lack technical background pertinent to the project. For these reasons, VAPOR decided not to submit on its own behalf during public consultation on the project but left it to individuals. Certain members of VAPOR did submit comments during the review process, but not on behalf of VAPOR.

Otto Langer (“Langer”) is a semi-retired marine biologist with extensive knowledge of fish habitat, water quality, and the effects of contaminants on aquatic ecosystems. He is a long-time resident of Richmond who became aware of the project proposal in 2009 but did not consider it seriously until March 2011 when he attended an open house. He is a director of VAPOR. (

b) The Framework for Environmental Assessment, Review, and Public Consultation of the Project [ 10 ] On February 23, 2009, the Project Assessment Manager issued an order under s. 10 EAA that the project was reviewable and could not proceed without an environmental assessment certificate. The order acknowledged that the project could have significant

adverse effects, that strong public interest was anticipated, and that a clear and transparent environmental assessment process would be in the public interest. The executive director had delegated powers and functions under the EAA to a project assessment manager. By designating the project as reviewable, the proposal was to be subject to scrutiny by the executive director of the EAO and ultimately to decision by the responsible ministers. [ 11 ] The executive director was to decide upon the scope of the required assessment of the project ( s. 11(1) (

a) EAA ), the procedures and methods for conducting the assessment (s. 11(1)(

b) EAA ), and the information that was to be contained within the application for an environmental assessment certificate ( s.16(2) EAA ), prior to reviewing the application and ultimately leading to an assessment report of the executive director and possibly recommendations to be made to the ministers who would decide whether an environmental assessment certificate should be issued ( s. 17 EAA). [ 12 ] The s. 10 order was posted on the EAO’s Project Information Centre (“ePic”), a public website maintained by the EAO as required by s. 25 EAA and s. 6(1) Public Consultation Policy Regulation .

The website is such that subscribers can receive notice via email whenever a document is posted to the project’s ePic page. [ 13 ] After issuance of the s. 10 order, the EAO formed a working group composed of representatives from municipal, provincial and federal governments and from affected First Nations to advise the EAO on all issues related to the assessment process. [ 14 ] On November 18, 2009, an order was made under s. 11 EAA setting out the scope, procedures, and methods by which the assessment was to be carried out (the “scoping order”).

This order provided specific information on the scope of the project and the assessment and what actions and activities the proponent would be responsible for in the two stages of assessment, the pre-application stage and the application review stage.

The s. 11 order set out the public consultation activities that were required and their associated time-frames. [ 15 ] Generally, the scoping order provided for public notice to be given by the proponent of the availability of draft application information requirements and the application, the time limits for public comment, and the date and times of open houses or general public meetings prior to the start of any public comment period by means acceptable to the Project Assessment Manager.

If more than one notice of an event was to be given, then the order provided for notice according to the Public Consultation Policy Regulation of at least seven days prior to a public comment period commencing or scheduled open house or public meeting.

The public was to be given access to information listed in s. 6 of the Public Consultation Policy Regulation through the Project Information Centre, which was ePic. [ 16 ] The scoping order provided for the proponent to prepare draft Application Information Requirements (“AIR”) and make this document available to the public for comment during a formal public comment period. The proponent was then to respond to the public comments and make revisions to the draft and then submit a final draft Application Information Requirements document to the Project Assessment Manager for review and approval.

One formal comment period of 45 days was to occur and then the proponent was to respond to issues that were identified in comments submitted by the public. Following this, the proponent was to prepare the application according to the approved Application Information Requirements and then submit it to the Project Assessment Manager for evaluation and decision on whether to accept the application for review. [ 17 ] The application itself was to include a

summary and evaluation of the public consultation activities that had already taken place and to specify what consultation activities were to take place in the future related to the application. This information was to be used by the Project Assessment Manager to assess the adequacy of the proposed public consultation activities. The proponent was to undertake any further public consultation as directed and complete it within the time limits set. The proponent was required to undertake the public consultation programme subject to modifications as ordered.

There was to be one formal comment period of 45 days, after which the proponent was to prepare a written report identifying views, issues and concerns raised by the public with respect to the project and how the proponent was going to address them.

The proponent was to respond to issues identified in public comments during the review as requested by and within the time limits set out by the Project Assessment Manager and was to provide specified additional information to identify issues identified during the course of the review as requested by and within time limits set by the Project Assessment Manager. [ 18 ] Following the s. 11 order, the pre-application stage took place in which the proponent developed requirements for the issues to be addressed and the information that was to be provided in the application.

VAFFC prepared and filed a draft AIR document on March 17, 2010. This document was posted to ePic on the same day and draft copies were placed in libraries in Richmond and Vancouver. The purpose of the public consultation at this stage was to identify the issues and type of information that was needed in the application itself. The public was given notice on March 31 of an open house and invited to comment. The public comment period took place from April 12 to May 27, 2010. [ 19 ] An open house took place on April 14, 2010. It included information displays, a formal presentation, and a question and answer period.

Representatives from VAFFC and the EAO were on hand to answer questions and share information. Scott Carswell (“Carswell”), an electrical mechanical engineering technologist and subsequent director of VAPOR, attended and spoke with a VAFFC representative at length. Other future directors of VAPOR do not appear to have attended this open house. [ 20 ] VAFFC prepared a tracking table that set out issues raised in each of the public comments and VAFFC’s response to comments received on July 13, 2010 (the “2010 tracking table”). Carswell prepared a comment.

Key issues raised by the public were related to marine accidents and spills and alternatives to the proposed project design. [ 21 ] The proponent’s documentation of public comments and its response to issues raised, the 2010 tracking table, was to be posted to the website within seven days of receipt by the executive director. The tracking table was posted to ePic but through error, the link directed the public to a different document. As a result, the 2010 tracking table did not become available to the public until November 6, 2014. [ 22 ] In the meantime, revisions were made to the draft AIR.

The AIR was approved on October 27, 2010 and the approved AIR was posted to ePic on October 27, 2010. The approval meant that VAFFC had three years to provide the information specified in the AIR. This completed the pre-application stage of the environmental assessment process.

[ 23 ] VAFFC then began completion of the application itself based upon the information requirements set out in the approved AIR. At this stage, the application is prepared and submitted for evaluation as to completeness before being formally accepted for review. [ 24 ] VAFFC submitted its application on January 4, 2011. The application was required to contain all of the information required in the AIR.

The EAO had 30 days to evaluate the application for completeness, including the adequacy of the proponent’s pre-application public consultations and its plan for public consultation during the application review stage. If the application met the requirements of the AIR, it was to be accepted for formal review. [ 25 ] The EAO notified VAFFC on February 3, 2011 that the application was accepted for review.

A 45-day public comment period was set for February 25-April 11, 2011, requiring VAFFC to place advertisements in local newspapers by February 18, 2011, which was the required seven days before the start of the formal public comment period. This letter was posted to ePic. [ 26 ] The Project Assessment Manager also wrote to VAFFC on February 3, 2011 with the EAO’s written assessment of the adequacy of the proposed and already conducted public consultation as required under s. 4(2) of the Public Consultation Policy Regulation . The EAO supported the measures for public consultation as outlined in the application.

Those measures were broadly described in the application as plans to conduct stakeholder meetings and open houses, to receive comments and respond to enquiries, and to provide responses to comments made within the required time frame. The Project Assessment Manager stated that VAFFC “must respond to all comments received during the public comment period within 30 days of the close of the public comment period” and that “a written report on the results of the public consultation activities” was also required within this time. The EAO reserved the right to require additional consultation measures.

This letter was required to be posted for public review within seven days according to s. 6(2) of the Public Consultation Policy Regulation. It was not posted until 2014. [ 27 ] Copies of the application were received and the Project Assessment Manager advised VAFFC on February 21, 2011 that the review period had begun on February 18 and was to be completed within 180 days according to s. 3 of the Prescribed Time Limits Regulation . This letter was posted to ePic. [ 28 ] The 1500 page application was posted to ePic on February 18, 2011.

According to s. 6(2) of the Public Consultation Policy Regulation , it should have been posted within seven days, or by February 10. One copy was also available at each of the Vancouver and Richmond public libraries. [ 29 ] On February 18, 2011, the EAO posted notice of an open house and invitation to comment. This was published seven times in local newspapers. The open house was to take place on March 7, 2011 and the public comment period was from February 25-April 11.

The notice described the project as a “new aviation fuel delivery system…including a marine terminal and fuel receiving facility located on the south arm of the Fraser River…and a 15 kilometer…underground fuel pipeline connecting the marine terminal, fuel receiving facility, and YVR”. No specific locations were provided on the notice but information was given as to where the application could be viewed.

The purpose of public comment was stated to be “ to ensure that all potential effects…that might result from the proposed project are identified for consideration as part of the assessment process”. [ 30 ] An open house took place on March 7, 2011 in Richmond. There were informational posters, handouts, and tables. The printed information gave the location and proposed route of the project on a map, along with other details of the project. A panel of representatives of VAFFC, the EAO and the Port of Metro Vancouver made a presentation.

Comments and questions were received but speakers were restricted to two minutes. Langer spoke. No record was made of the questions and comments received at this forum. It is accepted that representatives of VAFFC and the EAO were on hand to share information and answer questions. Eighty-one people attended. No other members of VAPOR or affiants on behalf the petitioners attended this open house. [ 31 ] VAPOR formed as a group in late March, 2011.

Members of VAPOR presented their concerns about the project to the City of Richmond at a council meeting on March 28, 2011, including the concern that not enough time had been given for the public to comment on the project. The City of Richmond formally requested an extension of the public comment period to June 30, 2011, noting that the City was “hard pressed” to complete its review and make comments within the allotted time even though considerable resources were applied to the task.

The City observed that, given its experience, members of the public without these resources could not possibly review and provide meaningful comment within the time allotted. As a result of this request, on April 8, the Project Assessment Manager ordered an extension of the public comment period by 15 days, to April 26, 2011. Notice of the extension was published in local newspapers on April 14 with the comment that the extension was due to requests received “from the public”. [ 32 ] Carol Day (“Day”), a member of VAPOR, wrote to the EAO on April 22 requesting an extension of the deadline for public comment.

The exact form of this request is not in evidence. No specific response was received to this request. No further extension was given. A

summary of Day’s request and position was posted to ePic on May 12, 2011, along with other public comments received. This letter was included in VAFFC’s tracking table of public comments (the “2011 tracking table”) with the response that the comment period had been extended and that VAFFC planned on holding open houses for public input. [ 33 ] On April 24, Day wrote to the EAO on behalf of VAPOR indicating that VAPOR refused to accept the deadline date for public input and demanding to “talk” about the proposal.

The letter otherwise expressed opposition to the project because of unacceptable risk to the environment, inadequate resources to deal with a disaster, location of facility close to area subject to liquefaction, location of jet fuel close to residential areas, and lack of need for the terminal in face of other options. There was no response to this letter and it was not included in the 2011 tracking table. [ 34 ] 356 public comments were received.

Langer, Day, Carswell, and James Ronback (“Ronback”), a retired system safety engineer and subsequent director of VAPOR, among others, submitted individual comments to the EAO within the time given for public comment. Each would have liked more time to more fully respond. VAPOR did not prepare a response as a group. Although Day explained that the amount of material in the application prevented the group from preparing a meaningful response in time, the group also lacked the expertise and individual time dedication and were newly formed. VAPOR did not incorporate as a society until May 2012.

Langer prepared a detailed comment with substantive criticisms. [ 35 ] On April 26, 2011, the date that the public comment period ended, VAFFC asked the EAO to suspend the review process to

allow VAFFC time to assess the option of routing the pipeline along Highway 99, instead of the proposed routing. This had come about after meetings on other issues between VAFFC and the Ministry of Transportation revealed that the Highway 99 route could still be an available option. Members of the public had raised concern about the proposed route and the City of Richmond had resolved that Highway 99 was the preferred route.

The Project Assessment Manager temporarily suspended the time limit for review of the project pursuant to s. 24(2) of the EAA on day 69 of the 180 days established for the review to allow VAFFC time to complete its assessment of the feasibility of the alternate pipeline route along Highway 99 and to provide additional information to complete the review. The time would begin to run again once the Project Assessment Manager determined that the assessment of the alternate route was adequate and complete.

In the meantime, consultations with the working group were to continue. [ 36 ] VAFFC provided a response to the EAO on the public comments received through the 2011 tracking table on June 22, 2011. The 2011 tracking table contained 334 pages that summarized each public comment, along with VAFFC’s response. This response was not received within the 30 days of the close of the public comment period (by May 26, 2011) as set by the EAO in the letter of February 3, 2011. Nor was the 2011 tracking table posted to ePic within seven days as required.

It was not posted until January 3, 2012, more than nine months after the close of the public comment period. [ 37 ] The EAO received the Highway 99 addendum assessment report on November 3, 2011 and, after review for completeness, determined to lift the suspension under s. 24(2) EAA on January 4, 2012. The 239 page Highway 99 addendum was posted to ePic on January 3, 2012 and one copy was placed in the Vancouver and Richmond libraries.

A notice was posted to ePic and placed in local newspapers that a public comment period of 21 days, from January 11 to February 1, 2012, would occur during which the EAO invited the public to provide comments on the Highway 99 addendum which was described as a supplement to their application for environmental assessment. [ 38 ] VAFFC hosted an open house on the potential pipeline routes in Richmond on January 28, 2012. Notice of the session was published in local newspapers.

VAFFC sought feedback from the public as to the preferred route through forms distributed at the meeting and invited the public to speak with representatives who were present. 125 persons attended this open house. [ 39 ] Langer, Ronback, Day and Carswell provided individual submissions to the EAO on the Highway 99 addendum. On February 14, 2012, VAFFC provided a tracking table containing the 125 public comments received about the Highway 99 addendum (the “2012 tracking table”), along with VAFFC’s response. It was posted to ePic on February 20.

VAFFC did not respond to expressions of concern other than related to the pipeline route. [ 40 ] On February 17, 2012, VAFFC advised the EAO that VAFFC had “tentatively selected” the Highway 99 pipeline route based upon many factors, including the public comments received. On February 29, VAFFC requested a further suspension of the review to allow time to complete studies requested by Environment Canada related to the potential effects of an aviation fuel spill.

The Project Assessment Director suspended the review on day 134 of the 180 day time limit so that VAFFC could undertake the studies requested by Environment Canada and submit additional information regarding potential aviation fuel spills. [ 41 ] VAFFC delivered to the EAO its tracking report of agency and First Nations comments and the proponent’s responses on April 23, 2012.

This report summarized each of the comments from three municipal groups, the Port of Metro Vancouver, six First Nations, and six federal and provincial ministries. [ 42 ] During this second suspension, VAFFC produced reports related to spill risk on the Fraser River and biofilm sensitivity on the river. The first report was not posted on ePic within the required seven days but was posted about five months later, on November 19, 2012. The second report was posted to ePic on October 16, 2012. VAFFC also submitted a

summary report of the public consultation that had occurred from 2007 to date. This report included an independent third party evaluation of the merits of the project over other fuel delivery options. This independent report was not required in the process but was obtained to respond to public interest in why the project was chosen over other options. The suspension was lifted on November 19, 2012. [ 43 ] The EAO completed its assessment report and recommendations of the executive director and submitted it to the Minister of Environment and the Minister of Energy, Mines and Natural Gas on December 14, 2012. The assessment report contained a

summary of the three public comment periods that were held and attached the 2011 and 2012 tracking tables prepared by the proponent. The report identified the key issues raised by the public including effects on property values, spill risk, and system safety. The EAO and recommendations concluded that consultation with the public had been adequately carried out and that the issues identified by the public were adequately and reasonably addressed by VAFFC. [ 44 ] The Minister of Environment extended to February 25, 2013 the date within which a decision had to be made.

The Minister of Environment then suspended the assessment pursuant to s. 30 EAA on February 25, 2013 to allow time for provincial studies about land and marine spills undertaken independently of the EAO to be completed and then considered by the EAO. A separate public consultation process was held by the Ministry of Environment concerning these studies. These independent reports were received by the EAO on October 10, 2013, posted to ePic on the same day, and the suspension was lifted.

No opportunity was given for public comment on these reports despite repeated requests from VAPOR that the public be invited to comment on these studies. [ 45 ] The executive director provided amended recommendations to the ministers on November 18, 2013. It included specific recommendations to prevent and manage marine fuel spills and referred to the marine spill preparedness and response reports received in October and to the tanker traffic study commissioned by the Vancouver Fraser Port Authority. The recommendations aligned with emerging provincial policy in these regards.

The executive director summarized the public consultation briefly by stating: “The Proponent carried out a public consultation program during the EA that met EAO’s requirements. Key concerns raised and addressed throughout the EA included terrestrial and marine accidents and spills, alternatives to the proposed Project, and health and safety of Richmond residents”. [ 46 ] The ministers issued an environmental assessment certificate on December 11, 2013. In the reasons for decision, the ministers described the spill response studies and the tanker traffic study as key considerations.

All of the documents regarding this decision were posted to ePic on December 12, 2013.

(

c) The Informal Public Comment Process [ 47 ] In addition to the EAO led public consultation process, VAFFC engaged in various means to inform the public about the project between 2007 and 2012.

These included: advertising in local newspapers and on a website established for the project; sending project information and meeting directly with stakeholder groups; maintaining a website with project information, including notices of meetings, a dedicated phone line, and opportunities for comment; attending and presenting at community meetings, particularly municipal council meetings; and hosting four public information sessions in 2009 where attendees were invited to fill out comment forms.

VAFFC’s request to meet with condominium communities near the marine facility was declined. [ 48 ] The independent third party study delivered February 6, 2012 to review other options to deliver fuel to YVR was commissioned by VAFFC to evaluate the merits of the project over other fuel delivery systems. It was undertaken to respond to public interest in why the project was chosen over other options and was not required in the environmental assessment. (

d) The Defined Dynamic for Public Consultation [ 49 ]

Section 11 of the EAA gives the executive director discretion to decide the procedures and methods for conducting an environmental assessment, including but not limited to, the discretion to decide “the persons and organizations” who are “to be consulted” in the process and the means by which these persons and organizations are to be given notice of the assessment, access to information during the process, and “opportunities to be consulted” (s. 11(2)(f)).

The executive director’s discretion also included but was not limited to specifying the opportunities that these “persons and organizations” would have “to provide comments” during the assessment.

The public is included as one of these “persons and organizations”, along with First Nations and government agencies. [ 50 ] In the exercise of the discretion given under s. 11 EAA , the executive director is required to “take into account” the general policies respecting public consultation as set out in the Public Consultation Policy Regulation and to “ensure” that these policies are “reflected” in the assessment (s. 3 Public Consultation Policy Regulation ). [ 51 ] General policy requirements set out in the Public Consultation Policy Regulation in consideration here include: 1. in relation to public consultation by the proponent (s. 4): (

a) the requirement for the proponent to conduct a public consultation programme that is acceptable to the executive director and for the proponent to provide, as required information in the application under s. 16(2) EAA , a

summary and evaluation of the public consultation activities already undertaken and proposed for purposes of review of the application; (

b) the requirement for the executive director to make a written assessment of the adequacy of the public consultation activities undertaken or proposed to be undertaken by the proponent in relation to its application within the 30 days set as the time to evaluate and decide whether to accept an application for review; (

c) the executive director’s written assessment of the adequacy of the public consultation undertaken or proposed could specify further public consultation activities to be undertaken to “ensure adequate public consultation” in relation to the project and the time limits within which these further activities should be carried out; 2. in relation to giving public notice (s. 5): (

a) the executive director was to order that public notice was to be given by either the proponent or the EAO of where and when the public could review the proponent’s application, of the purpose and time limit for formal public comment period established by the executive director, and where and when any open house or public meeting would be held; (

b) public notice could be by any means satisfactory to the executive director; (

c) at least 7 days’ notice was to be given before the start of a formal public comment period or the date of an open house or public meeting; 3. in relation to access to information (s. 6): (

a) public access was to be given by the project information centre of specific records including: the information that the executive director required for a specific application; the proponent’s application once accepted for review; the executive director’s assessment of the application; the executive director’s assessment of the adequacy of the public consultation undertaken or proposed; comments received by the executive director during a formal comment period from persons and organizations concerning the application or other information submitted by the proponent; comments received by the executive director from the proponent in response to the comments received by the executive director; and the executive director’s assessment report and any recommendations submitted to the ministers; (

b) the assessment report and recommendations submitted to the ministers were to be made available to the public within 45 days after submission to the minister and all other documents referred to were to be made available within seven days after the executive director received it; and 4. in relation to formal public comment periods (s. 7): (

a) there was to be at least one formal comment period of between 30 and 75 days set out in the s. 11 EAA order that determined the assessment process. [ 52 ] The dynamic for public consultation was then further defined by the s. 11 scoping order. With respect to the pre-application stage, s. 12 of the order required the proponent to consult with the public residing in communities in the vicinity of the project by holding

open houses and other consultation activities as required by the Project Assessment Manager. There was to be one formal consultation period of 45 days on the AIR (the “formal comment period”). The proponent was to respond to issues raised in the public comments during the formal comment period. [ 53 ] At the application review stage, s. 17 of the scoping order required the proponent to summarize the public consultation activities that had already been carried out and the proposal for further public consultation.

The proponent was required to specify the location and timing of open houses and other consultation activities to be undertaken during the application review stage. The Project Assessment Manager would then use this information “to assess the adequacy of the proposed public consultation activities”. Further activity might be required.

Public consultation was to be completed within the time limit established by the Project Assessment Manager. [ 54 ] At the application review stage, s. 20 of the order required public consultation to occur according to the application with at least one formal comment period of 45 days. This period was extended to 60 days on April 8, 2011. The proponent was then to provide a written report on the results of the public consultation, “identifying views, issues and concerns raised by the public” and how these were to be addressed.

The Project Assessment Manager could request specific response or more information as a result of public comments. [ 55 ] The scoping order also established a “working group” composed of First Nations and federal, provincial and local government agencies that were tasked with providing advice on issues related to the assessment of the project. The order specified that consultation with these groups was individualized, that the consultation process was itself subject to advice and opinion from the group member, and that individual and group meetings were to occur.

The working group was to be consulted with respect to preparation of the assessment report. [ 56 ] There was nothing in the scoping order that contemplated a further public comment period in response to a change in the pipeline route. The scope of the project was defined in s. 3(

d) of the scoping order to include a pipeline from the jet fuel storage facility to the YVR. The project involved a pipeline: the route of the pipeline was subservient. (

e) Specifics of the Alleged Deficiencies in the Public Consultation Process [ 57 ] The petitioners alleged the following deficiencies in the process and argued that the cumulative effect of these was an unreasonable

interpretation of the adequacy of the public consultation process and the denial of procedural fairness. The deficiencies were: 1. ePic site was “in some ways” confusing to navigate; 2. The 2010 tracking table not made available to public until 2014 because of an error in the link on the website. As a result, the public did not have access to the proponent’s

summary of public comments and its response; 3. The executive director’s written assessment dated February 3, 2011 of the adequacy of the public consultation, both proposed and undertaken as described in the application, was not made available to the public within the required 7 days and not until 2014; 4. The application was accepted for review on February 3, 2011 and was required to be posted for public information within seven days: but, it was not posted for 15 days, on February 18, 2011, when the public consultation period was set to begin on February 25; 5.

Newspaper notice of the public comment period on the application that was published in three local newspapers, including a local Chinese newspaper, was not in Chinese, but in English, in the Chinese paper. The notice itself was insufficient in view of the scale and significance of the project and it failed to say specifically where the terminal or pipeline was to be located; 6. No record was made of the questions and comments received at the open house of March 7, 2011; 7. There was unsatisfactory response from VAFFC or the EAO to public comments, particularly: (

a) the response to the Day letter to the EAO of April 22, 2011 that requested an extension of time for public comment was responded to by noting that an extension had already been given and that the proponent planned to hold open houses. In fact only one open house was held on the project in general and the second open house related only to pipeline routing, the highway 99 proposal; (

b) there was no response to the Day letter of April 24, 2011; (

c) VAFFC made “cursory, empty responses”. The scoping order and public comment tracking table created a public expectation of individual response to individual comments rather than a global response to issues raised. For example, the issue or theme of 26 points made by Langer was summarized. The proponent responses referred only to where the point was covered in the application and the position of the proponent.

Frequently, VAFFC responded by asserting that the project was subject to rigorous scrutiny through the environmental assessment and other regulatory processes, by stating that fundamental policies of the project related to safety and the environment, and by reference to the application of best modern codes, standards, and management practices. More specific detailed response could be referred to the application itself to determine whether the expressed concern had been dealt with adequately; and (

d) the response to public comments was generalized and “stock” in contrast to detailed responses provided to the concerns of the working group. The example reviewed related to concern for spills and the rate of evaporation of jet fuel. Langer stated that the statement of evaporation by the engineers was not an acceptable approach. The response was to refer to the place where this was dealt with in the application and to state that the project was subject to rigorous federal and provincial assessment.

The comment of the working party, although more detailed than that of Langer, received a far more detailed response with reference to scientific data. Further, if a response to a question from the working party was inadequate and the party requested more detail, it was provided; 8. The 2011 tracking table was not received by the EAO in the required time and was not posted to ePic within required time;

9. The January-February 2012 public consultation period was confined to consideration of the Highway 99 addendum, only eight dayslead time was given to the start of the comment period, and only 21 days was given for comment, all of which was insufficient given thecomplexity of subject; 10. The 2012 tracking table did not respond to expressions of public concern otherwise than related to the pipeline route.

Some of theseconcerns were of the following nature: “No, no to fuel storage facility in, or pipeline through…Richmond” and “VAFFC seems to havecomplete disregard for the value of the Fraser River fishery commercially and to aboriginal heritage; the safety residential communitywhere the proposed project site would be” and “the BC environmental review process has largely allowed this game playing to take placeby initially accepting an inappropriate application, very limited public input and then allowing the goal posts to shift halfway through…and now allow the process to reconvene without many key studies provided to the EAO and not made available for review and commentby the public”; 11.

The June 2012 report on spill risk on the Fraser River was not posted to ePic within 7 days as required by s. 6(1)(

c) of the PublicConsultation Policy Regulation. It was posted five months later, on November 19, 2012. This important study was not provided in atimely manner to the public; 12. The December 2012 assessment report inadequately reflected the contribution made by the public because it inadequately conveyedwhat the public said during the consultation process through lack of detail. Further, the public comments were inadequately consideredby the EAO; and 13.

No opportunity was given for public comment on the reports received in October 2013 related to studies undertaken by the Ministryof the Environment and by the Vancouver Fraser Port Authority. Issues [58] There are two issues as broadly described by the petitioners. First, did the public consultation meet the requirements of the EAAand its regulations? Second, did the opportunities provided to the petitioners to participate in the environmental assessment satisfy therequirements of procedural fairness?

The respondents and VAFFC refined the first issue to address whether it was reasonable for theexecutive director to conclude that the public consultation undertaken on the project was adequate. The petitioners said that therequirements for procedural fairness did not add to the statutory obligations and said that if the matter was decided in their favour on thestatutory

interpretation, then it was not necessary to go further. However, because this point has not been definitively decided (see DoRav Right Coalition v. Hagen, 2006 BCCA 571 at para. 47 (Do Rav) and Do Rav Right Coalition v. Hagen, 2005 BCSC 991 at para. 123(Do Rav BCSC)), and because the first question has not been decided in favour of the petitioners, the procedural fairness issue will beaddressed. Analysis (

a) Standard of Review [59] The jurisprudence has determined that the form of consultation that the executive director adopts within an environmentalassessment is to be reviewed upon the standard of reasonableness (Friends of Davie Bay v. Province of British Columbia, 2012 BCCA293 at paras. 20-30; Pacific Booker Minerals Inc. v. British Columbia (Environment), 2013 BCSC 2258 at paras. 92 and 119). Ascounsel has agreed in this case, the matters before this Court do not relate to the narrow or exceptional questions that concern truejurisdiction so to raise to the correctness standard. Rather, the questions involve the executive director’s

interpretation of the adequacy ofthe public consultation process in the circumstances and so involve an

interpretation closely connected to the EAO’s function, adetermination that is subject to review on the reasonableness standard (Friends of Davie Bay at para. 30). This standard was defined inCanada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at para. 59 (Khosa) and applied in Friends of DavieBay at para. 31 as follows: [31] The standard of reasonableness is defined in Canada (Citizenship and Immigration) v.

Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 atpara. 59: [59] Reasonableness is a single standard that takes its colour from the context. … Reviewing courts cannot substitute their ownappreciation of the appropriate solution, but must rather determine if the outcome falls within “a range of possible, acceptable outcomeswhich are defensible in respect of the facts and law” (Dunsmuir, at para. 47).

There might be more than one reasonable outcome.However, as long as the process and the outcome fit comfortably with the principles of justification, transparency and intelligibility, it isnot open to a review court to substitute its own view of a preferable outcome. Another description of the reasonableness standard is to ask whether any reasons support the decision (Baker v.

Canada (Minister ofCitizenship and Immigration, (SCC), [1999] 2 S.C.R. 817 at para. 63 (Baker)). [60] The question here is whether the executive director’s assessment of the adequacy of the public consultation undertaken orproposed was reasonable. [61] The petitioners argued that not only did the executive director unreasonably exercise his discretion to determine the adequacy ofpublic consultation, but his determinations also resulted in a denial of the common law rules of procedural fairness.

While no standard ofreview is specified for failure to observe the principles of procedural fairness, Khosa at para. 43 suggests that procedural issues are to bedetermined on the basis of correctness, subject to competent legislative override (see also Grand Riverkeeper, Labrador Inc. v. Canada(Attorney General), 2012 FC 1520 at para. 42). However, as stated in Khosa, relief is ultimately governed by common law principles.Application of the correctness standard of review to issues of procedural fairness was not considered helpful by Groberman J.A. in

Seaspan Ferries Corporation v. British Columbia Ferry Services Inc., 2013 BCCA 55 at paras. 50-52 (Seaspan); Pacific BookerMinerals at paras.129-131). Instead, the standard is simply “fairness” (Seaspan at para. 52; Pacific Booker Minerals at para. 131). (

b) The Reasonableness of the EAO

Interpretation [62] The question here is whether the executive director’s determination of the adequacy of the public consultation provided wasreasonable. [63] Environmental protection legislation is aimed at identification and evaluation of all potential environmental consequences of aproposed undertaking using decision making that guarantees the adequacy of the assessment process and reconciles, as much as possible,the proponent’s development desires with environmental protection and preservation (Friends of Davie Bay at para. 34; Friends of theOldman River Society v.

Canada (Minister of Transport), (SCC), [1992] 1 S.C.R. 3 at 71). Environmental assessmentis concerned with a range of effects including environmental, economic, social, health and heritage (Do Rav BCSC at para. 32). Publicparticipatory rights are a core principle in environmental assessment as reflected in codification of public consultation in the PublicConsultation Policy Regulation. [64] The object of the EAA, as determined in Friends of Davie Bay at para. 35, is important, so that an environmental assessmentcounteracts the ability of collective economic and social forces to set their own environmental agenda.

Through a neutral assessmentprocess, those affected are given a reasonable opportunity to be engaged and to have their interests given transparent and thoroughconsideration (Pacific Booker Minerals at paras. 120-121). [65] The environmental assessment process designed for British Columbia places significant decision making flexibility or discretionon the executive director to “ensure adequate public consultation in relation to the reviewable project” (s. 4(2) and (3) PublicConsultation Policy Regulation). What is “adequate” is not defined.

Generally, the requirement to consult is influenced by the context ofthe term’s use in the legislation and the particular circumstances at the time of consultation (Gardner v. Williams Lake (City), 2006BCCA 307 at para. 30 (Gardner)). Bauman J. (as he then was) described the discretionary public consultation process under the EAA inDo Rav BCSC at para. 33 as an “…ad hoc regime for public notice, access to information and consultation, tailored for each assessmentby a person with broad discretionary authority which, in turn, is loosely guided by the Regulation”.

It does not involve resolution of adispute (Do Rav BCSC at para. 35). It does not engage the public in a dialogue or in a negotiation (Do Rav at para. 41; see MarkHaddock, “Current Issues in Environmental Assessment in British Columbia” (2010) 21 Journal of Environmental Law and Practice 221at 234).

It is a proponent driven assessment with responsibility for the design and assembly of public participation placed upon aproponent within the policy confines of the Public Consultation Policy Regulation as reasonably interpreted by the executive director(Friends of Davie Bay at para. 47). [66] The regime for public consultation in the EAA is not directly analogous to the requirement for consultation in the LocalGovernment Act, R.S.B.C. 1996, c. 323 as described in Gardner or to the specific Vancouver Charter, S.B.C. 1953, c. 55 as interpreted inCommunity Association of New Yaletown v.

Vancouver (City), 2015 BCCA 227. There is no requirement for a public hearing here. Theprocess is aimed towards providing as much information as possible relating to the project as proposed by an applicant and then to assessthat information and report on it to the responsible ministers for decision (Do Rav at paras. 41-43). The decision ultimately to be made isa public policy decision that is placed at the far end of the administrative decision spectrum from judicial-like decisions (R.K. Heli-SkiPanorama Inc. v. Glassman, 2007 BCCA 9 at para. 30 (R.K.

Heli-Ski)). [67] It is also worth noting that the opportunity to be consulted as set out in s. 11(2)(

f) and (

g) EAA as guided by the policy in thePublic Consultation Policy Regulation requires the executive director to oversee the adequacy of a consultation program conducted bythe proponent that uses various techniques leading to reception of “comments”. This opportunity is defined in the regulation as givingnotice, access to information and formal public comment. “Comment” is more confined than certainly a “hearing”, especially in thecontext here. It is limited to the making of critical remarks and expressions of opinions on the proposed project, reflective of the natureof the administrative decision being made.

As determined by the executive director within his discretion, it is not a back and forth orongoing dialogue. [68] There is a general policy requirement found in the Public Consultation Policy Regulation that there be one formal consultationperiod (s. 7(1)). The length of public consultation is constrained by the Prescribed Time Limits Regulation which sets maximum timeswithin which, for example, the application can be reviewed, subject to suspension for reasons related to the proponent.

Other time limits,such as for giving notice of a public comment period or of an open house or public meeting, are also set out in the Public ConsultationPolicy Regulation, with some discretion for longer periods but still confined by the Prescribed Time Limits Regulation. Access toinformation is prescribed by the Public Consultation Policy Regulation, although this is only a policy that must be taken into account bythe executive director. [69] The s. 11 scoping order is central to the environmental review process. As stated in Do Rav BCSC at paras. 21-22: [21] I stress the provisions of ss. 11(2)(

f) and (g). The executive director is given specific authority to determine who will be consultedduring the assessment, the means by which those persons will be given notice, access to information and an opportunity to be consulted,and finally the actual opportunities for those persons to provide comments during the assessment of the project. [22] The executive director is effectively empowered to establish the scope and content of the "opportunity to be heard".

I haveconcluded that one must largely look to his determination under s. 11 of the Act when one is considering the issue of procedural fairnessin the assessment process at bar. [70] The petitioners have criticized use of the proponent’s public input tracking table in response to issues raised by the public duringthe review. The petitioners say that the responses were not meaningful and the EAO’s acceptance of the tracking table as a

summary andresponse to public comments shows that their input was not considered in a meaningful way. This criticism has foundation in academicliterature about the procedural safeguards to ensure meaningful public participation in the process (see Mark Haddock, “Current Issues inEnvironmental Assessment in British Columbia”, (2010) 21 Journal of Environmental Law and Practice 221 at 244). However, the

question as found in the jurisprudence related to the duty of procedural fairness is not whether each public comment received adequate and meaningful response but whether the substance of the issue raised was adequately and substantively dealt with ( R.K. Heli-Ski at para. 63 ; Baker at paras. 22 and 44 ). A similar type of tracking table was used in Do Rav as described at para. 34 . There, the Court made it clear that public comment cannot be made with the objective of compelling a proponent to modify the project to be acceptable to all.

Rather, the object of the exercise is to gather as much information as possible relating to the project as proposed by the proponent, to assess and report on the information and then refer it to the ministers for decision ( Do Rav at para. 41 ). [ 71 ] With respect to the inadequacy of notice to the public, the executive director obviously thought that advertisement through local and provincial newspapers with a combined circulation of over 700,000 was sufficient as was the statement of the purpose of the open houses and invitation to comment.

The open houses and invitation to comment drew significant public input, including that of the petitioners. There is no specific evidence that anyone was misled by the advertisements or that the essential nature of the project was not sufficiently disclosed to allow the public to participate. While more detail might always be better, this was notice only and not information generally which was available online and through the open houses.

In these circumstances, it cannot be said that the executive director’s determination that notice was adequate was unreasonable. [ 72 ] With respect to access to documents, the format of online access with limited hard copy available cannot be said to be unreasonable. While some people may have difficulty with website access, there is no evidence that the petitioners had any difficulty. Certain materials were available for review at the open houses and in libraries.

Unfortunately for some in this day and age, with the amount and complexity of information available, online access is the only realistic manner to access all material. [ 73 ] In specific comment on the evidence, little weight has been given to statements such as contained in the Day affidavit which said that members of the public with whom she spoke told her that they had not been aware of the project or the environmental assessment.

Such anecdotal hearsay is inadmissible and unreliable. [ 74 ] As for the failure to post some material within the timeframe set out in the Public Consultation Policy Regulation , this is a policy guideline only. Further, the posting of the 2011 tracking table and the 2012 spill risk report on the date of the lifting of the suspensions cannot be said to be unreasonable given the suspension of the process for a time, notwithstanding that consultation with the working group continued.

Any other alleged failures to post within the timeframe of the regulation, such as the executive director’s written assessment of the adequacy of the public consultation, are technically irregular only and did not go to the substance of the public consultation because the public was not meant to have the opportunity to comment upon this document in any event.

The timeframe irregularities did not go so far as to establish a “cavalier” attitude as alleged on the part of the executive director towards keeping the public informed. [ 75 ] The petitioners allege that the opportunities given to the public to comment were inadequate in the circumstances. The opportunities were inordinately confined by the short length of the two comment periods, the timing of disclosure giving inadequate time to prepare a comment, the limitations of the open house forum, and the refusal to consider comments other than related to the Highway 99 route in the 2012 comment period.

The proponent’s responses to public comment were inadequate and there was no opportunity given for the public to do anything about the defective responses. Finally, the public should have been further consulted after the spill response study, the biofilm report, and the marine report were received in 2012 and 2013. [ 76 ] Underlying the petitioners’ position was the assumption that the public was to be equated with First Nations and local governments in the consultation program. However, this was not the case.

As described above, the scoping order established a “working group” composed of First Nations and federal, provincial and local government agencies with a different relationship to the process than that of the public. The working group was tasked with providing advice and was not limited to comment. The order specified that consultation with these groups was individualized, that the consultation process was itself subject to advice and opinion from the group members, and that individual and group meetings were to occur.

Specifically, the working group was to be consulted with respect to preparation of the assessment report. The executive director had discretion to establish a different relationship with this working group and it cannot be said that because it was given more latitude in the framework of assessment, that the public should have been given the same. [ 77 ] With respect to the notice and length of comment periods, it should first be noted that this project was not automatically reviewable under the EAA . Its size and impact did not render it so. This places this project within a range of reviewable projects.

The defined structure of the review process at 180 days practically limited the time within which public comments could be received, summarized, and considered. There were three comment periods: 45 days on the application information requirements, 60 days on the application, and 21 days on the alternate route. Given that the policy guidelines contemplate at least one comment period of between 30- 75 days for projects small or large, the 126 days for public comment established here was not unreasonable.

The executive director was responsive to the need for more time and extended the time for comment on the application, even though it was not as much as some may have wanted and even though he did not directly respond to Day. The notice before start of comment period is set in the guidelines and the executive director cannot be faulted for following them here.

The executive director’s decision that the members of the public had adequate time to prepare intelligent and reasoned comments was not unreasonable. [ 78 ] The petitioners did not comment during the pre-application stage and the comments during the application review stage dealt with a range of issues that were identified in the tracking table

summary report. Each public comment, with a minor exception, was summarized in the tracking table. Significantly, the petitioners have not suggested one issue that they raised which was not addressed globally, one way or the other. Although the direct response to each public comment may not have been as detailed as the direct response to the more detailed comments of those in the working group, there is no requirement for a specific response to each public comment received and the substance of the matters were dealt with.

Also, there was no general requirement for the public to comment upon the adequacy of the responses given by the proponent. This was a decision reserved to the executive director and his determination that the responses were adequate cannot be assailed in the circumstances. [ 79 ] In relation to the adequacy of the further consultation related to the Highway 99 route and the limitation of the public comment to this issue, Do Rav BCSC is apposite.

In that case, the petitioners had argued that the change of construction methodology in the construction of a rapid transit link from boring a tunnel to cut and cover effectively created a new project and that public consultation

should have been accordingly supplemented at this stage of the review. This was rejected by the Court at para. 113. The adequacy of the consultation following this development in Do Rav BCSC was at the discretion of the executive director. The same can be said here with respect to the proposal for an alternate route. This alternative was in response to concerns raised by the public, among others.

Day’s expressed concern to route the pipeline through to Cherry Point was specifically addressed as were all of the other route related comments. [ 80 ] With respect to the request to have been given the opportunity to comment on the spill risk study, the biofilm report, and the marine report, all of these were responsive to issues raised by the public. These studies were obtained from Environment Canada or the province. They came after VAFFC had filed its application and after the executive director had completed his assessment report.

The reports were technical in nature, independent of the application and did not identify new issues. The ministers considered that these studies were useful for consideration within the project assessment. In these circumstances, it cannot be said that the failure to consult the public at this stage was unreasonable. [ 81 ] By assessing each of the alleged deficiencies in terms of the reasonableness of the adequacy determination here, it should not be taken that each detailed inadequacy could lead to a determination of unreasonableness on its own.

Regard is ultimately had to the whole of the process to determine whether the executive director’s determination of the adequacy of the public consultation was reasonable. The executive director had a substantial record over a period of four years upon which he could conclude that the public consultation was adequate. His

interpretation of the adequacy of the public consultation was not unreasonable. (

c) The Duty of Procedural Fairness [ 82 ] The British Columbia Court of Appeal considered the “flexible and variable” duty of procedural fairness as described by the Supreme Court of Canada in Baker at paras. 21-28 within the context of environmental assessment under the EAA in Do Rav .

Newbury J.A. said at para. 45: [45] In Baker , the Court noted that the duty of procedural fairness is “flexible and variable, and depends on an appreciation of the context of the particular statute and the rights affected.” (Para. 22, per L’Heureux-Dubé, J.) The learned judge described various factors to be taken into account in determining the contents of procedural fairness in any given case – the nature of the decision being made and the process followed in making it, the nature of the statutory scheme and the “terms of the statute pursuant to which the body operates”; the importance of the decision to the individuals affected thereby; the “legitimate expectations” of the person challenging the decision; and the “choices of procedure made by the agency itself, particularly when the statute leaves to the decision-maker the ability to choose its own procedures , or when the agency has an expertise in determining what procedures are appropriate in the circumstances.” (Para. 27; my emphasis.) This list was not, of course, exhaustive, and in the final analysis, the question was said to be whether persons affected by the decision have had the opportunity to “present their case fully and fairly, and have decisions affecting their rights, interests, or privileges made using a fair, impartial, and open process, appropriate to the statutory, institutional, and social context of the decision.” (Para. 28.) [emphasis by Newbury J.A.] [ 83 ] Several British Columbia cases have now applied the Baker list of factors at paras. 23-28 as relevant to deciding what is required by the duty of procedural fairness as applied to the British Columbia environmental assessment process.

Do Rav recognized that the process of environmental assessment under the EAA gives broad powers to the executive director to determine the required scope of the project and the procedures to be followed in that assessment (at para. 46). The task is complex and polycentric ( Pacific Booker Minerals at para. 141). Other factors include that the executive director has expertise in a field which engages many disciplines and in a process which calls for the assessment and mitigation of the social impact of projects ( Do Rav BCSC at para. 93 ).

The decision to allow a project to proceed ultimately engages broad issues of public policy that involves the weighing of all public and private interests involved ( R.K. Heli-Ski at para. 30 ). The legitimate expectations for the public consultation process are established in the s. 11 EAA scoping order and within the time frame established in the EAA and regulations ( R.K. Heli-Ski at paras. 45, 51-57 ).

Unlike in Pacific Booker Minerals at para. 149, there was nothing specific to the public consultation process here that could have led the petitioners to expect anything different than what was proposed in the s. 11 scoping order. [ 84 ] There was some late argument that the petitioners did not have ‘standing’ or were not ‘affected’ so to argue procedural fairness from the perspective of the public because their “rights, privileges, or interests” were not affected ( Baker at para. 20 ).

Or, the respondents said, the process affected them in a limited way only as private parties, so limiting the scope of procedural fairness that should be afforded them. While the petitioners are residents of Richmond and so can be said to be affected by the project, the content of the duty is variable, depending on all of the circumstances including the statutory, institutional and social context ( Baker at paras. 21-22 ).

It is acknowledged that none of the petitioners’ liberty, ability to practice their profession, or business interests is directly affected by the project ( Pacific Booker Minerals at paras. 144-146).

In the end, however, other Baker factors weigh heavier and the importance of the ultimate decision to these petitioners is a minor consideration. [ 85 ] The British Columbia Court of Appeal in Do Rav had left open whether the common law of procedural fairness had been supplanted by the consultation scheme envisaged by the legislature under the EAA and regulations (at para. 47), but found that adequate opportunities in keeping with the common law principles of fairness had been met in that case.

The petitioner was treated in a manner appropriate to the statutory, institutional, and social context of the decision and legitimate expectations were properly regarded ( Do Rav at para. 47 ). [ 86 ] The decision to allow the project in this case to proceed is similar to the decision to allow a ski resort project to proceed in R.K. Heli-Ski . There, K. Smith J.A. said for the court at para. 30: [30] … At its heart, the decision to allow the ski resort to proceed was a public policy decision that involved the weighing of all public and private interests involved.

This context puts the decision at the far end of the administrative-decision spectrum from judicial-like decisions and their attendant procedural safeguards. Since the appellant’s business is at risk, the appellant must be given a hearing, but the requirements of procedural fairness will be satisfied in the circumstances so long as the appellant was given an opportunity to put forward its views and its evidence and to have them considered.

[ 87 ] Fairness requires this court not to get lost in minutiae and Khosa at para. 43 pointed out that fairness dictates to withhold relief when a procedural error is purely technical and occasions no substantial wrong or miscarriage of justice. A technical irregularity with no substantial wrong or miscarriage of justice does not amount to breach of procedural fairness ( R.K. Heli-Ski at para. 65 ). Also, while a process may be far from perfect and could have been better, it should be looked at as a whole to determine whether it was fundamentally procedurally unfair ( Kelley v.

Saanich School District No. 63 , 2005 BCSC 1273 at paras. 73 and 82 ). [ 88 ] Procedural fairness within the context of a fair and informed hearing process in relation to land use and zoning bylaws requires that interested members of the public have access to all documents material to the approval in sufficient time to prepare reasoned presentations in advance of the public hearing ( Pitt Polder Preservation Society v. Pitt Meadows (District), 2000 BCCA 415 at paras. 54 and 63 ( Pitt Polder )).

However, the adequacy of disclosure in each case is to be assessed in reference to the underlying purpose ( Pitt Polder at para. 52 ). In the case of Pitt Polder , the purpose of a public hearing was to give those persons whose interests were affected an opportunity to be heard at a full and impartial public hearing ( Pitt Polder at para. 52 ).

This exercise of quasi-judicial function is at the other end of the spectrum to the purposeful process of environmental assessment under consideration here. [ 89 ] The petitioners argued that procedural fairness in these circumstances meant that the petitioners should have meaningful opportunity to provide input into the assessment which was denied by failure to meet the requirements of the EAA as described above.

The petitioners stated that the same requirements pertained to procedural fairness as had already been argued with respect to the statutory duty to provide an adequate public consultation process and if the matter was decided in their favour on the basis of the statutory

interpretation of adequacy, it was not necessary to deliberate further. [ 90 ] The decisions of the executive director as it pertained to the adequacy of the public consultation were reasonable. The public was consulted through multiple information sessions held in open houses by either the proponent or the EAO. The public had reasonable timely access to all of the application materials. There were three formal comment periods with one period extended to allow more time for the public to comment on the application and another period designed to allow specific comment on a proposed change to the route.

The process was suspended on three occasions to allow further study of issues that had been reflected in public comment, among others. Each of the issues raised by the public was identified and addressed substantively. It was not necessary to prepare a detailed individual response to each public comment raised. [ 91 ] Having regarded the process as a whole and having considering the alleged deficiencies, the conclusion is that there was no denial of procedural fairness here. (

d) Disengagement of the Petitioners in the Consultation Process [ 92 ] The criticisms of the public consultation process expressed by the petitioners are not new. Since changes to the EAA in 2002, some academic opinion has expressed concern about the adequacy and meaningfulness of public involvement in the process to the point of suggesting that there is a “sense of disenfranchisement from the environmental assessment process” (Mark Haddock, “Environmental Assessment in British Columbia”

(2010) Environmental Law Centre, University of Victoria at 36-40). There has been urging of reform of the devolution to proponents of the responsibility for public participation (John A. Sinclair, Alan P. Diduck, and Patricia Fitzpatrick, “Conceptualizing learning for sustainability through environmental assessment: critical reflections on 15 years of research”, (2008) 28 Environmental Impact Assessment Review at 421). There is debate about which elements of public participation are necessary for meaningful public participation (Jennifer M.P. Stewart and John A.

Sinclair, “Meaningful Public Participation in Environmental Assessment: Perspectives from Canadian Participants, Proponents, and Government”, (2007) 9 Journal of Environmental Assessment Policy and Management 161-183). [ 93 ] All of these considerations are outside of the application of the law to the circumstances of this case and are left to consideration by legislatures.

It is not up to this Court to consider the broad purposes of public consultation and then interpret the legislation in a manner that imposes techniques or processes that it considers will result in meaningful dialogue or democratization of the process. This assignment has been given to the executive director of the EAO within the policies dictated by regulation and as long as the executive director’s

interpretation is reasonable and fair within the confines of that law, then this Court cannot interfere. Decision [ 94 ] The petition is dismissed. As requested, costs may be spoken to. “Dillon J.” ________________________________ The Honourable Madam Justice Dillon