A failure to consult

By David Broadland, October 2013

The CRD’s own records show it failed to consult taxpayers on the financial impacts of its sewage treatment plan. That's contrary to provincial law. Was the Ministry of Environment napping on the job when it approved the CRD's plan?

Focus recently filed an FOI for the CRD’s record of public consultation on its $783 million sewage treatment plan. We did this so we could compare what the CRD invited the public to provide input on against what seems to be the minimum legal requirement for consultation. The results suggest the CRD has, in significant ways, been avoiding its legal responsibility to consult the public on this massive expenditure of public money. Moreover, giving such scant attention to public consultation would only be possible if the Ministry of Environment—the regulator watching over the process—has been sleeping on the job or looking the other way.

To help you understand why such an exercise might be in order, let’s go back to July 2010, when the CRD advertised in a local paper two “open houses” to be held in Esquimalt. Presented as “Esquimalt Community Engagement,” the CRD advertisement said it was “moving forward with a new system configuration for wastewater treatment in the Core Area Municipalities.” The ad invited Esquimalt residents “to learn more about the chosen treatment system and give feedback and suggestions on mitigation and community benefits.”

Actually, Esquimalt was being dumped on. For over three years the CRD had pursued various plans in which three or more treatment plants were to be distributed around the region—a sharing of the burden of hosting treatment infrastructure. Then, suddenly, the CRD switched to a single treatment plant—in Esquimalt. This new configuration had been approved by the CRD’s sewage committee in a single meeting without any prior public notice or consultation. That this happened shortly after a round of frosty public consultation had taken place over the location of a proposed treatment plant in an affluent neighbourhood near UVic did not go unnoticed in Esquimalt. 

At the open houses in Esquimalt, the CRD asked attendees to fill in a feedback form. One of the questions on that form was: “How can the CRD be a good neighbour?”

Naturally, the CRD received a talking-to: “Consult the public prior to making decisions. Stop changing numbers to suit your need to push the project through. Listen to us. Do not use falsehoods. Do not mislead the public. Do not spend taxpayers’ money on a one-sided campaign.” And that was just one person. Another chided, “A good neighbour would ask the public for input before it decides on such a huge project. A good neighbour would not spend the public’s money before asking. It is impossible to trust such a body of people who ignore the wishes of the residents who will be most affected.” Some commenters didn’t bother to answer the CRD’s question and led with their own: “Isn’t Esquimalt in the CRD? When did we separate? Regulation without representation is fascism. Until and unless the CRD becomes a wholly elected body, it is tyranny. Consult ex camera on all, ALL, policy issues, development plans, infrastructure proposals and regulation suggestions BEFORE IMPLEMENTATION. Investigate the meaning of the word ‘democratic.’ Stand for office or close shop.”

In response to that “good neighbour” question, 60 percent of the commenters poked hard at the CRD’s performance on public consultation. That wasn’t surprising considering the CRD Board of Directors had already approved the $783 million plan two weeks beforehand, and by the time of the open houses that plan was sitting on the desk of then Environment Minister Barry Penner, awaiting his thumbs-up. 

That doesn’t sound like genuine consultation. In fact, the CRD didn’t even want to be in the room. Esquimalt Mayor Barb Desjardins, the municipality’s representative on the CRD sewage committee, recalled that “it was only because of my protests and a minority of the [sewage] committee supporting me that the CRD agreed to do the two sessions in Esquimalt.” Desjardins said, “I felt the CRD must present their decision to Esquimalt, and insisted that it be done as soon as possible. But let’s be clear that these were not, in any way, ‘community consultation.’”

The deep distrust expressed in the comments gathered by the CRD at those open houses has since grown into community-wide discontent. The CRD’s retreat last summer from a new proposal to locate a sewage sludge processing plant in the midst of a residential neighbourhood in Esquimalt has done little to bridge the gap. Instead, people have been wondering out loud if provincial Environment Minister Mary Polak should call a time-out, bring the CRD back to consult more comprehensively with the people, and allow time for creating a better plan. There is a legal avenue for Polak to do that. Will she take it? Was the CRD’s consultation with the public so bad that it demands redress?

 

What the Environmental Management Act requires

Creation of a liquid waste management plan like the CRD’s is governed by BC’s Environmental Management Act. The Ministry of Environment administers this law and has developed guidelines for regional districts on how to develop such plans (Interim Guidelines for Preparing Liquid Waste Management Plans). On the subject of “Consultation Process” the Guidelines are squishy, perhaps intentionally so. “Should” is used as often as “must.” So definitive statements about what the guidelines intend are open for debate. 

So let’s back up a bit. The Act says, “A [regional district] must provide for a process for comprehensive review and consultation with the public respecting all aspects of the development, amendment and final content of a waste management plan that applies to that [regional district].”

The ministry’s Guidelines explains why that “process for comprehensive review and consultation with the public” is so important. The document states: “Under the Community Charter and Local Government Act, electoral approval must be sought for any borrowing associated with capital works. Because the Environmental Management Act waives these requirements for elector approval for any borrowing necessary to implement [a liquid waste management plan], it is important that the public has an opportunity to provide input with respect to proposed financing.”

In other words, unlike for borrowing for other capital projects, the CRD doesn’t have to seek permission from electors—through a referendum or an alternative approval process—to borrow for a sewage treatment system. Instead, the Environmental Management Act commands “comprehensive review and consultation” with electors before a plan for a sewage treatment system can be approved by the minister. 

The Guidelines further direct regional districts to consult on the financial impact to taxpayers. Toward that end, they state: “The possibility of senior government grants and the use of development charges to reduce capital costs should be presented for comparison with the no grant scenario. As a minimum, for a typical residential taxpayer, the added capital debt repayment and user fees associated with the Stage 2 options and the selected Stage 3 option should be presented.” (The “Stage 3 option” in this case is the plan for a single treatment plant at McLoughlin Point in Esquimalt.)

Did the CRD give the public an “opportunity to provide input” on any of those aspects of the financial impact on taxpayers?

 

The record of public consultation

I posed that question to Saanich Councillor Judy Brownoff, who was the chairperson of the CRD committee overseeing development of the liquid waste management plan in 2010 when Penner approved the McLoughlin plan. Brownoff said, “Consultation was held specifically on procurement method and models... and there was public input, including verbatim comments in reports.” Brownoff was referring to two open houses and a meeting of her committee, held in February 2010, that sought public input “on issues and concerns relating to procurement.” The CRD had asked for public and stakeholder input on various procurement models, such as “design-bid-build” and “design-build-operate-maintain.” But the sessions did not provide “an opportunity for the public to provide input with respect to proposed financing.”

I asked Victoria Councillor Geoff Young if he was aware of the requirement imposed by the Environmental Management Act to formally consult and review with the public on the financial implications to taxpayers of the McLoughlin plan. Young was the Chairperson of the CRD at the time the McLoughlin plan was approved by Penner. Young simply said “[I] don’t have much to add to [the] response Judy sent you.”

Another requirement for public consultation set out by the Ministry of Environment’s Guidelines is that a record of consultation must be kept. The CRD has done a good job of making that record “available for public scrutiny,” as directed by the Guidelines. When so scrutinized and checked against the record Focus obtained by FOI, it becomes clear that the CRD never set up an “opportunity” in which they reviewed the proposed financing with the public, and the public was never specifically invited to provide input with respect to the proposed financing.

The Guidelines’ section on public consultation notes that “[a]pportionment of costs to existing users and to future development should be equitable.” This is, arguably, a direction to local governments to consult with the public on how the excess capacity of a proposed treatment system is allocated. After all, those allocations would have a direct impact on costs to taxpayers. But they would also have a profound influence on where future development in a region is possible. I wrote extensively on that issue here last month; the CRD and its member municipalities decided how and where to allocate that excess capacity without any public input. 

The Guidelines also provide direction to regional districts on consultation around “social impacts.” If you live relatively close to where a treatment plant is proposed, for example, and you might be directly subjected to “odour nuisance, noise, traffic, air quality and visual impact” as a result, then you need to be consulted. The CRD has a mixed record here. They did consult with the neighbourhood near UVic before finalizing their plan. They did not consult with their Esquimalt neighbours, nor with people living nearby in Victoria’s James Bay neighbourhood, before finalizing their plan for McLoughlin Point.

Besides the question of whether the CRD consulted or not, there’s the issue of whether they listened to what the public said and incorporated that into their plan. No doubt the CRD took heed of much of what they were told. But there’s at least one example—and it’s an important one—where the official consultation process seems to have been overshadowed by unofficial consultation. This is the question of whether the cost of a treatment system is the most important consideration to the public. The CRD did official consultation on this in 2009, in a series of “community dialogues” in Victoria, Saanich and Westshore. These dialogues included a survey of what people valued most. For example, the CRD asked people to rate the importance of six characteristics of a wastewater treatment plant. The people surveyed gave the lowest rating to “The plant was constructed for the lowest possible cost.” And they gave the highest rating to “The plant includes technologies for maximum water and energy reuse.”

Other results from those surveys supported the general idea that the environmental impact of the treatment system was more important to the public than the cost of the system.

Yet Young recently told Focus, “Taxpayers throughout the region have made it abundantly clear they do not welcome paying for sewage treatment costs.” And Brownoff said, “When I was chair of the committee the focus was always on limiting costs of the project while meeting regulatory requirements and [to] provide resource recovery where it made sense. We heard through our many discussions with the public, either at the committee meetings (two a month), through presentations at various groups, or through our established consultation process, that costs were the biggest issue to manage.”

Did Young and Brownoff and other CRD directors listen to what the public told them? We don’t really know. One thing is certain though: the record shows the public was never given an opportunity to be informed about the benefits and costs of tertiary treatment, even though public preference, as determined by the CRD’s official consultation, was for that level of treatment.

 

The avenue for appeal

The Environmental Management Act takes away electors’ right to say “No” to a capital project that provides sewage treatment. It replaces that right with a command to a regional district to create opportunities to comprehensively review and consult with the public on several aspects of its plan for a sewage treatment project, and to keep a record of that consultation. So what happens if the regional district doesn’t provide the opportunities for that “process for comprehensive review and consultation”?

The Environmental Management Act provides a recourse to protect the public’s right to be informed and consulted. The Act states, “The minister may not approve a waste management plan unless the minister is satisfied that there has been adequate public review and consultation with respect to the development, amendment and final content of the waste management plan.”

But former Minister Penner did approve the plan. What recourse is left to those feeling less than comprehensively consulted? Although  Penner approved Amendment 8 of the CRD’s plan, does current Environment Minister Mary Polak have any avenue to address the evident lack of consultation with taxpayers on the final content of the CRD’s treatment plan?

In response to that question, an Environment Ministry spokesperson noted: “During the plan amendment, the CRD undertook extensive public consultation, as required by the Environmental Management Act. In addition, further consultation was completed with Esquimalt, with regard to the selection of McLoughlin Point for the central sewage facility. As you note, the minister may not approve a waste management plan unless the minister is satisfied that there has been adequate public review and consultation. Former Minister Penner indicated his approval of the consultation on the final content of the plan when he approved Amendment 8 on August 25, 2010.”

For those hoping to hear that the Environment Minister will intervene, no luck. But Polak’s office didn’t say she was satisfied, either. Polak does have the power under the Environmental Management Act to cancel the CRD’s waste management plan.

 

Should there be a pause for further consultation?

Judy Brownoff said there will be some additional consultation: “[The] CRD will be continuing with various neighbourhood engagements depending on what and where a component of the project is located.” The CRD promised Penner in 2010 that it would “Engage neighbourhoods where treatment plants, pump stations, storage tanks or major pipelines are to be constructed in interactive workshops regarding the location, design, construction and operation of the proposed facilities, and use general public consultation...on broader issues.” 

Brownoff explained why that hasn’t happened yet: “The Committee made the decision (when I was chair) not to ‘invest’ any more money on this project until the funding agreements had been finalized, and that led to no more ‘public meetings, informational newsletters, etc’.”

But “neighbourhood engagement” is unlikely to produce the depth of consultation and change of plan that Barb Desjardins wants to see. The memory of the CRD short-changing her community in 2010 still rankles. That, compounded by the Viewfield Road fiasco, has damaged the CRD’s relationship with her community. “Once the trust of a community is lost it is very hard to regain. It takes significant work and requires going back to where you lost the trust. The CRD has not been willing to do this,” she said.

She noted the lack of clarity in the law about what aspects of a liquid waste management plan require public consultation: “It is not clear what criteria the Ministry used to approve the plans. There is nothing in the Environmental Management Act that makes reference, directly or indirectly, to such criteria.”

Although Desjardins feels Esquimalt residents haven’t been adequately consulted, just going back and doing more of the same won’t work. “I would like to have seen greater Provincial assistance in directing this process,” she said. “The CRD has not done public consultation well and this feeling of unease is growing in the public. [Minister] Polak could amend the liquid waste management plan under section 24 (6) of the Environmental Management Act to state that Amendment No.8 is no longer valid until public consultation is completed…The whole process has been tainted,” she said. “It can’t practically be redone. However there is time to develop a better plan and meet the deadlines.”

She has a simple, two-step program by which the CRD could do a reality check with the public: “First, the CRD should notify every household in the Core Area by mail about the design and cost of the project. With a nearly three-year window available, the CRD could [then] hold a referendum on whether electors are satisfied with this plan or want the CRD to look at the alternatives.”

Desjardins declined to elaborate on the state of negotiations between the CRD and Esquimalt over the latter’s rezoning of the CRD’s McLoughlin Point property. Esquimalt rezoned the property, as requested by the CRD, but attached conditions to the rezoning that the CRD says it cannot accommodate. “These conversations are ongoing,” she said of the negotiations.

Oak Bay-Gordon Head MLA Andrew Weaver agrees with Desjardins that a better plan is needed. “There are many, many people in Oak Bay-Gordon Head who have expressed concern over this project for the reason that they want sewage to be treated [to a tertiary standard]. By and large, people accept we need to treat sewage, but they realize that this $783 million megaproject will essentially take away any appetite for future capital investment and will not actually treat the existing problem. It will only delay that until sometime in the future—because the requirements are for a secondary system as opposed to potential tertiary treatment.”

Weaver’s constituents’ continuing concern about the inadequate treatment being proposed is another signal the CRD has not listened to what the public has been saying. As mentioned earlier, the CRD was advised by the public in early community consultation that including technologies for maximum water and energy reuse were more important than keeping costs as low as possible. Tertiary treatment removes contaminants such as pharmaceuticals, and would produce abundant reusable water.

Weaver confirmed that Polak and Minister of Community, Sport and Cultural Development Coralee Oakes have told him there’s time to develop a better plan: “Both have said if they were asked for an extension of time to 2020, the money would be available and they would be fine in meeting the federal deadline. So there is time to actually do this properly, to go out and do an extensive taxation consultation, one that explores distributed systems, explores PPPs, explores tertiary versus secondary and the additional add-on costs.”

Weaver thinks the CRD is missing out on opportunities for collaboration: “I’ll give you an example,” he says. “Someone should be talking with UVic; they are going into consultation about having a biomass facility of some form, whether it be anaerobic digestion or combustion; they’re talking about doing that now…Would it make sense to have an aerobic digestion sewage system, or a little tertiary system right there? This is the kind of thing that should be happening. But it’s not because [the CRD] are in rush mode now. And the sad reality is we’re not going to be dealing with the problem that exists; we’re just delaying it and we’re spending $783 million in the process.”

Should Polak intervene? Weaver doesn’t think so. “The minister is loathe to get involved because it’s really not the minister’s job to get involved in this. It’s the minister’s job to ensure the process has been followed...The minister should not come in, for example, and order Esquimalt to have the facility built there, although the minister could. I think what the minister should do is proactively switch the deadline in light of this big hullabaloo that’s going on in the CRD… And she should take a very hard look at whether or not the actual consultation process, as required by law, has been met.”

Informed of Desjardins’ call for a referendum, Weaver said, “Totally in favour of a referendum, just as Regina did!”

 

Is there a better way to do public consultation?

How could a community spend seven years and close to $65 million—most of that on planning—yet still come up with a plan that few people trust is the right thing to do? Municipal amalgamation beforehand might have made a difference; the stresses created by having eight different and unequal political cultures in the same room, each trying to avoid getting stuck with too much of the unwanted infrastructure that goes along with sewage treatment, may have wreaked havoc on common sense. But there’s no reason to believe amalgamation is just around the corner. So what happens when the next big infrastructure need comes along? Will the CRD use the same kind of public consultation and get the same kind of result?

I asked Barb Desjardins if she had any suggestions on how to create more authentic dialogue between local government and citizens on such contentious issues in the future. “Engage people before final decisions, not after them,” she said. “Good public process and honest engagement take time. Policy decisions that limit—like never considering expropriation, never considering the use of ALR land—must be reviewed throughout the process to ensure they are still relevant. Respect the people who are paying; they should have more say in what is being put in their backyard. Decisions should be made and heavily weighted to what the local community wants and can support, not what other municipalities want.”

Late last year Victoria Councillor Lisa Helps set up five “citizen budget workshops” to give her ideas that would help the City keep a check on escalating costs. “The purpose,” she said, “was to gain citizen input at the beginning of the City’s budget process, so that this could feed into decisions I’d be making at the council table in the fall.”

How would she create more authentic dialogue between government and citizens on contentious issues? “Victoria’s residents and business owners have terrific, creative, innovative ideas,” Helps said.  “These ideas need to be sought at the beginning of any new project through opportunities for meaningful dialogue. This does not mean politicians directing staff to trot out with shiny billboards proposing a plan. This requires staff, politicians, residents and business owners to sit side by side, around tables, sharing ideas, being willing to be moved and to develop a better plan than each party would individually. This is good, old-fashioned deliberative democracy at work. It takes time. It asks each person to come to the table willing to be moved by what they hear. And this kind of democratic process creates lasting, resilient change because people are part of that change from the outset.”

Alan Dolan, of Alan Dolan & Associates, is a facilitator and community engagement consultant. He suggests the CRD might have done better had it used the approach taken by the BC government to develop an option for electoral reform in 2002.

“The Citizens’ Assembly on Electoral Reform was comprised of two randomly selected citizens (one man and one woman) from each of the province’s 79 electoral districts, plus two Aboriginal members. The Assembly began with a ‘learning phase,’ where it received experts and held public hearings so members could understand the different electoral systems in usage around the world and how they affected the political process. Then members deliberated over which electoral system to recommend. Finally, the Assembly decided they would recommend a Single Transferable Vote system (STV) and the Assembly’s findings were presented in a report to the BC legislature.”

Like Desjardins and Helps, Dolan acknowledges the deliberations of a citizens’ assembly take time. But, he says, “The CRD process has already taken a great deal of time. Using groups of ordinary citizens has a number of distinct advantages. Process is more democratic and representative of the community at large. The International Association of Public Participation (IAP2) says, ‘No other process takes such care to accurately reflect the public.’ Discussions are not swayed by special interests and powerful stakeholders. Members become very well informed on the subject matter. When options are presented to the community, members of the public have more trust in the information. Process allows the assembly to look at alternative ideas from all over the world, not just the ideas of CRD’s engineers or its consultants.”

 

The path forward

While there's always hope governments will behave differently in the future and the public will be included as a full partner in the business of the people, that's not much comfort for those unhappy with the CRD's plan right now. The problem seems to boil down to this: Esquimalt doesn’t want the CRD to build a treatment centre at McLoughlin Point. And that location has problems the rest of the community should be concerned about: It’s too small to include the necessary biosolids processing function, it’s too small for future tertiary treatment, and it’s too small for long-term population growth. If McLoughlin goes ahead, another site will have to be found later on.

At the same time, the CRD has said it will not expropriate land or use land in the Agricultural Land Reserve for a treatment facility, thereby making it impossible for it to find a larger, more suitable location. Does that self-imposed limitation really make sense?

And the CRD has not provided taxpayers with carefully considered information about the benefits and costs of a higher level of treatment. Would that higher level cost each household an additional $200 a year? $500 a year? $1000 a year? The community has been asking the CRD to provide that information to taxpayers before proceeding any further. So far the CRD has not been listening.

The CRD could hold a referendum in which the public can express support for the current plan or support for a closer look at alternatives.There is time to do this. The Province has signalled the CRD that it will wait for it to resolve these issues with the community. It’s never too late to start consulting with taxpayers.

David Broadland is the publisher of Focus.