A Complaint to Victoria regarding the Alternative Approval Process
Ron Bolin: July 28, 2011
Notice of Complaint
On July 13, 2011, Nanaimo City Council approved the use of an Alternative Approval Process instead of a referendum in the matter of “Emergency Water Connection Bylaw 2011 No. 7131” which would provide for a connection between the city’s treated water supply and the untreated water supply of the local Nanaimo Forest Products plant (Harmac).
I find it egregious that the City can use the AAP in a case where a general election is coming shortly and would bring virtually no extra cost to the city, while at the same time loading a very laborious and expensive process onto citizens. It is doubly egregious that the notice for the AAP which was published in the newspaper on July 21 and again today, on July 28, does not, in my opinion, carry the information required by Section 86 of the BC Community Charter, namely:
(2) Notice of an alternative approval process must be published in accordance with section 94 [public notice] and must include the following:
(a) a general description of the proposed bylaw, agreement or other matter to which the approval process relates;
(b) a description of the area to which the approval process applies;
The Notice published can be seen on the City’s web site:
Can it be possible that a Notice to Electors of the proposed bylaw and the AAP process can be considered compliant with the legislation even if it does not notify citizens of either:
a) the capital and operating expenses entailed by the project ($4.25 million dollars plus approximately $10,000 per annum in operating expenses if an emergency never takes place); or
b) the extension of the city’s treated water supply beyond its current location to a point further into the city’s periphery (approximately 1 km).
As the AAP process regarding which I raise this question is currently in process and the citizens of Nanaimo are being asked to abide by a negative option process which would be illegal in most commercial transactions, I find that it is particularly galling that the city does not feel the need to make the most basic information available in its notice of the process to the public.
On July 22, 2011, the following email was sent to Joan Harrison, Manager of Legislative Services for the City of Nanaimo:
Good afternoon Joan:
In examining the Notice to Electors regarding this project in the Daily News today, I notice that there is no clear identification of the capital and operating costs which will be entailed by this project, or of the location of the pieces needed to make it work.
Isn’t this presenting the public with a pig in a poke? By what authority are these vital elements of any decision neglected in this notice to Electors?
Thanks,
Ron Bolin
To this date I have not received a responding email. Today, before registering this complaint, I called Ms. Harrison to determine the city’s situation in this regard. I was told that it had been OK’d by the City’s legal advisors.
I look forward to your consideration of this matter at your earliest convenience given the essence of time in this matter.
Posts and Comments on Nanaimo Governance 
Strange and stranger . . . I clicked the link included in the notification e-mail which I received (twice), and then came to this site and tried the same thing (twice). Each time what I got was a City of Nanaimo site page with the notification “Page not found”. Have you found the crossroads, but the dirty work there has already been cleaned up? Just wondering. Nothing would surprise me.
Wendy: I have rechecked the URL and got:
Click to access StatutoryAAPPublicNoticeEmergencyWaterAAP.pdf
I am at a loss as to why it doesn’t lead to the page. In any event the Notice can be found in the Daily News today (July 28) as well as last Thursday (July 21). It can also be seen by going to: http://www.nanaimo.ca and clicking on the notice.
Ron, I have received the answers back from the Provincial Government and will paste into this section. I sent one letter and then had further questions so sent a 2nd letter. I have provided my questions and the provincial gov’t responses.
My 1st letter:
I am a relatively new person living in BC for the last 1 1/2 years. I have been reading the City blog where I live and especially about the use of the Alternate Approval Process. The blogs the I am reading are very negative about the AAP process. Now having learnt where the process has been used I am also questioning the usage of this process.
My question is how do you stop the perceived or possible real abuse of using this process for high dollar approvals? What are the safety measures for the citizens of the community? I am finding that there appears to be a lot of apathy within this particular community, or perhaps they have just given up. From what I can see many decisions in this community, especially the high dollar approvals get approval by using the AAP process. With only a 15% turn out for a municipal election you can almost guarantee that the council knows that they can use the AAP process and get what they want with almost no community involvement in the decision. I have to question the city staff and council that are pushing for this type of decision making.
I understand why this is within the Community Charter but I do not see the oversight in this document so that there can be no abuse of this process. Why is there not a dollar limit to this process and more REGULATIONS AROUND THE USE OF THIS PROCESS? When it is an election year and within a specific timeframe to the elcetion why should this process be use. At this point it should go to a referendum and be added onto the election ballot with no option to use the AAP process.
The Alternate Approval Process from what I have been able to determine has been left too open. There are not enough guidelines around when this process can be used, even how often. Too many major money decisions are being made by using this process. It does not allow the citizens to properly be able to review what is being approved by the AAP process. If this is allowed to continue the way it is written within the Community Charter at least make the small change in the charter to increase the font size of the print and wherein the newspaper it is to be printed. I would suggest the 3rd page of any paper, not buried within the classified. I would also suggest that it must be announced on all radio stations within the community and local TV if there is one.
I have provided what I think can make this process better, please tell me what you think can make this process better and what you will do about this.
Provincial Gov’t 1st Response
Good morning, Lynn,
Thank you for your question regarding the alternative approval process. Your email has been forwarded to me for response.
Local governments have been able to use the alternative approval process (AAP) for many years. The process was formerly known as the counter petition method, until the legislation that provides the framework for local governments underwent a major overhaul, and the Local Government Act & Community Charter came into being in the late 1990’s and into the current millennium.
In order to undertake an alternative approval process, the legislative authority must exist within the legislation in order for the local government to choose this option. In most cases, the process must be undertaken after a bylaw is given three readings by a municipal council or regional district board but before the bylaw is adopted. In other cases, a resolution can be passed by a municipal council or regional district board to initiate the alternative approval process.
The legislation identifies 12 circumstances where the opinion of local government electors may be obtained by the alternative approval process. In each case, a municipal council and/or regional district board has the option of holding a vote instead of an alternative approval process. One of the advantages to a local government for holding an alternative approval process is that it allows the opinion of the public to be obtained at a much lower cost than holding a vote. The costs include two notices published in a local newspaper and the printing of elector response forms. Staff resources needed to administer the process are minimal. This is a major consideration for local governments and part of what makes this process so appealing.
There is also an advantage to the electors because it allows a longer period of time for their opinion to be expressed (at least 30 days). In the case of a vote, the electors generally have 24 hours to express their opinion (12 hours on advance voting day and 12 hours on general voting day).
While the alternative approval process is not without its critics, decisions can be made by local governments that will reduce or eliminate the criticism. We recommend that local governments consider all circumstances when choosing to use the alternative approval process. For example, if a local government establishes the period for receiving elector response forms during times when many electors are absent from the community due to seasonal employment or annual vacation, the electorate may be suspicious of the local government’s motive for establishing that period.
In addition, if a local government decides to establish a period that coincides with a local general election, the electors may question why the local government did not proceed with a vote instead of the alternative approval process because there would be very little additional cost to add a question to the ballot. Often a local government will hold the alternative approval process several months in advance of a general local election so that if more than 10% of the electors sign elector response forms, a vote can easily be scheduled to coincide with the general local election.
The Province of British Columbia has established a legislative framework for local governments that recognizes they are democratically elected, autonomous, responsible and accountable. They are in the strongest position to weigh the needs of their community and to make informed decisions for the benefit of their citizens. The system depends on the ability of locally elected representatives to balance their vision for the community, with the concerns expressed by the people and organizations that are affected by their decisions.
If you have questions or concerns about the way your local government conducts an alternative approval process, I would encourage you to work with your local government. They are in the best position to make changes to the process they use and are able to consider any recommendations you may have. There are several opportunities for you to work with your local government. You can speak to the Chief Administrative Officer (CAO) about the issue, write a letter to Mayor and Council, or attend a council meeting and speak directly to Mayor and Council. You could contact the CAO and ask that your issue be added as an agenda item for the next Council meeting and make a presentation to Council on this matter.
I do hope this information will be helpful to you. Please let me know if I can be of further assistance.
Best regards,
Michele Saunders | Advisory Officer | Local Government Department | Ministry of Community, Sport & Cultural Development
P 250.387.4313 | F 250.387.7972 | E michele.saunders@gov.bc.ca | on the web Local Government Department
My 2nd Letter
Michele, I appreciate your response to the alternative approval process so quickly. But my main question is why were there not more criteria built around when this process should be used and what were not acceptable uses for it. I believe it needs another overhaul. The Local Government Act and Community Charter has not be written in such a way that there are the safe guard in the process to discourage misuse of this process;even if unintended. For example Nanaimo is having its municipal election in November and they are using this process rather than going to a referendum to borrow over 20 millions dollar. This borrowing has to do with the VIHA policy for the surface water filtration. Initially they were to go the referendum and then the council had another vote and they changed their minds. Two council members were away for the first vote and they wanted the second vote and this is what changed the outcome from referendum to AAP.
For small communities this is a large amount of borrowing. For the record and am not for or against the borrowing, so this letter has nothing to do with my personal thoughts. If you look at the blogs you will see what I am reading and possibly have a better understanding of why I think this process does not in fact provide the freedom that you (the Province of BC) believe it provides. I think what this process provides is the easy way out for the municipal government
All I can see from this process are the holes in it. If the Provincial Government is going to provide such a process then they must also provide the criteria around when it should be used. What the Provincial Government has given is how the process should work, but I don’t believe that this is the reality.
I thank you for your time.
Regards
Lynn Stewart
2nd Response from provincial Government
Hello Lynn – while I can appreciate your concerns, I can’t specifically say what the writers of the legislation had in mind at the time this was written. I can say that it has been tweaked over the years – for example, the percentage of elector responses was increased from 5% – 10%. Legislation has and will continue to change over time. When legislators are made aware of problems within the legislation, that is when legislation is reviewed and revisions are considered and implemented. This process is driven by local governments who lobby the Union of British Columbia Municipalities (UBCM) for change.
The alternative approval process was provided to local governments as an option for them in gaining elector approval – it is their choice on whether to use it or go to referendum. While I cannot speak to the situation in Nanaimo, it is possible that they decided to use the AAP first because if it does fail, they then have the option of taking it to referendum in November. Many local governments will do that in an election year – especially if it is regarding a controversial matter. They will attempt to gauge public opinion first by using the AAP – if it fails, they can still move it forward by referendum. On the other hand, if they wait and take it to referendum in November and it fails, the matter cannot be raised again for at least 6 months unless they change the parameters of the bylaw.
In most cases, it makes good sense for a local government to use an AAP. It is extremely cost effective, both monetarily and in staffing resources, which is beneficial to the residents of the community in the end.
If you or others are unhappy with the decisions being made by your local government, then I would again encourage you to raise the issue with your local government. They are the people who make the decision to use an AAP, they create the ads and determine where and how they are published.
It is our responsibility, as citizens of our communities, to help keep our local governments accountable. It is good to see that people like you are paying attention to what their local government is doing, and are taking an active role in local issues.
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Lynn: Thanks for taking the time and effort to contact the Ministry with regard to the use of the AAP. I have taken the liberty of highlighting a few of the statements in Ms. Saunders response to you which I find telling such as that concerning upping the requirement from 5% to 10%, the use of the process during the summer vacation period, and the minimal costs to the City of a true referendum. In fact in the AAP all of the costs -and they are NOT trivial- fall onto the backs of citizen/taxpayers.
I hope you (and many others) will follow up with your concerns to the Mayor and City Council as well as to our MLAs.
My concern in this instance is not only with the AAP, but with the absence of information which I consider to be essential in the case of the Emergency Water Agreement and its associated costs and location which are not given in the Notice to Electors.
Basically, what the letter says is that if the public doesn’t get involved those elected and non-elected officials can pretty much do as they please.
Any council and staff that figures they can blow off $16 million on a new staff office without allowing any public input, is pretty much declaring what they think of public opinion.
Remember in order to keep their seats on council they only need 12 – 15% of the popular vote. We need to make a concerted effort to see that change this coming election.
The Report to Council on an emergency water supply connection with National Forests Products (NFP) contains precious little information as to the engineering facts.
Although a rate of supply from NFP to the City is stated as 10,000 US gallons per minute, one wonders how many minutes or seconds it will take before the well runs dry, especially when the pumps will be trying to fill a 2.5 foot diameter pipe under pressure. In other words there is not a well in the world that could supply anywhere near the hoped for rate! This agreement is not reciprocal and the water is not even potable.
One need not look far to understand the true meaning of this proposal, Phoenix Way is the way to Cable Bay, and Cable Bay is the way to campaign financing.
So could we have a third party engineering critique of this so called emergency connection? Third party meaning have not worked for the City in the past and do not want to work with the City in the future!
Joe: Here is the word I received from the City regarding the system capacities involved.
“The duration of the emergency supply of water in either direction depends upon availability. For example, the City’s ability to supply Harmac would be limited during summer months, which may result in a need for Nanaimo Forest Products to curtail production. However, depending on City use and volume of water in storage, the City may still be able to provide a limited quantity to NFP. At other times of the year, when water is more readily available, either system should be able to provide up to 10,000 US gallons per minute (50 Million Litres per day). The effect on the water storage reservoirs (Jump Lake and Fourth Lake) would be monitored closely to ensure that the emergency supply can be sustained. The City cannot supply enough to meet the mill’s needs; however the mill is supplied by 2 pipelines – it is anticipated that only one would be out of service at any one time, in which case the City supply would provide nearly enough make-up water.
In both cases, the capacity or volume of water able to be supplied is restricted by the City’s Duke Point water supply main. Should the City need the water, restrictions would be imposed on City users (i.e. no outdoor use at all). Either party providing the other with emergency water would strain the capacity of the overall system. When I noted that repairs could take months to effect, I was thinking 1-2 months as opposed to several. In the event, repairs would be undertaken with all dispatch to restore things to normal.
The intent and spirit of the agreement is that of neighbours helping each other in a time of crisis. It also provides incentive to restore our respective systems, to keep the daily costs to a minimum. While the duration of emergency supply is addressed in terms of mutual discussions, the intent is that such supply would last days or a few weeks, rather than for an extended period of time.”
I am prepared to take the word of the professional involved, recognizing that the situation is still fraught with some risk. My next discussion will be with the VIHA representative.
Joe; An inquirey into the whole long drawn out Cable Bay/Nanaimo Council relationship is way over due.
Your comments on the water use & volume seems to have gone un noticed by most people.
The agreement with Harmac is reciprocal in that one can supply to the other.
Should Nanaimo have to supply a dry Harmac just how much water would the City have for it’s own use?
Add to this the respective costs.
The selling price of City water to Harmac is at rock bottom give away prices the likes of which anyone that has metered water would love to have.
This has nothing to do with a water emegency ; it has much to do with the build it & they will come position taken by many Councillors.
You noted that the Harmac water is not potable.
When the time comes who will pay for the purification of that water for residential use?
I would guess the same people(taxpayer) who subsidised the water supply to the developer in the first place.
Re campaign financing.
Island Timberlands have deeper pockets than Cable Bay Developments so I guess that someone will have their grandkids education payed for!.
The Staff Report states;
“For several months the City has been negotiating an Emergency Water Connection Agreement with Nanaimo Forest Products. The purpose of the agreement is to provide a supply of water in the event that an interruption of supply prevents either party from relying on its own water supply.”
Here is the first question: who initiated the emergency supply question in the first place? Was it the City or NFP? Let us assume that the City is the initiator since they already included a pump station in the middle of nowhere in the 2015 budget. Next question: what was the motivation for anticipating a pump station? Let us speculate that the answer to this question might be found in the Cable Bay Servicing Reports. Next question: what constitutes an emergency? We do not know the answer to this question. No reference to a proper Emergency Preparedness Study is provided. We do not know the condition of water infrastructure through out the City, we do not know areas of special vulnerability, and we seem to have failed to invent emergency supply strategies. Next question: is NFP a safe, secure, and adequate City water supply in an emergency? The answer seems to be no, not potable, and of unknown quantity, and subject to the same earth quake risks as the South Fork watershed, and we might add located at the extreme southern extent of the water system. Next question: is there a real threat to disruption of the water supply and by what means? In the Q&A section on the City web site staff have gamely suggested that, “maybe a plane will crash in the watershed.” On the basis of this rationale some of the good citizens of Nanaimo are asked to vote against spending millions of tax dollars.
At the end of this fiasco who owns the waterline ?
Who pays for the maintenance of the pipeline (it’s quite old & leaky)
The pipeline cuts Cedar in half & the right of way will be owned by the City; how will this effect Cedar?
Why has the City of Nanaimo once more used the alternative voting process to further this project;?
Why do so few people vote? pretty bloody obvious is it not?
All things considered this project offers little to NFP.
All things considered this project offers much to those that promote sprawl at the expence of the taxpayer.
The City of Nanaimo Water System Emergency Response Plan 2008 does not contain any recommendations for the construction of water trunk lines in order to respond to emergencies. The plan advocates a deployment strategy of portable pumps, treatment plants, holding tanks, and temporary piping ( all of which the City now owns) for use in adversely affected areas (earthquakes etc.). The plan relies on numerous lakes and reservoirs found within the City for the supply of water. The plan also recognizes that valves throughout the distribution system can be used to isolate affected areas and reroute flows.
Developers should pay all costs for site servicing not the taxpayers of Nanaimo.
Developers should pay all costs for site servicing not the taxpayers of Nanaimo.!!
………….
Who pays for the water servicing to the site?
Will,or not, the City take control of the waterline to Harmac?
If so who will pay for the maintenance of the pipeline emergency or not?
…………………..
all of which the City now owns) for use in adversely affected areas (earthquakes etc.). !!
Has not the earthquake scare not been downdgraded since recent USA/ Washington State research?
Will someone fly a 747 into the Pacifica condo building?
If so how can Nanaimo staff minimize the possibilty?
By employing more staff perhaps?
From the Staff Report:
• Capital cost of pipeline to be shared 50/50 between NFP and the City.
• Capital and operating costs of a future emergency pump station to be fully covered by
the City (a pump station is required to lift water from the NFP system to the City system
and is planned for 2015).
• The City will purchase the statutory right-of-way over the pipeline I pump station.
• The City will own and maintain the pipeline and pump station.
Therefore:
The City will own the pipeline but only if the City can acquire the right of way from persons unknown for a price unknown. (Maybe the yet to be hired Manager of Real Estate can some day provide details.)
On the subject of earthquake preparedness; does the City intend to purchase new energy efficient 4 x 4 vehicles for staff so that they can get to work after “the Big Shaker?” Are there 6,268 citizen pedestrians who would vote against this idea? Would it fly as legislation if tacked to a larger issue and submitted during summer holidays?