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After months of debate and waiting for staff data reports, the Gabriola Local Trust Committee (LTC) has voted to forward the Brown/Foley application for bulk water extraction in the Agricultural Land Reserve (ALR), to the Agricultural Land Commission (ALC).

The application is for non-farm use in the ALR--bulk water extraction for commercial sale to other properties on Gabriola.

Trustee Sheila Malcolmson and LTC chair Louise Bell voted in favour of forwarding the application to the ALC; trustee Deb Ferens voted against.

The motion made by Malcolmson stated, “The Gabriola island Local Trust Committee advise the ALC that regarding ALR application, GB-ALR-2009.2, the existing extraction activity has legal, non-conforming status in relation to the Gabriola LTC bylaws as per section 9.11 of the local government act and, as a result, the LTC is impelled to forward this application to the ALC.

“Although the Gabriola OCP [official community plan] does not support this activity in the ALR, the Gabriola LTC asks that, should the commission choose to approve the non-farm use, such approval not be permanent and instead be limited to a fixed time period of no longer than two years, and that the commission require the landowner to acquire appropriate assessments regarding the nature of the use and its impact on agricultural activity on the subject property and neighbouring agricultural properties. Thus, to allow future farm uses access to sufficient water resources for agricultural activities on this property and neighbouring agricultural properties.

“The Gabriola LTC urges the ALC to work with other provincial agencies to ensure that groundwater becomes a regulated resource that can be better managed at provincial and community levels.”

In their report, staff note that water extraction and sales have been ongoing since 2002, prior to the adoption of the Temporary Commercial and Industrial Permit Designation (TCIPD) in the 2005 Gabriola Island OCP.

Therefore, Summer Rain has a lawful, non-conforming right, to sell water from this property as well as two other properties on Gabriola not included in the application.

However, the Brown/Foley application for non-farm use to the ALC does not contemplate any modification or expansion of the current non-conforming use.

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The TCIPD would only apply to the subject property in the application, if the use were not already in place prior to the adoption of the amending bylaw in 2005.

Trustee Ferens said, “I have a hard time forwarding this. When it is there, we can send all the comments we want and yet there is no obligation on the part of the ALC to take into account what we may or may not be sending.

“I’m somewhat troubled by that.”

Trustee Malcolmson said, “I feel like I’ve been talking about this for about six years, so I don’t have a lot more to add.

“I do have confidence in the staff advice. It’s really regrettable that this is the advice, but we’ve been down the road on this one. The reason we’ve been waiting since August to get the staff report is that it is really complex at an inter-jurisdictional level, at a bylaw enforcement level, and at a supreme court decision level. I know that we’ve had a lot of legal advice on this from someone who has been winning cases for the Trust.

“The first staff report we got from the planner [in 2009] pointed out all the places...that said why this is not supported and so I feel pretty confident in the advice [that says] this is a technical issue that is really, sadly, outside our hands.

“I really think thank goodness for the Agricultural Land Commission. It’s great the province has got two forms of protection in this case.

“With heavy heart I intend to support the [staff] recommendations.”

Dan Foley’s reaction

Dan Foley, owner and operator of Summer Rain Bulk Water Delivery, was unable to attend the LTC meeting on Friday, but, after hearing the results of the meeting said, “There was no reason not to pass it on when they first got the application [in August 2009].”

As for the fact his application is now heading to the ALC, Dan said, “Their ruling is going to be on the effect, if any, on the agricultural land. Not about trucks going past people’s homes.

“My feeling from them is they are probably going to pass [the application] and grant me permission.”

Dan added he has no problem with the LTC’s proposal for time limits to be placed on the application, saying Thomas Loo, the ALC compliance and enforcement officer, had basically, “tried to warm me up to that--make it a two-year hinge. We’ve been pumping out of there for eight years and nothing bad has gone wrong, other than people don’t like truck traffic.

“It’s really unfair for a few residents in one area to decide whether they are going to share their water on Gabriola just because they don’t like the truck traffic.”

Dan added that his company doesn’t pump out of the Brown land year-round.

“We haven’t pumped out of Tim Brown’s land since the fall. We only use it from, at the earliest, May until the end of September/October. That’s all we use it for. Other than that, all the water comes from the property here on our end. The summer demands so much water that it is more responsible to take it from the three sites than just the one site.”

He also said he’d like to see the Islands Trust come to the table to work on a solution.

“The fight is a no-win battle all the time.”

Dan added, “A big thank you to Tim Brown for standing by me and sharing the resource with the community.”

The ALC Commission’s perspective

Earlier this month, Dan, Tim and Brian Strachan, a landowner close to Tim’s land, were issued compliance demand letters from the ALC.

Thomas Loo explained, “The commission has sent out letters to each landowner demanding that they bring their properties into compliance. So far I have had a response from Mr. Strachan and Mr. Foley advising that they will comply with our demands. I have not heard or received a response from Mr. Brown as of yet, but I do not expect there will be any issues.

“There are two issues here from the commission’s perspective.

“Mr. Strachan has gone through the whole [application] process and received what amounts to an approval in principle. The commission required that Strachan provide a report by an independent hydrogeologist making recommendations to the commission on how the water extraction would be done and whether or not there would be any adverse effects to the aquifer, natural environment and surrounding wells. It would be likely that, if the commission gives final approval to the project, that the recommendations of the consultant as well as comments from the Ministry of Environment would be incorporated into that approval. Mr. Strachan will be allowed to do some extraction as it relates to the commissioning of the report and groundwater study.

“Mr. Brown’s property does not have any approval from the commission; therefore any continued contravention will be reviewed and the commission will take actions as required to ensure compliance with the ALC Act.

“Please be advised that the commission has not had the opportunity to review the Brown/Foley application. These actions are in no way prejudging a commission position. We are merely taking steps to ensure compliance with the Act. Should the Islands Trust forward the application to the commission, it will be reviewed accordingly.

“Mr. Foley has advised that he will comply with the ALC demand to stop further extraction and exportation of ground water from the Brown property. So as long as there are no trucks running out with water we will not take any further action. Continued extraction would be viewed as ‘non-compliance’ and could jeopardize the application as well as force us to take actions as required.”

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