West Van seeks court enforcement for Five Creeks project

RETRACTION AND APOLOGY: An earlier version of this story had incorrect statements about Lucinda Jones and Susan Bibbings. The North Shore News retracts any suggestion that Lucinda Jones, Susan Bibbings and any others acted contrary to the injunction and apologizes for its error.

Protesters have been ordered by the courts not to interfere with construction of the Five Creeks stormwater project.

On May 23, the district and its contractors attempted to cut down a massive red cedar at the foot of 31st Street but were stopped when several residents refused to move out of the way. The District of West Vancouver and British Pacific Properties have partnered to build a five-foot storm pipe from the highway to Burrard Inlet to handle excess water dumped by violent storms.

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After a day of arguments in B.C. Supreme Court on Friday, Justice Nathan Smith agreed to the district’s petition for an injunction forbidding anyone from holding up the project any further.

The court documents named Brian Finnie, Joan Finnie, Lucinda Jones and Susan Bibbings as well as a John Doe and Jane Doe.

The defendants argued the district was violating its own bylaws with the stormwater project, that there were irregularities in its tree removal permits, that the municipality had failed to manage its creeks in the past, that the project was being done without consultation with residents and exclusively for the benefit of British Pacific Properties, and that the loss of trees – both as a result of the project and as a result of continued development above the Upper Levels Highway – would be detrimental to climate change and the environment as a whole.

“The defendants are sincerely concerned about these issues and they may well be correct in their criticisms of the [district]. The question is whether this court has jurisdiction to deal with those concerns,” Smith said in his ruling. “The court has no jurisdiction to supervise or overrule the political and administrative decisions of the elected council if they are acting within their area of authority. In short, the court has no power to tell the [District] of West Vancouver how it should manage its drainage system.”

Smith acknowledged Bibbings’ argument that the world is facing a climate change crisis, but he said the courts are not the correct venue for that.

“It’s why decisions must be made by elected representatives who have the power to consider a range of competing interests. If they fail to adequately address those issues, the usual remedy for citizens is at the ballot box,” he said.

If there are an irregularities in how the district went about implementing the project, the proper venue would be a court petitioned to hear a judicial review, Smith said.

While he agreed to the district’s request for an injunction, Smith stopped short of granting the district’s request that police be ordered to arrest anyone who interferes with the work.

“I expect that these citizens will obey the law and respect the order of the court. I have no reason to think they won’t. If I am wrong in that, the [district] will have leave to bring further application without notice,” he said.

On Monday morning, several protesters including Bibbings and Jones returned to the site.

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West Vancouver police on the scene at the bottom of 31st Street in West Vancouver Monday where Rod Marining sits at the base of a red cedar - photo Mike Wakefield, North Shore News

On Tuesday, district spokeswoman Donna Powers said the district was preparing a fresh application and affidavit asking the courts for an enforcement order.

“Council is committed to completing the project in the best interests of the entire community,” Powers said.

Bibbings appeared at council on Monday and passionately told council that her actions at the foot of 31st were a matter of life and death to stave off a climate emergency.

“We cannot afford to lose the old established cedar trees like the one on the beach because the young ones are going extinct. That may be the very last one left standing.

“Are you really going to kill a tree that might be the last one left of its species?” she said. “It’s because I love you guys that I’m willing to go to the Supreme Court of Canada when you drag my butt downtown. It’s because I love all you guys and your children and I want them to have a life. I forgive you taking me to court because I know you don’t know any better. You don’t know that I’m fighting for you.”

Jones also addressed council and repeated calls for the project to be stopped.

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