Top court clears way for harbour cement facility

Top court clears way for harbour cement facility
Published: 04 June 2007

A cement-mixing facility will be built in Vancouver’s east harbour area after the Supreme Court of Canada ended a five-year court battle yesterday by giving a green light to the project.  
Yesterday’s ruling was a defeat for the Burrardview Neighbourhood Association and the provincial government, which had supported the association in its legal challenge to the constitutionality of the project.  
Once in operation, the  Lafarge Canada Inc. facility will barge in aggregate from the Sunshine Coast.  
The aggregate will be mixed with cement at the facility – located in the Sterling Shipyard portion of the harbour – and then trucked to construction sites in the Vancouver area.  
As the Lafarge case wound its way though the courts, it evolved into an important test of the federal government’s powers to regulate development on port lands.  
While experts viewed yesterday’s ruling as an affirmation of federal authority over activities that relate specifically to navigation and shipping, the ruling at the same time eroded the overall grip the federal government has over port operations.  
The litigation was launched in 2002, after the City of Vancouver approved the project using a standing protocol it had reached with the  Vancouver Port Authority to eliminate friction between the two institutions.  
However, the neighbourhood association adamantly objected to the fact that the plant would created noise and air pollution, and that it would violate a building height restriction. It argued that the city had been wrong to waive any need for a municipal development permit.  
Yesterday, the Supreme Court said that modern-day ports require close co-operation between the federal government and local authorities. “The courts should not be astute to find ways to frustrate, rather than facilitate, such co-operation where it exists if this can be done within the rules laid down by the Constitution,” it said.  
James Sullivan, a lawyer for  Lafarge, applauded the ruling yesterday. He said that it leaves harbourfront development largely in the hands of the federal government, rather than passing the responsibility through the province to municipalities, who would inevitably erect vastly varying barriers.  
“If there was really a ‘white hat’ in all of this, it was Lafarge,” Mr. Sullivan said. “ Lafarge did exactly what the city asked it to, but had the project delayed for several years because of a jurisdictional turf war between the federal government and the province.”  
The federal victory was tarnished in that the Supreme Court declined to find that it had absolute authority over the  Lafarge project simply by invoking an age-old constitutional doctrine known as interjurisdictional immunity.  
“There is no explicit federal power over ‘port lands,’ ” the court ruling states. “The VPA’s authority must therefore be derived from the federal power over shipping and navigation under S. 91.(10) of the Constitution Act, 1867.”