Local Governance

Local Governance

Three distinct local governance bodies regulate vaious aspects of life on Lasqueti:

Democracy Corner

This series of articles is intended to help increase our collective understanding of how local government, especially our regional district, is supposed to work for us -- what is their role and what is the process they use to make decisions.

Why is process so important?

I learned the importance of democratic process when I was a municipal councilor in Highlands, and dealing with the largest development in BC at the time (Bear Mountain - part in Langford and part in Highlands). I was exposed first-hand to risks to our democracy (involving conflict of interest, a lawsuit, a murder charge, and a tiger …).

Learning to understand and use the tools available (e.g. the Local Government Act) was critical to reaching an acceptable option (which involved the entire Capital Regional District – 13 municipalities and 2 electoral areas, and a provincial-appointed mediator and arbitrator). I also learned from being the Highlands representative on the CREST Board (Capital Region Emergency Service Telecommunications), the Regional Arts Council, and chair of the Highlands Emergency Preparedness Committee.

Democratic process may seem boring and tedious (which it is), but it is essential to our community well-being. You don’t have to look far to see risks to democracy.

One of the main ways that democratic process can go off track is if people do not know how it is supposed to work.

Over the past couple of years, it has become clear to me that there is some uncertainty about how regional districts are supposed to function, and the role of regional directors.

Even the PRRD itself seems to have some misunderstandings. Last spring, after I pointed out a case in which staff had not applied proper process, my complaint was acknowledged and the process was corrected, but PRRD Chair Brabazon also wrote to me “Those who seek some deep, dark, conspiracy to subvert the democratic process are looking for something that is not there.

Poorly understood and applied democratic process by all parties can lead to conflict.

How Regional Governments are Supposed to Work

In the collection of articles below, I draw on my experiences as a municipal councilor in the Highlands and on the various regulations and acts that enable our Regional District to make decisions and provide services to their constituents.

I hope you find these useful.

Andrew Fall

Regional districts: representative democracy

How are regional districts supposed to function, and what is the role of regional directors?

Regional districts, municipalities and the Islands Trust were created by the provincial government, and exist mainly under the Local Government Act and the Community Charter.

The provincial “Primer on Regional Districts in British Columbia” (https://www.regionaldistrict.com/media/28095/Primer_on_Regional_Districts_in_BC.pdf) explains some of the fundamental principles that underlie regional districts, including:

  • Regional districts are federations of municipalities and electoral areas. As such, they represent a balancing of two contending needs for accountability – accountability to the municipal members and accountability to the public.
  • representation for electoral areas comes from directly elected directors
  • Accountability to citizens is achieved at the general local government elections but also through on-going opportunities for the public to be involved.
  • the board is a forum for inter-municipal cooperation and not a separate government
  • Regional districts are for the most part voluntary organizations .... they only provide the services that their members or their residents agree they should provide.
  • Regional districts are for the most part consensual organizations ... they only do what their municipal members and the public agree they should do.
  • extensive procedures are set out in the Local Government Act for obtaining consent of the member municipalities and, in the case of rural areas, elector assent, whether in the form of referendum, petitions or counter-petition
  • Each regional district provides services appropriate to its circumstances.
  • regional districts require a close matching between the benefits and costs of services. The intent is that residents ‘pay for what they get’”.

Regional districts are a form of “representative democracy” founded on the principle of elected officials representing a group of people (as are most Western-style democracies).

In a representative democracy, the people vote for representatives, who then vote on policy initiatives. The foundation of representation is that the elected representative identifies the will of the majority of their constituents. If the desires of the community differ from their own personal view, they ought to put aside their own interests to advance those of the community as a whole (i.e. listening more than telling).

In our case, we elect a representative to sit as a director on the PRRD board. As our representative, for any major issue, he/she is supposed to identify and advance (i.e. represent) the will of the people.

I would be interested to hear other perspectives - please feel free to comment below.

Regional districts: who is represented?

Who are regional directors supposed to represent?

In a general sense, a regional director represents their electoral area (in our case, Lasqueti).

But who specifically does that include?

The “electors” are people who can vote in a local government election for regional director (next election: Oct 2018). Part 3 (Electors and Elections) of the Local Government Act defines who can vote:

  1. Resident electors are people who are 18 years or older, Canadian citizens, residents of BC for at least the prior 6 months, and residents of Lasqueti for at least the prior 30 days.
     
  2. Non-resident property electors are people who are not resident electors, but are 18 years or older, Canadian citizens, residents of BC for at least the prior 6 months, and owners of property on Lasqueti for at least the prior 30 days. Plus: only one owner of a property can register as a non-resident property elector.

But who is represented? Whose interests are we talking about?

In a nutshell: every resident and landowner (not just electors/voters).

The Local Government Act and the “Regional District Tool Kit” make it clear that our regional director represents the “jurisdiction” (i.e. Lasqueti). Although not every resident and property owner can vote, all need and deserve representation, and all have interests in how regional services are established and run on Lasqueti. This includes minors, permanent residents, and citizens of other countries.

Every resident and property owner is free to voice their support, concerns or wishes by writing or speaking to their regional director, by writing to the regional Board, or by attending Board meetings.

PRRD staff undermined this representation when they declared our petition in 2015 to be “invalid”. Recall that the community sent a petition with over 100 signatures to our regional director, asking him to put forward a motion to rescind 3rd reading of the 911 and house numbering bylaws. This petition was open to any resident and property owner.

Instead of our director acting on the petition, PRRD staff declared that it was invalid using a formal “certification of insufficiency.”  However, this certification erroneously relied on the part of the Local Government Act regarding “petitions by property owners for a new service” (discussed in the note on regional service establishment). When I wrote to the PRRD CAO that our petition was not asking for a new service, his reply included that “the petition falls into a black hole.” In actuality, the petition was entirely valid, from the people who are supposed to be represented, and was improperly dismissed as invalid.

Whether or not you can vote, the regional director is supposed to represent all residents and property owners of Lasqueti.

Regional districts: how are new services established?

Lasqueti receives a number of regional services via PRRD, including the fire department, solid waste management, barge ramp, library, regional parks, etc.

How are regional services established?

Recall from the provincial “Primer on Regional Districts in British Columbia(https://www.regionaldistrict.com/media/28095/Primer_on_Regional_District...) that regional districts are for the most part voluntary and consensual organizations.  Regional districts are designed to only provide the services that their residents agree they should provide.

The Local Government Act codifies these principles in law in Part 10 (Regional Districts: Service Structure and Establishing Bylaws), Division 4 (Approval of Establishing Bylaws).

In general, new services must be “approved” by Lasqueti in one of four ways (section 342):

  1. A referendum with at least 50% of the votes in favour (section 344: approval by assent of the electors).
  2. A “counter-petition” with no more than 10% of the electors against (section 345 and Community Charter section 86). This “alternative approval process” can only be done for certain types of services.
  3. A petition signed by owners of at least 50% of the parcels and at least 50% of the land value (section 337). This also requires consent in writing by the regional director or a 2/3 vote by the Board.
  4. Consent by the regional director on behalf of the electoral area in writing (section 347) for certain services, provided the service does not require borrowing.

The North Island 911 dispatch system would require two new regional services for Lasqueti: house numbering and 911 emergency telephone service.  As these services already exist for other areas in the PRRD, the PRRD tried to establish these on Lasqueti by amending the establishing bylaws (section 350) and passing the first 3 readings of the amendments at the Dec 17, 2014 Board meeting. This means the PRRD Board has approved them in-principle and adoption now hinges only on a single vote by the Board for final reading.

Approval from Lasqueti was done by “consent on behalf of Lasqueti” by our regional director, Merrick, without any prior community consultation. This consent may have followed the letter of the law, but did not follow the foundational principle that regional districts are supposed to only provide the services that the community agrees they should provide (i.e. consensual and voluntary).

What should have happened in a well-functioning, representative democracy? Consent from our regional director should only have been granted following meaningful community consultation of the new "proposed services", and after he received a clear mandate from the community to request the new services. Given that the Lasqueti community has so overwhelmingly objected to the new services, the consent granted by our regional director should not have occurred.

 

Regional districts: service withdrawl

Regional District service withdrawal can only be initiated by regional director.

The Lasqueti Island Volunteer Fire Department operates as a “regional service.”
During the past couple of years, PRRD representatives and staff have made multiple statements that the PRRD may take away this regional service.
For example:

  • if by the end of 2018 we are unable to show significant forward movement then I will likely recommend the board consider rescinding this service bylaw. ... I would argue that 9-1-1 service is a valuable service even if you don’t have a local fire/FR service...(PRRD staff Thoms, Nov 2016)
  • "We'll either do it properly or not at all" (PRRD Chair Brabazon, July 2017, Powell River Peak)
  • I think it would not be advisable for Lasqueti to stubbornly insist on Option C if it means rejecting RD support for our Emergency Services.(Merrick, July 2017)
  • “...we are in real danger of losing the service if we carry on dithering about dispatch while all else sits in limbo.(Merrick, Nov 2016)

The Local Government Act lays out the process by which a regional service may be “withdrawn” in Part 10 (Regional Districts: Service Structure and Establishing Bylaws), Division 6 (Dispute Resolution in Relation to Services), sections 361-372. The basic steps include:

  1. To initiate service withdrawal, a participant must give written notice to the Board, to all other participants in the service, and to the Minister.
  2. If there has not been a “service review” in the past 3 years, then a service review must first be done.
  3. The Minister must either require a service review, further negotiations, mediation or arbitration.

Key points, according to my understanding:

(a)  The PRRD cannot start the process to withdraw our fire department service unless the Lasqueti regional director makes the request (as the “participant” representative).

(b)  The service withdrawal process is overseen by the Ministry.  Given that the majority of residents want to keep the regional fire department service -- according to the 2015 PRRD survey (> 90% of responses) -- it seems unlikely that the Minister would take a favourable view if the Lasqueti director were to initiate this process against the wishes of the community.

This is consistent with the consensual and voluntary nature of how regional districts are supposed to provide regional services.

This leaves a question: would our current PRRD director, and any future PRRD directors, publicly commit to NOT initiating a withdrawal of our fire department service without majority community support?  If so, withdrawal of our regional fire department service cannot happen.

Regional districts: a 9-1-1 service cannot be withdrawn

The previous note described how only the regional director, following the will of the people he/she is supposed to represent, can initiate a withdrawal from a regional service (not the PRRD Board or staff).

There are, however, some services from which service withdrawal is impossible.

The “Regional District Service Withdrawal Regulation 398/2000” exempts 4 services from withdrawal:

  1. an emergency telephone system, including an emergency 911 system;
  2. a transit service;
  3. a regional parks service; and
  4. solid waste and recycling regulation, storage and management.

This means that, if the PRRD imposes a 911 service on Lasqueti, against the wishes of the majority of the community, then it would be impossible to withdraw from that service, even if we later found that our locally-designed solutions would work better.

When I brought the “No Withdrawal” regulation to the attention of the PRRD staff, the response from the CAO included:
Creatively thinking, I suppose there is one way out of the 911 service.  That would be to dissolve the fire department.  With no fire department it could be logically reasoned that there is no need for a 911 service.(PRRD CAO Radke, March 2015).
An alternative staff perspective was “I would argue that 9-1-1 service is a valuable service even if you don’t have a local fire/FR service(PRRD staff Thoms, Nov 2016).

These responses do not seem very logical given that the majority of residents and landowners want to keep our regional fire department service (> 90% of responses in the 2015 PRRD survey).

The inability to withdraw from 911 is part of the rationale in the E-DAC recommendation for a 5-year review after implementing the locally-developed and supported Option C dispatch system.

If, after 5 years, the community, fire department and PRRD agree that the system should transition to a 911 system, then that would be possible. Conversely, if 911 is imposed on the community, and after 5 years, we realize that our Option C would have been better, tough luck.

The Option C dispatch system was developed with effort to consult with the community and fire department, as well as to meet the requirements, in order to best meet the interests of all stakeholders. Regional districts are supposed to provide the services that the community wants. Regional districts are not supposed to force services upon communities, especially a service subject to the “No Withdrawal” regulation.

Regional districts: enlightened self-interest

Whose interests are regional directors supposed to represent?

The Union of BC Municipalities (UBCM) and the BC Ministry of Community Services “Regional District Tool Kit” includes a comprehensive set of fact sheets and guides.

Discussion Guide 1 (Regional / Local Interests) addresses the question “Whose interests should directors promote at the board table?

Some relevant quotes (described in the tool kit as the principle of “enlightened self-interest”):

  • Underlying the regional district model is the principle of self-interest, which maintains that a jurisdiction’s decision to participate in services that are provided through the regional district should be based on the jurisdiction’s own interest.
     
  • In all, there will be many instances when a jurisdiction’s own, local interest is furthered by the willingness of its regional board representatives to compromise and collaborate with others to pursue regional initiatives. In these instances, however, local interests are not being compromised for the benefit of the broader regional community.
     
  • The true test comes when a jurisdiction’s interest, as understood by its director(s), is not furthered by initiatives that are deemed by others to benefit the region as a whole. In these cases, whose interests should the director promote? The principle of self-interest, as described here, appears to suggest that the director should act on the interests of his or her own jurisdiction.

My understanding is that our regional director is supposed to promote the interests of our jurisdiction (Lasqueti), while also aiming to cooperate to meet regional goals. This “enlightened self-interest” is consistent with the consensual and voluntary nature of regional districts as representative democracies.

Contrary to the UBCM/provincial principles, some within the PRRD seem to believe that a regional director should prioritize regional interests over local interests, as indicated by two agenda items on a recent PRRD agenda (Aug 17, 2017):

  1. Which hat am I wearing now” by E. Mina was written for local vs. national interests.  The original article was modified by someone in the PRRD to change “global” to “regional”. I checked with the author and verified that references to bylaws and legislation requirements weren't applicable to regional districts.
  2. Supporting the Board Decision” by G. Cuff was written for municipal councils.

These two items suggest that global/council interests should take precedence over local interests. However, neither are fully applicable to regional districts because regional districts are not a separate level of government (they are federations of municipalities and electoral areas). The role of regional director is different from an MP, MLA and municipal councilor.

This distinction is crucial when there is a conflict between local and regional interests. Enlightened self-interest indicates that the Lasqueti regional director should give precedence to Lasqueti interests, with consideration for regional interests, and not prioritize regional interests over Lasqueti interests.

Regional districts: individuals are immune from legal action in their duties

Simply put: PRRD regional directors, employees, officers and volunteers are protected from legal actions related to their duties.

The Local Government Act lays this out in Part 18 (Legal Proceedings in Relation to Local Governments and Other Authorities), Division 2 (Immunities and Indemnities).

Section 738 (Immunity for individual local public officers) defines “local public officers” to include regional board directors, officers and employees of the regional district, volunteer firefighters, volunteers under the supervision of an officer or employee of the regional district, and regional district committees.

Section 738 states that no action for damages may be made against a local public officer or former local public officer related to their duties in their role as a local public officer, except if they have acted with dishonesty, gross negligence, malicious or wilful misconduct, or defamation (libel or slander).

This legislation directly contradicts the message recently conveyed by our regional director.

In the Sept 13, 2017 Lasqueti email list, Director Anderson wrote “NI911 will offer Lasquetians and the Board of the Powell River Regional District protection in the case of litigation. Who are the volunteers that are willing to put their personal lives at risk should an error occur?

In fact, the implication that individual Lasquetians and PRRD Board members may be held personally liable if NI911 is not implemented is simply not true.

Regardless of which dispatch system is used, Section 738 of the Local Government Act guarantees that our volunteer Fire Chief, firefighters, dispatchers and First Responders can rest assured that they are not taking on personal liability risk by volunteering for the department. Same for everyone else involved in our recent interactions with the PRRD (e.g. volunteers on advisory committees, regional board members, and PRRD staff).

LIVFD volunteers fulfilling their duties, using the tools and resources provided, are PROTECTED and IMMUNE from legal action related to their duties. Plain and simple.

Regional districts: policy decisions are protected from liability

Disclaimer: The following is intended for educational purposes, and not as legal advice.

“Policy decisions” by the PRRD include financial decisions (e.g. the annual budget), changes to regional services (e.g. supporting dispatch Option C), and other issues that set “policy direction.”

Bylaws that define regional services are policies, as distinct from the operational implementation of those regional services (e.g. the service establishment bylaw that defines the LIVFD as a regional service vs. the on-the-ground implementation of the Lasqueti fire department).

According to the PRRD lawyer in 2015: “Policy decisions based on budgetary and public policy considerations are protected and immune from tort liability."

What is “tort liability”? A tort is a wrongful act that causes someone else to suffer a loss or harm (a “civil wrong”). Tort liability is the resulting legal liability for the person or entity that commits a tort. In the case of the PRRD, it is the PRRD corporation that would be held liable for any such legal claims (because individuals are immune as explained previously).

Protecting policy decisions of local governments from liability makes sense, and is what I understood as a municipal councillor. As long as a policy decision meets legal requirements, it needs to be protected from liability, otherwise regional districts and municipalities would operate under continual risk of legal action by members of the public or corporations that do not agree with their decisions.

The Municipal Insurance Association of BC describes liability risk in the context of a building inspection service, much of which is generally applicable (http://www.miabc.org/docs/default-source/Risk- Management/municipal-liability-for-building-inspection.pdf):

  • (a) “Public authorities are tasked with acting for the benefit of a diverse group of constituents, but do not have unlimited resources to do so. In recognition of this unique position, the law distinguishes between “policy” decisions by governmental authorities and the “operational” implementation of those decisions. A true policy decision by a governmental body is not subject to review by the courts and will not give rise to liability in negligence. However, there may be tort liability for negligent implementation of policy (i.e. for negligent “operational” activities).
     
  • (b) “The Supreme Court of Canada has ruled that true policy decisions involve financial, economic, social and political factors or constraints. Operations, on the other hand, are concerned with the practical implementation of the formulated policies.
     
  • (c) “Since policy decisions will be immune from review, local governments should, when making decisions of general application, make a record showing the decision was a policy decision reflecting social, economic, financial or political factors and was properly considered.

It is important to distinguish policy and operational decisions, since policy decisions are immune from liability, but liability may arise when implementing a policy decision (a topic of a future note).

As put in Just v. British Columbia, the government “must be free to govern and make true policy decisions without becoming subject to tort liability as a result of those decisions”.

Regional districts: operational decisions are not protected from liability

Disclaimer: The following is intended for educational purposes, and not as legal advice.

Policy decisions are immune from liability, but operational decisions are not.

To understand how this applies to regional services, it is important to understand the legal distinction between policy decisions and operational decisions. “The dividing line between ‘policy’ and ‘operation’ is difficult to fix, yet it is essential that it be done” (Just v. British Columbia).

Generally, operational decisions relate to “the practical implementation of the formulated policies, it mainly covers the performance or carrying out of a policy” (Brown v. British Columbia). That is, policy decisions relate to the course of action chosen (i.e. policy direction), while operational decisions relate to how that course of action is carried out.

Some examples from court judgements may help clarify:

  • A system of lighthouse inspection is policy (including frequency of inspections or even no inspections); performing a specific inspection of a lighthouse is operational.
  • A system of ice removal from roads is policy (including choosing to implement a summer schedule in November); removing ice on a specific section of road is operational.
  • A system to identify and remove hazardous trees along roadsides is policy (even if it is unwritten, inspection is done by a civil servant who is not an arborist, and only a fraction of the identified trees are removed); carrying out the identification and removal of hazardous trees is operational (given the budget and resources allocated).
  • A system of danger rock removal from highways is policy (including decisions to postpone treatment); treatment of highway sections with falling rock danger is operational.
  • A system to respond to fires is policy (including dispatch, use of maps, and use of professional and volunteer firefighters); following that system in response to a specific fire is operational.

To minimize liability risk, operational decisions must be reasonable. “Where, ultimately, the contested decision is operational, the standard tort analysis applies, and the requisite standard of care is one of reasonableness” (Gobin v. British Columbia).

My understanding of how this applies to dispatch Option C: Policy decisions include choosing to use a call centre, and the choice of procedures for (i) the call centre to handle calls, (ii) volunteer dispatchers to follow in response to calls, (iii) use of the locally-developed mapping tool to locate incidents, and (iv) use of locally-implemented VHF repeaters. Operational decisions relate to how those items are carried out. The most important actions to limit liability risk would be following the procedures established, within the limits of the policy decisions and resources allocated.

The PRRD can set any reasonable policy without liability risk because policy decisions are protected from liability (http://lasqueti.ca/democracy-corner/liability-protections). Our volunteer dispatchers, fire fighters, and first responders are also immune from liability when conducting their operational duties (http://lasqueti.ca/democracy-corner/legal-immunity). One of the call centres we have checked out handles emergency calls for other communities in BC. Procedures can be established to ensure that the policies can be operationally carried out. Based on my understanding, the Option C dispatch system simply does not create a significant liability risk.