Regina v. Dawson – February 28, 2008

Whitehorse, Y.T.

February 28, 2008

THE CLERK:  This Territorial Court stands open in the name of Her Majesty the Queen.  Calling the matter of the City of Dawson, Your Honour.

MR. CLIFFE:  Your Honour, John Cliffe, that’s C-L-I-F-F-E, on behalf of the Crown on this matter.

THE COURT:  Mr. Cliffe, good morning.

MR. CROSSMAN:  Your Honour, Tony Crossman, last name is C-R-O-S-S-M-A-N, on behalf of the City of Dawson.

THE COURT:  Mr. Crossman, welcome.

MR. CROSSMAN:  Thank you.

MR. CLIFFE:  Your Honour, with me, as has been the case for the number of the report back to court appearances are Mr. Vic Enns, who’s the gentleman immediately behind me –

THE COURT:  Mr. Enns.

MR. CLIFFE:  — a professional engineer from Environment Canada, and Mr. Dan Lindsey to his right, who is the local manager here in Whitehorse for the Environmental Protection Service for Environment Canada.  Both these gentlemen have been offering technical advice to the project, what has been termed the project team in dealing with the technical compliance with Your Honour’s order.

MR. CROSSMAN:  And Your Honour, introductions would not be complete without introducing the Dawson team, and Your Honour will probably recognize the mayor, John Steins.

THE COURT:  Mr. Mayor, nice to see you again.

MR. CROSSMAN:  The chief administrative officer, Paul Moore.

THE COURT:  Mr. Moore.

MR. CROSSMAN:  Our technical expert, Kriss Sarson, from Community Services, and a new person to introduce the court to.  Mr. Magnuson is no longer with Community Services and in his place is Ron MacMillan, that’s M-A-C-M-I-L-L-A-N, and Mr. MacMillan is the assistant deputy minister with Community Services, responsible for this project.

THE COURT:  Welcome, Mr. MacMillan.

MR. CROSSMAN:  Thank you, Your Honour.

SUBMISSIONS BY MR. CROSSMAN:

MR. CROSSMAN:  Your Honour, we’re here this morning to report on the progress of Your Honour’s court order.  A quick overview of what I’ll be presenting, and I don’t believe I will be long this morning, but is to give the Court a quick update of what has occurred since the last court update report, and that was a hearing in Dawson on June 28, 2007. We have filed with the Court the court update report, it’s in a binder, and I believe Your Honour has that.  My friend has also submitted a response to that court update report.  I understand that is with Your Honour.  I have also provided to my friend –

THE COURT:  Much briefer, I might add.

MR. CROSSMAN:  Mr. Cliffe is much more concise than I. 

I also have a response from the project team to that document from Environment Canada, from my friend, and from my friend Mr. Cliffe, and I have provided a copy just to him last night.  This was the date, actually, that the letter was sent, and I have copies for Your Honour which I can hand up –

THE COURT:  Please.

MR. CROSSMAN:  — right now.

THE COURT:  Madam Clerk, we’ll mark that as an exhibit in this proceeding.

EXHIBIT S:  Letter dated February 27, 2008 from Community

Services to Environment Canada

THE COURT:  Madam Clerk, mark this one a court copy, an official exhibit, and I’ll hold this, hold on to this one.

MR. CROSSMAN:  Your Honour, this morning, I plan to just touch the highlights of the court update report, to give the progress that’s been made to comply with the court’s order.  At the end of my submissions, I’ll ask, as it has been the tradition in the past, to ask Mayor Steins to give a quick update to the court as well.  I didn’t think it was fair to ask Mr. MacMillan, seeing as he’s only been in his role for six weeks, to give any update, but perhaps we’ll hear from Mr. MacMillan on a later occasion.

THE COURT:  We’ll give him a respite this time, but give him full notice that he’ll be front row centre next time.

MR. CROSSMAN:  Thank you, Your Honour.

THE COURT:  I hope that doesn’t scare him away.

MR. CROSSMAN:  Your Honour, perhaps I can start with the background.  As you know, the City entered a guilty plea to the charges under the federal Fisheries Act for depositing deleterious substances in the Yukon River.  These are charges under s. 36(3) of the Fisheries Act.  As a result, one of the penalties imposed was a court order that the City build a secondary sewage treatment plant, because that was the cause, if you like, of the failure to comply with that provision of the Fisheries Act, and the original order was to have the secondary sewage treatment plant in operation by September of 2004.  As Your Honour knows, the cost estimates came in much higher than originally anticipated.  The City went into financial difficulties.  In fact, a trustee was appointed to the City and the Court varied that order to allow the City to explore more affordable and sustainable options for a wastewater facility and extended the time of compliance with the court order to December 31, 2008.

The opportunity to explore other more affordable options was taken up and the City and project team moved to explore those different options and came up with the present option, which is the aerated lagoon at lots 1058 and 1059 in the City of Dawson.  This, to the project team, after considering something like 16 sites and various different types of technologies to comply with the court order, this was seen as being the most sustainable for the community.  And, of course, one of the parts of that sustainability equation was the cost of operation and maintenance, and through exploring options, the yearly operation and maintenance costs have been able to be reduced from the previous plant, which had been ordered to be built, of something like $731,000 per year, down to $293,000 per year.  So a significant cost savings, although, of course, unfortunately, the City of Dawson does have the unfortunate problem of having some of the highest rates that taxpayers have to pay for dealing with wastewater, and that’s a function of history and the system that they have in place.

Just before I get into the discussion of the progress that’s been made, perhaps I can also confirm, just for the record, that my friend, on previous occasions, had brought an application to vary the most recent court order and to extend the time for compliance, together with other things, and I understand that that application is not before the Court today but may be brought on at a later time.

THE COURT:  Yes.

MR. CROSSMAN:  So let me turn to the question of what’s happened since June of last year, and I’ll take you through the various topics, such as the project implementation, communications with Environment Canada, regulatory approvals, the Canada-wide strategy for managing municipal wastewater, what effect does that have on the project, implementation of this aerated lagoon facility, land acquisition, public consultation, and finally, the work plan, going into the future.

In terms of project implementation, as you know, the Yukon government, a number of years ago, began to take a very active role in this as a result of the financial difficulties of the City of Dawson and the capacity, the issues which the City had.  And as you know from previous court appearances, both the Yukon government and the City of Dawson remain committed to compliance with the Court’s order, and with this particular aerated lagoon project at this particular location, lot 1058.  We’ll hear more from Mayor Steins to confirm that.

Since August of 2004, about $1.394 million has been spent on this project, and since the last court update hearing, of June last year, $298,000 has been spent on advancing this project.  As you know, the Yukon government has obtained capital funding for this project.  At the moment the estimate — sorry, in 2004, the estimate was $14.7 million.  In 2007 dollars, it’s estimated at about $17 million.\

THE COURT:  Is that just inflation or have there been some add-ons?

MR. CROSSMAN:  Inflation?

MR. SARSON:  In the process of refining the project itself, there’s been some cost increases.  Some of it is obviously due to construction, costs have increased over the years.

MR. CROSSMAN:  So a combination of both, Your Honour.

Obviously, there have been concerns expressed by my friend and Environment Canada about trying to come in within the approved budget and the $17 million will be over that budget.  Perhaps I can — what I can say about that is a couple of things.  Firstly, we are at a class A estimate — sorry, at a class C estimate, which is plus or minus 30 percent.  The funding is also in an envelope which is funding two projects, the Dawson project and the Carmacks project, and the Carmacks project is progressing ahead of the Dawson project, and there may be cost savings there.  More importantly, though, is that as time progresses and the project advances, there will be refinements in the estimated cost of the project, because we’ll get to a detailed design, and we’ll have more accurate numbers.  So there are opportunities that the numbers — the final number may come in within the budget envelope that we have. 

If not, you heard on the last occasion, Your Honour, from Mr. Magnuson about the commitment to go back to Management Board to seek additional funds as soon as possible, if that situation occurred.

As you know, there is a memorandum of agreement, in terms of managing this project, between the Yukon government and the City of Dawson.  In previous court reports, what was provided was a signed copy of that agreement.  What we have in the current court update report is a proposed revision to that original agreement, and you’ll see the red-lining in that agreement.  They’re the proposed changes.  That’s still under consideration by the City of Dawson, but I can say, though, that –

THE COURT:  These proposals came from the Yukon government or from the City of Dawson or both, those proposals for change?

MR. CROSSMAN:  I believe it was primarily from the City of Dawson.

THE COURT:  That was my recollection.  You don’t have a reaction from the Territorial government to these changes?  I recognize they haven’t been signed yet, but are there some obstacles to proceed?

MR. CROSSMAN:  I believe they’re acceptable to the Yukon government and it’s still — it’s just under consideration by the City of Dawson.

THE COURT:  Okay.

MR. CROSSMAN:  Let me turn now to the question of communications with Environment Canada.  As Your Honour knows –

THE COURT:  Just before you leave the MOU document, the general gist of the proposed amendments is to make the process a little more of a partnership than it was before?  I say this, I see that there’s some media people here, clarify for them that there’s nothing dramatic about it except to make it more of a joint venture than it may have appeared on paper beforehand.  Is that a fair summary?

MR. CROSSMAN:  Yes, it is a very fair summary, Your Honour.  And this has come about — perhaps I can — the history is, of course, that this council is a relatively new council because there was a trustee in place governing the affairs of the City of Dawson for a number of years, and once — and as this new council has become more comfortable as with the operations and understanding this particular issue, they felt more comfortable in taking on more responsibility and becoming true partners in this process.

So then moving on to the question of communications.  There continue to be regular and monthly — regular communications and monthly meetings between the project team and Environment Canada.  At the last hearing there were a number of concerns raised by my friend as a result of Environment Canada concerns, and I understand that there were meetings soon thereafter our last court appearance to address those issues.  I think we also see those concerns outlined in the letter that has been filed by my friend, Mr. Cliffe.  You’ll see in the response that I’ve just provided this morning, the responses and some of the confirmation of discussions that occurred about those issues.  I’ll get into some of those issues later on, but I just wanted to take Your Honour to that.

Let me turn next to the question of regulatory approvals.  As you know, one of the things that has caused, for want of a better word, a delay in this project is the new YESSA process.  This was something that was unanticipated at the time of the original order, but what I can say is that it is currently progressing through the YESSA process, within the anticipated timelines.  As you know, the project team took steps to try and expedite and accelerate this process.  They met with and provided documents, preliminary documents, to the YESSA board ahead of time, so that they could be vetted, could be reviewed, with the aim of trying to save time in this process.  And as you see from the court report, they are certainly within the timelines, in fact, well within the timelines provided.

THE COURT: Well, let me just comment as well.  You’ve included a couple of tabs where there have been obvious technical communications from YESSA, not only the filed things there but there’s been back and forth with them.  So clearly this is moving forward.  I understand from the material that there’s been a community consultation by YESSA as well?

MR. CROSSMAN:  Yes, Your Honour, there’s been much consultation, and as a result of that, stakeholder comments have gone into the YESSA process.  As a result of that, there’ve been some questions which have come back from YESSA to the project team about this particular project.  And some of those issues I can touch on but I don’t want to get into the technical –

THE COURT:  No, no, I didn’t necessarily want to get you there as well; I just wanted to make the point that — expand on the point that you were making, as I understood, that YESSA has been sort of triggered in a preliminary way, but more than that, they’ve gotten engaged and are actually — they’re back and forth, going — information flowing back and forth, which clearly is designed to expedite the process.

MR. CROSSMAN:  Yes, Your Honour, thank you.

And perhaps what I can say is that, and it’s a usual part of this process, that there’ll be requests for further information.  And you’ll see in the materials that there have been those requests.  Again, these are usual things in this process, and you’ll see that, again, the response has been prompt.  The project team has obtained the information from usually the particular expert or consultant that’s required.  You’ll see that there are issues, for example, noted about — there were issues raised by stakeholders concerning odour, about perhaps leakage of the membranes for the lagoons, and also the question about the drinking water. 

Now, if you recall from previous court updates, as well as I can also say that there have been responses, specifically to these issues, by the project team.  Now, those responses, as I said, have been provided by independent technical experts.  Earth Tech is one of those experts, and we’ve provided the Court in previous sessions with the various reports, and as you know, they are many, many inches thick.  They’re recognized as being experts in this area.

All of the issues that have been raised have been responded to and the project team is very comfortable that they have a very good project and these issues have been satisfied.

The information, I can also say to the Court, is available on the YESSA website — the YESSA registry as public information.  So it’s available. 

What I can also say is that the latest response, you’ll see from the court update report there was a request for further information as recently as January of this year.  As recently as February 26th, though, just two days ago, there was a response to that.

In terms of timelines, it looks like we are on track, but of course we don’t know exactly when the YESSA process will finish.  That is out of our hands, out of the project team’s hands, and that is the YESSA process.  We’re still anticipating a decision in June of this year, but of course there are many things that may conspire against that.

Once the YESSA process or YESSA decision has been made, then we can move on to the Water Board process.  As Your Honour knows, we require a licence from the Water Board for this new facility.  Also, what I can say is that, again, the project team are taking all measures to try and expedite that process, and you’ll see from the timetable that’s attached in the last tab that they are doing things ahead of schedule to try and expedite the process.

Unless Your Honour has any questions about regulatory approval, I’d like to move across to the Canada-wide strategy for managing municipal wastewater.  We’ve heard about this strategy for a number of years and I suppose what we have been doing is trying to speculate on what this might mean.  There have been the Canadian Council of Ministers of the Environment that have been working on national guidelines for wastewater so that there is some consistency of approach across the country.  What we have seen most recently, though, is very encouraging, what I think we’re coming closer to the end of that process in actually coming out with out some new guidelines, but also some new regulations under the federal Fisheries Act that will deal with wastewater.  And a document was issued by Environment Canada in October 2007.  It’s called “Proposed Regulatory Framework for Wastewater,” and it anticipates new regulations under the federal Fisheries Act dealing with municipal wastewater effluent that will be published as proposed regulations in December 2008, and those regulations will be finalized in December 2009, with anticipated implementation in 2010. 

Now, the question that we are, of course, always asking ourselves is we want to make sure that we’re going to be building a plant that will anticipate and be able to comply with future regulatory requirements.  So we have some more direction on this.  What we see from this document is that, and it is at page 7 of the court update report, at tab 1 in the court update report, is that certainly under this new regulation and new framework that there will be secondary treatment required for all wastewater from municipalities across Canada.  That’s what we do know.  And on page 8, table 3, these are the Environment Canada proposed effluent requirements.  And you’ll see the table shows the different substances that have to be dealt with in the wastewater facility, the proposed limits, and then the third column is the proposed performance of the Dawson aerated lagoon system.  And you’ll see that there will be compliance, anticipated compliance with all of those future requirements.  So that is good news.

THE COURT:  It proposes to continue the use of the LC50 test.  It refers to it there in brackets.  Just refresh my memory, the LC50 is the fish test?

MR. CROSSMAN:  It is, Your Honour.  My hesitation is I’m not sure how the LC50 test will apply to the new — under the new proposed regulations.  Perhaps that’s a question which the technical people can discuss.

THE COURT:  That’s fine.  It’s not — merely glancing at that, it jumped out at me because, of course, the LC50 test has been somewhat controversial over the years and I see it was specifically referred to, so I merely asked.  I don’t have any concern about it myself, merely an information item.

MR. CROSSMAN:  Yeah.  I understand, from the project team, that compliance with these parameters will give compliance with the LC50 test.

Perhaps I can move, then, on, Your Honour, to the implementation of the aerated lagoon facility.  As Your Honour knows, this has progressed from a pilot project, which was tested to see if this would be a viable technology in this situation, and it was proven to be so.  There has been a movement from a one cell to a two cell to now we have a three cell aerated lagoon facility.  Most recently, the engineering firm of EBA has completed an in-depth geotechnical investigation of the proposed site and the force main route.  They have identified, essentially, just one small issue, which was a permafrost issue, and my understanding and advice is that that can be dealt with through the construction process.

THE COURT:  Again, just to be clear, my understanding was that they identified a permafrost issue in one small part of the — not a general permafrost issue but something that can be dealt with relatively easily.  That was my understanding of it.

MR. CROSSMAN:  Correct, Your Honour, yes.

So what we see from the regulatory process that we’re doing through, and also from the — all the engineering and consulting reports and investigations that have been done, and they’re very extensive, as Your Honour knows, in terms of the reports that have been provided, that there appears to be a low risk that there will be substantial changes to the project as a result of the YESSA and Water Board processes.  Now, on that thinking, the project team has decided that they would like to accelerate the detailed design and preparation of the class A estimate.  This would be ahead of the usual time that that would be done, but, again, they’re very conscious of compliance with the Court’s order and having this project developed as quickly as possible, because they’re very conscious about the history of this matter.

At the moment, as I said, we’re at a class C level, so 30 percent variation in the price.  We want to get it to a class A level, and we’re hoping that that can bring it within the funding envelope that has been approved for this project.

THE COURT:  Do you have timeframes for this process, moving to a class A? 

MR. CROSSMAN:  We do, Your Honour, and it’s in the last tab of the court update report, tab 15.  You’ll see the chart there which lists it. 

THE COURT:  Have someone with younger eyes look at the small print.

MR. CROSSMAN:  Indeed, Your Honour.

THE COURT:  Even with these reading glasses I’m in trouble.

MR. CROSSMAN:  I’m struggling with the size of the print.  Mr. Sarson informs me the spring of this year.

THE COURT:  And the class A estimate will be plus or minus what percent?

MR. CROSSMAN:  Five to ten percent, Your Honour.  Of course, there are no guarantees in this world, but it will give us a much better idea.

THE COURT:  No, no, give you a much better idea.

MR. CROSSMAN:  Your Honour, as part of the, and perhaps I can just say, before I get back into the project schedule here, you also see in the court update report public consultation, and there has been a lot of public consultation on this project.  Mr. Sarson has been up there on a number of occasions, with public open houses, meeting with people, explaining the proposed facility and project, and answering questions.  And that will continue, as it has in the past. 

So going back to the question of the work plan –

THE COURT:  Let me just say again, for the benefit of people who don’t have a copy of your submission, that since March 2005 you’ve identified 15 different consultations in the City of Dawson.

MR. CROSSMAN:  Thank you.  Yes.  I understand Mr. Sarson is quite a regular up in Dawson now.

THE COURT:  Has he invested in his own condo?

MR. CROSSMAN:  I think he should, Your Honour.

The last item before I ask Mayor Steins to say a few words is to talk about the future work plan.  As you know, as this project advances we’re able to get a better sense of timing.  We’re still, though, in the dark in a number of respects because we’re still in the regulatory process; we’re still in the YESSA and then we have the Water Board process.  These are processes outside of the control of the project team.  However, our best estimates at this stage is that completion of this project would be by mid-2011.  Now, of course, we understand that the Court’s order, Your Honour’s order, is for completion by December 31 of this year, 2008.  So, unfortunately, we’re not going to get there, and we do anticipate that we will need to bring an application to extend the time for compliance, and we anticipate that at the next regular court update session, whenever that is scheduled.

I can also — of course, I’ve referred Your Honour to the project schedule which sets out the steps to get there and explains why it will take that long.  I don’t propose to get into the detail of that at this time, but I can say, again, that the project team is taking every effort, is making every — taking every step to try and expedite the process so that it can be completed as fast as possible.

THE COURT:  Let me just — the uncertain area — well, there are a number of uncertain areas, but one of them that you’ve identified, of course, is the regulatory review and approval, which would be the YESSA and Water Board processes.  You indicate here that it will require 21 months.  Twenty-one months from when?

MR. CROSSMAN:  Sorry, Your Honour, is it –

THE COURT:  I’m looking at page 12 of your tab 1, “Work Plan for Aerated Lagoon.”  As I would normally read this, when I see a report like this, 21 months from today or from the time of the preparation of the report.  But it seems to me, with work that you’ve already been doing with YESSA and the fact that you’ve initiated the Water Board process, being perhaps a bit naïve about this, sort of thinking that this is a process that should move faster than that, although I understand the need to put outside limits on it and err in that direction.  But do you have any comment on that, or perhaps your technical people; 21 months from when?

MR. CROSSMAN:  No, thank you, Your Honour, for the opportunity to clarify that.  It is — it’s 21 months since the beginning of the YESSA process, which was July of last year.

THE COURT:  Okay.

MR. CROSSMAN:  And as you — again, that’s the best estimate –

THE COURT:  Yeah.  No, no.

MR. CROSSMAN:  — from the project team.

Your Honour, unless Your Honour has any questions, I propose to ask Mayor Steins to say a few words, just to update the Court on what –

THE COURT:  I don’t have any questions that jump out at me at this point, but I’ll hear from others and Mr. Cliffe and some questions may arise at the end.  So I’ll save my questions until then.

MR. CROSSMAN:  Thank you, Your Honour.

THE COURT:  Now, Mayor Steins, is it just sort of an optical illusion or is there more grey hair in that head of yours since I saw you last?

MR. STEINS:  Many more grey hairs, many more wrinkles, many sleepless nights.

THE COURT:  I’m not surprised.  But I see you still have a sense of humour and there’s still a smile there, so that’s a good sign.

MR. STEINS:  I do.  I do, because I believe that the glass is half full, not half empty.

THE COURT:  Right.  Very good, sir.

SUBMISSIONS BY MR. STEINS:

MR. STEINS:  Well, Your Honour, thank you very much, and I would like to thank you for showing your commitment to this file and your interest in helping us find a resolution to this problem.  That certainly hasn’t gone unnoticed from the City of Dawson.  And all I can say really, basically, in my little talk is that Dawson continues to be supportive of the project.  You know, considering that 25 years have gone by where various things have happened and we all know the history, some of it good, some of it bad, but the fact that remains is that today we’re on the brink of finally building a secondary wastewater treatment plant, and the credit to arriving at this stage largely goes to our team.  YTG has done a great job of showing leadership and offering resources, and not to mention the bottom line, the money aspect of it, which we all know Dawson cannot afford.  We just don’t have $17 million or $20 million to build a facility of any kind.  So a large recognition must go to the other levels of government for assisting us in this project.

And I think if we look at how things have progressed, like I said, we’re on the brink here and I think we embrace the sewage lagoon option over anything else, mainly because of its sustainability.  I think other technologies that are out there question whether or not it’s sustainable for Dawson.  So the lagoon option is certainly something that we wish to continue to pursue.  And unless I’ve missed anything else, I think that’s pretty well it.

THE COURT:  Let me just make an observation based on the information provided in the reports and the oral references this morning.  It seems to me that by 2011, the Canada-wide strategy is going to require you to do this, in any event.  So what’s happened in the meantime is that you’ve got a bit of a jump on the process as a result of what’s occurred in the past few years.  In terms of eventual cost and so forth, it seems to me that’s a good thing.  I think being able to develop your treatment facility in a cooperative way that’s been happening over the past years, and being able to work out some of the wrinkles and to ensure that you have maximized consultation, it’s bound to be better than having an edict come under federal legislation which you must perhaps, depending on its form, rush to meet.  So while this process is certainly not an easy one; one might even describe it as somewhat onerous, it’s probably better than the alternative in the sense that you’ve, both the Yukon and the City of Whitehorse, has had a fairly lengthy period of time to look carefully at the alternatives and to, with the cooperation of the federal authorities, develop something that suits your needs.  I hope I’m not overstating that, but that’s my impression at this point.  You’re going through a process now that you’re going to have to go through, except if you’d been sitting on your hands all this time, you might be going through it a lot faster with a gun at your head, or a cannon, as opposed to a little pistol that I might have.

MR. STEINS:  Yeah.  Well, I certainly agree, Your Honour; what you’re saying is absolutely accurate, and I think in our case we’re fortunate because for once in Dawson’s history the stars are aligned and we are virtually on the brink of making this happen.  And you’re quite right, I’ve been reading the draft report on the Canada-wide strategy and it’s obvious that these infrastructure deficits that exist across the country will be addressed and we will be well ahead of the game.

THE COURT:  Yeah.  I don’t have any additional questions from you.  Mayor Steins, again, thank you for being here.  I have been made aware of your leadership on this file and it has not gone unnoticed on my part.

MR. STEINS:  Thank you.

THE COURT:  It’s always nice to see you.  And I can perhaps give you this advice, the drugstore does sell some fluids that can darken that grey hair. 

MR. STEINS:  Well, I’ll look into it; I’ll drop by the drug mart.  I do think of myself as being vain at times, but maybe I can ramp it up a little bit.

THE COURT:  Well, if you need some additional advice, I do want to say that the grey is very distinguished and it becomes you, sir.

MR. STEINS:  Well, thank you very much, Your Honour, thank you.

MR. CROSSMAN:  Your Honour, that’s the close of the Dawson submissions.

THE COURT:  And I’ll hear from Mr. Cliffe, and that may trigger my wanting to hear further from you or from your technical people, but I’ll see what Mr. Cliffe has to say.

MR. CLIFFE:  Your Honour, if I can just — I haven’t asked for an adjournment, at least at this point in time, but there’s been things said.  I just want to consult very briefly, if I may, in court, as to whether I should address anything that my friend specifically has said.

(DISCUSSION OFF RECORD)

SUBMISSIONS BY MR. CLIFFE:

MR. CLIFFE:  Your Honour, I can proceed.  I’m just going to have an instruction note.  I know that Mr. Enns is preparing something for me to reply to, but I can start now and move along.

Your Honour, I can advise the Court that the report back to court that has been filed in this case by the City of Dawson and the Yukon government has been read and reviewed by Mr. Enns and Mr. Lindsey and myself, and in that vein, a report by Environment Canada indicating their comments with respect to the report back to court’s been filed with this Court, and I can confirm that the Crown has received the February 27th letter with respect to the reply by the City of Dawson and the Yukon government with respect to the comments filed by Environment Canada in this matter.  They’ve been read and I’ll have a very brief comment about that. 

Your Honour, the Crown is quite well aware that there is going to be a referendum in Dawson.  I understand an advance poll is today and the actual poll is scheduled for March 6th of 2008, with respect to a bylaw regarding the current site.  And the Crown, in that regard, it being mindful of this referendum, is also respectful of the democratic process that surrounds the referendum and the vote in it. 

In addition, the Crown, and when I say the Crown, I’m of course including Environment Canada, which is the federal regulatory agency that is front and center with respect to ensuring compliance with the order that was made by Your Honour that requires the City of Dawson to construct and operate a secondary sewage treatment plant, at this point in time, by the end of this year.  The Crown is hopeful that the citizens of Dawson will make an informed, and I stress an informed, decision when they do vote today and they vote next Thursday. 

The Crown also understands that there’s going to be an opportunity, at a future report back to court date that will be scheduled in the month of April, and in that regard it thinks it appropriate, that is the Crown thinks it’s appropriate, that its comments that it’s filed with the Court in the interests of the pending referendum be really left to that next report back to court date.  So I don’t intend to go into any particular detail in reply to my learned friend.  The Crown is accepting that there has been progress here since June, the June 28, 2007 report back to court, and in that regard the progress has been, as the Crown recognizes it, two-fold, and that is, firstly, that there has been now the movement into the regulatory approval process with respect to the aerated lagoon project that is planned for what’s been termed the baseball diamond lands or publicly known as lots 1058 and 1059.

So there’s been progress there.  There’s been also included in the materials various reports that have been completed as of the middle to late — latter part of January of this year on technical aspects.  So things are moving along.  But as I say, the Crown wants to reserve its opportunity at the next report back to court to canvas the comments that Environment Canada has presented in its report to the Court.

The Crown wants to stress today, Your Honour, because of the pending referendum, what it says are some well-founded background facts here.  And it’s in the context of those facts that the Crown would have been sharing with the Court its comments with respect to the report back to court that’s presently before the Court.  My friend alluded to these background facts very briefly in his submissions, and I just want to spend just a little bit more time and elaborate. 

Firstly, there was why we are here.  Why this court appearance is happening is as a result of a prosecution under the federal Fisheries Act that charged the City of Dawson with depositing its raw sewage, a deleterious substance to fish, into the waters of the Yukon River.  The City of Dawson, in 2003, acknowledged its responsibility for that offence by entering a guilty plea.  And the circumstances with respect to that offence, although charged on one specific day in August of 2000, it was agreed between the parties that the history of non-compliance that pre-dated that offence was relevant to the sentence that Your Honour imposed in that case. 

It’s also important to note that the sentencing hearing that was before Your Honour in 2003 lasted three days.  The City of Dawson took a position against the imposition of the order that Your Honour ultimately made.  The Crown sought that order.  Your Honour, you no doubt recall, reflected or what we term reserved your decision and gave a lengthy and considered set of reasons why this court order should be imposed.  So the order was made, and it’s important, as one thinks back and thinks of the evidence that was before Your Honour at the time of that sentencing, it was about, in many respects, what Mr. Mayor has said about the 25-year period.  That is, for a number of years prior to the offence in 2000, approaching 20 some years, there was indifference by the City of Dawson.  I’m not talking about the citizens per se; I’m talking about the municipal government.

THE COURT:  Indifference to Water Board orders and directions.

MR. CLIFFE:  Water Board orders, the protection of the Yukon River, as a result of the deposit of raw sewage, ongoing raw sewage deposits.  Twenty years of failed promises to regulatory agencies like the Water Board, like Environment Canada, that things would be done, a secondary treatment plant would be built, and was never built, and little or no action taking place in that vein.  At the end of the day it is about the protection of the water and the fish and the fish habitat in the Yukon River to be protected from the deposit of raw sewage by the City of Dawson into the river. 

The public, Your Honour, should be quite well aware that in a lot of respects regulation was done, as Your Honour has said, through the Yukon Water Board, and what’s important here, that the Yukon Water Board is not comprised of federal government bureaucrats; it’s comprised of Yukoners.  And that board directed, in four consecutive Water Board licences, that a secondary sewage treatment plant should be built.  Yet the city government chose not to.  And it’s with that evidence, and other evidence, that Your Honour dealt with this matter in the way you did.  This was a serious environmental infraction.  It was not a one-off.  It wasn’t something that happened specifically on August the 16th, I believe, 2000, where Environment Canada inspectors attended and took samples.  Your Honour was dealing with a history of many years of non-compliance, that is, the deposit of raw sewage, at certain times of the year, being the summer and fall months, where that raw sewage is harmful to fish.  So I stress that.

Environment Canada, and I will make this point, Your Honour, in Your Honour’s considered judgment, you were, in fact, critical of Environment Canada and perhaps — and no doubt, rightly so, that they chose not to prosecute.  They chose to look to other ways to get compliance.  But notwithstanding, the Court looked at the conduct of the regulator and signalled what message are you sending; if you aren’t out there actively investigating and ensuring compliance by, with this history, prosecuting.  So in your judgment not only did the accused get criticized but also the regulators as well, and you formulated a fit and proper sentence – it’s never been appealed – a fit and proper sentence in this case, that being an order that a secondary sewage treatment plant be constructed and operated.

My friend talked about your order being varied.  It was varied and it –

THE COURT:  Will have to be varied yet again.

MR. CLIFFE:  — and will have to be varied yet again; you’re, of course, very correct.  That there was an anticipation that this work could be done by 2004.  It became clear that it wasn’t going to be and Your Honour varied that order in March of 2003, and gave another period of time, to the end of this year, to comply with the order.  And I think it is most apt, and I’ve done this, read from your judgment with respect to varying the order, and I want to read it again for the sake of the public, not only who’s in this court, that may, in fact, read about these proceedings, and Your Honour said this, when you varied the order:

As indicated above, compliance with s. 36(3) of the Fisheries Act by the City of Dawson involves significant complexities, both technical and political.  The new timeline [the end of this year] is not generous but it is realistic.  If it is to be achieved, the City of Dawson and the Yukon Territorial Government must maintain compliance with this order as a high priority.

So the point is that at this time, of course, we all know, there is yet to be constructed a sewage treatment plant.  And as we all know, as a result, the City of Dawson continues to pump raw sewage into the Yukon River.  Nothing has changed.  Nothing has changed from the date of that offence in 2000 to this date.  And we know, both sides know because both sides have tested the raw sewage at the material months, in the summer and fall, that this sewage, at that time, is harmful to fish.  And going back to your point that you made in your judgment, that here Environment Canada is not going out and investigating and prosecuting, it is open, or was open, and probably would still be open but for a qualification I’ll mention in a moment, for the City of Dawson to be charged again with respect to the days of non-compliance, that is, the days when that raw sewage is deleterious to fish. 

Instead, what Environment Canada has done to facilitate compliance with Your Honour’s order has been to make a concession to the City of Dawson.  And the concession was entered into back in 2003, when this order was made, so long as the City of Dawson is working towards compliance with this order, Environment Canada will not investigate and prosecute.  It’s not turning a blind eye to pollution.  It’s saying, if you are diligent in these efforts, we will not investigate and prosecute. 

There have been remarks by this Court with respect to the work that is being done.  No one has found yet that the City has been duly diligent.  That might be at some other time and some other forum.  But that explains an aspect of the role of Environment Canada, and I say this because Mr. Mayor made a point about the hard work of the project team.  There’s no doubt that the Yukon government project team has worked hard, but a second phase of the Environment Canada’s role in this matter, a most important role, has been offering technical advice and working with, in a consulting capacity, with that team, that working team.  And in some respects, they should get some credit as well, with all due respect, as a signal to we’re moving along; we’ve moved slowly; we’ve moved a little faster; we’ve maybe slowed down a little bit, and so on, but the movement towards compliance with Your Honour’s order has been facilitated by the position that Environment Canada has taken regarding enforcement and also working with the project team.

It’s important, in the Crown’s respectful view, to make it very clear that this is a project of the City of Dawson and a project of the Yukon government.  It’s not Environment Canada’s project.  Environment Canada is not there to give a capital A approval to the project. 

The project is very aptly defined and described, Your Honour, in the report back to court, and I could just direct Your Honour to it.  It’s at page 10 of the tab 1, I believe, Your Honour.

THE COURT:  I have it.

MR. CLIFFE:  Yes, tab 1.  My learned friends, the project team, at page 10, in the Crown’s respectful submission, aptly describes the project that is being contemplated and for which Environment Canada has offered its technical advice, and which there’s been a lot of planning and a lot of effort to, and it’s defined at the third paragraph on page 10.

Based on the work completed to date, aerated lagoon technology continues to represent the most viable sustainable secondary wastewater treatment option for the City to comply with the court order and other regulatory requirements.  The City and Yukon will continue to advance this project through the regulatory assessment and review process over the next six months.

And to very clear, of course, that project, that technology in that project is the baseball diamond lot 1058 and 1059 project.

Now, I make a comment about credit be given to Environment Canada because I say this, and I wouldn’t normally comment upon it in a court, and that is with respect to some of the public media covering this matter, and that is criticism of Environment Canada in this regard because it’s all Environment Canada’s fault here that the City is facing the situation that it’s facing, that is, having to comply with an order, and it’s far from it.  If there were concerns about the propriety of the charges, that should have been raised back in 2003, and instead, the City chose to acknowledge its responsibility for this matter.

Now, with respect to the role –

THE COURT:  Let me just make a comment that’s only sort of tangentially related to what you’re speaking of.  It was precisely because the City acknowledged its responsibility and indicated its willingness to work diligently to solve the problem that I set aside the numerous precedents that you placed before me that could have resulted in a fine between $100,000 and $250,000 in this particular case and instead imposed what I would call a rather nominal fine of $5,000, with the requirement that they build the treatment facility.

MR. CLIFFE:  Yes, Your Honour.

THE COURT:  And — so in terms of acknowledging their responsibility, that also resulted in quite a different order than the one that I could have made at that time.

MR. CLIFFE:  And when — if I could just comment upon that, that notwithstanding the position the Crown took with respect to a high penalty as being one possible disposition, the Crown is also mindful, was mindful at the time, that we’re talking about a level of government and the citizens that are represented by that level of government, and also looking at a broad picture here, that here we have a community in the northern part of the Yukon, in a near pristine environment, a natural river running by it, and yet the city government at the time, and still today, is dumping raw sewage into that river.  So a submission, and at the end of the day, Your Honour’s considered judgment, making an order that you did does satisfy, in the Crown’s respectful submission, the capital P, Public, capital I, Interest, in a broad way and in a long-term way, that will benefit, at the end of the day, all of the citizens, not only of Dawson but also of the Yukon.

But let me move on.

THE COURT:  Not to mention the people of Alaska who are downstream.

MR. CLIFFE:  Absolutely.  Absolutely.

I want to say this, that –

THE COURT:  I might add, many of whom, in the little villages, take their drinking water from the river.

MR. CLIFFE:  Yes.  Yes.  And I suppose we can all get out and say things like “not in my back yard,” the common expression, the NIMBY syndrome, but we have to be mindful of our neighbours, particularly in the 21st century, and when we’re dealing with protection of the environment.

I say this, I’m emphasizing how this order came about.  The fact of the matter is there is still Your Honour’s order; it is outstanding; it still has to be complied with.  That is certain.  That is a fact.  It’s not a conditional order.  It’s not conditional upon getting funding from government.  It’s not conditional upon certain technologies.  It’s very clear, that you must construct this facility and operate it so it meets the provisions of the federal Fisheries Act.  The order, and it’s important to note, in the Crown’s respectful submission, and as I said earlier, it is hoped that the citizens, when they exercise their franchise, make informed decisions, but when one looks at the court — the referendum materials, that is, the request for the plebiscite, and ultimately the bylaw, my reading of those documents gave me some concern, because the fact of this court order is not mentioned.  In the Crown’s respectful view, to be fully informed, the citizenry should know, and I’m going to assume that they do because there’s been appearances in — well, me step back. 

The sentencing took place in 2003 in the City of Dawson for three years.  We’ve been back to court I believe at least twice with respect to appearances regarding reports back to court, at least once, and I’m sure, in my fading recollection of things, last year, and I think we were there once before.  The point being is that this has to be front and center that Your Honour’s order is there; it has to be complied with.

As I say, with respect to other comments, I’m of the respectful submission that, given that we may be scheduling a report back to court appearance some time in the month of April, that it may be appropriate here to forego comments at this time and raise those at a more relevant time, being in April, regarding the report back to court filed by my learned friend.  And I say that because this has been an ongoing process.  When Your Honour varied the order, Your Honour said we should be coming back to court to update the Court, and we know things are there that are happening in the background, and I say that Environment Canada doesn’t lose anything by waiting until the next report back to court to deal with its comments that it’s presented to the Court.

So if I could just have one moment to speak to Mr. Enns and I should complete my remarks.

(DISCUSSION OFF RECORD)

MR. CLIFFE:  Your Honour, I have nothing further to add at this time.

THE COURT:  Just give me a moment and I’ll see if my questions have been answered.  You may want to say something in response, in any event, but I’ll….

I do want to thank you, Mr. Cliffe, for reminding us of the history of this, because it’s been such a long time that even I had not been adverting my mind to the question of why we’re here, in fact, and you did well to remind us all that my initial decision was not based on one incident of effluent discharge not meeting Environment Canada requirements.  There’s a very significant history there that lead to the decision that was finally made.

Mr. Crossman, anything you want to say in reply to Mr. Cliffe, and is there anything any of your people wish to raise in addition?  I’m happy to hear directly from them, if they wish to do so.

REPLY BY MR. CROSSMAN

MR. CROSSMAN:  Thank you, Your Honour.  I think just two short points; I think that will probably do it for us.

Firstly, on the question of the continuing dumping of sewage into the Yukon River.  As Your Honour may recall, there was some steps taken, initially, to take some measures to try and reduce, if you like, some of the intensity of the dumping; for example, the trucks that were dumping at the screening plant were directed elsewhere and things like that.  I won’t go into the detail of that; I don’t think that’s –

THE COURT:  I do recall that.

MR. CROSSMAN:  — but you do recall that.

And the other second point is on the referendum issue, and my friend pointed out that those who were proposing the referendum, and perhaps I can just go back one step here.  The referendum process, as Your Honour knows, is a democratic process under the Municipal Act; it is the right of citizens of that municipality to bring issues forward.  And in this case, and the process is that they bring a petition forward, and if that petition is supported by an appropriate number of people, then a referendum is called for.  So the proponents of the referendum did obtain the appropriate number of people for the petition and then they have — it has now been set for a referendum.  It is those proponents or the petitioners who prepare the materials and the proposed bylaw that they’re seeking.  I just want to — it’s just a point of clarification, that that’s not within the control of the City or the mayor and council.

THE COURT:  I understand what you’re saying and why you’re saying it, but it never concerned to me that it should in any way reflect on the City.  But nevertheless, the fact is, as stated, there may be a few people who might not fully appreciate the fact that there’s a longstanding court order behind this process.

MR. CROSSMAN:  No.  And I did not have any concerns with the statements made by my friend in that regard.  I just wanted to point that out.  And perhaps, the last point, just on this point about the referendum is that, as Your Honour knows, may or may not know, and the court report does touch upon this, that there have been public information sessions in relation to the referendum question, and in fact, information that has gone out to the community about the referendum, and I’m holding in my hand just one of those leaflets that have gone out, and in this case, and this is from the City of Dawson, about the referendum but explaining.  It does refer, for example, about the court order.  So we hope people are informed, is my point.

THE COURT:  You don’t say, certainly, some of the media reports that you’ve brought to my attention, in one of the tabs, also refer to the fact or refer to a court order in the background.  So hopefully – hopefully – people will recognize that there’s more to this than just a not in my back yard kind of response to an issue.

MR. CROSSMAN:  Thank you, Your Honour.

THE COURT:  Thank you.  Any of the consultants or experts who are here wish to add anything.  Mr. Enns?

MR. ENNS:  Nothing from Environment Canada, Your Honour.

THE COURT:  Everyone’s content with what’s transpired then so far.  Thank you.

Mr. Cliffe has referred to the fact that there is likely to be a further review not too far in the future, and I look forward to that.  I would say that, based on the materials filed today and the review by Mr. Crossman, that I continue to be satisfied that significant efforts are being made to move this file forward in a way that I’d hoped would happen.  Mr. Cliffe referred to a paragraph in my earlier decision where I referred to the need for diligence.  I continue to emphasize that.  He also referred to the fact that I refereed — that I made mention of the fact that this was a complex political economic legal issue.  I can tell you that when I articulated those words, I had no idea how complex it would be, but I’ve learned a lot in the meantime; together we’ve learned a lot, but it is absolutely essential that this matter be brought to a conclusion as quickly as possible.

Thank you everyone, and for those of you who are travelling back to Dawson, travel safely.

(PROCEEDINGS CONCLUDED)

This is to certify that the foregoing is a true and faithful transcript of the contents of the record prepared in the above named proceeding.

____________________________

Jan Graham, Transcriber