Government action could shut down shipbreaking in Union Bay, lawyer says

A lawyer working with Concerned Citizens of Baynes Sound (CCOBS) — a group of Union Bay residents who came together to oppose a shipbreaking operation run by a company called Deep Water Recovery — says the government could easily shut down the ship dismantling activities if they wanted to.

The site at 5084 Island Hwy. used to be a log sort, but Deep Water Recovery (DWR) has been dismantling derelict vessels there since 2020.

Carla Conkin has worked as an environmental lawyer for over 25 years and has been assisting Concerned Citizens of Baynes Sound since the fight against DWR began in 2021. Ship dismantling operations have been associated with hazards that can cause harm to the environment and local residents. Conkin and others say these operations need to take place in ports with a drydock and adequate waste management procedures and suggested locations such as an EU-regulated ship dismantling facility or communities where ships are already being built as better options.

“What the hell are they doing on the beach?” Conkin said.

Read also: International NGO calls for a halt to shipbreaking operation in Union Bay

There are also measures governments can take to address the issue of shipbreaking in Baynes Sound, but Conkin said regulatory processes are falling short.

“They’ve had the tools all the way along, and they’ve chosen not to use them,” Conkin said.

And the issue goes far beyond Baynes Sound, according to Conkin, who spent years working with Canada’s Department of Justice on reviewing natural resource developments. She said inaction from the government could impact B.C. and all of Canada.

“I’m in an interesting position to observe and to be critical where I think [governments] are not holding their own and should be doing better,” Conkin said.

Government silos impede regulatory action at Union Bay shipbreaking site

The Discourse has previously reported on the jurisdictional complexities of Deep Water Recovery’s ship dismantling operation in Baynes Sound.

Canada has no regulations specific to shipbreaking. The rules that govern DWR’s operations are cross-jurisdictional, involving at least two provincial ministries, three federal ministries and municipal land use rules. All of these regulations are taking place on the traditional and unceded territory of the K’ómoks First Nation, who have also publicly opposed the shipbreaking operation.

Conkin said it’s easy to get lost in the complexity of the regulations and what different arms of government are responsible for. She said different levels of government work in silos. In the case of the Union Bay site, various regulatory responsibilities are deferred from one level of government to another, creating an opportunity for Deep Water Recovery to continue its operations through the gaps in communication and enforcement.

“If you focus too long on what all the tendrils are, it becomes too complex. And to me, it misses the issue,” she said. “In my view, government has created unnecessary complexity as a means to deflect responsibility and to avoid action.”

On Feb. 20, two B.C. ministers called on the federal government to take urgent action to regulate and respond to concerns regarding Deep Water Recovery’s shipbreaking site in Union Bay.

As previously reported in The Discourse, Minister of Water, Land and Resource Stewardship Nathan Cullen and Minister of Environment and Climate Change Strategy George Hayman wrote that the province is doing what it can to enforce regulations and respond to concerns in areas under its jurisdiction, but they also said the federal government has regulatory responsibilities with respect to Deep Water Recovery’s operations.

The letter is addressed to federal ministers for Fisheries and Oceans Canada, the Canadian Coast Guard, Environment and Climate Change and Transport Canada. Their responsibilities include protecting the marine environment, enforcing pollution laws and managing the safe movement of vessels.

The province has also sent Deep Water Recovery multiple out of compliance warnings, and charged the company with a $500 administrative penalty. The company was reminded in an April 22 out of compliance warning letter that failing to comply with provincial regulations and requirements laid out in the letter could result in fines up to $300,000 under the Environmental Management Act or up to $40,000 under the Administrative Penalties regulation.

Conkin is wondering why the province hasn’t charged the company with more than $500.

“On paper, these are very powerful pieces of legislation,” Conkin said. “All of it can be extreme. It should be because it’s supposed to be a deterrent. But it always comes down to whether it’s enforced or not. And it’s like — why are these guys giving warnings? Why aren’t they prosecuting?”

She also wonders why government bodies aren’t working together on enforcement. She suggested that if they were to break down silos between different levels and arms of government, regulations would be better enforced.

Some enforcement has taken place at Union Bay

In an email to the Discourse on April 8, 2024, Michelle Imbeau, communications advisor for the Canadian Coast Guard —– which is overseen by Fisheries and Oceans Canada (DFO) —– told The Discourse that the most recent assessment of DWR-owned vessels Union Bay was on Oct. 4, 2023.

The Discourse reached out again on June 3, 2024 to Fisheries and Oceans Canada to ask if the site or vessels have been assessed since October 2023, and if the DFO is investigating the ship dismantling operation in any other way.

“Currently, the Canadian Coast Guard does not have a role in any investigations underway into Deep Water Recovery. This responsibility is with British Columbia’s provincial government,” an email response from DFO communications advisor Kiri Westnedge said. The Coast Guard does not have jurisdiction over ship dismantling activities that occur on land.

The email response also noted that the Canadian Coast Guard’s role is to monitor and inspect vessels that could be hazardous or pose a threat of pollution on the water. Previous assessments of a vessel owned by Deep Water Recovery did not come up with any pollution or hazard.

Documents obtained through a Freedom of Information request filed by CCOBS indicate that Fisheries and Oceans Canada did previously take some enforcement action at the ship dismantling site. In June 2022, DFO officials determined that Deep Water Recovery harmed fish habitat by mooring vessels and operating machines in the intertidal water. DFO sent a letter to the company and gave it 77 days to y remove the three vessels grounded on the shore. The documents show that in March 2023, the DFO sent the same letter and gave the company another 85 days to move the vessels. At a follow-up visit in June 2023, two of the three vessels were removed or partially removed from the intertidal zone. A third moored vessel remained in the intertidal zone but didn’t contribute to any more disruption or destruction of the area. However, the site inspection summary said the site couldn’t recover until the vessel was removed from the water. It recommended that the final vessel be removed from the site.

Mark Jurisich, one of Deep Water Recovery’s directors, told The Discourse he doesn’t believe the operation is polluting the environment, and that is why the company has not been shut down. The Discourse reached out to Jurisich to inform him of the interview with Conkin, and requested a response, but did not hear back by the time of publication.

What about the regional district?

Comox Valley Regional District filed a civil claim against Deep Water Recovery in April 2022, stating that ship breaking use is not permitted under the location’s current zoning bylaw. The district is asking a judge to order the company to stop ship breaking on the site.

Conkin explained that leases of a property are determined by the province and then municipal governments determine the zoning of the property and what activities are allowed there. Basically, once the land use is decided by the province, the municipality can then regulate the use of land through zoning bylaws.

After the CVRD’s civil claim, Deep Watery Recovery issued a response the following month arguing that its activities fall under “boat building and repairs and service and sales, barge facility, waterfront freight handling facility, [and] storage and works yard and warehousing,” which are approved uses in the zoning bylaw. But the CVRD maintains that shipbreaking activities are still occurring on the site.

“The CVRD is seeking relief from the Courts in the form of a permanent order that prohibits the use of the subject property for ship breaking,” said Amanda Yasinski, senior manager of building and bylaw compliance for planning and development services at CVRD.

In a previous email from November 2023, Yasinksi told The Discourse that Deep Water Recovery must maintain compliance with the approved Environmental Management Plan (EMP) for the site. She added that “compliance and monitoring of the terms in the EMP and lease agreement lies solely with the Province.”

Madeline Dunnett, Local Journalism Initiative Reporter, The Discourse