CRD Staff Report: Regional Growth Strategy Non-Binding Dispute Resolution Process

REPORT TO CAPITAL REGIONAL DISTRICT BOARD MEETING OF WEDNESDAY, JUNE 14, 2017

SUBJECT

Regional Growth Strategy Non-Binding Dispute Resolution Process

ISSUE

To seek Capital Regional District (CRD) Board approval of the proposed non-binding dispute resolution process for the 2016 Regional Growth Strategy (RGS) and to appoint a CRD representative.

BACKGROUND

On March 28, 2017, the Minister of Community, Sport and Cultural Development (the Minister) directed a non-binding dispute resolution process for the 2016 RGS, as requested by the CRD Board in a letter dated February 23, 2017.

Section 439 of the Local Government Act requires that rejecting municipalities (Central Saanich, Colwood, Esquimalt, Highlands, North Saanich, Saanich and View Royal) and the CRD Board agree to the process for non-binding dispute resolution. Municipalities accepting the RGS (Langford, Metchosin, Oak Bay, Sidney, Sooke and Victoria) may participate in dispute resolution if they so choose. The Minister has directed that agreement to a process and identification of a desire to participate in the process must happen by June 14, 2017. The Minister indicated that the Juan de Fuca (JdF) Electoral Area (EA) Director would be able to convey interests regarding the non-binding dispute resolution process at the CRD Board.

The legislation does not prescribe a non-binding dispute resolution process. CRD staff have worked with municipal directors of planning through the Development Planning Advisory Committee (DPAC) to provide information about non-binding dispute resolution and coordinated with rejecting municipalities to develop a mediation process. The proposed process and mediation team is provided in Appendix A. A summary of how the dispute resolution process was developed is included in Appendix B.

ALTERNATIVES

1. That the proposed mediation team and non-binding dispute resolution process for the 2016 Regional Growth Strategy (Bylaw No. 4017) as set out in Appendix A be approved, and a Board member and an alternate, and the General Manager of Planning and Protective Services and the Senior Manager of Regional and Strategic Planning be selected as CRD representatives for the RGS non-binding dispute resolution process.
2. That the proposed non-binding dispute resolution process for the 2016 Regional Growth Strategy (Bylaw No. 4017) as set out in Appendix A be received and that the Minister of Community, Sport and Cultural Development be requested to assist the CRD Board and the rejecting municipalities to reach agreement on a non-binding dispute resolution process for reasons identified by the CRD Board.

IMPLICATIONS

Legislative Implications

Agreement on the process is a requirement of the Local Government Act. Alternative 1 would allow for non-binding dispute resolution to begin immediately in accordance with the process proposed in Appendix A.

Alternative 2 would request the Minister's assistance to develop a non-binding process. Alternative 2 should be chosen only if any municipalities do not approve the proposed process or if the Board does not agree to the proposed process. Should Alternative 2 be selected, then the Provincial Minister would direct either a non-binding or a binding arbitration process.

RGS Implications

The Board unanimously requested that a non-binding process be used to resolve the disputed issues in the 2016 RGS. Alternative 1 and 2 both support moving forward with non-binding resolution. Alternative 1 approves the proposed process and Alternative 2 requests assistance from the Minister to reach agreement on the process, should any rejecting municipal Councils or the CRD Board not agree to the proposed process.

It is important to note that non-binding dispute resolution may not resolve all matters under dispute. Should all matters not be resolved, the Minister must direct a binding arbitration process.

Intergovernmental Implications

At the time of writing five out of seven rejecting municipalities (Central Saanich, Colwood, Highlands, North Saanich and View Royal) have agreed to the proposed process. The remaining two municipalities (Saanich and Esquimalt) are expected to consider the matter on June 12, 2017. Staff will be in a position to report verbally on the outcome on June 14, 2017.

Participation in the non-binding dispute resolution process is voluntary for those municipalities that accepted the RGS. Sooke and Metchosin, municipalities who accepted the RGS, have decided to participate. Langford, Oak Bay and Sidney have opted not to participate. Victoria will consider the matter on June 8, 2017.

Any changes arising from non-binding dispute resolution will be subject to a re-referral of the RGS. All municipalities will have the opportunity to accept or reject any changed provisions, regardless of whether they have participated in dispute resolution.

Juan de Fuca Electoral Area Implications

The Minister indicated that the JdF EA Director would be able to convey interests and concerns in the process at the CRD Board. The JdF EA Director has reviewed the proposed process and has not identified any concerns.

Process Implications

Under Alternative 1, the CRD would engage the mediation team and the proposed dispute resolution process would begin immediately. The proposed process would be undertaken in phases, as summarized in Appendix A.

In accordance with the proposed process, all participants must appoint a representative authorized to speak on each party's behalf. A number of municipalities have appointed elected officials and staff as representatives, while others have appointed only elected officials. Alternative 1 identifies that the representative will be a Board Director and an alternate, as chosen by the Board, as well as the General Manager of Planning and Protective Services and the Senior Manager of Regional and Strategic Planning.

Under Alternative 2, the CRD and rejecting parties would work with the Province to agree to a process. Once a process can be agreed to, mediation would begin. Under Alternative 2, there is a risk that the Minister may direct binding arbitration if all cannot agree to a non-binding process.

Financial Implications

As per section 439(6) of the Local Government Act, the costs for dispute resolution are to be shared proportionately between the CRD Board and all participating municipalities. Under Alternative 1, with nine participants (the seven rejecting municipalities, Sooke and Metchosin), the CRD’s share of the costs will be 48%. The CRD's costs would be reduced to 21% should Victoria choose to participate when they consider the matter on June 8, 2017. Cost containment measures are noted in Appendix A.

Under Alternative 2, costs would be dependent on the process directed by the Minister.

CONCLUSION

DPAC representatives from the CRD and the rejecting municipalities collaboratively identified a mediation team and a proposed non-binding dispute resolution process for the 2016 RGS. Should all rejecting municipalities agree, CRD Board agreement to the proposed process would allow for non-binding dispute resolution to begin.

RECOMMENDATION

That the proposed mediation team and non-binding dispute resolution process for the 2016 Regional Growth Strategy (Bylaw No. 4017) as set out in Appendix A be approved, and a Board member and an alternate, and the General Manager of Planning and Protective Services and the Senior Manager of Regional and Strategic Planning be selected as CRD representatives for the RGS non-binding dispute resolution process.

ES:SB

Attachments: Appendix A - Proposed Non-Binding Dispute Resolution Process Appendix B - Steps Taken to Prepare the Non-Binding Dispute Resolution Process