Resistance to tower builds shows need to ‘rethink’ consultations: MP

Residents of a New Brunswick town are asking the Federal Court to review the government’s approval of a proposed telecommunications tower by Bragg Communications Inc.’s Eastlink, a development that is punctuating opposition to cell towers in neighbourhoods across the country. Last month, Innovation Canada, which wields authority to grant tower-build licenses, approved the antenna system on Zach Road in Moncton. It noted that Eastlink in November followed a public consultation process established by the Southeast Regional Services Commission (SRSC), the area’s land-use authority. The problem with the approval, alleges a judicial review application filed in Federal Court earlier this month, is that Eastlink did not do an adequate public consultation. In approving the site, the applicants say ISED effectively delegated its authority to the commission without properly assessing whether an adequate consultation was conducted. The application was filed by residents of the area who own and are “in the process of developing lands in the immediate vicinity of the proposed erection of the tower,” the documents said. The applicants, who say the tower will devalue the area, want the court to invalidate, consider unlawful, set aside or refer back to Innovation Minister Navdeep Bains the decision his office made in granting the tower build application. While the court deliberates, it wants an interim -- and ultimately a permanent -- ban on any construction work related to the tower. “The erection of the proposed tower will forever change the residential nature and character of the lands and premises in relation to which it is proposed to be placed to the severe and permanent detriment of the surround neighbouring public and their respective properties,” the application says. The crux of the problem as outlined in the application is ISED’s alleged reliance on the commission to grant the site at which the tower would be built. The applicants say they didn’t receive an adequate response from Eastlink when they submitted a petition against the tower by 15 of the neighbours in the surrounding area. The commission required Eastlink to send a notification to all property owners within a radius of three times the tower’s height. Thomas Thompson, counsel to the applicants, said in a phone interview that part of a public consultation is the need for a back-and-forth with the public about concerns, but that didn’t happen, he claims. The commission has specific timelines for when a complaint must be filed and how long it should take to respond, the application said. “There was no public consultation,” Thompson said. Instead, according to the complaint, the only correspondence they received from the telecom was a letter from a site acquisition manager for Eastlink suggesting the telecom is taking “your concerns very seriously” and that it tries to find tower sites that provide both excellent coverage while minimizing harmful impacts on communities, according to the documents. According to the application, a planning committee was appointed by the commission to determine whether the plot of land could be subdivided for the tower. The committee had two hearings in January and February and approved the subdivision, but said it did not have jurisdiction to hear complaints about the location of the tower’s build, the application and Thompson said. Following the hearings, the complainants communicated with ISED on March 5 and were told the department had not made a decision on the tower. A few days later, on March 14, the department approved it because it believed Eastlink got the appropriate consultations done through the commission, the application said. ISED, the application added, “failed to exercise its jurisdiction or duty, and/or otherwise entirely shirked, delegated, and or relegated away their decision make power and authority to either or both” of the respondents, the commission and Eastlink. “It’s almost as if...Industry Canada had said, ‘well, you had sessions in regards to the subdivision, and that’s good enough,’” Thompson said, adding he hopes the case puts a spotlight on the need for public consultations to be “revisited” and “rethought.” In an emailed statement, Eastlink spokeswoman Jill Laing said, “we work hard to find tower site locations that provide excellent coverage for the communities we serve while minimizing impacts to the communities we serve, including minimizing the number of infrastructure locations required to serve a community. We have followed and are in full compliance with the tower siting process.” The requirement to consult the public before building any size of cell tower is a relatively new feature, first imposed by the then-Industry Minister James Moore in 2014. But resistance to such construction projects -- “not in my backyard (NIMBY)” -- isn’t new in the telecom sphere. In fact, last weekend, a petition from residents of a neighbourhood in Kelowna, British Columbia, said a proposed Rogers Communications Inc. tower would be too close to an elementary school. The Ottawa Citizen reported that a group of 30 residents appeared at a Rogers presentation in the city’s Barrhaven suburb in February and protested the proposed 37-metre cell tower because they thought it was too big and ugly. Moreover, a prospective tower build from Telus Corp. has also caused issues because it is sited in an environmentally-sensitive area. On at least a couple of occasions at question period in the House of Commons, NDP MP Matthew Dubé has raised concerns from his constituents about the telecom’s tower being built on protected land in Otterburn Park, about 40 kilometres east of Montreal. In November, citizens of Otterburn held a “Together Against Telus” walk to protest the prospective development. That case, too, is before the Federal Court. In July 2018, Otterburn Park submitted a judicial review application challenging ISED’s approval of the site for the build. In June 2016, the Supreme Court of Canada ruled that the city of Chateauguay, a Montreal suburb, could not block a Rogers cell tower from being erected after the city objected due to health and safety concerns. The decision has since crystalised the federal government’s ultimate and sole responsibility to determine where tower builds go. Otterburn Park and Telus have so-far agreed to a temporary moratorium, as they seek a way out of the deadlock that is six years old. After Dubé's probing in question period, the MP said he got an offer from Innovation Minister Navdeep Bains to have a meeting with senior staff in his department to bring the parties together. But, he said, the municipality has been “hesitant” to come to the meetings because of a fear it may undermine its case in court, Dubé said. Calls and emails to Otterburn Park’s communications office were not returned. In a December letter to L’oeil Regional, a newspaper that serves the constituency, Telus said that it needs to plant the tower to improve wireless service and that it has tried to work in good faith with the municipality to work out an arrangement. For Dubé, the case hammers home the need to “rethink” the public consultation process for these builds, solidify the need to recognize social concerns when proposing projects, hasten the dispute resolution process without sacrificing those social issues, and have stronger rules for tower sharing between telecoms to minimize the need for new construction. ISED requires, as a condition of license, tower sharing where available to boost competition in wireless and reduce tower proliferation. Dubé said there’s a tower sharing option with Rogers in Otterburn Park, but Telus did not entertain that option, he said. But in an email to The Wire Report, Telus spokeswoman Jacinthe Beaulieu said the telecom’s “preference is always to integrate our equipment on an existing piece of infrastructure.” In this case, however, “no nearby sites would have allowed us to notably improve the wireless service in Otterburn Park,” she said. Dube said his constituents are planning to hold a press conference “in the near future” to update the public on the situation. Opponents of tower builds sometimes point to them being unsightly, while others say the towers’ signals could pose health risks. To address at least the aesthetic complaints, telecoms including Rogers and BCE Inc. have disguised some of their towers as trees. In its latest mid-year report, the complaints watchdog Commission for Complaints for Telecom-television Services (CCTS) noted that the top five out-of-mandate issues included concerns related to poles and towers, which made up nearly six per cent of all issues outside its focus. A CCTS spokesperson said in an email the complaints are on the “rise slightly” as the issue did not show up on the top five list the previous year. Beside complaints about unappealing prospective tower builds, the CCTS fields complaints about existing tower integrity where, for example, a telephone pole is leaning or falling; the poor state of service provider equipment on customer property; and even customers requesting towers be built in the area because of lack of access to services. According to CCTS data, there was one complaint coming out of Otterburn Park about “intermittent/inadequate quality of service” related to Rogers’ coverage. — With reporting by Ahmad Hathout at ahathout@thewirereport.ca and editing by Anja Karadeglija at akarad@thewirereport.ca

Resistance to tower builds shows need to ‘rethink’ consultations: MP

News | 04/30/2019 4:35 pm EDT

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