The warehouse on 1668 Fosters Way has been rezoned to allow medical marijuana production. (Grace Kennedy photo)

Medical marijuana production facility to open on Annacis Island

Plumbers and piperfitters union fought against the facility all the way to Canada’s Court of Appeal

A medical marijuana facility will be starting up on Annacis Island after more than four years of legal disputes and council delays.

On June 26, council voted unanimously to approve the facility at 1668 Fosters Way, despite objections from UA Plumbers and Piperfitters Union Local 170, who occupy the building next door.

International Herbs Medical Marijuana Ltd. first applied to rezone its property to allow medical marijuana production back in March 2014.

The company had actually applied for a medical marijuana production license from Health Canada back in 2013, but was told the application had to be tied to a specific production site, as Health Canada would need to conduct an inspection before issuing the final license.

Earlier, in 2014, Delta council had amended the land use bylaw so that medical marijuana production and research was not allowed in any zone — those interested in producing medical marijuana would have to apply for site-specific rezoning, giving council the ability to approve production facilities on a case-by-case basis.

The provincial government overrode this bylaw change in June 2014, allowing businesses to produce cannabis in the agricultural land reserve without needing the Corporation of Delta’s approval.

Related: Delta greenhouse to produce pot by 2018

As International Herbs’ property is located in a heavy industrial zone, an application to the municipality was necessary.

The site-specific zoning, which was finally approved by council this week, includes a number of stipulations for the production facility, such as bans on the retail sale of goods from the building, activities other than marijuana production taking place in the building and the emission of pollen, particles and odours from the building.

Council gave the rezoning first and second readings on May 12, 2014, and it was taken to a public hearing on May 27, 2014.

The public hearing

At the public hearing Joe Shayler, business manager for UA Plumbers and Piperfitters Union Local 170, spoke out against the rezoning. The union has a building next door to the proposed medical marijuana facility which includes a training school and restaurant.

Shayler had spoken out against the proposed rezoning before, in a letter to council shortly after the International Herbs sent in its application. In the letter, Shayler wrote that the union was “particularly concerned about [the facility’s] impact on the training school and how it will … have an ill effect on enrolment, the restaurant which has an outdoor seating area and the smell associated with marijuana production, security or increased crime in the area, increased traffic, [and] the already very limited amount of parking available.”

At the May 27, 2014 public hearing, Shayler also indicated that the union was worried about the proposed facility having an adverse affect on them because of the no drug and alcohol policy in their collective agreement.

Shayler was the only person to speak out against the rezoning at the public hearing, although no one besides International Herbs’ owner and CEO Rick Brar was there to support the proposal either.

Brar addressed many of Shayler’s concerns, such as parking, smell and security.

According to Brar, the building would have heavy security, including electronic gates, restricted entries, video monitoring and colour-coded staff uniforms based on duties. Few people would be given access to the whole building. He also noted that there would be no foot traffic — product would be picked up by an armoured vehicle and delivered by Canada Post.

Delta’s deputy director of planning Marcy Sangret also indicated at the public hearing that safety and security would be a top priority. Health Canada, which issues medical marijuana production licenses, inspects all production facilities annually and has stringent requirements for airborne emissions. Sangret also said Delta police were told they could inspect the building as well.

The union fights back

Delta gave the rezoning a third reading on the day of the public hearing, but had to wait until Health Canada issued International Herbs its license before the final consideration and adoption of the rezoning.

Local 170 sent three letters to the Minister of Health between July and October 2014 asking for participatory standing in Health Canada’s licensing process. Hearing nothing from the ministry, the union then applied for a judicial review.

In December 2015, Justice Anne MacTavish decided that the union’s concerns “are essentially land use planning issues … they had, and have, the right to participate in the municipal zoning process.” In her written decision, she also stated the union did not “have either a statutory or common-law right to participate in the medical marijuana production licensing process.”

She particularly stressed that under the federal regulations for medical marijuana, medical marijuana should be treated like any other prescription drug.

After this decision, the union brought their concerns to the Court of Appeal, saying MacTavish was wrong in saying that they would have more opportunities to participate in the municipal rezoning and they had no claim in the licensing process.

In July 2016, International Herbs’ license application moved to the security inspection stage.

The appeal hearing was held in November 2016, and on March 1, 2017, Justice Yves de Montigny upheld MacTavish’s ruling.

“Parliament would exceed its jurisdiction and trench upon provincial heads of power it it were to delegate to the Minister … the power to determine where marijuana production facilities may be geographically located,” he wrote in his decision. “This is a pure zoning issue.”

The union’s concerns are generic, he continued, and were “relating to anyone building a marijuana production facility next to their property” and did not relate to International Herbs in particular.

De Montigny noted that the union’s concerns about the facility warranted “serious consideration” but ultimately decided the municipality had given enough opportunity for those concerns to be heard.

Due to the union’s legal challenges and the resulting delays in Health Canada granting International Herbs’ license, Delta council had to postpone final reading of the company’s application three times.

The final reading

On June 12, 2017, Health Canada approved International Herbs’ application, and the company became one of 12 licensed medical marijuana producers in B.C.

Final consideration and adoption of the proposed rezoning at 1668 Fosters Way was brought before Delta council on June 26. Mayor Lois Jackson asked if it was possible to track the production of the facility (the answer is no, Health Canada regulates production amounts, not the municipality), but the rest of council was quiet. Council’s concerns had been answered in the form of several reports back in 2014.

International Herbs is expecting to produce between 30 and 40 kilograms of cannabis a week, and will have 1,242 square metres of production space.