City court case breaks legal ground

BC Court of Appeal: Decision calls into question legislation intended to protect fish habitat.

Salmon Arm has been making history of sorts in the BC Court of Appeal.

In July, the court ruled in a case involving the City of Salmon Arm that has attracted provincial attention. The interest is regarding the effectiveness of the provincial Riparian Areas Regulation, the regulation that is intended to protect fish habitat.

Andrew Gage, a staff lawyer with West Coast Environmental Law, wrote on his organization’s website that the court decision, “has confirmed that the province’s Riparian Areas Regulation (RAR) by itself provides little legal protection for fish habitat. The RAR is the province’s primary legal tool to protect fish habitat from development located immediately next to streams and lakes, and this decision should be very troubling to anyone concerned about the environment and the protection of fish.”

The issue began in 2007 regarding property at 741 Harbourfront Dr., east of Marine Park. The owners wished to build 15 metres from Shuswap Lake because of a limited building envelope and, under RAR, development is prohibited within 30 metres of fish habitat.

A Qualified Environmental Professional was hired to do an assessment, as required by the regulation, and he determined that the 15-m setback would not impact fish habitat.

The City of Salmon Arm approved the location, subject to the province’s Ministry of Environment and the federal Department of Fisheries and Oceans approving the plan.

Owner Gregory Yanke then challenged the RAR and the fact the city was deferring to the provincial and federal governments.

The challenge was successful in BC Supreme Court and when the case, which was listed as between the Attorney General of British Columbia, Gregory Yanke and the City of Salmon Arm, went to the BC Court of Appeal, the court criticized the government’s interpretation of RAR.

“You have a court saying neither level of government can step in under these laws to see if fish habitat is protected… It seems a fairly fundamental flaw,” Gage told the Observer, adding the decision makes it clear it’s a badly written piece of legislation.

“The court is saying the government doesn’t understand what its own laws are actually saying.”

The following excerpt from the Court of Appeal decision emphasizes Gage’s statement: “It appears that the Ministry of Environment, in consultation with the Department of Fisheries and Oceans and the Union of B.C. Municipalities, has developed a detailed (though not entirely consistent) regulatory framework for administering the Riparian Areas Regulation… The regulatory framework described in documents prohibits all development within streamside protection and enhancement areas… Unfortunately, the elaborate regulatory framework described in those documents is not supported by the Fish Protection Act or the Riparian Areas Regulation, and therefore has no basis in law.”

Carl Bannister, the city’s chief administrative officer, said the case has been complicated. The only reason the city was involved in the appeal, he said, was the Supreme Court had ruled that because the city had registered a covenant on the property in the mid-1990s regarding the floodplain, that RAR did not apply. The city argued that RAR still applied, and was successful.

“It was so clear that was never the intent of those covenants, so it was something we had to seek clarification on.”

He noted that the city had always supported the development and the issuance of the building permit for the property.

Bannister said the significance of the ruling is that it has global implications for the province.

“Basically the Court of Appeal said that the approval of the Ministry of Environment and Fisheries and Oceans Canada is not required in going through the RAR process, as long as there is no HADD, or harmful alteration, disruption or destruction of fish habitat. Essentially it puts a lot of the responsibility and authority on the qualified environmental professionals… whether or not the province intended that.”

He said it becomes similar to how regulation of construction in the province is turned over to the private sector, where architects and engineers take responsibility.

Questioned regarding the Court of Appeal decision, a spokesperson for the Ministry of Environment forwarded the inquiry to the Ministry of Forests, Lands and Natural Resource Operations.

Spokesperson Cheekwan Ho wrote an email response to several questions:

“• The province is still reviewing the implications of the decision;

• The decision does not fundamentally affect the model;

• The RAR is a proactive complement to the Federal Fisheries Act and Provincial Water Act;

As long as QEPs follow the assessment methods and recommended variance process, and development is conducted consistent with the results, then potential violations of these acts will be avoided. Anything else may result in charges to the development and potential complaints of misconduct to the QEP;

• The province expects QEPs and development proponents to continue to practise due diligence in the application of the RAR and associated municipal bylaws to avoid or minimize impacts to the province’s important fish habitat.”

Meanwhile, the Court of Appeal decision is being watched on Salt Spring Island. An August article in the Gulf Islands Driftwood newspaper notes that the island’s Local Trust Committee is monitoring the Salmon Arm case regarding development in their area.

“It is interesting to watch and we, together with all municipalities, will be watching this carefully,” regional planning manager Leah Hartley is quoted.

 

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