The Supreme Court of British Columbia recently released the first decision of that court to consider the Riparian Area Regulations (“RAR”) under the Fish Protection Act (British Columbia).
In Yanke v. Salmon Arm (City) the petitioner owned a residential lot near the shore of Shuswap Lake. The lot did not immediately adjoin the natural boundary of the lake – it was separated from the natural boundary by 36 meters, including a 30 meter strip held by the Nature Trust of British Columbia. The petitioners wished to construct a residential dwelling on their lot on an area that was 15 meters from the average annual high water mark of the lake. The proposed building site was within a 26 meter streamside protection and enhancement area (“SPEA”) identified by a qualified environmental professional using the assessment methods under RAR.
According to the understanding of the City, the development proposal required the approval of Fisheries and Oceans Canada (“FOC”) to a variance of the SPEA. The City adopted a resolution approving the petitioner’s application for a variance, subject to approval by the Ministry of Environment (“MOE”) and Fisheries and Oceans Canada (“FOC”). That approval was not granted.
One of the key facts in the case was that the petitioner’s lot had been created by subdivision in February 2005 when the former Streamside Protection Regulation (“SPR”) was still in effect. RAR includes transitional provisions to the effect that where a local government established streamside protection and enhancement areas (“SPEA’s”) under the former SPR, the local government is deemed to have complied with RAR in respect of those areas – any amendments of those SPEA’s are required to comply with RAR.
At the time of the 2005 subdivision, the City had required the registration of a section 219 (Land Title Act) covenant that required the establishment and maintenance of a vegetated landscaped area within 15 meters of the average annual high water mark. The terms of that covenant had been approved by FOC. The City had not otherwise established a SPEA in the vicinity of the petitioner’s property. The owner argued, and the Court accepted, that the covenant established a SPEA in compliance with the former SPR.
The Province, also a respondent in the proceedings, argued that local governments would be expected to have established SPEA’s on a “macro” or comprehensive basis through the terms of their official community plans, and that the covenant (which was registered concurrently with a flood protection covenant) was incongruous with the concept of a SPEA under the former Regulation. The Court rejected that argument, stating that to hold otherwise would mean that the City had not complied with its clear statutory obligations at the time of the subdivision, and further that any non-compliance on the City’s part had been acquiesced in by FOC. The presumption of regularity supported the argument that the City had complied with its obligations under the former SPR.
While that was enough to determine the outcome of the case, the Court went on to hold that RAR had been complied with in any event, and that no further approvals from FOC or the Ministry of Environment were required. That was because in this case the qualified environmental professional had provided an opinion that a variance of the SPEA to 15 meters in the case of the petitioner’s property would not result in any harmful alteration, damage or destruction of natural features, functions and conditions that support fish life processes (“HADD”) within the riparian assessment area.
The Court noted that section 4(2) of RAR states that a local government may approve a development within a riparian assessment area once it has been notified of FOC’s and MOE’s receipt of a report from a qualified environmental professional, certifying that the assessment methods have been followed, and that either:
a) if the development proceeds, there will be no HADD; or
b) if the SPEA’s identified in the report are protected from the development, and measures identified in the report as necessary to protect those areas from the development are implemented, there will be no HADD.
In the Court’s view, if those conditions were satisfied, no further approvals from FOC or MOE were required. In this case the qualified environmental professional had expressed the opinion that the development would not result in any HADD. The Court mentioned that the City had not received notification of FOC’s or MOE’s receipt of the report in this case, presumably because FOC was not in support of the proposal (even though it acknowledged no HADD was likely to result from the development). However the Court was prepared to find on the evidence that the report had been received and
that the requirements of section 4(2) had been met.
The Court concluded that under section 4(3) of RAR, FOC approval was required for a local government to approve a development within a SPEA only where the proposed development would result in HADD. The Court went on to suggest that under the terms of the Inter Governmental Cooperation Agreement signed by UBCM, MOE and FOC in 2008, respecting the implementation of RAR, the Federal and Provincial Ministries involved had gone far beyond RAR in trying to establish a decision making role for FOC in respect of non-HADD development proposals.
It remains to be seen if the Court’s conclusions on the effect of RAR will stand. For local governments considering proposals for development within SPEA’s, this decision creates a degree of uncertainty. Arguably the Court’s interpretation of RAR was not necessary to the result in the case, and may not establish a binding precedent. If, in similar circumstances, a qualified environmental professional provides an opinion that the development will not result in HADD, applicants may use this decision to pressure local governments to approve their proposal without any further input from MOE or FOC. It may be that the Province will consider amending RAR to augment the role of senior levels of government in the development approval process. In the meantime, local government should be cautious in applying this decision where non-HADD development proposals are under consideration.