Court of Appeal Interprets Riparian Areas Regulation

The B.C. Court of Appeal recently issued its judgment in the case of Yanke v. Salmon Arm (City), 2011 BCCA 309, a case involving the interpretation of the Riparian Areas Regulation, B.C. Reg. 376/2004 (the “RAR”). The judgment of the Supreme Court was discussed in the Fall 2010 issue of LoGo Notebook.

The purpose of the RAR is to protect fish habitat by controlling development on land bordering bodies of water such as lakes and streams. Where development is proposed within a “riparian assessment area”, a qualified environmental professional (“QEP”) must be engaged to assess the development and prepare a report. In most cases, the riparian assessment area is within 30 metres of the high water mark or top of bank. The report must be provided to both the Federal Department of Fisheries and Oceans (“DFO”) and the B.C. Ministry of Environment (“MOE”), and a local government must not permit development to proceed in a riparian assessment area until it receives notification from MOE that both DFO and MOE have received the QEP’s report, and that the report certifies either that the development will not result in any harmful alteration, disruption or destruction of the natural features, and conditions that support fish life processes in the riparian assessment area (commonly referred to as “HADD”), or that if the streamside protection and enhancement areas (“SPEAs”) identified in the report are protected, and certain measures required to protect those areas are implemented, that there will be no HADD. Alternatively, the RAR allows a local government to authorize a development if DFO has authorized the HADD that would result from the development.

In this case, the property in question straddled the high water mark of Shuswap Lake, and therefore fell within the riparian assessment area. The owner proposed to build a house on the property, and engaged a QEP. In accordance with the RAR, the QEP established the SPEA as being within 26 metres of the high water mark, but the QEP also concluded that a house could be built within the SPEA without any HADD as long as it was set back a minimum of 15 metres from the high water mark.

Then the confusion began.

Council of the City of Salmon Arm, operating under what the Court of Appeal characterized as a misunderstanding that a “variance” in the SPEA was necessary in order to permit the development to proceed, passed a motion (on grounds of “hardship”) in support of a variance in the SPEA from 26 metres to 15 metres, subject to DFO and MOE approving the QEP’s report. An approval of the variance was not issued by DFO, and the owner commenced legal action seeking various declarations, including a declaration that he was entitled to proceed with the development.

The owner was successful at trial. His development was allowed to proceed. However, the Attorney General for B.C. took issue with the reasoning of the trial judge, as well as the rather broad and ambiguous nature of the declarations issued by the court, and appealed the case to the Court of Appeal. The Court of Appeal overturned the declarations made by the trial judge and dismissed the petition, but did not accept the Province’s position on the interpretation of RAR. In doing so the Court of Appeal provided some clarity with respect to the interpretation of the RAR.

The Court of Appeal first of all dismissed the notion that a “variance” of the SPEA was required, as well as the notion that DFO or MOE had any authority to grant such a variance.

The scheme enacted under the RAR charges the QEP with responsibility for both determining the SPEA, and whether the proposed development will result in HADD. The determination is not whether the SPEA should be varied. The SPEA is established by the QEP in accordance with the RAR, and it cannot be changed. Instead, what the QEP may do is certify that the proposed development, even development within the SPEA, will not result in any HADD.

Where the QEP determines that development within a SPEA will not result in HADD, there is no further role for DFO or MOE to play in approving “variances” of the SPEA. DFO only has a decision to make where the QEP concludes that the development will result in HADD. The misconception that SPEA’s may be varied with the approval of MOE and DFO appears to have arisen from policy and guideline documents prepared and used by those agencies, but the Court of Appeal has made clear that the RAR does not contemplate any role for MOE or DFO in approving variances of the SPEA in the face of a “no-HADD” report.

The Court of Appeal went on to criticize the view of MOE that it had discretion to withhold notification to Salmon Arm under section 4(2) of RAR, while it waited for DFO to approve the report. That was not the case. There was no approval to be given, and MOE should have notified Salmon Arm that the QEP’s report was received.

The Court of Appeal also dealt with the argument that a SPEA had been previously established for the petitioner’s property. The trial judge had issued a declaration that a restrictive covenant registered against the property in 2005 had established the SPEA as 15 metres from the high water mark, in accordance with the predecessor to the RAR, the Streamside Protection Regulation, B.C. Reg. 10/2001 (the “SPR”). Section 8 of RAR preserves the boundaries of a SPEA established under the SPR. The trial judge concluded that the proposed development would not infringe upon the SPEA.

The Court of Appeal found two major problems with this declaration. One is that the restrictive covenant in question dealt only with a flood setback, and there was no evidence that the restrictive covenant was in any way intended to establish a SPEA, or that the requirements of the SPR for establishing a SPEA had been complied with. The Court stated that while the SPR did not set out any specific methods for establishing SPEA’s, the intent of the SPR was to require local governments to establish a SPEA for each watercourse in their jurisdiction as part of a broad scheme. The ad hoc nature of the restrictive covenant, and the fact that it related only to one lot, supported the view that the City had not intended to establish a SPEA through the covenant. In other words, the restrictive covenant was simply not relevant to the City’s obligations under RAR.

The Court of Appeal concluded that the petitioner was not entitled to the broad and ambiguous declarations granted by the trial judge. The Court of Appeal also questioned whether in the absence of notification from MOE to the City, the City had authority to approve the development.

This case confirms that where development is proposed within a riparian assessment area, the RAR establishes that the QEP has the most active role to play in determining the boundaries of the SPEA and whether the development will result in HADD. The roles of local government, and of DFO and MOE, are in most circumstances much more limited, and the courts will not approve any attempt to exercise authority beyond what is provided in the RAR.