Copyright 2011, Blake, Cassels & Graydon LLP
Originally published in Blakes Bulletin on Environmental Law, July 2011
In a recent decision of importance to project developers dealing with the Department of Fisheries and Oceans (DFO), the B.C. Court of Appeal has agreed with the analysis of the Supreme Court of British Columbia just a year ago, which exposed the institutional fiction that the DFO may reject development proposals that do not cause a harmful alteration, disruption or destruction to fish habitat (HADD). This bulletin focuses on the decision of the Court of Appeal in the case. For a full description of the background law and lower court's decision, see our July 2010 Blakes Bulletin: B.C. Court Confirms Limited Jurisdiction of Department of Fisheries and Oceans over Development in Riparian Areas.
Court of Appeal
Despite overturning certain declarations made by the
Supreme Court judge, the Court of Appeal explicitly confirmed the
lower court's analysis of the role the DFO plays (or does not
play) under the provincial Riparian Areas Regulation
(RAR), and the mistaken reliance by municipalities on the DFO to
approve or disapprove of projects in riparian areas. In doing so,
the Court of Appeal said the practices of the various government
departments (DFO, the B.C. Ministry of Environment (MOE) and the
City of Salmon Arm) appear to be based on a scheme not found in any
legislation.
Of particular note, the Court held that:
- "Guidebooks" developed by the provincial MOE to assist local governments, landowners, developers, community organizations and qualified environmental professionals, sets policies and practices that go well beyond those established in the RAR and are not legally enforceable.
- The framework described in the Guidebooks allows the DFO to adjust the boundaries of a streamside protection and enhancement area by way of a variance and local governments to make minor adjustments to the area by a process known as "flexing". The Court found this framework also has no basis in law, stating there is no provision allowing any governmental body to vary the extent of streamside protection and enhancement areas under the RAR.
- It is not correct to say that the RAR prohibits all development within a streamside protection and enhancement area in the absence of express authorization by the DFO.
- The MOE has no discretion to withhold notification to a municipality that it and the DFO have received the RAR assessment, or to delay such notification until the DFO approves the assessment report.
Of key importance, the Court confirmed that development can occur within streamside protection and enhancement areas if an assessment report certifies that those developments will not result in a HADD or if the assessment report certifies that a HADD can be avoided through protection measures. The Court also confirmed that nothing in the RAR allows the DFO to veto a development proposal that is before a local government in circumstances where a qualified environmental professional has given an opinion that the proposed development will not result in a HADD. Furthermore, the municipality is not required to reject a development application simply because the DFO has not approved it.
Comment
The Court of Appeal decision has confirmed that the deference paid
to the DFO in British Columbia by local governments when approving
developments near water bodies is unsupported in legislation, and
the MOE's development of agreements and Guidebooks has not
helped to end the confusion over the actual role of the DFO.
As stated in our July 2010 bulletin, it is helpful that the Court has confirmed the DFO's limited role in riparian developments by providing clear direction to local governments and the province to avoid deferring decision-making to a federal entity with no authority to approve the work, and to not unilaterally diverge from the requirements of the RAR. The hope is that municipalities will now follow the law, and stop insisting that DFO approve a project before they confirm it complies with the RAR.
Interestingly, although the Court of Appeal decision ultimately went against the respondent landowner (Yanke) in holding that the declarations made by the lower court were not valid, the Court nevertheless awarded the respondent his costs because of the "Attorney General's desire to have the regulatory regime interpreted in a manner that accords with the practices that have been adopted by the MOE, the DFO and the Union of B.C. Municipalities", a position that the Court found to be wholly unsupported by law.
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