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BC law fails to protect fish habitat

July 25, 2011

A BC Court of Appeal decision issued earlier this month (July 5th) 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.  However, the Court of Appeal’s decision illustrates real and serious problems with the RAR that West Coast Environmental Law first identified when it was enacted in 2005.

A brief overview of RAR

The Riparian Areas Regulation is enacted under section 12 of the Fish Protection Act.  This section allows the provincial government to establish “policy directives” for local governments.  The local governments are then required to establish legal protection for fish habitat that is equivalent to these policy directives or better.  These bylaws were to be in place by 2006.  It is extremely unclear whether RAR has any legal effect unless a local government has taken the necessary steps to implement it through its bylaws. 

The RAR itself, however, establishes a complex “assessment methodology” which professionals (foresters, biologists, engineers, etc.) hired by a developer are supposed to apply in determining how far back development should be from waterbodies that provide fish habitat.  The RAR calls this set-back a “Streamside Protection and Enhancement Area” (SPEA), and we pointed out in 2005 that the RAR does not require that SPEAs, once identified, need to actually be protected:

Unfortunately, once the report is finished – identifying the SPEA and any measures necessary to protect it – the legal protection actually available for a SPEA under the RAR is unclear. Unlike the old [Streamside Protection Regulations], which required local governments to establish SPEAs by regulation, the RAR only requires local governments to establish rules that an assessment report, identifying the SPEAs, be prepared before any development proceeds. Local governments may create legal requirements for developers to implement SPEAs, but are not explicitly required to do so. …

Whether or not the professional feels that a SPEA is necessary for a particular development, the professional is required to certify that the development will not negatively harm fish habitat. Unfortunately, neither the assessment methodology (dealing with the determination of set-backs) nor the RAR provide a professional with direction on how to make this key determination.

B.C. v. Yanke

The BC v. Yanke Court of Appeal Case confirms some of the serious problems with the Regulation.  

Mr. Gregory Yanke wanted to build a house on a property located (but for a narrow strip of land) adjacent to Shuswap Lake.  Under the Riparian Areas Regulation, any development occurring within 30 metres of fish habitat requires an assessment report to define a SPEA.
Since a portion of Mr. Yanke’s property was located within 30 metres of the lakeshore, Mr. Yanke commissioned a Registered Professional Biologist to conduct the required assessment.  The Registered Professional Biologist, a Mr. Rublee, prepared the required report, which identified a SPEA of 26 metres from the edge of the lake. 

Mr. Yanke wished to build his house 15 metres from the edge of the lake.  The City of Salmon Arm approved the construction, but subject to the BC Ministry of Environment and Fisheries and Oceans Canada approving the deviation from the 26 metre SPEA.  Mr. Yanke then challenged the RAR, and the City’s deference to the provincial and federal agencies, on various grounds.

Mr. Yanke was successful in the BC Supreme Court.  When the province appealed (after Mr. Yanke’s house had already been built), the BC Court of Appeal overturned some aspects of the decision, but it was scathing in its criticisms of the government’s interpretation of the RAR, noting that it had “no basis in law.” 

The main difficulty with this case, from a legal point of view, is that the practices of the various governmental departments appear to be based on a scheme that is not found in the legislation. They appear to be under the impression that the extent of a streamside protection and enhancement area can be “varied” by governmental bodies. Further, they apparently operate on the premise that no development can take place within a streamside protection and enhancement area unless it is expressly authorized by the federal Department of Fisheries and Oceans. ... There is no provision allowing any governmental body to vary the extent of the streamside protection and enhancement area. …

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 [government] 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. [Emphasis added]

The RAR was based on an assumption that a professional who followed the Assessment Methodology would come up with a SPEA that was suitable to prevent negative harm to fish habitat.  However, as the BC Court of Appeal notes, the RAR does not actually prevent development within a SPEA. Instead, the RAR leaves it to a professional hired by a developer to determine whether development within the SPEA will harm fish habitat (with little real guidance from government as to how this is to be determined).

Next steps

It seems likely that the RAR will be revised in light of the BC Court of Appeal decision in BC v. Yanke.  If it is not, it raises significant questions about whether Fisheries and Oceans Canada can continue to justify its cooperation with a flawed provincial regulatory framework.

While the government might prefer to tinker with the RAR – clarifying the legal status of SPEAs and its link to preventing harmful alteration of fish habitat, for example – minor changes will not be sufficient to address some fairly fundamental flaws with the RAR.  These include addressing:

  • questions about whether RAR has direct legal effect where local governments have not fully or correctly implemented it;
  • the conflict of interest and lack of transparency inherent in allowing professionals retained by a developer to make key decisions about how best to protect public values associated with fish and fish habitat;
  • the lack of any obvious legal remedy to review the decision of the professional hired by the developer to determine whether fish habitat has been harmfully altered; and
  • the lack of opportunity for the public and First Nations to be engaged in a professional Assessment process. 

In our view a more fundamental review of the RAR is required. 

By Andrew Gage, Staff Lawyer