how do you spell government cluster#$%* ?

quality urban salmon habitat?

In flipping through a web search, I came across a BC Court of Appeal decision from last week: Yanke v. Salmon Arm (City) there is also a quick summary of the case at the large Canadian law firm Blakes.

B.C. Court Limits DFO [Dept. of Fisheries and Oceans] Authority in Riparian Area Development

In short, Mr. Yanke constructed a building within a streamside protection and enhancement areas — otherwise known as the “riparian area” — of Shuswap Lake near Salmon Arm, BC.

The issue as stated in the BC Court of Appeals judgement is: “whether construction of the house, as proposed, would violate the Riparian Areas Regulation, B.C. Reg. 376/2004 under the Fish Protection Act, S.B.C. 1997, c. 21.”

These regulations are Provincial regulations established by the BC Ministry of Environment (MOE). As stated on the MOE website:

The Fish Protection Act is a key element of the British Columbia Fisheries Strategy to save our fish stocks before it’s too late .

…Protecting riparian fish habitat, while facilitating urban development that exhibits high standards is a priority for the Government of British Columbia. Good quality urban streamside habitat is essential for ensuring healthy fish populations.

[I’ll reserve comment on the immense bumpf-y-ness of this fluffy, meaningless underlined statement]

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The comment section of the Blakes’ summary tends to wrap the issue well:

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 [federal Dept. of Fisheries and Oceans].

Curious, kind of sounds like some of the struggles underway at the Cohen Commission into declines of Fraser sockeye — e.g. What does DFO do? What is it supposed to do? What does it have the authority to do?

And more clearly — what is it supposed to be doing, and why isn’t it doing it?

Similar to the recent court decisions that overturned a decision by the Dept. of Fisheries and Oceans to grant authority of salmon aquaculture to the Province.

Ooops, sorry folks… wrong decision — said the courts.

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The Blakes summary:

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).

…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.

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It gets better…

From the BC Court of Appeals decision:

The Legislation

[13]         The legislative framework that governs this case is part of a cooperative effort between federal, provincial and local governments to preserve and enhance fish habitat. The provisions that we are concerned with regulate and restrict the use of land adjacent to watercourses.

The Appeal decision goes on to explain how the legislation was developed by the Province and how it shifted and changed in the period between the late 1990s and early 2000s. The Streamside Protection Regulation evolved into the Riparian Areas Regulation, which suggests:

[17]         The Riparian Areas Regulation establishes “riparian assessment areas” which, in the case of a lake, extend 30 m. upland from the natural boundary (or “high water mark” as defined in the regulation). No development can take place within a riparian assessment area except in accordance with the regulation.

[19]         In addition to the prescribed assessment methods, the Provincial government has published the Riparian Areas Regulation Implementation Guidebook to assist local governments, landowners, developers, community organizations and qualified environmental professionals. The guidebook sets out policies and practices that go well beyond those established in the regulation. The Attorney General concedes that the Guidebook does not have legislative force. To the extent that it sets out requirements that go beyond the legislation, therefore, those requirements are not legally enforceable.

And here is essentially the crux of the matter, and the government cluster#$%@:

[25]         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. This framework is reflected in the Riparian Areas Regulation Implementation Guidebook, in an agreement styled “Intergovernmental Cooperation Agreement Respecting the Implementation of British Columbia’s Riparian Areas Regulation” and in a document published by the provincial government entitled “Variances to the BC Riparian Areas Regulation”.

The regulatory framework described in those documents prohibits all development within streamside protection and enhancement areas. It allows the Department of Fisheries and Oceans to adjust the boundaries of a streamside protection and enhancement area by way of a “variance” and allows a local government to make minor adjustments to the area by a process known as “flexing”.

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.

Awesome.

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As the Blake summary suggests:

… it is helpful that the Court has confirmed 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 [Riparian Areas Regulation]. 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.

Some concluding thoughts from the Court of Appeals decision:

[26]         It is not clear why there came to be such a dissonance between the statutory provisions and the regulatory framework that is actually applied. What is clear, however, is that the Court must be guided by the legislative provisions rather than by the Guidebook, the Intergovernmental Agreement, or provincial government publications.

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The saddest part of this whole thing… riparian areas in BC are basically up for development as long as an “environmental professional” says so. One has to wonder if these “professionals” take into consideration ‘cumulative impacts’ of all riparian habitat development or is it only site specific to the development at hand?

What do you think the cost of this court case was to taxpayers? Through lower courts, to BC Supreme Court, to BC Court of Appeals and Attorney General of BC is on the hook for Mr. Yanke’s costs too…

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death of a thousand cuts

wild salmon habitat… death of a thousand cuts… (paper cuts).

 

One thought on “how do you spell government cluster#$%* ?

  1. priscilla

    Thanks so much for your talk at the Wild Salmon Festival.
    and going on where you left off in your great post… what sort of professionals can approve development in a hazzardous flood zone?

    Hope you have a great holiday – cheers.

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