VANCOUVER, British Columbia (CN) - A court battle over a controversial project to address shoreline erosion on a British Columbia island kicked off Wednesday, with the proponents' lawyers arguing that allowing the local government to block the project would create a "jurisdictional nightmare."
The hearing comes amid a lengthy dispute between petitioners Ethan Wilding, Heidi Kuhrt, David Nicholas Demner and the local government on Salt Spring Island, along British Columbia's South Coast.
The three neighbors sought to add large rocks and sediment to the beach outside their shoreline properties, as well as adding native vegetation to the shoreline and removing invasive species.
The proposal follows principles of naturalized shoreline armoring, in contrast with hard armoring such as sea walls, which experts argue are less effective at mitigating erosion and are more harmful to local ecosystems.
Opponents to the project, however, say they're concerned about the volume of materials that would be left on the beach, and in particular its impact on the local ecosystem. The beach's intertidal zone is a breeding ground for two species of fish, including one vital to an endangered local group of orcas.
In the first of a three-day hearing, lawyers representing Wilding, Kuhrt and Demner took aim at the Salt Spring Island Trust Committee's authority to deny their development permit application, as well as the rationale behind the denial.
Lawyer Russell Robertson noted the island trust - effectively the island's municipal government - is a creature of the province, and its powers are limited to those that are outlined in provincial legislation.
And he said there's nothing that gives the island trust the power to protect fish habitat, which he argued was central to the denial.
The Local Government Act lists 11 issues a development permit area can regulate, including "protection of the natural environment, its ecosystems and biological diversity" - but Robertson said that is talking about land-use, and one can't read protecting water or fish habitat into it.
Even if the law can be interpreted to allow municipalities to protect fish habitat, Robertson argued, that still wouldn't be legal, since that is a clearly defined federal responsibility.
"The Province of British Columbia has no right to pass laws interfering with the regulation and protection of fisheries, meaning protection of animals that inhabit the seas," he said.
To do so, Robertson argued, would create a "jurisdictional nightmare" for people in the petitioners' position.
The federal government's authority over protecting fish, he noted, is reflected in the Department of Fisheries and Oceans' letter of advice around the project when compared to the island trust's reasoning for rejecting it.
"The planning service's rejection references potential impact on fish are very general and speculative and vague compared to the specificity contained in the DFO approval letter," Robertson said.
Even without the jurisdictional issue, lawyer Thomas Falcone, who is also representing the petitioners, argued the rationale behind the project's rejection was unreasonable.
The island trust's bylaws exempt people from getting permits for "vegetation removal within 10 m of the natural boundary of the sea or works below the natural boundary of the sea that have been approved in writing by the Ministry of Environment or the Department of Fisheries and Oceans."
Falcone highlighted the latter portion of that, referring to work below sea level that's been approved by the Department of Fisheries and Oceans.
The proponents asked the department to review the project, and the department came back to them with a letter of advice.
While the island trust said that isn't an actual approval - and the Department of Fisheries and Oceans told Courthouse News in an email that it isn't an approval - Falcone said it's a meaningless distinction.
If a project is unlikely to kill fish, the department's practice is to write a letter of advice - that is, a set of things a project must include to mitigate any potential harm to fish. A project that is likely to kill fish, on the other hand, requires approval.
And Falcone said it would be absurd for the island trust's bylaws to give a pass to department-approved projects that are likely to kill fish but not to projects the departmen won't block, albeit with certain conditions, because it likely won't kill fish.
He added the island trust's engagement with the issue of the exemption also doesn't pass legal tests for reasonableness because staff only reached out to the Department of Fisheries and Oceans after the proposal was rejected to ask if the letter of advice constituted an "approval."
The petitioners' lawyers said they expect to wrap up their arguments before midday Thursday. Island trust counsel said they anticipate the case will continue through to the end of Friday.
Courthouse News reporter Dustin Godfrey is based in Vancouver, Canada.
Source: Courthouse News Service
