VANCOUVER, British Columbia (CN) - The British Columbia Supreme Court judge must decide if a controversial shoreline erosion mitigation project on British Columbia's Salt Spring Island was properly denied by the island's municipal government and whether it overreached its constitutional authority.

In arguments that wrapped up Friday, the island's local trust - a municipality-like entity that governs the island with a committee akin to a city council - noted that the decision to deny the project was more nuanced than the project's proponents have suggested.

The shoreline erosion project proposed to follow a more naturalized approach to shoreline armoring, including placing sediment and large rocks below the high water mark. But the proposal has been divisive for Salt Spring Island's population, with some residents concerned about the amount of materials proposed to be left on the beach and its potential impact on the local ecosystem, including two fish species that use the foreshore area as breeding grounds.

But the trust argues now that the fish were far from the only issue at play.

Attorney Alyssa Bradley, representing the trust, argued the references to fish habitat in both the committee meeting and the staff report were just a handful in a wide-ranging discussion.

"They're making that comment in passing," Bradley said. In their decision to deny the permit, staff with trust referenced local guidelines that aim, among other things, to protect fish species.

The island residents that had proposed the project had argued on the hearing's first day that protecting fish was outside the trust's powers, as Canada's constitution places fisheries clearly in federal jurisdiction. And they sought to characterize the decision to deny the development permit as resting largely on the issue of potential harms to fish habitat.

Even if the trust did reject the project on grounds of protecting fish habitat, Bradley argued, it would only violate jurisdictional boundaries if it was a core federal function.

She compared it to navigable waters regulations, noting courts have found municipalities can regulate how long a ship can dock in a certain place for, but they can't outright ban it.

"They are asserting, again, this very broad category of protection of fish and fish habitat in tidal waters. There is no jurisprudence to say that that is the core federal fisheries power," Bradley said.

"If the bylaw is saying, 'You can't fish here,' that would be probably the core. But here, that's not what's happening," she added.

She noted the bylaw also makes an exemption from getting a permit where an applicant gets an approval from the federal government, which she said explicitly avoids a jurisdictional clash.

Bradley also questioned the need for the project - a geotechnical report commissioned by the project proposers had found that while there are concerns about erosion at the cliff itself, it also said the structures are safe.

She noted that when trustees reviewed the permit denial by staff, the engineer behind the report didn't have an answer to why the project was necessary if no buildings were threatened.

Bradley also sought to counter arguments by the petitioners that one of the trustees, Jamie Harris, was biased against the application, saying they are necessarily acting in a political capacity as elected officials.

Bradley said the test for procedural fairness when it comes to elected officials such as local trust committee members is whether the official is "amenable to persuasion." She pointed to the case of a Richmond, B.C. city alderman who'd said in the media before a hearing over a rezoning that he'd made up his mind, and even then the Supreme Court of Canada found he met that test.

And she said Harris's comments in the meeting were those of someone who was open to persuasion. While his first comments on the matter was that he was opposed to it, that came after he heard submissions from the applicants, and the matter could have gone to a decision at that same moment if the trustees wanted.

In his response to Bradley's arguments, attorney Thomas Falcone argued, on behalf of the petitioners, that the committee was acting not in a legislative capacity, but rather as adjudicators.

The test for fairness in that case is whether there is a "reasonable apprehension of bias," and Falcone said Harris clearly demonstrated a bias in this case.

Falcone pointed to comments in a previous committee meeting in which Harris appeared to make comments explicitly opposing the project when it was in the hands of the provincial government.

And he noted Harris's statements in the review of staff's permit denial.

"The first thing he says is 'No,'" Falcone said. "Every time he had an opportunity to speak, he reiterated his opposition to the project."

Justice Warren Milman said he would reserve his judgment for another day.

Courthouse News reporter Dustin Godfrey is based in Vancouver, Canada.

Source: Courthouse News Service