A recent decision of the BC Court of Appeal confirms that the Federal Department of Fisheries and Oceans (“DFO”) does not have authority over, and does not need to approve, development near water which does not have a harmful effect on fish habitat.  Nor does DFO need to be consulted, nor do they have the authority to require changes to development near water, if there is no harmful effect on fish habitat.

This is an important decision for developers in BC because, up until this decision, DFO had been given de facto control over developments near water as part of the planning and development process.

Of course, if there is a harmful effect on fish habitat, then DFO has authority and an Authorization is required in order to be in compliance with the Fisheries Act.

Background

Mr. Yanke proposed to build a house on his lot near Shuswap Lake, in the City of Salmon Arm, BC.  The lot was within the “riparian assessment area” as provided for in the BC Riparian Areas Regulation.  The house was to be built 15 metres from the average high water mark of the lake.  That Regulation sets out how development can take place within a riparian assessment area.

Mr. Yanke retained a qualified environmental professional, as required by the Regulation, whose professional opinion was that the development, while within the riparian assessment area, would not result in the harmful alteration, disruption or destruction of fish habitat (“HADD”).

The City of Salmon Arm had a practice to defer to the BC Ministry of Environment (“MOE”) and DFO for approvals of developments near water.  This was based on an administrative agreement between DFO, MOE and the Union of British Columbia Municipalities, being the “Inter governmental Co operation Agreement Respecting the Implementation of British Columbia’s Riparian Areas Regulation” and a provincial guide book called Riparian Areas Regulation Implementation Guidebook.  The practice had developed that, even though there was no harmful effect on fish habitat (a HADD), the City would defer to the MOE and DFO for approval as a pre condition of development in riparian areas.  This was even if the qualified professional had assessed that the development would not be a HADD.

What the Court Said

The BC Court made it clear that DFO does not have authority for developments in the riparian area where there is not a HADD.  The Guidebook and agreements had caused confusion and were misleading in suggesting that DFO had jurisdiction.  The Court was clear that the Guidebook and the administrative agreement did not have the force of law.  Rather, the BC Riparian Areas Regulation was the law to be followed.

Comment

This decision highlights the problem faced by many developers in BC where municipalities require de facto approval by DFO (and MOE) of projects near the water.

The Court made it clear that, if there is no harmful effect on fish habitat, DFO does not have authority over such a development.  DFO’s involvement is limited to receiving notice of the development, as required by the Riparian Areas Regulation.

This decision will assist developers and municipalities alike in clarifying the process and confirming that DFO does not have a role in regulating those developments which do not have a harmful effect on fish habitat.