Article by Janice Walton, © 2008, Blake, Cassels & Graydon LLP
Originally published in Blakes Bulletin on Environmental Law, February 2008
In a recent decision under the British Columbia Water Act, the Environmental Appeal Board (the Board) found that the impacts of works on species at risk should receive additional or special weight by the government when considering whether to issue an "in-stream" works permit. While the Board also determined that, in the specific case before it, the project should be approved, it was clear that this was only because the particular environment involved had been so severely compromised by development around it, that the few species at risk found on it would not persist over the long term regardless of whether the approval was granted.
A developer applied for an approval under section 9 of the Water Act to construct a road through a ravine as part of an 80-lot housing development in Abbotsford, British Columbia. The City of Abbotsford had required that the road be built as part of the project before it would issue the development permit. On advice from the Ecosystems Branch of the Ministry of Environment, the Regional Water Manager determined that the ravine in question was an "ecosystem of high value", primarily due to the presence of several species considered to be at risk (two species of snails, a plant and a frog). Despite a revised proposal by the project proponent to preserve a pond area on the property and create enhanced environmental works for the species, the Regional Manager determined that the approval could not be issued.
The proponent appealed the decision to the Environmental Appeal Board, arguing that as the particular species involved did not have any specific protection under British Columbia law on the private land in question, it was inappropriate for the Regional Manager to give them special consideration when determining whether a permit should be issued under the Water Act. The Board reviewed the law and agreed that British Columbia law does not create legal, mandatory protection for these species on this parcel of private land, and further that the federal Species at Risk Act does not apply to protect these species. However, the Board went on to say that lack of mandatory legal protection does not mean that consideration of the impact on the species or their habitat is not relevant or important. The Board held that species at risk are different from other potentially affected species because their very existence is under threat. The Board concluded that even if they are currently not the subject of any direct enforceable protection from the provincial or federal governments, there was a legitimate basis for giving species at risk additional weight, or special consideration, in Water Act approvals.
The Board went on to find that the overall weight to be given to the species in question would depend on the gravity and magnitude of the impact to the species. While the Ministry of Environment argued that the area in question was an ecosystem of high value, the Board found that because the 14-hectare property was completely surrounded by other development, it was not of high value. While there were several species at risk identified on the property, the Board agreed with the experts who testified in the hearing that the isolation of the land affected the quality of the habitat for those species, and the likely further development of the area surrounding the ravine would further fragment and isolate the habitat. The Board also noted that the proposal by the developer to protect some of the property would "ironically" provide greater protection for some of the ravine than would occur if it were left undeveloped. In essence, the Board found the project would protect portions of the ravine that are currently unprotected and thus had some potential to assist some of the species. The Board ordered the Regional Water Manager to issue the approval but appended a number of specific conditions to provide for long-term protection of those areas of the property which would not be developed.
Also of note, the Board commented on the fact that there was evidence that all four species discussed in the hearing were known or expected to inhabit other nearby areas, some of which is Crown land. The Board then took a somewhat unusual step of stating that it "encourages the City and the Province to consider the protection of those lands for these and other species at risk before those lands are compromised in a manner similar to what has occurred in this case". The Board went on to say the following:
"The Panel shares the concerns expressed by many at the hearing regarding the continued destruction of habitat of various species due to human intrusion into their habitat. This is a serious problem and is something that needs to be addressed by larger scale planning."
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