Canada: B.C. Court Confirms Limited Jurisdiction of Department of Fisheries and Oceans over Development in Riparian Areas

Copyright 2010, Blake, Cassels & Graydon LLP

Originally published in Blakes Bulletin on Environmental Law, July 2010

In a recent decision of importance to project developers dealing with the Department of Fisheries and Oceans (DFO, now known as Fisheries and Oceans Canada or FOC), the Supreme Court of British Columbia exposed the institutional fiction that the DFO may reject development proposals that do not cause a HADD. In doing so, the Court found that the DFO extended far beyond its legitimate authority in trying to establish a decision-making role for itself in development proposals in riparian areas, in circumstances where no harmful alteration, disruption or destruction to fish habitat (HADD) would result. The Court confirmed that DFO approval is not required for activities that do not cause a HADD and consequently, the DFO has no jurisdiction to deny non-HADD developments. Further, the Court's discussion confirms that the DFO's opinion on how non- HADD developments should be built should not be relied upon by either local governments or the province to deny development approval.


The Court ruled on a case involving a petitioner's request for a municipal development variance, permitting him to construct a home 15 metres from the average high-water mark in a lake near Salmon Arm, B.C. Upon considering the petitioner's application, which included an opinion from a qualified consultant that no HADD would occur, the City of Salmon Arm supported the variance but made its approval conditional on approval by the DFO and the B.C. Ministry of Environment (MOE). The DFO agreed that the development would not cause a HADD, but expressed its opinion that the project could be designed differently to lessen impact on the riparian area. As a consequence of the DFO's comments, the City withheld its approval of the variance. The petitioner sought a declaration from the Court giving effect to the City's approval.

The City's decision to withhold approval was based upon its interpretation of the provincial Riparian Areas Regulation (RAR). The case was ultimately decided in the petitioner's favour on the grounds that the City's approval had effectively been given through the initial establishment of a restrictive covenant under the RAR's predecessor, the Streamside Protection Regulation; and that because of the transitional provisions of the RAR, approval under it was unnecessary. However, this case is more significant because of the Court's discussion of the DFO's improper involvement with non-HADD development proposals. The Court held that the City's practice to defer to the MOE and the DFO for approval was not consistent with the RAR, which does not mandate that non-HADD developments be approved either by the DFO or the MOE.


Fisheries Act. The DFO derives its regulatory powers over project development in riparian areas from the Fisheries Act. Section 35(1) of the Act makes it an offence for any person to cause a HADD. Section 35(2) provides that no person contravenes s. 35(1) if the HADD was authorized by the DFO. In this respect, an authorization under s. 35(2) is a statutory defence to causing a HADD and nothing more. It does not create a federal licensing scheme for non-HADD developments. In other words, s. 35 is not engaged by non-HADD developments, and the DFO has no authority to authorize or seek changes to them.

Riparian Areas Regulation. The RAR is a regulation under the B.C. Fish Protection Act. It provides that any proposed development within a riparian assessment area may not proceed without approval from the local government. Section 4 of the RAR sets out the preconditions for obtaining local government approval. As the Court points out in Yanke, the RAR makes a key distinction between proposed developments that would result in a HADD and those which would not.

Development proposals which will not cause a HADD proceed under s. 4(2) of the RAR, which provides that a local government may approve the development once the MOE has confirmed that the MOE and the DFO have been notified of the proposal and have been provided with an opinion by a Qualified Environmental Professional (QEP) that the development would not result in a HADD. The local government cannot give its approval until all notice requirements have been satisfied, but there is no requirement for approval from the DFO or the MOE.

Developments which will cause a HADD are considered under s. 4(3) of the RAR, which provides that a local government may not provide approval unless the HADD has been authorized under the Fisheries Act.

The scheme established under the RAR is consistent with the Fisheries Act, in that the prerequisite of DFO authorization contemplated by the RAR applies only to HADD developments. However, administrative agreements entered into by municipal, provincial and federal agencies (discussed below) for implementation of the RAR, and the MOE's guidance documents, have confused the role of the DFO in project development by implying that DFO authorization is required for all developments in riparian areas, regardless of whether they will cause a HADD. The result is a misconception by local governments that DFO approval is required for non-HADD development proposals, and a consequent over-reliance on the opinion of the DFO on project development. The Court ruling clears up this misconception.

Implementation Guidebook and Intergovernmental Cooperation Agreement

The provincial government argued that its Riparian Areas Regulation Implementation Guidebook (the Guidebook) was authority for the proposition that variances of municipal setbacks must be approved by the DFO. In rejecting this argument, the Court pointed out that the Guidebook does not actually say that, and further, that it does not have the force of law. At the same time, the Court found that the Guidebook confuses the distinction made in the RAR between HADD and non- HADD developments. As an example, the Court cited portions of the Guidebook which state that variance requests shall be considered by the DFO, which will assess whether an authorization is required, and that the RAR sets the direction that can allow development to proceed if approved by the DFO. The Court described this as misleading.

The government also produced evidence of a letter from the City which stated that, in absence of a protocol with the DFO, all variance requests were to be submitted to the DFO prior to filing the RAR report, and the DFO "approval" was required, either through an authorization or a letter of advice (the DFO's standard letter that a HADD is likely to not occur).

In 2008, the DFO, MOE and Union of British Columbia Municipalities entered into the Intergovernmental Cooperation Agreement Respecting the Implementation of British Columbia's Riparian Areas Regulation (the Agreement). The Court in Yanke reviewed the Agreement, and confirmed that it does not constitute a delegation of statutory decision-making power. However, the Court also pointed to several problematic provisions of the Agreement, in particular Annex 2, which sets out the roles and responsibilities of the parties. The Court found that the terms "variances" and "HADD" are used interchangeably in the Annex, leading to the implication that all applications for variances must be submitted to the DFO for review. The Court described this as creating a "troublesome ambiguity". As a consequence, the Court found the DFO and the MOE had gone far beyond the RAR in establishing a decisionmaking role for the DFO in non-HADD developments.

The Court determined that the City had developed a practice of deferring to the MOE and the DFO for approval as a pre-condition of permitting of any type of development in riparian areas, regardless of whether the QEP had determined there was a HADD. The Court stated that the approval of the DFO or the MOE was not a statutory prerequisite to the City permitting the development to proceed and that the notification requirements of the RAR had been complied with in the case. The Court held that the City's deferral of its decision-making authority to the DFO with respect to non-HADD developments was both unnecessary and improper.


The decision in Yanke highlights a problem that has been faced by developers in B.C. for years, that is, the deference paid by local governments to the DFO when approving developments near water bodies.

While the RAR has been carefully crafted not to extend jurisdiction where it does not exist, the scheme it mandates contributes to the problem by requiring notification to the DFO of all development in riparian areas, regardless of whether they are related to fishbearing waters, and regardless of whether a HADD will occur. Further, the B.C. government's efforts to encourage intergovernmental co-operation for riparian developments, as reflected in the Agreement and its guidebooks, has not helped, as these documents confuse both developers and local government into thinking of the DFO as a body which approves all such developments, which it is not.

In 2004 when the RAR was introduced in the B.C. legislature, Blakes had the following comment:

A wide range of concerns have been expressed regarding the RAR. First, it increases the role of the DFO beyond its statutory mandate by effectively involving it in projects which will not result in the harmful alteration of fish habitat. Under the Fisheries Act, the jurisdiction of the DFO flows directly from an assessment that there is a potential for harm to fish habitat. Without such potential, the DFO has no jurisdiction to request information about a project, but will now receive it because of the RAR provincially mandated process. Further, under the RAR, reports are prepared for all streams, without regard to whether they support a fishery. As the federal government only has power to regulate to protect fish habitat that supports a fishery, there is potential for the DFO to become involved in projects for which they cannot issue an authorization (as it would be outside their constitutional jurisdiction).

Second, the prohibition of the approval of a development which will cause harm to fish habitat, unless authorized by the DFO, fetters the discretion of local government officials on the basis of a decision to be made by a federal government entity over which neither the local nor provincial governments have any bureaucratic control. This, in effect, takes the ultimate decision regarding whether development within 30 metres of any watercourses in the affected areas may go ahead, out of the hands of local or provincial government, and into the hands of the federal government. This is particularly problematic as the Fisheries Act does not actually require the DFO to issue authorizations.

Six years later, it is clear that our concern that the RAR would result in the DFO extending its reach into areas beyond its jurisdiction has actually happened. Fortunately, the Court in Yanke has confirmed the DFO's limited role in riparian developments and provides direction to local governments and the province to avoid deferring decision-making to a federal entity with no authority to approve the work.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
27 Oct 2016, Seminar, Toronto, Canada

Please join members of the Blakes Commercial Real Estate group as they discuss five key provisions of a commercial real estate purchase agreement that are often the subject of much negotiation but are sometimes misunderstood.

1 Nov 2016, Seminar, Toronto, Canada

What is the emotional culture of your organization?

Every organization and workplace has an emotional culture that can have an impact on everything from employee performance to customer or client satisfaction.

3 Nov 2016, Seminar, Toronto, Canada

Join leading lawyers from the Blakes Pensions, Benefits & Executive Compensation group as they discuss recent updates and legal developments in pension and employee benefits law as well as strategies to identify and minimize common risks.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.