This case addresses the validity and applicability
of a municipal earthworks bylaw that frustrated the terms of a
permit issued by the British Columbia Ministry of Energy, Mines and
Petroleum Resources (Ministry) under the British Columbia Mines
In June 2007, Peachland Self Storage Ltd. (Self Storage)
submitted an application for a Mines Act permit to
authorize the extraction of 100,000 cubic metres of material from
its aggregate mine. The mine was located within the boundaries of
the District of Peachland (District).
In October 2007, the District amended its Earthworks Control
Bylaw (Bylaw) to impose an annual 200-cubic-meter limit on soil
removal from land within the District.
Two years later, the Ministry issued Self Storage its mine
permit, noting in the permit that "[o]ther legislation may be
applicable to the operation, such as bylaws established by
Municipalities or regional Districts and you (Permittee) may be
required to obtain approvals or permits under that
It was not possible for Self Storage to operate its aggregate
mine in a commercially viable manner within the 200-cubic-meter
Self Storage challenged the 200-cubic-meter limit imposed in the
Bylaw on two bases: (1) the bylaw was outside the jurisdiction of
the District because it was a bylaw that required the approval of
the Minister under the British Columbia Community Charter
(Charter) and no such approval had been obtained or (2) the bylaw
was invalid because it frustrates a provincial purpose.
The BCSC ultimately concluded that the 200-cubic-meter limit in
the Bylaw was, in the circumstances, a bylaw prohibiting (as
opposed to merely regulating) soil removal and therefore was a
bylaw that required ministerial approval under section 9(3) of the
Charter. This decision was driven in large part by the court's
There is no doubt that the effect of Peachland's Earthwork
Control Bylaw No. 832 would render the mines permit held by
Peachland Self Storage of no value due to the 200m3 limit.
Section 9 of the Charter, which is aptly titled "Spheres of
Concurrent Authority" stipulates a number of matters for which
municipalities and the province have concurrent interests and
stipulates the circumstances in which municipal bylaws require
ministerial approval. The BCSC looked to the history of this
section and its predecessors and concluded, amongst other things,
that the purpose behind the section was to protect the value of
provincially issued permits.
While the British Columbia Supreme Court (BCSC) made its ruling
based on the statutory requirements for ministerial approval, and
that it was not required to address Self Storage's second
argument, the Court went on to state that, if the BCSC was wrong in
respect of section 9(3) of the Charter, it would have held that the
Bylaw was prohibitory and therefore invalid because it frustrated
the provincially issued permit.
This decision may be useful in any circumstance in which a
municipal bylaw impacts on a proponent's ability to utilize a
validly issued provincial permit.
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.
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Canada is a constitutional monarchy, a parliamentary democracy and a federation comprised of ten provinces and three territories. Canada's judiciary is independent of the legislative and executive branches of Government.
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