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 Act.
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 legislation."
It was not possible for Self Storage to operate its aggregate mine in a commercially viable manner within the 200-cubic-meter limit.
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 conclusion that:
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.
