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
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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