On January 24, 2025, the BC Court of Appeal settled a decades-old debate on the legitimacy of historic bylaws on Galiano Island that prohibit residential use of managed forest lands. In the recent decision, Galiano Forest Lot Owners Association v. Galiano Island Local Trust Committee,1 the court found that historical local bylaws that prohibit residential land use remain enforceable, despite provincial legislation that permits residential land use on managed forest land or forest reserve land – provided that the bylaw does not make it impossible for landowners to comply with provincial legislation, and the provincial legislation is not retroactive. This means that even if provincial laws allow for residential development, pre-existing local bylaws can still prohibit property owners from using their land for residential purposes.
This case provides guidance on how the courts will address conflicts between local bylaws and provincial legislation. It underscores the significant power and discretion that local governments have to regulate land use, which can greatly impact property rights and development plans within their geographic purview.
Background
The genesis of this decision dates back to 1992, when the Galiano Trust Committee (the "Committee"), essentially a municipal government, adopted various bylaws including Bylaw No. 82, which prohibited the construction of dwellings on all properties zoned as forest land.
In 1994, the Province of British Columbia (the "Province") enacted the Forest Land Reserve Act ("FLRA"), the initial purpose of which was to minimize the impact of urban development and rural area settlement on forest reserve land. The FLRA prohibited local governments from adopting bylaws that restricted "forest management activity relating to timber production or harvesting on forest reserve land."
MacMillan Bloedel, a landowner of substantial portions of Galiano Island at the time, challenged the bylaws in 1995 in MacMillan Bloedel Ltd v The Galiano Island Trust Committee.2 The trial judge initially found the bylaws to be invalid. Following the trial judge's decision, MacMillan Bloedel sold most of its properties on Galiano Island. Some of the new owners applied to subdivide their properties based on the strength of the trial judge's findings.
However, shortly thereafter, the Court of Appeal reversed the trial judgement and upheld Bylaw No. 82. The new owners unsuccessfully applied to compel the provincial subdivision approval.3 This affirmed the Committee's authority to restrict residential use of the properties.
In 2000, the Committee adopted Bylaw No. 127 in replacement of Bylaw No. 82, which continues to prohibit residential use. In 2003, the Province enacted the Private Managed Forest Land Act (the "PMFLA") which entirely replaced the FLRA. In 2004, the Province introduced the PMFLA Regulations.4 These regulations permit one dwelling per registered parcel of land as a "forest management activity", unless additional dwellings are allowed under local bylaws.
Lower Court Decision
Several owners of properties on Galiano Island (the "Petitioners"), challenged Bylaw No. 127, claiming that it was either invalid or inapplicable to their properties.
The Petitioners argued that Bylaw No. 127 was invalid because it was in "pith and substance" about forestry management, and therefore fell within the powers of the provincial government. The "pith and substance" analysis looks at the underlying purpose and effect of the law, and determines which level of government has the authority to make the law based on that purpose and effect. Alternatively, the Petitioners argued that the restrictions in Bylaw No. 127 were prohibited by s. 17(1) of the FLRA, which provides that a local government must not adopt a bylaw that would restrict "a forest management activity relating to timber production or harvesting." The Petitioners also argued that even if Bylaw No. 127 was valid when it was enacted in 2000, it was rendered invalid by the PMFLA in 2003.
The chambers judge found that Bylaw No. 127 would only be invalid if it was in direct conflict with the provincial scheme, and that there was no conflict between Bylaw No. 127 and the provincial legislation. Further, the judge found s. 17(1) of the FLRA did not prohibit the restrictions in Bylaw No. 127 because a residential dwelling is a not a "forest management activity" under s. 17. Therefore, there was no provincial restriction on the Committee's authority to adopt Bylaw No. 127.
Importantly, the judge also found that the PMFLA does not apply retrospectively, meaning it only applies to bylaws adopted after its enactment; it does not invalidate Bylaw No. 127. Ultimately, the judge concluded that the Committee's adoption and application of Bylaw No. 127 were reasonable and dismissed the petition.5
BC Court of Appeal
The Petitioners appealed, arguing again that the Bylaw No. 127's dominant purpose (i.e., its "pith and substance") was beyond the powers of the Committee. They also argued again that s. 17(1) of the FLRA, or the PMFLA, prohibited the adoption of Bylaw No. 127.
The Court of Appeal upheld the chambers judge's decision. The court determined that the bylaw would only be invalid if it was impossible to comply with both the bylaw and the provincial statute – i.e., the "impossibility of dual compliance" test.6
The court determined that the "pith and substance" analysis advanced by the Petitioners did not apply. The court clarified that a "pith and substance" analysis only applies to conflicts between provincial laws and local bylaws when legislative direction prohibits regulatory overlap or mandates that type of analysis. By contrast, if a municipality's authority to enact a bylaw is governed by the Community Charter,7 the "impossibility of dual compliance" test will be used to determine whether the bylaw is inconsistent with provincial enactments.8 The Court of Appeal found that no legislation mandated the "pith and substance" analysis in the present case and that s. 17 of the FLRA did not create a zone of immunity from local bylaws for forest reserve lands. Therefore the "impossibility of dual compliance" test was the appropriate analysis.
According to the Court of Appeal, there was no question that the Committee had the authority to adopt any bylaw that restricted the residential use of forest land on Galiano Island, as that issue had been determined in MacMillan Bloedel. The question was simply whether compliance with Bylaw No. 127 made compliance with any part of provincial law impossible. If so, the Bylaw would be invalid. Since s. 17(1) of the FLRA permitted the construction of a residential dwelling for a "forest management activity relating to timber production or harvesting", the ultimate question was whether or not a residential dwelling fell within this category.
In response to this question, the Court of Appeal concluded that Bylaw No. 127 was valid and reasonable. Like the chambers judge, the court agreed there was no conflict between Bylaw No. 127 and the provincial scheme. The construction of a residential dwelling was not a "forest management activity relating to timber production or harvesting" under s. 17(1) of the FLRA because it did not relate to timber production or harvesting.9
Most importantly, the court found that the PMFLA did not apply retroactively, and only applied to bylaws created after its enactment in 2003. Therefore, the PMFLA did not override Bylaw No. 127. After the enactment of the PMFLA, a local government was prohibited from adopting a bylaw that restricted the construction of a dwelling on private managed forest land. Therefore, while the PMFLA will prevent any future bylaws that are analogous to Bylaw No. 127, it does not invalidate Bylaw No. 127.
Key Takeaways
This case represents the resolution of over 30 years of controversy and uncertainty regarding the legitimacy of historical bylaws on Galiano Island. The Court of Appeal has determined that Bylaw No. 127 legitimately prohibits residential use of managed forest land on Galiano Island, despite provincial acts that now permit such use.
The court has ruled that bylaws will be enforceable so long as they do not directly conflict with provincial legislation. The court will not look at the dominant purpose (the "pith and substance") of the bylaw unless legislation directly prohibits regulatory overlap between provincial statutes and local bylaws. Instead, bylaws will be enforceable so long as it is not impossible to comply with both the bylaws and provincial legislation.
For land purchasers, this case underscores the importance of understanding and complying with local bylaws, even historic ones. When purchasing land, it is critical to conduct thorough due diligence and determine whether the land may fall under a historic bylaw that restricts or prohibits the intended use of the land.
While the Province maintains its supremacy over local governments, such authorities have significant power and discretion in enacting and enforcing land-use bylaws, which can have a profound impact on property rights and development plans.
Footnotes
1. Galiano Forest Lot Owners Association v Galiano Island Local Trust Committee, 2025 BCCA 15.
2. MacMilan Bloedel Ltd v The Galiano Island Trust Committee (1995), 10 BCLR (3d) 121 (BCCA).
3. Thomas v British Columbia (Provincial Approving Officer), 1996 CanLII 3602 (BCSC).
4. SBC 2003, c 80; Private Managed Forest Land Act Regulation, BC Reg 371/2004.
5. Galiano at para 39.
6. Galiano at para 71.
7. Community Charter, SBC 2003 c 26, s 10.
8. Galiano at para 70.
9. Galiano at paras 76-80.
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