Executive Summary: Key Legal and Evidentiary Issues

• Petitioners challenged the SSILTC's refusal to issue development permits for a nature-based shoreline stabilization project on Salt Spring Island waterfront properties.

• Central dispute involved whether a federal Department of Fisheries and Oceans letter constituted an "approval" exempting the project from local permit requirements under the OCP Bylaw.

• Constitutional questions arose regarding whether local government guidelines protecting fish habitat improperly encroached on federal fisheries jurisdiction under s. 91(12) of the Constitution Act, 1867.

• Reasonableness of the SSILTC's decision was contested, with petitioners arguing staff failed to properly assess erosion risks and mischaracterized the project as creating new land.

• Procedural fairness concerns included allegations of Trustee bias and the introduction of new issues (Penelakut consultation) at the reconsideration hearing.

• Despite dismissing the petition, the Court declined to award costs to SSILTC due to significant deficiencies in how the permit application process was managed.

The dispute and the properties involved

This case arose from a judicial review proceeding brought by three waterfront property owners—Ethan Wilding, David Nicholas Demner, and Heidi Kuhrt—who own two high-bank waterfront properties located along Baker Beach, near Booth Bay in the northwest corner of Salt Spring Island. In 2022, the petitioners and some of their neighbours became concerned about the rate of erosion of the bluff where their respective properties meet the shoreline. They engaged various experts to assess the problem and developed a proposed "green shoring" project involving the planting of new trees, grasses, and sedge to stabilize the bluff, along with the placement of boulders and various kinds of sediments along the beach at the foot of the bluff to absorb the energy of incoming waves.

The regulatory framework and permit applications

The project required navigating a complex regulatory landscape created by three levels of government. The petitioners had no complaint about their treatment at the hands of federal and provincial authorities, but their applications for development permits from the Salt Spring Island Local Trust Committee proved unsuccessful. The SSILTC is constituted as a corporation with a mandate to regulate planning and land use management on Salt Spring Island pursuant to the Islands Trust Act. The SSILTC had enacted Official Community Plan Bylaw No. 434, 2008, which designated Development Permit Area 3 covering shoreline waters and adjacent land for purposes of protection of the natural environment and protection of development from hazardous conditions.

The federal response and exemption claim

On July 31, 2024, the federal Department of Fisheries and Oceans issued a letter stating that, provided the applicants incorporated suggested mitigation measures into their plans, the project was not likely to result in contravention of prohibitions under the Fisheries Act or Species at Risk Act. The petitioners argued this letter constituted written "approval" from DFO, which under section E.3.1.3 of the OCP Bylaw would exempt them from needing a development permit. The Court rejected this interpretation, finding the DFO letter was merely a non-binding opinion with no legal effect. Subsection 35(2) of the Fisheries Act provides authority only for the authorization of works, undertakings, or activities that would otherwise result in a contravention of subsection 35(1), not for authorizing works on the basis that they are not expected to result in a contravention.

The SSILTC's refusal and reasoning

By memoranda issued May 2 and 8, 2025, the SSILTC Director of Planning Services informed the remaining applicants that their applications were being refused, with staff concluding the proposed activities were not consistent with multiple DPA3 guidelines. Key concerns included potential for disturbance of substrate arising from the proposed sediment deposit and use of machinery, the deposit of 434.4m² of aggregate materials over about 300m of shoreline at an initial height of 1.0m above existing grade level, and that it was unclear what damage to existing structures the proposed activities would prevent. On reconsideration before the Trustees (Trustees Harris, Patrick, and Peterson) on July 10, 2025, the decision was upheld after a discussion that went on for a period of just under 90 minutes, during which the petitioners presented their case.

Constitutional and jurisdictional arguments

The petitioners argued the SSILTC lacked the requisite authority to enact guidelines insofar as they purport to regulate the use of land covered by the ocean, and that such guidelines, in their "pith and substance," amounted to an improper attempt to regulate fisheries, a federal matter. The Court found the SSILTC's interpretation of its authority was reasonable, noting that "land" is specifically defined in the Community Charter to include the "surface of water." The guidelines were validly enacted under provincial powers over Municipal Institutions in the Province, Property and Civil Rights in the Province, and Matters of a merely local or private Nature in the Province under ss. 92(8), (13), and (16) of the Constitution Act, 1867. The Court found the goal and effect of the impugned regulations is to restrict land use with a view to protecting the environment, a matter clearly within provincial competence, and the petitioners had not shown that the doctrines of interjurisdictional immunity or paramountcy applied.

Reasonableness of the decision

While finding the decision-making process more closely resembled an adjudication than an open-ended policy-driven discretion, the Court found the SSILTC's refusal was reasonable. The Trustees had gone through the background materials carefully and engaged with the petitioners, their consultants, and each other on the central issues. The conclusion that the proposal ran afoul of the guidelines insofar as the geotechnical reports adduced in support failed to establish a sufficiently urgent risk to the petitioners' properties—at least to the dwellings—was open to the SSILTC on the evidence. The technical reports did not identify an urgent risk to existing structures or an established use; the more urgent concern identified was erosion of the beach itself. The Court agreed the DFO's opinion on fish habitat should have been addressed in the analysis, but found this gap was not sufficiently serious and central to undermine the entire decision.

Procedural fairness and bias allegations

The petitioners alleged Trustee Harris was biased, pointing to a local newspaper article quoting him, their belief that he must have interfered with the decision of staff in the first instance, and that he had failed to attend numerous other committee meetings in person prior to this one. Applying the standard from McLaren v. Castlegar, the Court found that while Trustee Harris' first remark when given the chance to speak was that he could not support the Project, he later stated that his "thoughts keep changing as this goes on" and that he had listened to what Trustee Patrick had to say before deciding how to cast his vote. The transcript, read as a whole, showed he appreciated the need to follow a process and to give the petitioners an opportunity to be heard and to present evidence. The allegation that Penelakut opposition was raised for the first time at the reconsideration hearing was also rejected, as the issue had been highlighted previously through the WLRS consultation process.

The ruling and costs disposition

The Court dismissed the petition, having rejected all of the grounds of review advanced by the petitioners. However, Justice Milman declined to award costs to the SSILTC despite its success. The Court noted the petitioners had cause to complain about how the permit application process was managed: the petitioners should have been told early on that the SSILTC considered the applications to be defective; after submitting the original application on December 27, 2023, the petitioners had to wait until May 2025, nearly 18 months, for a decision that was forthcoming only after an application was made to the court to compel an answer; and the SSILTC failed at any stage to address important issues squarely, such as the claim for an exemption based on the DFO letter or how the opinion in that letter could be reconciled with the SSILTC's own conclusions as to the anticipated impact of the Project on fish habitat. Accordingly, each party was ordered to bear their own costs.