A recent decision of the British Columbia Supreme Court has set aside an attempt by a municipal government to regulate forestry activities on privately owned land. The regulations had been adopted in 1999 by the Denman Island Local Trust Committee. They were applicable to about half of the land area on Denman Island, a small island located in the Gulf of Georgia accessible by ferry from Vancouver Island. Denman Island has a significant forest cover and is largely rural in character with a small resident population.
The Denman Island Local Trust Committee owes its existence to the Local Government Act, R.S.B.C. 1996, c. 323 (known until recently as the Municipal Act). Denman Island is not incorporated as a municipality but land use on the island is subject to regulation by this limited form of local government. The bylaws in question were prepared as amendments to an Official Community Plan Bylaw, a planning bylaw which municipal governments in British Columbia are required to adopt. They created a development permit area which covered approximately half of the island's total land area. The detailed forest regulations applied to lands within the development permit area. They had been prepared with the assistance of a professional forester.
The defendant land owner, 4064 Investments Ltd., is the largest land owner on the island. Prior to adoption of the regulations, 4064 had been actively logging its lands. It continued to do so after the bylaw amendments came into effect. According to 4064, the regulations had a significant impact on it's logging program. When 4064 refused to comply with the regulations, the Local Trust Committee commenced the action to enforce the bylaws. 4064 responded by taking the position that the Local Trust Committee did not have
jurisdiction to regulate forestry practices.
In the decision, released November 7th, Mr. Justice Bauman concluded that regulation of forestry practices on private land was not authorized by the Local Government Act. It appeared that the Local Trust Committee had been encouraged to adopt the regulations by several amendments to the Local Government Act enacted in 1997. However, after a lengthy analysis of the purpose of the 1997 legislation, the court concluded that local government jurisdiction to regulate tree cutting was confined to tree
removal on urban land and did not extend to regulation of forestry practices in rural areas.
On the surface, this case is about a local conflict between environmentalists and land owners on Denman Island. However, the issue has much wider implications. Historically, in British Columbia the harvesting of timber on private forest land has not been subject to much regulation. The Denman Island forest regulations were directed at what the Local
Trust Committee must have perceived as a void in provincial legislation. However, the court suggests that the lack of provincial regulation in this area is intentional. In this case,
the municipal forest regulations were set aside and the issue of compensation was avoided.
The successful owner was represented at the hearing by Brent Lokash of Vancouver. Barry Williamson and Francesca Marzari of Lidstone Young Anderson acted for the Local Trust Committee.