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Cohen Highley LLP

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Additional Fish Protection Act measures take effect
January 24, 2001

The British Columbia Fish Protection Act, S.B.C. 1997, c. 21, was adopted by the provincial legislature on July 28, 1997. The purpose of this legislation is to provide for the protection of fish stocks.

The Act was designed to come into force by regulation. After adoption of the Act, regulations were adopted in 1998, and again in 2000, bringing several portions into effect. A third regulation took effect last week, on January 19, 2001. This brings into effect several very significant provisions intended to regulate land development. The regulation is known as the Streamside Protection Regulation, B.C. Reg. 10/2001.

The most critical feature of the Act is s.12 which requires municipalities to amend their zoning bylaws to provide for riparian area protection based upon policy guidelines to be established by the provincial government. This feature is anticipated to be the most controversial because of the potential it holds to drastically reduce land values by restricting or eliminating development opportunities.

The Act itself does not contain any development guidelines. The coming into force of s.12 does not produce an immediate impact on land use because it only imposes a requirement for municipalities to amend their zoning bylaws. No time period for zoning bylaw amendments is provided in the Act. Instead, deadlines are to be established in the provincial policy directives. The Act permits the provincial government to implement this feature selectively across the province.

The extent to which land development is impacted by the Fish Protection Act can only be determined once individual municipalities make the required changes to their land use bylaws. It is likely that development restrictions will vary from one municipality to another.

ExLaw anticipates that many property owners will consider litigation when restrictions are imposed by municipalities. The possibility of compensation claims arising from this Act appears to have been considered by the drafters of the legislation. By requiring municipalities to adopt streamside protection measures in their zoning bylaws rather than imposing these measures directly in the Act, it is possible that compensation claims will be denied. A carefully considered legal discussion of this point may be found at the West Coast Environmental Law website located at http://www.wcel.org/wcelpub/1999/12747.html.

The Fish Protection Act contains the potential for severe restrictions on land use. Such restrictions are sometimes described as "regulatory takings". The Fish Protection Act is not the only Canadian example of a regulatory taking, although streamside protection is a common source of regulatory takings. For example, in November, we reported on the Rawcliffe case. Compensation for regulatory takings is also a current topic in the United States. The Links page contains links to several American property owner lobby group websites which contain discussions and examples of problems which have arisen in that country.

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