Category Archives: Jurisdiction

Policy and Planning for Coastal Ecosystems in British Columbia through a Blue Carbon Lens. WCEL

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Subject: 
Climate Adaptation, Blue Carbon, Nature-Based Climate Solutions, Coastal Ecosystems
Author: 
Deborah Carlson – Staff Lawyer
Summary: 

Healthy coastal ecosystems are essential for maintaining biodiversity and liveable coastal communities, providing critical habitat, water quality protection, food and medicinal plants for harvesting, lessening of coastal erosion, resilience to climate change, and flood regulation.

Perhaps less well known is that coastal ecosystems also play an important role in long-term carbon storage and sequestration. This paper looks at emerging policy opportunities and needs in Canada, and specifically British Columbia, for “blue carbon” – the carbon stored in vegetated coastal ecosystems – and how protecting blue carbon as a climate action measure aligns with coastal biodiversity protection and resilience more broadly.

Publication Date: 
November 18, 2020
Publication Pages: 
44
Publication Format: 
PDF

Guide to Coastal and Ocean Protection Law in British Columbia

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This is an important new publication by  West Coast Environmental Law

Guide to Coastal & Ocean Protection Law in BC (PDF)

Ocean Law Guide - Cover Image (aerial of ocean wildlife/herring spawn)

Subject: Marine Protection, Coastal and Ocean LawsAuthor: Stephanie Hewson, Linda Nowlan, Georgia Lloyd-Smith, Deborah Carlson & Michael Bissonnette

Summary: 

Are you concerned about the health of your local shoreline, and wondering what your government(s) can do to help? Curious about the complex web of laws, policies and regulations governing the BC coast and ocean? Interested in learning how different authorities and jurisdictions can work together?

Our Guide to Coastal and Ocean Protection Law in BC is a comprehensive resource that covers the wide array of legal tools available to Indigenous, federal, provincial and local governments to protect the coast and ocean in BC.

In addition to being a resource on marine spatial protection law, this Guide is a record of what has been accomplished on the Pacific coast over the last several decades – providing examples that demonstrate how different legal tools have been employed to preserve the health of coastal and marine ecosystems. 

This Guide was developed with the generous support of the Sitka Foundation and the Gordon & Betty Moore Foundation. Publication Date: December 3, 2020Publication Pages: 324Publisher: West Coast Environmental LawPublication Format: PDF

BC Government Publications Index for Stewardship Centre on Coastal Planning and Land Use

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BC Government Publications
Index for:
Stewardship Centre for British Columbia
Coastal Shore Stewardship: A Guide for Planners, Builders and Developers on Canada’s Pacific Coast

http://www.llbc.leg.bc.ca/public/pubdocs/bcdocs/368207/

The four PDFs linked to this government site have also been included here since we find that external URLs often change:
Part 1: Coastal Shore Stewardship A Guide for planners, Builders and Developers on Canada’s Pacific Coast: part1

Part 2  Coastal Planning and Approvals, Who does What: part2

Part 3  Don’t disrupt, Don’t harden, Don’t pollute: Land Development,  Marine Facilities, Seawalls and Revetments, etc.   Links to many  Stewardship resources; part3

Internet resources: internetaddresses

New Seawall on Weir’s Beach

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Over the summer of 2013, a new seawalll was built at the south end of Weir’s beach. The purpose of the wall is not obvious, other than to create a walkway to the ocean for the residence above.
The provincial government owns the ocean floor and the foreshore (the area between the low water level and the natural boundary) along Metchosin’s Coastline. This structure sits within this foreshore area, as there is sand at it’s base,  so it is questionable how this shoreline modification was permitted.

UPDATE:

  •  Under the General  Marine Shoreline policies desired works require application to the appropriate Provincial/and or Federal agencies responsible.  This particular property located at 5289 William Head Road was able to proceed under the following conditions: 
  • 1. Requirements of the Department of Fisheries & Oceans must be fulfilled.
  • 2. Any work below the high water mark must have the approval of the Ministry Forests, Lands & Natural Resource Operations
  • 3.  Work was  conducted in April according to the measures outlined in the Ryzuk Geotechnical Report dated March 7, 2013 and the report by Lehna Malmkvist, Swell Environmental Consulting Ltd., March 8, 2013

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Readers are recommended to read all parts of the publication below before attempting any alterations on shorefront property:

Coastal Shore Stewardship: A Guide for Planners, Builders and Developers on Canada’s Pacific Coast

Another reference on hardening the shorelines states the problem rather plainly: “Hard structures, especially vertical walls, often create conditions that lead to failure of the structure. In time, the substrate of the beach coarsens and scours down to bedrock or a hard clay. The footings of bulkheads are exposed, leading to undermining and failure. … Failed bulkheads and walls adversely impact beach aesthetics, may be a safety or navigational hazard, and may adversely impact shoreline ecological functions.”

southendstairnorth

View of the seawall from the south.

southendstairway

View of the seawall from the beach directly in front.

seawallfrombeach

View of sea wall from the north.

Riparian Rights and Public Foreshore Use in the Administration of Aquatic Crown Land

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Occasional Paper No. 5  Revised: August 2008
Prepared by:
Ministry of Agriculture and Lands Crown Land Administration Division Province of British Columbia in cooperation with the Land Title and Survey Authority of British Columbia

Coastal Jurisdiction in BC : History

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In Metchosin when issues of development or cleanup of our coastal areas come along, we are often left wondering about which level of government has jurisdiction over marine issues. This file provides some of the background of those issues. It often determines who has responsibility for permitting development along shorelines, or even who cleans up when there is a coastal problem.

In 1979 this issue came to light when we were involved in having the ecological reserve created to a depth of 20 fathoms at Race Rocks. An ecological reserve created by the province, could only involve provincial territory, so the B.C. Attorney General’s Office was consulted by the then “Ministry of Lands Parks and Housing” for clarification. The reserve was created in 1980, but it took a Supreme Court of Canada decision in 1982 to make it official that the province really did have jurisdiction over the seabed that far out in the Strait of Juan de Fuca.

I have taken a quote from the admiraltylaw.com website which describes in Part 1-Who Controls the Offshore?, Some of the interesting history around this case in law. Note that the concern at the time for the upcoming importance of seabed resources such as oil, contributed to the urgency of this decision.

  • “How British Columbia is Different: In 1967, British Columbia posed much the same question to the Supreme Court of Canada. The Court found that the seabed and its resources, from the mean low water mark to the outer limit of the Territorial Sea (12 nautical miles), was within the exclusive control of the Federal Government.However, like Newfoundland, British Columbia wasn’t satisfied with this answer. In 1981, the Province declared the entire coast an “Inland Marine Zone” (figure #1), in an attempt to assert its jurisdiction over the area. This declaration was political at best, and had little, if any, legal significance.In 1982, BC returned to the Supreme Court to ask the Court if the seabed resources between Vancouver Island and the mainland, particularly the seabed of Queen Charlotte Straight, Johnstone Straight, Georgia Straight and Juan de Fuca Straight, were within the jurisdiction of the Province.In deciding for the Province, the Court looked to the unique history of British Columbia. The Court found that when the Province was originally created as a colony by the British Parliament in 1866, its borders were defined with the most western outer limit of the Province being the “Pacific Ocean”. The court contemplated the meaning of “Pacific Ocean” and found that the water and seabed between Vancouver Island and the mainland were not commonly considered part of the Pacific Ocean and were therefore within the jurisdiction of the province.

    Importantly, we know from the Geological Survey of 1998 that the hydrocarbon reserves under these areas of Provincial control, particularly the Georgia Basin, contain minimal oil, but do contain modest natural gas reserves (6.5 trillion cubic feet). We further know from the 1998 Survey that the majority of BC’s offshore oil (9.8 billion barrels) and gas (26 trillion cubic feet) lies under the Queen Charlotte Basin in the Queen Charlotte Sound and Hecate Strait.Unfortunately for the BC government, the question posed to the Supreme Court in 1982 did not include a question as to who controls the bulk of the resources, those being under Queen Charlotte Sound and Hecate Straight. As a result, there is no binding authority that states specifically that those areas are under the control of the Federal Government. Indeed, if the Supreme Court were to find that Hecate Straight and Queen Charlotte Sound were not part of the “Pacific Ocean” proper, than the seabed resources would fall within the boundaries and the control of the Province. However, politicians may wish to settle this question themselves.Present Status of JurisdictionsAs it stands now, the province clearly has jurisdiction over the resources under the Queen Charlotte Straight, Johnstone Straight, Georgia Strait and Juan de Fuca Strait. The Federal Government, arguably, has jurisdiction over the vast majority resources under Queen Charlotte Sound and Hecate Strait. Whether the province will attempt to capitalize on its self-pronounced “Inland Marine Zone” and assert jurisdiction over the reserves under Hecate Straight is questionable as it would likely mean a long and drawn out legal battle. In the following article I will discuss how a similar battle was settled on the Atlantic coast, and why the approach taken there is likely the best approach for B.C.Before closing, it is interesting to note that the B.C. government could avoid a dispute over jurisdiction in Hecate Straight and still explore and develop a portion of the Queen Charlotte Basin. Maps forming part of the 1998 Geological Survey Canada show that a portion of this massive petroleum reserve lies under Graham Island. This oil can be accessed from Graham Island without the jurisdictional complications and the added complexity of drilling in the marine environment. The reserves directly under Hecate Straight might also be reached by drilling from land using directional and horizontal drilling. Although such ideas may successfully avoid a conflict of jurisdictions with the Federal Government, they still contain serious social, economic and political issues with respect to drilling on Haida Gwai.”

From this BC government page for Oil spills:

  • “Guiding Principle
    The Province of British Columbia is committed to protecting British Columbia’s coastal environmental resources from harmful oil spills emanating from marine vessels, industrial facilities or inland sources.
    Because of its responsibility to protect and manage Crown lands, the Province is a major stakeholder in any marine oil spill. Its jurisdiction includes all land between the high and low water mark, the seabed of the Strait of Georgia, Juan de Fuca and Queen Charlotte Sound-Johnstone Strait, and the coastal seabed between major headlands unless responsibility has been transferred specifically to a federal jurisdiction or is in private ownership.
    Residing in or on these foreshore and seabed areas are provincial resources that include archaeological, recreational, heritage, wildlife and aquatic resources. Responsibility to protect and manage marine resources, such as waterfowl and fisheries, is often shared with federal agencies.
    It is these provincial and shared resources of the foreshore, offshore and seabed that are at risk from a spill and that are vital to many coastal communities for their livelihood.
    Since the federal government is also responsible for shipping and for certain other marine resources, responsibility to protect and manage marine resources is a joint effort between provincial and federal agencies.
  • Provincial Role
    The Province will take an active leadership and participatory role in coastal resource identification and, in the event of an oil spill, the protection and cleanup of the intertidal shoreline and seabed, which are under the jurisdiction of the Province.
    The Province’s response efforts will focus on the identification and mapping of provincial Crown resources, which include, but are not limited to, intertidal marine habitats, wildlife habitats and populations, archaeological, cultural, aquatic, park and ecological reserves.
    The Province will set priorities for resource protection and will establish oil spill protection and cleanup measures for shorelines. As well, it will ensure the availability of equipment and trained personnel to manage spill response safely and effectively.
    The Province will work in concert with federal agencies wherever both federal and provincial resources are to be protected.
    The level of response capability of the Province will also recognize the particular expertise and resources of the Canadian Coast Guard, Environment Canada, and Fisheries and Oceans Canada to undertake emergency response. Opportunities will be established for contractors to provide skilled assistance and resources in the event of a major spill.”

The Management Plan for the Race Rocks Ecological reserve also refers to jursisdictions:

  • “Cooperation with the Federal Government
    Jurisdictional responsibilities for the management of the marine environment and marine values are shared between the federal and provincial governments. For example, Fisheries and Oceans Canada (DFO) is responsible for the regulations of fisheries and the lead responsibility for navigation and marine mammal protection. The Coast Guard, an agency within DFO, is
    responsible for the automated lightstation on Great Race Rock. The Department of National Defence uses explosives in the area, which may also have impacts on the Reserve.
    The province, on the other hand, is responsible for the terrestrial areas, the seabed, and the natural values on those lands. The Province is working with federal agencies, including DFO, Parks Canada and Environment Canada, to develop and implement a marine protected areas strategy, and with Parks Canada to implement the Pacific Marine Heritage Legacy (PMHL)
    program.
    The highest level of protection for the Race Rocks area can only be achieved through the cooperative application of both federal and provincial authorities. “

Further Information about jurisdiction concerning coastal development can be found in  Coastal Jurisdiction in British Columbia (Green Shores) This is an excellent resource, summarizing the issues of coastal jurisdiction. It describes the limits of landowner, BC Crown and Federal jurisdiction along the coastal areas.

 

Chapter 16. The Case for a Coastal Zone Management Act.

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This is a chapter extracted from ” Maintaining Natural BC for Our Children: Selected Law reform Proposals , Environmental Law Centre, University of Victoria,  November 2012

Editing, Design and Photographs: Holly Pattison, UVic Environmental Law Centre
page 78:
caseforcoastalact
The Case for a Coastal Zone Management Act
By Jamie Alley and Calvin Sandborn
The BC coast is perhaps the province’s most important single asset. Home to most of our population, it is also home to some of the most important and productive ecosystems on earth.
Today the coast faces unprecedented challenges, including:
•Increased development and loss of public access to the coastline;
•Proposals for new oil ports and marine transportation corridors;
•Threatened fish stocks; and
•The need for emergency programs to deal with earthquakes, tsunamis, and
the extreme weather, storm surges and sea level rise caused by climate
change.
Response to these challenges often falls short because the coast is governed

by a patchwork of federal, provincial and municipal agencies that largey fail to co-ordinate regulatory efforts. The province needs a Coastal Zone Management Act to secure the future of the BC coast.

It is clear that the province must not abdicate coastal protection to other levels of government. Because the province has not yet legislated a strategy and overall plan for our coast:
•The federal National Energy Board’s hearings on the Northern Gateway
Project – the most important coastal management issue to face BC in
decades – will be decided by a three person panel, none of whom are
British Columbians. Unfortunately, BC failed to plan beforehand about oil
ports and other infrastructure decisions;
•  When industrial interests objected to funding arrangements, Ottawa’s
process for developing a north coast ocean management plan faltered.
That process is now likely to ignore major issues such as oil terminals.
Although the province and First Nations are now working to create Coastal
Management Area Plans, they are doing so without a clear statutory
mandate;
• It took the Cohen Commission to remind us that the future of salmon
rests as much upon actions of BC as on Canada. Salmon are affected by
stormwater, riparian development and numerous activities under provincial
jurisdiction. Yet there has not been a co-ordinated federal/provincial
strategy to protect salmon and our coast; and
• Most coastal resources are common property with ill-defined access rights.
This has caused overuse, neglect and degradation of essential ecosystems.
This problem has not been addressed.
Coastal Jurisdiction and Ownership
Management of coastal and marine resources is an area of complex, shared
jurisdiction between all orders of government, including First Nations and
local governments. For example, Ottawa has jurisdiction over fisheries
regulation and navigation. Local governments have zoning and other powers
over local shorelines and some coastal waters.
Meanwhile, the province has broad regulatory jurisdiction over numerous
activities in the coastal zone. In addition, it has jurisdiction and ownership
over the foreshore seaward of the high tide mark and all coastal or “inland”
waters within the “jaws of the land,” including the seabed. The seabed of
the Strait of Juan de Fuca, the Strait of Georgia, Johnstone Strait and Queen
Charlotte Strait are the property of British Columbia.
As a consequence, the coastal ecosystem is regulated by a plethora of
agencies from numerous governments. This thwarts effective planning
and management – especially because of the absence of effective legislative
mechanisms to coordinate the actions of multiple agencies.
Thus, it is not surprising that management of the coastal zone has been
more problematic than terrestrial resource management. The province
needs to address this. It needs to create a legislative framework to assert

jurisdiction and ownership of coastal resources – and to coordinate with other

governments

page 79:
“Management of coastal and marine resources is an area of complex, shared jurisdiction between all orders of government, including First Nations and local governments…”
 
Models of Coastal Management Legislation
There are successful models in other jurisdictions around the world. For
example, the US Coastal Zone Management Act of 1972 empowered US
coastal states to develop some of the most progressive coastal management in
the world. Under the Act, state level coastal management programs provide
for:
•Protection of wetlands, floodplains, estuaries, beaches, dunes, barrier
islands, and fish and wildlife habitats;
•Management of coastal development to minimize the loss of life and property;
•Initiatives to improve coastal water quality;
•Siting of coastal-dependent uses and restriction of inappropriate development on the coast;
•Public access to the coasts for recreation;
•Re development of deteriorating urban waterfronts and ports, and
preservation of historic and cultural features;
•Coordination and simplification of coastal management decision making;
•Opportunities for public and local government participation; and
•Improved coordination between coastal management agencies.
[/blockquote]
In Canada, provinces such as Nova Scotia and Newfoundland and Labrador
have developed Coastal Management Strategies that have highlighted the need
for improved governance arrangements and may lead to specific provincial
legislation. The Law Faculty at Dalhousie University is currently reviewing
integrated coastal zone management law to develop options for Coastal Zone
Management model legislation.
Potential Elements of Coastal Management Legislation for BC
Following the models in the Canadian Oceans Act and the US Coastal Zone Management Act, a coastal management act for BC could include some or all of the following provisions:
• A preamble to reaffirm BC’s commitment to the conservation and sustainable management of estuarine, coastal and marine resources;
page 80
• Powers to enter into agreements and to delegate and accept powers from
other orders of government;
• Development of a Coastal Management Strategy;
• A legislative basis for coastal and marine spatial planning, including
regional management plans for estuarine, coastal and marine ecosystems;
• Establishment of a comprehensive network of marine protection areas within provincial waters that link with other networks of marine protection areas;
• Establishment of a voluntary local government coastal management program to protect and restore coastal ecosystems and private and public property. That has been the basis of shoreline restoration programs in US;
• Coastal and marine emergency planning and preparedness;
• Climate change adaptation strategies for issues such as e xtreme weather events, storm surges and sea level rise;
• Strategic assessment of marine transportation corridors, including decision-making processes for coastal infrastructure and port facilities;
•Programs for the revitalization of coastal communities; and
•Provisions to allow for collaboration with other levels of government and
First Nations.
A Coastal Zone Management Act would signal BC’s intent to take coastal
management seriously and fully exercise its jurisdiction and ownership. This
is preferable to leaving the future of the coast to the National Energy Board,
foreign governments like China, or to disorganization and neglect.
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Jamie Alley is former Director of the BC Oceans and Marine Fisheries Branch.
He currently teaches Integrated Coastal Zone Management at Universities in Canada and Iceland, and is Vice President (Pacific) for the Coastal Zone Canada Association.
Calvin Sandborn is the Legal Director of Environmental Law Centre.
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For more information, see:

Development Permit Areas in Neighbouring Juan de Fuca Electoral District

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DPAshorelineDPA 3= Coastal Habitat and Hazard Section Click on image to see enlargement.. red zone.

4.4.5 of the OCP lays out details of DPAs for all Foreshore and Marine Areas .

Section 4.4.6 of the OCP details DPAs for watercourses,wetlands and riparian areas.
See the complete document here:

CRD on Development Permits:

 

 

Coastal Shore Jurisdiction in British Columbia

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Green Shores –  Oct 2009

jurisdiction

Who’s in charge of coastal shores?
All levels of government have some role in managing coastal shores in BC( Figure1andTable1
“Local governments (municipalities and regional districts) hold the authority to plan andregulate land use within their respective boundaries, which may extend over foreshoreand near shore areas.They do this through official community plans, zoning,development permits, subdivision authority, building permits, and a variety of regulatory bylaws that affect land development.”