Chiding Salt Spring’s Local Trust Committee (LTC) about its process, a B.C. Supreme Court justice nonetheless dismissed a petition for review from three islanders owning waterfront property above Baker Beach, a ruling that shores up trustees’ authority over land use on the island — even if that land is covered by water.
In a decision issued Tuesday, Jan. 20, Justice Warren B. Milman rejected several grounds for review advanced by petitioners Ethan Wilding, David Demner and Heidi Kuhrt concerning the LTC’s decision not to issue a permit for a shoreline stabilization project at their high-bank waterfront homes.
Among their arguments had been that the LTC overstepped its authority in crafting development permit areas (DPAs) to protect ocean fish habitat in Salt Spring’s official community plan, specifically the DPA-3 “Shoreline” area, which the petitioners said amounted to an improper attempt to regulate fisheries — and that the authority falls under federal rather than provincial jurisdiction.
Justice Milman disagreed, siding with the LTC’s submission that the Islands Trust’s DPAs regulate “land use and protection of the environment,” not fisheries — and that “land” subject to regulation under the Local Government Act “includes land covered by water, including intertidal waters” and “the surface of water.”
Further, Milman wrote that he found no basis to distinguish between the power to regulate the placement of structures on the water and the power to regulate the placement of sediments in the intertidal zone — referencing the proposed “beach nourishment” material central to the property owners’ “green shores” erosion protection plans.
“Both are within the purview of the local government’s authority to regulate land use,” wrote Milman, “including the use of land covered (permanently or intermittently) by the ocean.”
As the successful party, the LTC — and by extension, island taxpayers — would ordinarily be entitled to having the costs of legal proceedings covered by the other party. The judge, however, felt differently, noting several deficiencies and lengthy delays in the process, all of which he laid at the feet of the LTC.
“After submitting the original application on Dec. 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 this court to compel an answer,” wrote Milman. “Even then, the record before me indicates that the [LTC] failed at any stage to address important issues squarely . . . All of this made the process, including the court process, more costly for the petitioners than it should have been.”
Reached for comment after the decision was issued, Wilding said he and his neighbours were considering their options moving forward. Since then Wilding has provided a written response. The Driftwood also reached out to Salt Spring Island LTC chair Tim Peterson, who was unable to comment before press time.