B.C. Supreme Court decides in favour of Mudge Islanders’ riparian rights over Islands Trust bylaw

Derek Kilbourn

Sounder News

Wednesday, October 17 2018

Joaquin Da Fonseca and Olinda Da Fonseca have won a key decision from the BC Supreme Court, in which their right to protect their property from erosion was upheld over the Islands Trust zoning regulations. Cited as Fonseca v Gabriola Island Trust Committee, the decision will allow the Fonsecas to keep a retaining wall on their property on Driftwood Drive on Mudge Island.

Joaquin said, “I won on this. Rights. It’s why I’m in Canada. Because I’ve worked in many countries, and in Canada I found rights were respected. And if they appeal, I will appeal to the Supreme Court.”

In handing down the decision, Justice D.M. Masuhura said the bylaw infringes on the Fonseca’s common law riparian right to protect the property from erosion and is inapplicable to the Fonseca’s embankment walls.

This past Friday, October 12, the Gabriola Island Local Trust Committee announced it will appeal the decision.

Joaquin spoke to the Sounder saying the local government can’t take away the rights of the owner, which are protected through provincial and federal law. He cited federal law, which allows an owner of a waterfront property to control and protect the property from flooding; as well as provincial law, which says owners are entitled to protect their lands using embankments or walls.

The judgement, referencing old English and Roman law, expressed that the Local Trust Committee is unable to prevent the owners from building an embankment wall on the edge of their property, because the Local Government Act and related provincial legislation does not explicitly repeal or do away with the common law riparian right.

In a press release sent out by the Islands Trust, Gabriola Local Trust Committee Chair, Laura Busheikin said, “We are disappointed with the Court’s narrow interpretation of the law and decision that B.C. local governments cannot enact zoning regulations to prohibit seawalls. 

“The decision strikes at the heart of the Islands Trust’s preserve and protect mandate and our government’s efforts to protect the natural environment while preparing for climate change.”

According to the Mudge Island Official Community Plan (OCP), buildings and structures must be sited a minimum of 30 meters from the natural boundary of the sea, except for barge/boat ramps, stairs, and walkways.

In 2003, the Fonsecas obtained a licence to build a boat ramp from the Province. It is concrete and runs from the Property over the foreshore to the water. With the licence, the plaintiffs received a Work Assessment under s. 5(2) of the Navigable Waters Protection Act, R.S.C. 1985, c. N-22, which included a map of False Narrows, and a page entitled “suggestions” from the Canadian Coast Guard Vessel Traffic Services, which included the following statement: “The banks of the waterway should be restored to an even contour and protected from erosion as necessary.”

Between 2003 and 2009, the Fonsecas say they complied with the above “suggestion” by building stone and cement embankment walls and erecting fences. Part of the fence is said to have been built to stop deer from stomping soil into the water. It appears that at least one of the embankment walls was constructed in 2009. The Fonsecas did not contact anyone, including the Islands Trust and the Local Trust Committee, before constructing any of the Structures.

According to the court documents, in 2012, the Fonsecas became embroiled in a dispute with their neighbour who resides in an adjacent lot. The neighbour complained to the Local Trust Committee about the Fonsecas’ embankment walls.

The boat ramp was dropped as an issue, and the Fonsecas removed the shed. In 2013, the Islands Trust continued sending the Fonsecas warnings that the embankment wall was in violation of the bylaw, saying the Fonsecas would need to remove the embankment walls and fences. In 2016, a variance for the embankment wall was denied, and the LTC filed a petition for a mandatory injunction.

Joaquim said, “I put them in court, they did not put me in court. They kept sending me petitions, but I said no, we’re going to do this in court.”

The Fonsecas, in their statement to the court, did not challenge the validity of the bylaw, but said they have the right to protect land from erosion – an ancient riparian right at common law.

Justice D.M. Masuhura cited English and Scottish decisions going back to 1828, as well as more recent cases in Canadian law saying the riparian right, “is grounded in Roman and, subsequently, English law that allowed landowners to protect their property.

“I find that there exists a common law right to protect your property from erosion caused by the “inroads of the sea”. It is not contested that the subject embankment wall is intended to protect against erosion. I also find that the materials indicate that erosion from ocean action has caused erosion to the island.”

No date has been set for the Islands Trust appeal of the decision.