On December 23rd, Judge Metzger (a commonly appealed Judge) sided with Western Forest Products and deemed the voting structure of the Juan de Fuca Electoral Area’s (JDFEA) Land Use Committee illegal.The structure has been in place since April of 2006, with the intent of allowing neighboring municipalities who had some knowledge and interest in the area to buy into a voting structure with the sum of $100.  This structure was put in place to appease members of the CRD board, who would otherwise have had to vote on all land use issues within the JDFEA, even if they were not interested.  This is what happens when your municipality is unincorporated, as the JDFEA is. At that time the province gave permission for the cost sharing agreement to the JDFEA.

As you can imagine, the implications of this system being deemed illegal are huge.  Not only would it affect the progressive bylaws put in place April 23, 2008- which are associated with the slowing down of Western Forest Products subdivisions, and the fate of previous TFL 25 lands,- but it also puts any bylaw passed since April 2006 in the JDFEA into question.  Not only that, it raises implications for other Regional Districts who have used a similar structure.  If Metzger’s decision stands, we could see more legal challenges to bylaws by other land owners who simply don’t like the limitations on development.

In response to Metzger decision the CRD held an in-camera meeting in early January.  What came out of that meeting were three ‘asks’.  The first two ‘asks’ were of  the BC Court of Appeal:

1.  An appeal of Metzger’s decision.

2. A stay of proceedings.  A stay of proceedings would keep the progressive bylaws in place in the interim while the courts worked through the appeal process.

The third CRD ‘ask’ was for the provincial use of the MEVA or use of the Municipalities Enabling and Validating Act by the Ministry of Community Development.  In a nutshell Minister Krueger has the ability to look at the CRD’s case, with his staff, and create legislature under MEVA to hold the current bylaws and validate the cost-sharing agreement for the JDFEA Land Use Committee.

Why should the Ministry of Community Development bother?

Well, I don’t have to repeat 73 pages of the Auditor General’s investigative report into the TFL deletion of January 2007, but as you might recall his top 3 findings were:

1. the decision was not adequately informed – it was based upon incomplete information that focused primarily on forest and range matters and the interests of the licensee, with too little consideration given to the potential impacts on other key stakeholders;

2. consultation was not effective and communication with key stakeholders and the public about the decision was not transparent; and

3. the impacts of previous land removal decisions were not monitored to help inform future decisions.

In essence, the communities of the JDFEA were surprised by the deletion, and were forced to act quickly in response in order to buy time for community planning in the face of potential large scale development on previous forest lands.  If held, progressive bylaws will allow time for the local communities to complete their planning documents including a comprehensive zoning review (which has not been completed for 19 years). 

I believe that the provincial government has a responsibility to help the local communities of the JDFEA, the CRD and concerned citizens deal with this complex situation, which has resulted from the initial TFL deletion.  While the deletion decision was not made by the Ministry of Community Development, the responsibility for the future of these communities and the Juan de Fuca now lies in its hands. 

While the only perfect solution would be to rescind the TFL deletion, and utilize section 90 of the Land Title Act to disallow WFP’s current subdivision application, the MEVA may be the next best thing.  Use of the MEVA would create legislation allowing the voting structure to stand, bylaws to remain, and greatly hindering the ability of WFP to have their current subdivision application approved.

Click here for more info, or to write a letter to Kevin Krueger