Access to Rural Subdivision: Options for Legal Recourse

The rural planning application about access to a rural subdivision raises questions about options for legal recourse that may be available to people and organisations that oppose a particular decision.  The following module lays out some of these options in very general terms.  Please be advised that the following material does not constitute legal advice; the information is for discussion only, as part of the teaching materials included in this textbook.

1. In the absence of an appeal mechanism in the land legislation, one avenue of recourse might be to apply to the BC Supreme Court for judicial review of the approving officer’s decision to issue the road tenure.  There might be time limit considerations and the applicant would have to show standing (i.e. a legally-recognizable “stake” in the issue) but it is a possibility.  There is an example of judicial review of a land tenure decision in the Redmond case, albeit that was about denying an application.

2. The standard of review is the “reasonableness” of the ministry’s approval decision, which is determined according to the five criteria listed in paragraph 22 of the Redmond decision.  The issues of slope stability and unknown ecosystem impacts might be able to be brought into determining whether the ministry acted reasonably.

3. Judicial review is governed by the Judicial Review Procedure Act and requires approval from the court to proceed but it is an option in the right circumstances.

4. There is also the option of simply suing the Crown for damages if a party suffered loss of some sort by the road approval.  Again, the party would have to show standing and a recognized form of loss such as economic loss, devaluation of their property, traffic nuisance, etc.

5. Regarding the Community Forest, it would be worthwhile to review the particular agreement that they have with the ministry.  Any community forest agreements that I am familiar with exclude roads and other tenures from the community forest tenure, but it never hurts to confirm.

6. If there are any further permits associated with the road tenure, it may open up recourse under other statutes.  For example, a timber clearing permit improperly granted or exercises might open the door to an appeal under the Forest Appeals Commission.

7. If there are fisheries issues related to the slope instability, the Department of Fisheries and Oceans might be brought into the picture, or possibly the provincial Environmental Appeals Board if the province issues any permits that might impact fish or other environmental values.  These are very longshots but may be enough to found a negotiation.

8. The silence of First Nations is in and of itself likely to have little effect as long as they had reasonable opportunity to respond.  The courts have clearly determined that consultation is a two-way street, so a First Nation that does not respond to a request for consultation is at its peril.