Sections from the Appeal Court Decision which
may be of particular interest.
Italic page numbers are linked to photocopies of Court Transcript.
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|138 p78||In my opinion a bylaw which, upon its construction
does not effect a purpose which would be
illegal cannot be struck down because of
the hopes or desires of the members of the
Council who enact it.
|"If the learned judge's reasons do stand
for the proposition that the onus of
lay on the Galiano Island Local Trust
and that the Galiano Island Local Trust
(appellant) had to justify passing
bylaws, he was not correct."
The burden of proof is on those who make the charges. (impartiality, sinister motives, contrary to public interest).
|The Islands Trust Act is no mere piety. The
bylaws were enacted for the purposes of objects
S. 3 of the Islands Trust Act as well as
for the health and welfare of the inhabitants
of Galiano island.
Nothing within the Act to prevents downzoning which is intended to prevent development while the governing body gathers up all the advice and information it thinks helpful….thereupon coming to a solution which it perceives to be in the long-term best interests of the community. Once land is developed, undoing the development, if it is harmful to the public or what some people perceive to be the public interest is next to impossible.
|If members of a municipal council conspire
together to downzone A's land so B
it cheaply the council could fairly
to have acted in bad faith. From such
act would rise the stench of corruption.
|I detect no stench of corruption in the sympathy
of the members of the committee, especially
Mrs Griffiths, for the desire of the
of the Galiano Conservancy Association
purchase these lands. There is a very
segment of the citizenry …which consider
the preservation of lands for wildlife
substantial public importance. But
Griffiths might be said not to be impartial
between eagles and MacMillian Bloedel
of itself be condoned as bad faith.
|Madame Justice McLachlin
"The right to exercise that duty (statutory) freely and in accordance with the perceived wishes of the people they represent is vital to local democracy. Courts should be reluctant to interfere with the decisions of municipal councils." Only warranted when exercise of power is ultrvires.
|Estey J. said: … Upon the question of public
interest courts have recognized that
municipal council, familiar with local
is in the best position of all parties
determine what is or is not in the
interest and have refused to interfere
its decision unless good and sufficient
|Lord Sumner in the United Building Corporation,
Ltd. V. The City of Vancouver: It is easy,
for those who conceive themselves to be sufferers
by it, to suggest and even to argue with
some plausibility that such a transaction
cannot have been carried through without
some improper or sinister motive on the part
of those members of the corporation who voted
for it. Courts judge on full persuasion that
such a charge must be proved by those who
|By-laws 82 and 84 respectively amended the zoning by-law and the subdivision by-law.
They received first reading, along with By-law
85, on the 10th May, 1991. By-law 85 said
I. Capital Regional District Bylaw No. 128 cited as "Official Community Plan (Galiano Island Area) Bylaw, 1973" is amended by adding to Section 7.2(e) the following text:
"In consideration that the Forest Area land use category designation comprises over one half of Galiano Island and that non-forestry uses may have substantive implications for these lands and the Galiano Island Community in general, applications for non-forestry uses should be reviewed on a comprehensive land-use planning basis. Such approach should involve information specific to the Forest Area lands, allowing for an assessment of the suitability and appropriateness of different uses than forestry. This information should address all aspects of the physical environment, its development capability and constraints, and associated economic and social considerations from a sustainability perspective. This comprehensive approach should also consider probable effects of changed land use patterns for these lands upon the remainder of the Island. Included would be: community servicing implications, transportation implications, carrying capacity for various mixes and levels of use, cumulative development impacts, and appropriate limits or thresholds from environmental and community perspectives."
|By-law 81, which received first reading on
24th January, 1991, was to amend the
community plan and was in these terms:
I. Capital Regional District Bylaw No. 128 cited as "Official Community Plan (Galiano Island Area) Bylaw, 1973" is amended by deleting from Section 7.2(e) the existing text and replacing it with "The Forest Area designation recognizes the use or potential use of land for the establishment, management, and harvesting of forest cover for timber and other forest products and values. Owners of such lands shall be encouraged to permit access to hikers and horseback riders but the off- road use of motor vehicles in such areas except those of the owners, their agents, or fire protection vehicles is to be discouraged. Land in the Forest Area shall not be used for non-forestry uses until it has been rezoned to a zone which permits such uses."
|From the Official Community Plan amended
6 November 1978:
* * *
* * *
The following land use categories are authorized:
* * *
(e) Wilderness Areas - These zones are designated as a nature reserve to preserve the unique flora and fauna of the Gulf Islands biotic zone. No dwelling unit or structure of any kind shall be permitted in the area. Access shall be by means of hiking trails only. No camping or fires shall be permitted in the area. The area shall be declared a wildlife preserve and no flora may be removed and no hunting shall be permitted.
(f) Wilderness-Forest Area - This area shall include all land under present Tree Farm Certificate and License and any land so designated in the future. All activities permitted under the license shall continue. Owners of such land shall be encouraged to permit access to hikers and horseback riders, but the use of vehicles in such areas, except those of owners or their agents or fire protection vehicles, shall be prohibited. Only one family dwelling per parcel of land shall be permitted.
* * *
(i) Any land not clearly falling within the categories described in sub- paragraphs (a) and (h) above shall have a minimum lot size of ten (10) acres except sub-paragraph (g) where any subdivision and use of agricultural land shall be in accordance with the regulations of the British Columbia Land Commission.
|Islands Trust Policy Statement re forestry,
states forestry practices to be encouraged
- much like those in the now superseded Forest
|In 1990 the assessed value of lands as "managed
forest lands" was about 10 - 15
what the assessed value would have
the lands were not such.
|In my respectful view both of these goals
(no logging or carefully controlled logging)
are clearly within the objects expressed
in the object of the Islands Trust Act.
|Dorgan J Pastula versus Islands Trust
By taking the zoning power from the Capital Regional District and giving it to the Trust the legislative has indicated its faith that the trustees are in the best position to obtain the broad object set out in S3 of the Act. The court should be especially cautious about second guessing the Trust merely because the Trust has exercised its zoning powers in a way different than the court, or the Capital Regional District, might have done. 1991
Regarding the inconsistent purposes of the Mineral Act and the Islands Trust Act Justice Meridith observed that in Gambier Island Preservation Society versus Islands Trust, if the project proceeded it would " largely destroy the existing environment of Gambier Island contrary to the adopted Act."
|Bylaws are presumed to be enacted in good faith unless the contrary has been proven attacking the bylaw.|