Jan 25, 2021 - Islands Trust Wins Riparian Rights Court of Appeal Case

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Bowen, Denman, Gabriola, Galiano, Gambier, Hornby, Lasqueti, Mayne, N. Pender, Salt Spring, Saturna, S. Pender, Thetis 
 
 
January 25, 2021 – for immediate release 2021-04-IT 
 
Islands Trust Wins Riparian Rights Court of Appeal Case 
 
Lək
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 ʷəŋən, METULIYE/Victoria, B.C. – On January 22, 2021, in a unanimous decision, the Court of Appeal for British 
Columbia overturned the B.C. Supreme Court’s October 1, 2018, decision in Fonseca v. Gabriola Island Local Trust 
Committee. The previous B.C. Supreme Court decision had resulted in the Gabriola Island Local Trust Committee being 
unable to enforce its zoning bylaw in respect of a seawall that Mudge Island landowners had constructed to protect their 
shoreline property from erosion. The appeal considered the circumstances in which a common-law right to use or protect 
property is subject to regulation by local government land use zoning bylaws. The Court of Appeal for British Columbia 
upheld the Gabriola Island Local Trust Committee bylaws and confirmed they do apply to seawalls.  
 
“We are very pleased to have won this important case,” said Peter Luckham, Islands Trust Council Chair. “The Islands 
Trust Area has 1,426 kilometres of shoreline. To properly implement our provincial mandate to preserve and protect the 
region it is critical that local trust committees and island municipalities, indeed all local governments, have the ability to 
regulate seawalls to ensure green methods of shoreline protection are in place.” 
 
This decision will be of interest to local governments throughout British Columbia. The ability of local governments to 
prohibit seawalls and other shoreline armouring is critical to achieving environmental protection objectives, as well as to 
ensuring the beauty and scenic values of shoreline areas. Landowners who consider seawalls to address erosion should 
know there are many soft shore protection designs that reduce erosion and preserve the natural shoreline dynamics that 
coastal ecosystems need. More information is available in the Islands Trust’s Landowner’s Guide to Protecting Shoreline 
Ecosystems. 
 
In addition, the Court considered a counter-appeal by the landowner. The landowner asked the Court to declare that a 
previous Court decision that the Gabriola Island Land Use Bylaw did apply to a deck, fences, and a set of gates on their 
property was in error. The Court dismissed the counter-appeal. 
 
The Islands Trust began bylaw enforcement action regarding the Mudge Island property in 2012 by demanding the 
removal of the non-conforming structures. In May 2015, the property owners applied to the Gabriola Island Local Trust 
Committee for a development variance permit seeking permission to keep the structures. The Gabriola Island Local Trust 
Committee granted permission for some structures, but denied for others, including the deck, seawall, and fences.  
 
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