Public Legal Opinion re Questions related to Policy Statement Amendment Project, 2020
· Islands Trust Area · Policies · 2020
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Topics: Governance & budget · Housing & affordability — our classification, not the Trust's.
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[[page 1]] YOUNG ANDERSON BARRISTERS & SOLICITORS REPLY TO: VANCOUVER OFFICE VIA EMAIL: cfrater@islandstrust.bc.ca October 27, 2020 Clare Frater Director, Trust Area Services Islands Trust 200 - 1627 Fort Street Victoria, BC V8R 1H8 Dear Ms. Frater: Re: Policy Statement Amendment Project Our File No. 00002-0020 You have requested our opinion on the several questions pertaining to the amendment of the Trust Policy Statement, which we will address in order: 1. Iss. 3 of the Islands Trust Act to be interpreted in such a way as to restrict the scope of the Policy Statement to environmental conservation and cultural heritage matters, or can the Policy Statement include policies in respect of matters like sustainable communities and affordable housing that appear to relate more directly to the exercise of bylaw-making powers by local trust committees under Part 14 of the Local Government Act? The general scheme of the /s/ands Trust Act includes the creation of governance bodies that exercise jurisdiction pursuant to both the Act and pre-existing local government legislation, principally what’s now Part 14 of the Local Government Act. In enacting this legislation, the Province withdrew certain regulatory powers from regional district boards and conferred them on elected local trust committees. The result is that local governance of the trust area is shared between the regional districts and the Islands Trust. In conferring governmental powers on the Islands Trust entities the Legislature identified the statutory object that is in s. 3 of the Islands Trust Act. For the purpose of carrying out that object, the Trust Council established under the Act must adopt a policy statement, the scope of which is not prescribed; the Act merely states that the policy statement must be a general statement of the policies of the Trust Council to carry out the object of the trust. The Trust Council may, according to the Supreme Court of Canada’s decision in Canada (Minister of Citizenship and Immigration) v. Vavilov 2019 SCC 65, interpret s. 3 of the /slands Trust Act “applying its particular insight”, and a reviewing court will defer to that interpretation unless it can be shown to be unreasonable; the interpretation need not be legally “correct”. WWW.YOUNGANDERSON.CA 1616 - 808 Nelson Street, Box 12147 Nelson Square, Vancouver, BC V6Z 2H2 | tel: 604.689.7400 | fax: 604.689.3444 | toll free: 1.800.665.3540 201 - 1456 St. Paul Street, Kelowna, BC V1Y 2E6 | tel: 250.712.1130 | fax: 250.712.1180 [[page 2]] The Vavilov decision indicates that the scope of the policy statement should be determined according to its “text, context and purpose”. The context and purpose of s. 3 include providing the standard or benchmark for the bylaw approval function performed by the executive committee under s. 15 of the Act in respect of local trust committee and island municipality bylaws, and the broader but less binding purpose described in s. 39.1 of the Act which requires
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