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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