A prominent West Vancouver property owner charged for allegedly damaging fish habitat while rebuilding a breakwater is fighting environmental regulators in court.
John Laxton, a prominent lawyer and former chairman of BC Hydro, and his lawyer were in North Vancouver provincial court Monday, telling a judge they don't have enough detail in the Fisheries Act charges they face to know what they've done wrong.
The charges laid against Laxton, his companies and his waterfront neighbours Lawrence and Sandra Millson are "vague, ambiguous and confusing," Laxton's lawyer John Shields told the judge.
Shields added recent changes to the Fisheries Act made by the federal government make it clear homeowners should only be charged where fish are killed or there is serious, permanent harm to fish habitat. "That's the position of the government of Canada," said Shields, adding Laxton has done nothing to harm fish habitat. The Laxtons were "simply maintaining their property," he said.
Outside the court, Shields said if he's not successful in getting more details from the Crown, Laxton might ask the court to toss out the case. "We say these allegations are groundless," said Shields. "We say there's no smoke, there's no fire. There are not even matches."
This week's court hearing is the latest in a series of legal tussles over a controversial breakwater that protects four waterfront properties Laxton owns along Marine Drive that face Howe Sound near Pitcairn Place.
The breakwater itself consists of an artificial point of land, created by filling in the foreshore, which Laxton previously leased from the province. Between 2003 and 2007, Laxton bought the newly created land - both above and below the original high-tide mark - from the province.
Laxton then applied to the District of West Vancouver for a permit to go ahead with rebuilding the breakwater.
When the municipality refused to grant Laxton permission for the repairs in 2008, he took the case to court, arguing the repairs aren't land use that can be regulated by town hall.
A B.C. Supreme Court judge agreed with him. In 2011, Laxton started the breakwater repair, with advice from a contractor and environmental consultant. But the work soon attracted the attention of fisheries officials, who voiced concern the work on the breakwater could involve extensive destruction of fish habitat.
Throughout the dispute, Laxton's position was that placing rock to shore up the crumbling breakwater was simply adding to a structure that had already been in place for 45 years.
Fisheries officers have maintained Laxton was expanding his breakwater and filling in more of the sub-tidal area, without department permission.
Laxton and his contractor rejected one suggestion from a fisheries officer for a more modest repair job, saying it would not be safe for equipment to work on the breakwater the way DFO had proposed.
Shields said the breakwater repairs actually improved fish habitat in the area. "Fish habitat is better off for the repairs," Shields told the judge.
He added in its own foreshore restoration program, the District of West Vancouver is doing much the same thing as Laxton did with his breakwater - placing boulders in sub-tidal areas to break up the force of waves and prevent erosion.
"West Vancouver District is doing far more than what these defendants ever did and West Vancouver has not been charged," he said.
Outside the court, Crown prosecutor Todd Gerhart said he believes Laxton and his neighbours have been given enough detail to understand the fisheries charges they face.
He said some of the recent changes to the Fisheries Act have come into force while others are pending.
Gerhart will respond to Laxton's request for more details before the judge on Wednesday of this week.
Jeff McDonald, spokesman for the District of West Vancouver, said the municipality has been working with the Department of Fisheries on its foreshore restoration program, which also involves some private waterfront property owners.
Laxton and his neighbours are currently scheduled to go to trial in their case over four weeks next year.
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