Navigating the Constitution: Shipping, Navigation and the Right to Moorage

The lakes, rivers and ocean shores of British Columbia are undoubtedly beautiful but the complex regulatory and legal regime that governs these bodies of water can create real uncertainty for local governments seeking to understand the extent to which they may exercise their zoning powers over land covered by water and structures erected within water. The law in this area has been evolving in recent years, and as more cases are decided, a clearer picture showing the extent to which local governments may wade into the murky waters of overlapping federal and provincial jurisdictions has begun to emerge. A recent decision by the British Columbia Supreme Court, Zongshen (Canada) Environtech Ltd. v. Bowen Island (Municipality), 2016 BCSC 2058 confirms that, to a certain extent, local governments have the authority to enact bylaws prohibiting docks and permanent mooring facilities within their jurisdictions.

Division of Powers

Generally speaking, one order of government cannot regulate in areas that fall within the exclusive jurisdiction of another.  Section 91 of the Constitution Act, 1867 gives the Federal Government exclusive jurisdiction over shipping, navigation, and some related and incidental rights like anchorage.  Federal statues like the Navigation Protection Act give the Federal Government authority over the construction of temporary and permanent structures erected in “navigable waters”. Section 92 of the Constitution Act, 1867 gives provincial governments authority over matters related to property and matters of a purely local nature.  Local governments have the authority to regulate in relation to land, which the Community Charter defines to include the surface of water.

What this means is that any power a local government can carve out with respect to the regulation of land covered by water (or works located in navigable waters) is limited by the Constitution, as these regulations cannot interfere with the exclusive federal powers over shipping and navigation.

Paramountcy and Interjurisdictional Immunity

The Courts will deal with the conflict between federal and provincial powers by way of the doctrines of “paramountcy” and “interjurisdictional immunity”.

If valid federal and provincial laws (including bylaws) are in direct conflict, the Courts have found that, under the “doctrine of paramountcy”, the federal law is “paramount” and renders the provincial law “inoperative” to the extent that it is inconsistent with the federal law.

The doctrine of “interjurisdictional immunity” recognizes that in some cases two orders of government will have overlapping jurisdiction to regulate a certain activity or thing.  One order of government may legitimately take measures that regulate matters within its own jurisdiction that overlap with, or have incidental effects on, another order of government’s jurisdiction.

But, these incidental effects cannot impact matters that are at the core of the other order of government’s jurisdiction.  If an enactment has more than an incidental effect on the core power of another level of government, the enactment will have no application with respect to that core power.

The Courts in British Columbia have applied the doctrine of interjurisdictional immunity when finding that local enactments that have the effect of regulating a vital aspect of shipping or navigation have no application.

For example, in R v. Kupchanko, [2002] BCJ No. 148 (“Kupchanko”) the B.C. Court of Appeal found that the provinces were “constitutionally incapable” of enacting legislation that interfered with navigation, and that “everything connected with navigation and shipping seems to have been carefully confided to the Dominion of Parliament” by the Constitution.

If we consider the fact that the Navigation Protection Act gives the federal government exclusive jurisdiction over works in navigable waters, the Kupchanko decision could lead one to conclude that local governments are without legal authority to regulate the construction of works (like docks) within navigable waters.

But, more recent decisions by the BC Court of Appeal and the BC Supreme Court suggest that courts are backing away from the strict approach taken in the Kupchanko decision, and are prepared to give local governments more authority to regulate in areas that overlap with shipping and navigation.

In particular, three cases:

  • West Kelowna (District) v. Newcombe, 2013 BCSC 1411 (“West Kelowna 1”);
  • West Kelowna (District) v. Newcombe, 2015 BCCA 5 (“West Kelowna 2”); and
  • Zongshen (Canada) Environtech Ltd. v. Bowen Island (Municipality), 2016 BCSC 2058 (“Zongshen”)

suggest that local governments have the authority to regulate with respect to moorage and the construction of works within navigable waters, provided that these regulations do not interfere with the right to “temporary moorage”.

West Kelowna 1 and 2

In the West Kelowna decisions, the question was whether the District of West Kelowna had the authority to enact a zoning bylaw that prohibited the long-term moorage of vessels on Lake Okanagan.  The District’s “Water Use (W1) Zone” covered a portion of Lake Okanagan over which the District had a license of occupation from the province.  The W1 Zone permitted uses, buildings and structures such as:

  • temporary boat moorage accessory to the use and immediately abutting upland parcel;
  • boat launching facilities; and
  • docks, piers, wharfs, and mooring buoys accessories to the use of the immediately abutting upland parcel.

Mr. Newcombe (the respondent) violated the District’s Zoning Bylaw when he moored his houseboat on the lake (because he did not own an upland parcel).  He argued that the Zoning Bylaw was unconstitutional because it regulated or restricted navigation and anchorage.

In West Kelowna 1, the B.C. Supreme Court considered the W1 Zone in the context of the entire Zoning Bylaw and decided that local governments may use their zoning bylaws to regulate the use of land covered by water, and the use of water itself.  The Court found that the purpose of the W1 Zone was to ensure the orderly development of water covered by land within the District and not to regulate shipping and navigation.

The Court also acknowledged that the right to navigation includes the right to moorage, but found that this right is not unlimited. The right must be exercised “reasonably” as determined by factors like the weather, loading, unloading and repairing a vessel.  Because the Court decided that some moorage was a necessary and core aspect of public navigation, it applied the doctrine of interjurisdictional immunity to read down the provisions of the W1 Zone that had the effect of prohibiting temporary moorage directly related and incidental to the active use of vessels.

The B.C. Court of Appeal, in West Kelowna 2, upheld the trial decision on the substantive issues, finding that the trial judge had correctly applied the principles of constitutional law.

Zongshen

The West Kelowna decisions suggest that local governments have the authority to prohibit certain types of permanent moorage within navigable waters, if these prohibitions do not interfere with the right to temporary moorage. These decisions did not, however, determine whether certain structures (like docks) are essential to shipping and navigation and whether local governments have the authority to use their powers to prohibit these structures in navigable waters.

The Zongshen decision has provided additional clarity on this question.  In Zongshen, the BC Supreme Court concluded that while a municipal bylaw cannot prohibit temporary moorage incidental to navigation, a bylaw that prohibits permanent docks does not amount to such a prohibition.  The Court found that protecting the right to temporary moorage does not require the erection of permanent docks.

In Zongshen, Bowen Island’s WG-1 Zone permitted “Boat moorage, docking, and launching” and prohibited “Community Docks”, “Group Moorage Facilities”, “Private Moorage Facilities”, and “Permanent Moorage”. The Community Dock, Group Moorage Facility, and Private Moorage Facility uses were permitted in other zones. The Court was asked to consider whether the bylaw’s prohibitions had the effect of prohibiting a property-owner’s private dock. In this case, the dock was to be constructed in the Pacific Ocean (“navigable water”, under the Navigation Protection Act), and the federal government had already authorized its construction.

The Court considered the findings from the West Kelowna decisions and was cognizant of the fact that municipal bylaws cannot prohibit temporary moorage incidental to boat use, as this would interfere with the federal jurisdiction over shipping and navigation. The Court found that, in this case, the clear intent of Bowen Island’s Zoning Bylaw was to permit only temporary moorage associated with marine navigation, which it is constitutionally required to permit, and that this constitutionally required temporary moorage did not require a permanent dock. The Court did not comment on the fact that by enacting the bylaw, the municipality was prohibiting the construction of works that had been specifically authorized by the federal government, and did not consider whether this amounted to an interference with the core federal jurisdiction over shipping and navigation.

The Zongshen decision seems to say that local government have the authority to enact bylaws that regulate (and even prohibit) docks, including docks in navigable waters, so long as the bylaw does not interfere with the right to temporary moorage. Zongshen is the first case we have found that considers whether a bylaw that prohibits docks and other mooring facilities is, from a constitutional standpoint, lawful. It is also the first time we have seen a court state that temporary moorage does not require a permanent dock.

In Zongshen, the Court has followed the course set in West Kelowna 1 and 2, and has taken a more relaxed view of the extent to which local governments may exercise their jurisdiction over land covered by water. At this point, it is not clear whether the Court’s finding that a prohibition on docks does not interfere with temporary moorage can be applied to all situations, or whether federal approvals and requirements under the Navigation Protection Act could be used to render prohibitions on docks inoperative.  In any event, Kupchanko, West Kelowna 1 and 2, and Zongshen serve as a reminder of the legal complexity that underlies regulations pertaining to land covered with water, and the care and consideration that must accompany any attempt on the part of a local government to regulate in areas of overlapping federal and local jurisdictions.

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