On the Waterfront – Two Recent Cases Examine the Authority to Regulate the Marine Environment

The British Columbia courts have recently released two important decisions relating to the constitutional authority of governments to regulate the marine environment. In one of them, Salt Spring Island Local Trust Committee v. B&B Ganges Marina Ltd., 2008 BCCA 544 (“B&B Ganges”), the Court of Appeal examined a local government’s authority to regulate a floating structure under its zoning bylaw. In the other, Morton v. British Columbia (Minister of Agriculture and Lands), 2009 BCSC 136 (“Morton”), the B.C. Supreme Court examined the province’s authority to regulate fish farming through its aquaculture regulations. In each case, the court was faced with the question of whether the challenged regulations intruded into an area of exclusive federal jurisdiction, a finding that would render those regulations invalid.

Local governments possess the authority to regulate the use of land under Part 26 of the Local Government Act, including by way of zoning bylaws. The Local Government Act defines “land” as including the surface of water. However, the authority to regulate the use of the surface of water is limited because, under Canada’s Constitution Act, the federal government has the exclusive jurisdiction to regulate with respect to matters of shipping and navigation.

In B&B Ganges, the defendant marina had converted a former oil tank barge into a float camp barge, and was using it as an office and reception area. The barge exceeded the size limit for structures under the zoning bylaw, and the Salt Spring Island Local Trust Committee ordered the marina to remove it. The marina refused, pointing to the fact that the barge was still registered in the Canadian Register of Ships, even though it had not been used for navigation purposes for some time, and even though it was not intended to be used for navigation purposes in the foreseeable future. The marina argued that since the barge was a “ship” it fell under federal jurisdiction and could not be regulated under the zoning bylaw.

The court rejected the marina’s argument, finding that registration as a ship was not conclusive evidence. The court looked instead at the totality of the facts of the case, and determined that the barge was no longer a “ship” but simply a “structure”, and therefore subject to regulation under the zoning bylaw. In the result, the Court of Appeal upheld the trial judge’s ruling that the marina must remove the barge. B&B Ganges confirms that local governments have authority to regulate floating structures under their zoning power, at least with respect to floating structures that are not used for purposes of navigation and shipping.

The Morton case provides an example of a decision going the other way. In Morton, a number of groups challenged the B.C. government’s authority to licence and regulate fish farms in coastal waters. The petitioners argued that the province was attempting to regulate in an area of exclusive federal jurisdiction, since the Constitution Act gives the federal government sole authority in relation to “sea coast and inland fisheries”. The province argued that fish farms are not “fisheries” subject to federal jurisdiction, but rather a matter of land use and farming.

The court, however, held that the province’s efforts to licence and regulate fish farming offended the division of powers under the Constitution Act both directly and indirectly – directly because the fish farms were themselves “fisheries”, and indirectly because the fish farms have an impact on traditional fisheries as well as the marine environment generally. It was not a complete wash for the province, since the court did allow that the province could validly regulate the cultivation of marine plants! The court suspended its order striking down the province’s aquaculture regulations for one year, in order to give the federal government time to enact its own regulations.  Both the B&B Ganges case and the Morton case illustrate the necessity of exercising caution when regulating matters that may fall under federal jurisdiction. When in doubt, local governments should seek legal advice.