The Shifting Tides of Constitutional Law in British Columbia

The recent decision of the B.C. Supreme Court in West Kelowna (District) v. Newcombe, 2013 BCSC 1411 (“West Kelowna”), in which the court has upheld a zoning bylaw provision regulating the moorage of boats on Okanagan Lake, provides an occasion to look at the ebb and flow of constitutional law in British Columbia, particularly as it relates to matters of shipping and navigation, and also aeronautics, two areas of the law that raise many of the same issues.

As a matter of constitutional law, the federal government has exclusive authority to regulate these subjects. If a provincial or local law directly attempts to regulate a matter of exclusive federal jurisdiction, or to put it in legal terms, if a provincial or local law is in “pith and substance” aimed at a federal subject matter, then it is invalid. However, the analysis is often not that simple. In reality, there is often overlap between a federal subject matter, such as shipping and navigation, and a provincial subject matter, like property and civil rights in the province, for example. The courts have developed the doctrines of paramountcy and interjurisdictional immunity to deal with such overlaps.

Briefly, the doctrine of paramountcy will render a provincial law subordinate to a federal law where there is a direct conflict between them. The conflict must be such that a person cannot comply with one law without breaching the other, or such that the provincial law frustrates the purpose of the federal law. In such cases, the provincial law will be “inoperative” to the extent of the conflict. The doctrine of interjurisdictional immunity provides that where a valid provincial law of general application would, if applied to a federally-regulated matter or undertaking, have the effect of impairing the matter or undertaking, the provincial law will be “inapplicable” to that matter or undertaking.

Shipping and navigation and aeronautics are subject matters in which the doctrine of interjurisdictional immunity often comes into play. Over the 25 years since Stewart McDannold Stuart was founded, in 1988, there has been a noticeable shift from court decisions that favour local jurisdiction, to decisions that favour exclusive federal jurisdiction, then, with recent decisions including the West Kelowna case, back towards more of a middle ground, at least with respect to shipping and navigation.

Just prior to that auspicious year of 1988, the B.C. Court of Appeal made a decision highly favourable to local government in British Columbia v. Van Gool, [1987] B.C.J. No. 714 (“Van Gool”). In Van Gool, a zoning bylaw permitted the use of land for an airport only if it was used for private purposes. The owner rented out space for others to store their ultra-light aircraft, contrary to the bylaw.  The lower courts held the bylaw invalid because it intruded on federal jurisdiction to regulate with respect to aeronautics. The Court of Appeal reversed the lower courts, holding that the regulation of an airstrip for purposes of ultra-light aircraft was essentially “below the radar” of the federal government (having not been specifically regulated), and therefore it was within provincial (and therefore municipal) jurisdiction to enact such regulations.

Bringing the 1980’s to a close was another favourable decision for local governments. In Windermere Watersport Inc. v. Invermere (District), [1989] B.C.J. No. 863 (“Windermere Watersports”), the B.C. Court of Appeal upheld a municipal resolution that restricted a business license issued to the rental of water sports equipment and boats other than jet skis.  Relying upon similar reasoning as that employed in Van Gool, the court found that since the federal government had not bothered to concern itself with regulating small watercraft on Windermere Lake such as jet skis, it was permissible for the municipality to regulate in relation to jet skis.

Taken together, Van Gool and Windermere Watersports represent the “high water mark” for local government authority to regulate in respect of shipping and navigation and aeronautics. Although Van Gool, in particular, would be criticized by courts in other provinces, in British Columbia at least, things would remain largely static in this area of the law throughout the 1990’s.

Things changed in 2002, with the B.C. Court of Appeal’s decision in R. v. Kupchanko, [2002] B.C.J. No. 148 (“Kupchanko”). In Kupchanko, the defendant was convicted in the lower court on a charge of operating a boat with a motor in excess of ten horsepower on a wetlands wildlife management area, contrary to an order made under the B.C. Wildlife Act.  The Court of Appeal overturned the conviction on the basis that the provincial regulation intruded on federal jurisdiction over matters of shipping and navigation. The court in Kupchanko referred to a judgment of the Supreme Court of Canada in the case of Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3, which stated that “the provinces are constitutionally incapable of enacting legislation authorizing an interference with navigation”, and further that “[e]verything connected with navigation and shipping seems to have been carefully confided to the Dominion Parliament, by the B.N.A. Act.” Based on that reasoning, as well as other cases, Mr. Justice Esson of the Court of Appeal in Kupchanko took the unusual step of stating that “In light of these authorities, all of which are binding upon us, I conclude that in Windermere Watersport I erred in holding that, on the assumption that the resolution of Council was legislation on a matter of shipping and navigation, it was within the constitutional authority of the province.”

Rather than marking a gradual shift of the tide, Kupchanko was a dramatic reversal, an acknowledgment by the B.C Court of Appeal that the waters had long since receded. The reasoning of the majority of the Court of Appeal in Windermere Watersports was discredited (the decision likely still stands, based on the minority reasons of Mr. Justice Lambert), and at that point it looked as though shipping and navigation rights were beyond the reach of provincial and local laws.

A similar reversal would occur in 2005 with respect to aeronautics, in Comox-Strathcona (Regional District) v. Hansen, [2005] B.C.J. No. 365 (“Hansen”). In Hansen, the B.C. Supreme Court would depart from the Court of Appeal’s earlier judgment in Van Gool, holding that it was wrongly decided on the basis of existing authorities, including decisions by the Supreme Court of Canada. In Hansen, a landowner constructed a landing strip contrary to the regional district zoning bylaw. The landing strip was licensed by Transport Canada. Given the exclusive jurisdiction of the federal government over aeronautics, and given Supreme Court of Canada decisions holding that the regulation of airports, including their location, affects a “vital and essential” part of the federal aeronautics power, the court in Hansen held that the regional district did not have jurisdiction to prohibit the location of a landing strip on the owner’s land.

The court’s decision in Hansen has since been validated by the Supreme Court of Canada in Quebec (Attorney General) v. Lacombe, 2010 SCC 38, and Quebec (Attorney General) v. Canadian Owners and Pilots Association, 2010 SCC 39, where the exclusive jurisdiction of the federal government over aeronautics has once again been affirmed at the highest level.

However, in the case of shipping and navigation at least, there are hints in recent years that the law has begun to edge back from the low water mark of Kupchanko.

In Salt Spring Island Local Trust Committee v. B & B Ganges Marina Ltd., 2008 BCCA 544 (“B & B Ganges”), the B.C. Court of Appeal held that a local government had authority, pursuant to its zoning bylaw, to order the removal of a barge that was being used as a floating office in connection with a marina operation. The barge exceeded the maximum size for structures under the bylaw.

Although the Court of Appeal did engage in some discussion of the constitutional issues raised, it ultimately avoided the issue by characterizing the barge as a “structure” rather than a “ship”, and discounting any relationship of the structure to shipping and navigation.

More significant, perhaps, is the West Kelowna case. At issue was a zoning bylaw that permitted temporary moorage of boats only when such moorage was incidental to the use of the upland parcel of land. The defendant moored his houseboat on the lake for long periods of time, without owning an upland parcel, and was told to remove it. The defendant challenged the bylaw on the basis that the municipality had no jurisdiction to regulate a matter of shipping and navigation. The court held that the bylaw could not prohibit temporary moorage of vessels, because temporary moorage falls within the protected “core” of shipping and navigation. Longer-term moorage, however, does not fall within that “core”. In the view of the court, to hold that a right to moor vessels indefinitely exists would be akin to allowing someone to “use the highway to stable his horse”. Since such a right does not exist, the regulation of longer-term moorage cannot fall within the protected “core” of federal jurisdiction over shipping and navigation, and therefore the bylaw was held to be (largely) valid.

In West Kelowna, the court distinguished the Windermere and Kupchanko cases on the basis that they dealt with the regulation of the watercraft themselves, as opposed to their location, so it is important not to stretch the application of West Kelowna beyond the context of zoning and land use. Also, West Kelowna may yet be subject to appeal. Nonetheless, it may be fair to say that the B&B Ganges and West Kelowna cases show some willingness on the part of the courts to avoid an approach that renders any matter related to shipping and navigation untouchable by provincial and local laws.

This would be consistent with the law as expressed by the Supreme Court of Canada in the leading cases of Canadian Western Bank v. Alberta, 2007 SCC 22 and Burrardview Neighbourhood Assn. v. Vancouver (City), 2007 SCC 23. In those cases, the Court emphasizes that matters of constitutional authority should be approached in a spirit of “cooperative federalism”, and that a “watertight compartments” approach to jurisdiction should be avoided where possible. Time will tell whether local laws continue to impact upon shipping and navigation, or whether the tide will shift again.