In The Corporation of the City of Victoria v. Zimmerman, 2018 BCSC 321, the City of Victoria obtained a statutory injunction to restrain the permanent moorage of boats in the Gorge Waterway, on the grounds that permanent moorage of boats contravened the City’s zoning bylaw.
The respondents challenged the validity of the zoning bylaw, arguing that restricting moorage encroached upon the federal jurisdiction over navigation and shipping under the Constitution Act. In other words, they argued that the City’s zoning bylaw was venturing in unnavigable waters, jurisdictionally.
In its reasons for judgment, the Court first addresses the issue of whether the Gorge is within the territorial jurisdiction of the Province. The Court navigates this issue by finding that the Gorge is within provincial boundaries because:
- the Gorge Waterway is water inter fauces terrae (“in the jaws of the land,”) and was therefore presumed to be within the province’s jurisdiction;
- although the federal government was granted ownership of Victoria Harbour in 1924, the Gorge Waterway was not part of the Victoria Harbor; and
- the Gorge Waterway Park was entirely within the boundaries of the City of Victoria.
Once the Court determined that the Gorge Waterway Park was within the territorial boundaries of the city and the province, the Court sails through the jurisdictional issue of whether the City was acting outside of its jurisdiction by regulating an activity that is within the federal government’s power over navigation and shipping. In doing so, the Court relies on the decision West Kelowna (District) v. Newcomb, 2013 BCSC 1441 (aff’d 2015 BCCA 5,). West Kelowna states that the regulation of permanent moorage of vessels does not offend the federal jurisdiction over navigation and shipping. The Court in Zimmerman follows this decision and finds Victoria’s bylaw to be a valid exercise of its powers.
Victoria v. Zimmerman offers important clarification on the planning powers of a local government relating to moorage. This decision anchors the understanding that a local government’s zoning powers apply to regulating the use of land covered by water, so long as this land is within the territorial boundaries of the province and the local government. These powers to regulate moorage only apply to permanent moorage, and a local government cannot use its zoning powers to regulate temporary moorage, or moorage incidental to active use. Zimmerman does not comment on where the dividing line between temporary and permanent moorage lies.
In light of Victoria v. Zimmerman, local governments that are restricting moorage by their zoning bylaws should consider the following questions:
- Is the area in question within provincial territorial limits?
- Does the proposed bylaw only prohibit permanent moorage, rather than temporary moorage?
If the answer to these two questions is “yes”, then the bylaw is on its way to being ship-shape.