Victoria (City) v. Zimmerman, 2018 BCSC 321 (2018-03-05)
Facts: The City of Victoria adopted a bylaw that, inter alia, purported to prohibit the anchoring or mooring of vessels within the Gorge Waterway for more than 48 continuous hours or for more than 72 hours in a 30-day period. The Gorge Waterway is a tidal inlet connected to Victoria Harbour and was a favourite anchoring spot for small vessels. The respondent vessel owners refused to comply with the bylaw. The City brought this application for an order that the respondents remove their vessels and for an injunction restraining the respondents from contravening the bylaw.
Decision: Application allowed.
Held: The foreshore and seabed of the Gorge Waterway are owned by the Province of British Columbia and have been leased or licensed to the City of Victoria. The waterway is not federally owned public property that would be immune from local bylaws. Nor is it located within the boundary of a public port where special restrictions would apply pursuant to the Canada Marine Act, S.C. 1998, c. 10. Local governments may enact bylaws to regulate the use of land that is covered by water or the use of water itself. Zoning bylaws in relation to ships or vessels on navigable waters do not necessarily fall outside of provincial/municipal jurisdiction. However, in West Kelowna (District) v. Newcomb, 2015 BCCA 5, it was held that a bylaw does intrude on the core of the federal power over navigation and shipping and is inapplicable under the doctrine of interjurisdictional immunity when the bylaw purports to prohibit even “[t]emporary moorage directly incidental and related to the active recreational use of vessels”. In this case the bylaw does not purport to regulate or restrict temporary moorage. It prohibits only long term anchoring or moorage. The bylaw is valid.