Monday, September 11, 2017

Multi-Jurisdictional Nature of Maritime Matters

The recent decision in Zongshen (Canada) Environtech Ltd. v. Bowen Island (Municipality), 2017 BCCA 267 is a perfect example of the multi-jurisdictional nature of maritime matters in Canada. Zongshen (Canada) Environtech Ltd. (“Zongshen”) acquired waterfront property in October 2011 on Bowen Island at Cape Roger Curtis in British Columbia. Lot 14 is situated at the Cape in the “Water General 1 (Coastal) (WG 1) Zone” on the island.  To build a dock, Zongshen sought federal, provincial, and municipal approval: 

(i)        It sought approval from Transport Canada under the Navigable Waters Protection Act, R.S.C. 1985, c. N-22.  This was required as a consequence of Transport Canada’s role in regulating marine transportation and safety standards.  
(ii)       It sought to obtain tenure to the foreshore from the provincial Ministry of Forests, Lands and Natural Resource Operations.  “Tenure” is effectively permission to use the foreshore in a particular manner.  The need to obtain such permission is a consequence of the Crown’s ownership of the foreshore on which the dock would be constructed.  
(iii)      It sought a building permit to be issued by the Municipality consistent with its role in regulating land use within its territorial jurisdiction. 
The Bowen Island Municipality maintains a bylaw amendment, which its municipal council adopted after Zongshen applied for a building permit, prohibiting the construction of the dock.  It refused to issue a building permit.

Zongshen initially applied for Transport Canada’s approval in March 2013.  Approval was received (in final form) in February 2015.

In February 2013, Zongshen submitted an application to the Ministry for Crown Land Tenure specifying the proposed use as “Private Moorage”. Two months later, it notified the Municipality that it had done so, as was necessary to afford the Municipality the opportunity to comment on the tenure being sought.  Attached to its application were the particulars of the dock, a marine bed survey, and an environmental report.  The dock was then to consist of a very long aluminum structure extending to a float.  The length was necessary because the depth of the water where the proposed dock was to be built would otherwise have been too shallow at low tide to use the float.  However, when the municipal bylaws were amended in November 2013, the permissible length of a dock structure became less than what Zongshen had planned.  Zongshen then had to engage consultants to redesign the dock and draft revised plans, which it submitted to the Ministry in August 2014.  The Municipality then insisted that Zongshen provide the Ministry with a new biophysical survey and marine assessment, which in due course it did.

In mid-July 2015, Zongshen obtained signed tenure documentation in the form of a “Specific Permission for Private Moorage” from the Ministry, which it then submitted to the Municipality in early August.  In mid-September, the Municipality informed Zongshen that the application had been rejected because the Land Use Bylaw prohibited the proposed dock.

Zongshen applied to the courts for a “judicial review” of this administrative action. With respect to the proposed dock being prohibited, the judicial review judge expressed the view that, given that “permanent moorage” was not permitted, the intent of the amending bylaw was to permit only “temporary boat mooring associated with marine navigation”.  The judicial review judge based this on the Municipality being precluded from interfering with federal jurisdiction over navigation and shipping citing West Kelowna (District) v. Newcombe, 2013 BCSC 1411 (CanLII), where the issue was the use of mooring buoys.  Such temporary mooring, the judge said, “does not require a permanent dock.”  He then reasoned as follows:
[70]      Among the facilities prohibited is a Private Moorage Facility. The petitioner’s dock clearly comes within the bylaw’s definition--it is a structure affixed to the seabed and connected to the shoreline to be used for the exclusive benefit of a single adjoining property. The intention expressed in the bylaw’s definition makes clear that the focus of the prohibition is on the nature of the structure and who may use it, not on the amount of time a boat may actually be present. 
[71]      I do not find the bylaw to be in any way unclear or ambiguous, but if any such ambiguity existed it would be easily resolved by other evidence of the council’s intention. The resolution that preceded the bylaw amendment could not have been clearer. It instructed staff to prepare an amendment “that prohibits all private docks at the lands known as Cape Roger Curtis.”
[72]      Giving effect to the “intention of the Municipal Council as expressed in the bylaw,” I find that the bylaw amendment was intended to and does prohibit precisely the kind of permanent, private dock that the petitioner seeks to build.
This ruling was appealed to the British Columbia Court of Appeal. Justice Lowry writing for the Court reviewed the decision of the judicial review judge and noted:

As defined in the Land Use Bylaw, a “private moorage facility” means “a float on the surface of the water that is affixed to the sea bed.…”  The judge said that the proposed dock came within the definition because it would be “a structure affixed to the seabed …” (para. 70).  While the judge quoted the definition of a “private moorage facility”, he appears to have discounted the requirement that to be such a facility the dock would have to be “a float on the surface of the water”.   As stated, the proposed dock would not in any way be a float on the surface of the water.  It would all be supported by pilings resting on concrete footings: no part of it would float on the water.  To be a “private moorage facility”, it is not sufficient that the proposed dock be a structure affixed to the sea bed; it would as well have to be a float – “a float on the surface of the water”.

Justice Lowry held that, read in their entire context and in their grammatical and ordinary sense, the words employed to define “private moorage facility” simply could not be read to mean that a structure that is secured to the seabed is such a facility if it is clearly not a float on the surface of the water.  The words could not be harmoniously read with any contrary scheme or object of the bylaw or intention of the municipal council which adopted it.  “The words have to mean what they say.”

The Court held that the Municipality’s contention that the judicial review judge’s finding that the proposed dock fell within the definition of a “private moorage facility” was entitled to deference was not supportable.

The Court found that:

The dock that is the subject of Zongshen’s applications for a building permit is not prohibited by the Land Use Bylaw as amended by Bylaw No. 381, 2015.  The municipal council may well have wanted to “Stop the Docks” in the vicinity of Cape Roger Curtis for understandable reasons, but here the law requires that its intention in adopting the bylaw must be drawn from the expressed wording employed.  This is particularly so given that it would have been a simple matter to provide a broader definition for what constitutes a “private moorage facility” if it was to be said it would include the dock Zongshen seeks to build adjacent to its upland property.

In a unanimous decision the Court ordered that the Municipality issue to Zongshen the building permit.


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