SIPS has received this from Erin Gray at WCEL. It was undertaken at request from Bob Peart at SPEC and Michael Simmons on behalf of SIPS.
It is very clear and helps sort out the many lines of responsibility for moorings. It is the simplest and most straightforward analysis of the mooring situation.
MEMO
TO: Friends of Shoal Harbour, c/o Bob Peart
FROM: Michael Bissonnette and Erin Gray
DATE: July 16, 2024
RE: The Legal Framework for Moorings in British Columbia
1. Background and Issue
Residents of the Saanich Peninsula are concerned about the number of private mooring buoys that have been installed in Brentwood Bay and Tsehum Harbour and the pollution these cause.
Local governments and First Nations in the area have taken steps to attempt to address the issue. The District of Central Saanich, coordinating with the Tsartlip First Nation, has previously considered obtaining a licence of occupation from the Province to manage the moorings in Brentwood Bay1, though this has since been abandoned.2 The Capital Regional District, by bylaw, has established a Saanich Peninsula Harbours and Water Monitoring and Coordination Service, the purpose of which is to coordinate and implement “harbours, waterbodies, and watercourses environmental protection and improvement initiatives on and surrounding the Saanich Peninsula.”3
The issue of private moorages has also been of interest to the BC Ministry of Water, Land and Resource Stewardship. The Ministry released a Coastal Marine Strategy for British Columbia in July 2024. The Strategy acknowledges that abandoned boats and sewage/wastewater are common forms of pollution in B.C. waters and includes as activities:
- “Continue to examine the life cycle of boats to identify waste prevention, reduction and end-of-lifeopportunities.”
- “Develop a long-term vision for the Clean Coast, Clean Waters initiative.”
- “Support additional coastal cleanups of plastics and debris, including actions to address abandonedand derelict trespass structures and derelict vessels in the intertidal zone.”4
In this memo we provide a summary of the current legal framework that regulates private mooring buoys in British Columbia. We will begin by discussing the federal legal framework for private mooring buoys. We will then discuss relevant provincial laws as well as local government initiatives that have addressed private moorings. Lastly, we will discuss on a preliminary basis some potential legal avenues that the Province, local governments or other groups could explore to address private mooring buoys in Brentwood Bay and Tsehum Harbour.
2. Federal legal framework for moorings
Subject to the rights and title of Indigenous nations, the federal government can regulate moorings pursuant to its jurisdiction over navigation and shipping under section 91(10) of the Constitution Act, 1867. The Minister of Transport has created a legal framework for regulating private moorings under the Canadian Navigable Waters Act and the Canada Shipping Act, 2001.5
A. The Canadian Navigable Waters Act and the Minor Works Order
The Canadian Navigable Waters Act protects access to navigable waters in Canada. The Act contains a general prohibition on constructing, placing, altering, rebuilding, removing or decommissioning a work “in, on, over, under, through or across any navigable water”, except in accordance with the Act, and defines navigable waters to include the Pacific Ocean.6 The Act also enables the Minister to order the owner of a work to remove or repair the work if it does not comply with the Act. If the owner of the work fails to comply with the order to remove or repair the work, the Minister may cause it to be removed.7
Section 4 of the Act allows “minor works”, which includes mooring systems, to be placed in navigable waters without the need for an application if they meet the requirements of the Minor Works Order.8 We discuss the requirements of the Minor Works Order next.
i. Requirements during installation of a mooring system
If the mooring system is to be installed in a navigable water for which nautical charts have been produced by the Canadian Hydrographic Service or the United States National Oceanic and Atmospheric Administration , section 4 of the Minor Works Order requires that the owner of the mooring system notify, in writing, the Canadian Coast Guard Marine Communications and Traffic Services Centre at least 48 hours in advance of the day on which the activity is expected to begin.
Section 6 of the Minor Works Order requires that the owner of a minor work ensure that vessels can navigate safely through or around the work site or, if navigation is interrupted by any activity related to the construction, placement, alteration, rebuilding, removal, decommissioning, repair or maintenance of the minor work, that a suitable means, such as a portage, exists to allow vessels to resume navigation upstream and downstream of the work site. Section 6 also requires that the perimeter of the work site is visible from sunset to sunrise and during periods of restricted visibility by the placement of yellow flashing lights, cautionary buoys with retro-reflective material, or cautionary buoys with yellow flashing lights.
ii. Requirements for the components of a mooring system
Section 31 of the Minor Works Order requires that the mooring system include an anchor, an anchor line, a single mooring buoy, and a mooring line that attaches to a vessel. Section 31 also requires that when a vessel is moored to the mooring system, its swing area:
- must be more than 20 metres from another work or from the swing area of another mooring system that is not owned by the owner of the mooring system;
- is more than 50 metres from a marina or public boat-launching ramp;
- is more than 50 metres from a navigation channel or, if there is no navigation channel, is not in, on, through or across a navigation route9; and
- does not exceed the maximum diameter in the table below
| Item | Depth of Navigable Water | Maximum Diameter of the Swing Area |
| 1 | 6m or less | 50m |
| 2 | More than 6m but not more than 10m | 70m |
| 3 | More than 10m but not more than 14m | 80m |
| 4 | More than 14m | 100m |
In addition, section 31 of the Minor Works Order requires that the mooring system not be associated with an existing or proposed marina, is not located in a location where the width of the navigable water is less than 100 metres, and the anchor of the mooring system remains in the location where it was set in or on the bed of the navigable water.
Section 5 of the Minor Work Order requires that:
- the part of the buoy that shows above the surface of the water is at least 15.25 cm wide and at least 30.5 cm high;
- the buoy, including its anchor, remains in position after it has been anchored; and
- the buoy complies with the requirements set out in the section entitled “Floating Aids to Navigation (Buoys)” of TP 968, entitled Canadian Aids to Navigation System and published by the Canadian Coast Guard, as amended from time to time.10
The owner of a mooring system must not moor, or permit others to moor, to the mooring system a vessel that is more than 12 m in length, as measured between the fore and aft extremities of the vessel.11
Lastly, the owner of a mooring system must remove the mooring system as soon as feasible if
- any component of the mooring system has been removed; or
- during any two-year period, no vessel has moored to the mooring system.12
B. Private Buoy Regulations under the Canada Shipping Act, 2001
Under the Canada Shipping Act, 2001, the Minister of Transport has also enacted Private Buoy Regulations, which apply to every private buoy other than private buoys used to mark fishing gear.13 The Regulations grant the Minister of Transport the power to remove any private buoy that does not comply with the Regulations.14 The Minister can also order the owner of a buoy to modify it “according to the requirements set out in the Procedures Manual for Design and Review of Short-range Aids to Navigation Systems (TP 9677), published in March 1989 by the Canadian Coast Guard, as amended from time to time”, if there is a need for increased visibility or better identification of a buoy for safety and the prevention of accidents.15
The Private Buoy Regulations impose several requirements on private buoys in Canadian waters, including that:
- a private buoy cannot be placed where it interferes with or is likely to interfere with the navigation of any vessel, or that misleads or is likely to mislead the operator of any vessel.
- the part of the buoy that shows above the surface of the water is at least 15.25 cm wide and at least 30.5 cm high;
- the buoy displays, on opposite sides, the capital letters “PRIV” that are as large as is practical for the size of the buoy, and white when the background colour is red, green or black; black when the background colour is white or yellow;
- the buoy complies with the requirements set out in Canadian Aids to Navigation (TP 968)16 published by the Canadian Coast Guard in 1995, as amended from time to time;
- the buoy displays, in a conspicuous location and in a permanent and legible manner, the name, address and telephone number of its owner;
- the buoy is constructed and maintained in a manner and with materials that ensure that it remains in position and retains the characteristics specified above;
- the buoy’s anchor is constructed and maintained in a manner and with materials that ensure that it remains in position; and
- the buoy cannot have a light unless the light remains lit through the night and meets the requirements of the Canadian Aids to Navigation (TP 968).17
3. Provincial Jurisdiction to Regulate Private Moorings
Subject to the rights and title of Indigenous nations, the provincial government also has some jurisdiction to regulate moorings pursuant to its constitutional powers over property and civil rights in the Province, municipal institutions in the Province, and matters of a merely local or private nature in the Province (ss. 92(13), (8), and (16) of the Constitution Act, 1867, respectively). This jurisdiction can extend to local governments, which – rather than have powers from the Constitution Act – are created by provincial statutes that grant specific powers.
These provincial powers can be applied in areas where the Crown title is held by the province rather than the federal government. A Supreme Court of Canada decision from the 1980s found that the Crown title to the seabed between the mainland and Vancouver Island is held by the provincial government, except for port areas, military bases and some other places where the Crown title in held by the federal government.18
However, provincial laws cannot intrude on the “core” of federal power over navigation and shipping. In a 2013 decision (the “West Kelowna case”), the BC Supreme Court found that temporary moorage such as overnight moorage, emergency anchoring or mooring, anchoring or mooring for repairs, or anchoring or mooring for the purpose of provisioning a houseboat may be vital to navigation and shipping and thus cannot be prohibited by provincial law. On the other hand, the Province or a local government can prohibit long-term moorage which may amount to “’using the highway to stable [one’s] horse’ and is not a core of the public right of navigation.”19
The City of Victoria has obtained a provincial water licence of occupation in the Gorge Waterway and adopted a Zoning Regulation Bylaw pursuant to section 479 of the Local Government Act. The bylaw designates a park district in the Gorge Waterway and prohibits the anchoring or mooring of vessels for more than 48 continuous hours and for more than 72 hours within a 30-day period. The bylaw was challenged in court by boat owners, who argued that the City did not have the constitutional authority to regulate moorage in a federal waterway. The City’s jurisdiction to do so was upheld by the BC Supreme Court in 2018 based on the findings in the West Kelowna case.20
A. The Land Act
The Province could regulate private moorings under the Land Act. The Act is the main provincial law for regulating access to and granting interests in provincial Crown lands. Under the Land Act, the Province can grant interests in the seabed where the Province has the Crown title (these interests could include, for example, a licence of occupation or a lease). Section 60 of the Land Act makes it an offence to possess, occupy or use Crown land without lawful authority. If the Province wishes to prosecute an offence under s. 60, it must first provide the person with notice in keeping with the requirements of s. 59. Given that private moorings are affixed to the seabed, the Province could likely use its powers under the Land Act to prosecute the owner of an unauthorized long-term mooring.
The Province has developed a “Land Use Operational Policy - Private Moorage” that outlines how it approves certain types of private moorages.21 The Policy applies to docks, permanent boat ways and stand-alone boat lifts that are permanently affixed to aquatic Crown land, but it explicitly does not apply to mooring buoys used for private mooring. Under the policy, a general permission is granted for these private moorage structures provided they meet requirements laid out in the policy.22
The Province has excluded certain areas of the seabed from this general permission. These include protected areas, Land Act reserves and areas listed as “application only areas” under the Policy. In application only areas, one must apply to the Province for a specific permission to install a dock, permanent boat way or stand-alone boat lift, in keeping with the requirements of the Policy. We note that the Province has created a “West Coast Region Private Moorage Application Only Area” that encompasses the shoreline of Vancouver Island from Parksville down to Goldstream Provincial Park, as well as the Southern Gulf Islands23, but that it does not include the Saanich Peninsula.
B. Local Government Bylaws
Local governments can also regulate moorings under their zoning powers granted under provincial statutes. A number of local governments have used their zoning powers to regulate moorings, including the District of West Kelowna, the City of Victoria (both involved in the court cases discussed above), and the Bowen Island Municipal Council. In each instance, the local government also obtained a licence of occupation from the Province under the Land Act to the seabed (or lakebed) in their area.
4. Potential Legal Avenues for Brentwood Bay and Tsehum Harbour
In this section, we provide some preliminary suggestions for how the Province, a local government or a First Nation could address private mooring buoys in Brentwood Bay and Tsehum. However, we include two disclaimers: first, as discussed above, the Province or a local government must respect the core of federal jurisdiction over shipping and navigation and thus cannot prohibit temporary anchoring and mooring; second, the Province is required to respects the rights and title of First Nations, as well as their rights under the United Nation Declaration of the Rights of Indigenous People. Accordingly, any of these potential solutions should be undertaken in cooperation with First Nations who assert rights and title in the area.
- The District of Central Saanich and the District of North Saanich could obtain a licence of occupation for Brentwood Bay and Tsehum Harbour, respectively, and/or enact a bylaw that regulates the use of these areas.24 Such bylaws could be modelled after the bylaw enacted by the City of Victoria for the Gorge Waterway.
- The Province could amend the “Land Use Operational Policy - Private Moorage” to include private mooring buoys and include specific requirements for private mooring buoys throughout the province. The Province could enforce the policy under the Land Act.
- A local First Nation or a local government or other group could apply to the Province for a licence of occupation in either Brentwood Bay or Tsehum Harbour to operate a private marina.
1 “Do you own a mooring buoy in Brentwood Bay?”; Patrick Robins, Chief Administrative Officer, District of Central Saanich; February 14, 2018, District of Central Saanich website, accessed online at: https://www.centralsaanich.ca/our-community/news/do-you-own-mooring-buoy-brentwood-bay.
2 “The District’s original plan to assume a Licence of Occupation from the Province has not come to fruition at this point as the language in the licence could not be amended and would legally put the District in the position of assuming other governments’ responsibilities”. Source: “Brentwood Bay Waters”; District of Central Saanich; accessed 16 July 2024, District of Central Saanich website, accessed online at: https://www.centralsaanich.ca/our-community/parks-recreation-culture3/brentwood-bay-waters.
3 Capital Regional District Bylaw No. 4391: A Bylaw to Establish the Saanich Peninsula Harbours and Water Monitoring and Coordination Service; 2021, accessible online at: https://www.crd.bc.ca/docs/default-source/crd-document-library/bylaws/liquidwasteseptagesewersourcecontrolandstormwater/bylawno-4391final.pdf?sfvrsn=29f235cd_4.
4 B.C. Coastal Marine Strategy, at 30-32; July 2024; accessible online at: https://www2.gov.bc.ca/assets/gov/environment/air-land-water/water/coastal-marine-strategy/coastal_marine_strategy.pdf.
5 Note, this memo is focused on private mooring buoys. Accordingly, it does not discuss buoys used to restrict navigation which are regulated by the Vessel Operation Restriction Regulations, SOR/2008-120, under the Canada Shipping Act, 2001.
6 Canadian Navigable Waters Act, RSC 1985, c N-22, section 5 and part 1 of the Schedule.
7 Ibid., paragraphs 11(2)(a) and (c).
8 Minor Works Order, SOR/2021-170, section 31. Note that mooring systems that do not comply with Minor Works Order may be authorized by the Minister, but that would require an application by the owner.
9 Ibid., subsection 1(1) includes the following definitions:
navigation channel means a channel represented on a nautical chart produced by the Canadian Hydrographic Service or the National Oceanic and Atmospheric Administration of the United States or a channel for which markers have been placed by a federal, provincial or municipal government or by a port authority, as defined in subsection 2(1) of the Canada Marine Act.
navigation route means a channel, other than a navigation channel, formed by the connection of the deep sections of a navigable water that, based on local knowledge, is predominantly used by vessels for navigation purposes.
10 Note the most recent Canadian Aids to Navigation Systems was published in 2023, available from the Canadian Coast Guard Publications webpage (last modified 9 July 2024): https://www.ccg-gcc.gc.ca/publications/index-eng.html#aids.
11 Ibid., section 32.
12 Ibid., section 33.
13 Private Buoy Regulations, SOR/99-335, section 2.
14 Ibid., section 7.
15 Ibid., section 5.
16 See note 10.
17 Private Buoy Regulations, see note 13, sections 3-4 and 6.
18 Reference re: Ownership of the Bed of the Strait of Georgia and Related Areas, [1984] 1 SCR 388.
19 West Kelowna (District) v. Newcombe, 2013 BCSC 1411, para. 48. Upheld by the BC Court of Appeal in West Kelowna (District) v. Newcomb, 2015 BCCA 5.
20 The Corporation of the City of Victoria v Zimmerman, 2018 BCSC 321.
21 Land Use Operational Policy: Private Moorage; Dave Peterson, Assistant Deputy Minister of Rural Development, Lands and Innovation, B.C. Ministry of Forests, Lands, Natural Resource Operations and Rural Development; January 21, 2019; accessed online at: https://www2.gov.bc.ca/assets/gov/farming-natural-resources-and-industry/natural-resource-use/land-water-use/crown-land/private_moorage.pdf.
22 Ibid., 5.1.1 General Permission.
23 West Coast Region Private Moorage Application Only Area, Ministry of Forests Lands and Natural Resource Operations, accessed online at: https://www2.gov.bc.ca/assets/gov/farming-natural-resources-and-industry/natural-resource-use/land-water-use/crown-land/westcoast_region_pm_application_only_area.pdf.
24 Noting that the District of Central Saanich considered obtaining a licence of occupation for Brentwood Bay but abandoned this plan as it determined that the “the language in the licence could not be amended and would legally put the District in the position of assuming other governments’ responsibilities.” See note 1.
