Morgane Oger

Salt Spring Island, part of the Islands Trust in British Columbia, has long sought to regulate activities in its waters, particularly concerning liveaboard vessels and long-term anchoring. So far, the proposed regulations have not been widely supported.

Saltspring Island’s regulatory powers are constrained by federal authority over navigation and shipping, and by the Provincial legislation that defines the Island Trust. While local bylaws attempt to address the concerns associated with long-term liveaboard communities, the courts have affirmed that local governments cannot interfere with temporary anchoring tied to navigation. This article examines these jurisdictional boundaries and contrasts Salt Spring Island’s land use regulations with its limited ability to control anchoring in navigable waters, while also considering the Island’s accountability to households that rely on public infrastructure, such as families with children in local schools.

Federal vs. Local Jurisdiction: Who Regulates What?

The Constitution Act, 1867 grants the federal government exclusive jurisdiction over navigation and shipping (s. 91(10)), meaning that matters such as anchoring, vessel movement, and navigable waters fall under federal control. In contrast, the Islands Trust Act and Local Government Act give local governments authority over land use, including zoning bylaws that regulate docks, mooring facilities, and liveaboards as a land use issue.

This division of power means that while Salt Spring Island can regulate structures attached to the seabed (such as docks or permanent mooring buoys), it cannot impose outright prohibitions on anchoring unless authorized by Vessel Operation Restriction Regulations (VORRs) or a Designated Anchorage Area (DAA) approved by Transport Canada. Without such federal designations, any attempt by the Islands Trust to control temporary anchoring in navigable waters would be legally dubious.

The Purpose of DAAs and VORRs

Designated Anchorage Areas (DAAs) and Vessel Operation Restriction Regulations (VORRs) are federally established mechanisms that allow for the regulation of anchoring and vessel operation in specific waters:

• DAAs are used to manage anchoring locations and prevent congestion in busy or environmentally sensitive areas. They provide a legal framework to regulate where and how long vessels may anchor, particularly in regions where unrestricted anchoring may pose risks to marine ecosystems, interfere with commercial traffic, or create conflicts with local communities.
• VORRs, under Transport Canada’s Canada Shipping Act, 2001, allow for restrictions on vessel operations, such as speed limits, prohibitions on certain types of vessels, and anchoring restrictions in designated waters. These regulations are legally enforceable and help maintain safety, protect shorelines, and manage waterway usage.

Without DAAs or VORRs in place, Salt Spring Island lacks the jurisdiction to enforce any direct anchoring restrictions, as federal navigation rights take precedence.

The Newcomb, Zimmerman, Adams, and Lewis Cases: Judicial Clarity on Anchoring Rights and Necessity

Four key legal precedents shed light on the limits of local authority over anchoring and liveaboards, particularly in the context of necessity vs. convenience arguments:

1. West Kelowna (District) v. Newcomb (2015)
   • The BC Court of Appeal ruled that municipalities cannot prohibit temporary anchoring tied to navigation, as this is a federal matter.
   • However, long-term anchoring that functions as de facto moorage can be regulated as a land-use issue.
   • The case distinguished between temporary anchoring for navigation (protected) and extended moorage (subject to local regulation).
2. The Corporation of the City of Victoria v. Zimmerman (2018)
   • The City of Victoria sought to regulate long-term anchoring in the Gorge Waterway through a bylaw that limited anchoring to 48 hours at a time.
   • The BC Supreme Court upheld the bylaw because it was framed as a land-use restriction rather than a direct prohibition on navigation.
   • The ruling clarified that while short-term anchoring is federally protected, local governments may impose time limits on extended moorage if done through land-use bylaws.
3. Victoria (City) v. Adams (2009 BCCA 563)
   • This case ruled that homeless individuals had a constitutional right to erect temporary shelters in public parks when no shelter spaces were available.
   • The BC Court of Appeal upheld the lower court’s decision, finding that the City of Victoria’s bylaw violated section 7 of the Canadian Charter of Rights and Freedoms (life, liberty, and security of the person).
   • Because shelters were full, people had no choice but to sleep outside, making their need a necessity rather than a matter of convenience.
4. R. v. Lewis (2009 BCPC 386)
   • This case involved False Creek liveaboards challenging municipal restrictions on anchoring.
   • The boat dwellers argued that they were unfairly targeted, similar to how homeless individuals were impacted by anti-camping bylaws.
   • However, the court rejected the comparison to Adams, ruling that the False Creek liveaboards were not in a state of necessity because they had alternative housing options available.
   • The court framed long-term anchoring in False Creek as a matter of convenience rather than necessity, allowing the city’s restrictions to stand.

Salt Spring Island’s Blanket Ban on Liveaboards at Docks and Charter Implications

Salt Spring Island has adopted a bylaw prohibiting liveaboards at any dock on the island, which raises potential Charter of Rights and Freedoms concerns, particularly under section 7 (life, liberty, and security of the person) and section 15 (equality rights).

• Necessity vs. Convenience Argument: The Adams decision suggests that if individuals have no viable housing alternatives, prohibitions on liveaboards may be unconstitutional. If marinas are full, prohibitively expensive, or if liveaboards have no practical land-based options, the argument for necessity becomes stronger.
• Discrimination Concerns: Section 15 of the Charter protects individuals from discrimination based on their social and economic status. If Salt Spring Island’s blanket ban on liveaboards disproportionately impacts lower-income individuals, it could be challenged under equality rights.
• Public Interest Considerations: While the Islands Trust may justify the ban on environmental or land-use grounds, courts could assess whether such measures are disproportionate or punitive, particularly if they do not offer viable alternative housing solutions.

Implications for Boaters, Liveaboards, and Local Residents

Given these legal distinctions, boaters seeking to anchor around Salt Spring Island for a few days or weeks should be protected under federal law, as long as no DAA or VORR exists restricting anchoring in those waters. However, those attempting to establish a long-term liveaboard presence—especially using a fixed mooring or dock—may be subject to local land-use bylaws.

At the same time, the Adams and Lewis cases suggest that necessity vs. convenience could be a key argument in any future legal challenges. If liveaboard communities can demonstrate that they have no viable housing alternatives, they could challenge restrictions as unconstitutional under Adams. However, if courts determine that living aboard is a preference rather than a necessity, they may follow Lewis and allow moorage restrictions to stand.

Conclusion: Understanding the Legal and Social Boundaries

Salt Spring Island’s ability to regulate liveaboards is strongest when tied to land use, docks, and permanent moorage. However, it cannot outright ban temporary anchoring, as that remains under federal jurisdiction. Without a DAA or VORR, attempts to impose anchoring limits would likely be unenforceable under Newcomb and Zimmerman.

For boaters, this means that short-term anchoring remains a right, but extended stays may trigger local enforcement efforts. For Salt Spring Island authorities, the best approach is likely zoning enforcement focused on moorage facilities, rather than attempting to regulate anchoring itself.

Liveaboards also present an underutilized solution to British Columbia’s housing crisis. As highlighted in Liveaboard Households: A Hidden Gem in BC’s Housing Crisis (Morgane Oger, 2025), policies restricting liveaboard communities could be exacerbating housing shortages rather than addressing them. Thoughtful regulatory frameworks that balance environmental protection, navigational rights, and housing needs could position liveaboards as a sustainable housing alternative, rather than a problem to be legislated out of existence.

As pressure on coastal anchorage areas increases, future legal challenges may further clarify these boundaries. Until then, boaters should remain aware of their rights, and local governments should ensure their regulations align with constitutional limits on federal navigation authority while considering the needs of liveaboard families who rely on public infrastructure.