British Columbia (Attorney General) v. Lafarge Canada Inc.

British Columbia (Attorney General) v. Lafarge Canada Inc.
Collection
Supreme Court Judgments
Date
2007-05-31
Neutral citation
2007 SCC 23
Report
[2007] 2 SCR 86
Case number
30317
Judges
Bastarache, Michel; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise
On appeal from
British Columbia
Subjects
Constitutional law
Notes
SCC Case Information: 30317
Decision Content
SUPREME COURT OF CANADA
Citation: British Columbia (Attorney General) v. Lafarge Canada Inc., [2007] 2 S.C.R. 86, 2007 SCC 23
Date: 20070531
Docket: 30317
Between:
Attorney General of British Columbia
Appellant
and
Lafarge Canada Inc. and Vancouver Port Authority
Respondents
and
Burrardview Neighbourhood Association and City of Vancouver
Respondents
‑ and ‑
Attorney General of Canada, Attorney General of Ontario,
Attorney General of Quebec, Attorney General of New Brunswick
and Attorney General of Alberta
Interveners
Coram: Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.
Joint Reasons for Judgment:
(paras. 1 to 91)
Concurring Reasons:
(paras. 92 to 143)
Binnie and LeBel JJ. (Deschamps, Fish, Abella and Charron JJ. concurring)
Bastarache J.
______________________________
British Columbia (Attorney General) v. Lafarge Canada Inc., [2007] 2 S.C.R. 86, 2007 SCC 23
Attorney General of British Columbia Appellant
v.
Lafarge Canada Inc. and Vancouver Port Authority Respondents
and
Burrardview Neighbourhood Association and City of Vancouver Respondents
and
Attorney General of Canada, Attorney General of Ontario,
Attorney General of Quebec, Attorney General of
New Brunswick and Attorney General of Alberta Interveners
Indexed as: British Columbia (Attorney General) v. Lafarge Canada Inc.
Neutral citation: 2007 SCC 23.
File No.: 30317.
2005: November 8; 2007: May 31.
Present: Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.
on appeal from the court of appeal for british columbia
Constitutional law — Division of powers — Public property — Interjurisdictional immunity — Company seeking to build integrated ship offloading/concrete batching facility on port lands owned by federal undertaking — Whether municipal zoning and development by‑law inapplicable — Whether interjurisdictional immunity extends to all federally controlled property — Constitution Act, 1867, s. 91 (1A).
Constitutional law — Division of powers — Navigation and shipping — Interjurisdictional immunity — Federal paramountcy — Company seeking to build integrated ship offloading/concrete batching facility on port lands owned by federal undertaking — Whether municipal zoning and development by‑law inapplicable in view of Parliament’s jurisdiction over “navigation and shipping” — Whether land use jurisdiction asserted by federal undertaking attracting interjurisdictional immunity — Whether requirements of federal paramountcy doctrine satisfied — Constitution Act, 1867, s. 91(10) .
Constitutional law — Division of powers — Interjurisdictional immunity — Scope.
Lafarge Canada Inc. wished to build an integrated ship offloading/concrete batching facility on waterfront lands owned by the Vancouver Port Authority (“VPA”), a federal undertaking constituted pursuant to the 1998 Canada Marine Act . The City of Vancouver, which proposed certain modifications, and the VPA approved the project in principle, but a group of ratepayers opposed it and filed an application in the British Columbia Supreme Court, arguing that the City had declined to exercise jurisdiction over the lands and ought to have insisted that Lafarge obtain a City development permit. The VPA replied that no City permit was necessary because VPA lands enjoy interjurisdictional immunity as “public property” within the meaning of s. 91 (1A) of the Constitution Act, 1867 , or because the management of those lands is vital to the VPA’s “federal undertaking” pursuant to the federal s. 91(10) jurisdiction over “navigation and shipping”. In the alternative, the VPA contended that there was an operational conflict and that, according to the doctrine of federal paramountcy, the conflict must be resolved in favour of federal jurisdiction. The chambers judge granted the ratepayers’ application and declared that the VPA lacked jurisdiction to approve the project. The Court of Appeal set aside the decision, finding that VPA lands are “public property” within the meaning of s. 91 (1A) of the Constitution Act, 1867 and declaring the City’s zoning and development by‑law to be inapplicable to the proposed development.
Held: The appeal should be dismissed.
Per Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.: This case should be decided on the basis of federal paramountcy, not interjurisdictional immunity. As explained in Canadian Western Bank v. Alberta, released concurrently, the doctrine of interjurisdictional immunity should generally not be applied where the legislative subject matter presents a double aspect and both federal and provincial authorities have a compelling interest. Were there to be no valid federal land use planning controls applicable to the site, federalism does not require a regulatory vacuum, which would be the consequence of interjurisdictional immunity. The matter at issue here — the development of waterfront lands — could potentially fall under either provincial or federal jurisdiction, depending on the ownership of the lands and on the use to which it is proposed that they be put. Waterfront lands do not cease to be “within the province” by reason of their potential use for federally regulated activities, but the federal power will be paramount to the provincial power where valid federal and provincial laws are applicable to different aspects of the proposed use and come into operational conflict. [4] [37] [43]
The Canada Marine Act is a federal law that in pith and substance relates both to the management of “public property” and to “navigation and shipping”. Section 91 (1A) of the Constitution Act, 1867 does not extend interjurisdictional immunity to all federally controlled property. Absent an agency relationship, public property must encompass some element of ownership by Canada in order to receive constitutional immunity from provincial land use regulations. The federal Crown has no proprietary interest in the subject land. The VPA’s letters patent indicate that the lands Lafarge proposes to lease from the VPA for its project are Schedule C lands. Under the Canada Marine Act , Schedule C lands are owned by the VPA, not by the Crown, and it is expressly provided that the VPA is not an agent of Canada in relation to those lands. Since s. 91(1A) creates an immunity based on a proprietary interest, Schedule C lands are not “public property” of the federal Crown and do not therefore fall within the scope of s. 91 (1A). To impute s. 91 (1A) status to the Schedule C lands and thereby subject the lands to a Crown regime which the denial of Crown agent status was designed to avoid, would be inconsistent with Parliament’s intent. [48] [53] [56] [60] [72]
Nor does interjurisdictional immunity apply to every element of an undertaking that has been incorporated federally or is subject to federal regulation; it is restricted to “essential and vital elements” of the undertaking. There is no explicit federal jurisdiction over “port lands”. The VPA’s authority must therefore be derived from the federal power over “navigation and shipping” under s. 91(10) of the Constitution Act, 1867 . This power may bring within federal jurisdiction a matter otherwise subject to provincial jurisdiction if that matter is “closely integrated” with shipping or navigation. Here, the Canada Marine Act ’s land use controls reach beyond Crown property to embrace uses that are “closely integrated” with shipping and navigation. This covers the Lafarge project, which has from the outset been conceived of by both the City and the VPA as an integrated transportation/mixing facility in which the marine transportation aspect dominates. The port is not a federal enclave. VPA lands are held and leased for a variety of activities. Authorizing the construction of a cement mixing facility on these port lands does not fall within the VPA’s core or vital functions. On the facts of this case, it is rather an activity incidental to shipping. In the absence of valid and applicable federal regulatory land use controls there would be no regulatory vacuum on the land at issue. Provincial land use controls would apply. The federal arguments in favour of interjurisdictional immunity are therefore rejected. [42] [65‑66] [68] [72‑73]
The preconditions of federal paramountcy are met, however, and the ratepayers’ application should be dismissed on that ground. First, there is a valid and applicable federal law, namely the Canada Marine Act . Its land use plan and policies and procedures must be construed in light of the scope of the federal power. The only source of federal power relevant to the Lafarge project lands is the navigation and shipping power. The whole of the Lafarge project on the VPA’s Schedule C lands is sufficiently “integrated” into the ship/barge unloading facility to make federal law applicable to all aspects of it. Second, there is a valid and applicable provincial law. The City’s zoning and development by‑law is a valid expression of provincially authorized legislative power. The land use controls are laws of general application that are not aimed at navigation and shipping. Third, these two valid laws are incapable of simultaneous enforcement: there is an operational conflict in this case because a judge could not have given effect to both the federal law and the municipal law. The record confirms areas of conflict relating to a height restriction, and to noise and pollution standards. To apply the relevant municipal law in these areas would frustrate the federal purpose by depriving the VPA of its final decisional authority on the development of a project that both the City and the VPA have considered to be primarily shipping‑related in respect of matters that fall within the legislative authority of Parliament. [75] [77-81] [85]
Per Bastarache J.: The appeal should be dismissed solely on a proper application of the doctrine of interjurisdictional immunity in the context of Parliament’s power over navigation and shipping. Although this doctrine has been criticized, its critics have not successfully demonstrated why it should be abandoned. Without it, there would be no remedy permitting a provincial law to be read down in such a way as to be inapplicable to a federal matter while continuing to be applicable to other, non‑federal matters. There would also be no way to prevent the improper application of an otherwise valid provincial law to a federal matter in situations where there is no competing federal law. [93] [103] [107]
The doctrine of interjurisdictional immunity is about jurisdiction: what matters is whether a valid provincial law “affects” the core of a federal head of legislative power. The test for immunity should therefore be focussed not on a specific activity or operation and on whether that activity or operation is immune from the provincial law; rather, its focus should be on whether the federal power in question is immune from the application of the provincial law. Because of this focus on jurisdiction rather than on an action, there need not be any federal legislation or executive action “occupying the field” for federal immunity to be triggered in an area under federal legislative authority. The mere fact that a provincial law or a municipal by‑law “affects” a vital part of an area under exclusive federal jurisdiction is enough to render it inapplicable to a federal undertaking. The meaning of the word “affects” should not be interpreted as requiring complete paralysis of the core of the federal power or the operations of the undertaking; rather, to trigger immunity, the impact of the application of the provincial law must be sufficiently severe and serious. [109‑110] [139]
Here, the City’s by‑law is valid provincial legislation of general application. Its pith and substance is in relation to the regulation of land use planning and development for property situated within the City. The application of the by‑law does not invade Parliament’s exclusive legislative jurisdiction over “public property”, because the lands in question do not constitute “public property” within the meaning of s. 91 (1A) of the Constitution Act, 1867 and therefore do not enjoy federal immunity from the application of the municipal by‑law on that basis. Since the immunity at the heart of s. 91 (1A) is based on a proprietary interest, the relevant test for determining whether lands constitute public property for the purposes of that section is whether there is evidence that the federal Crown has a sufficient proprietary interest in them. Thus, when a Crown corporation owns or holds land other than as a Crown agent, there must be some element of ownership by the federal Crown for it to receive constitutional immunity from provincial land use laws and regulations. On the facts of this case, the Crown has not established a proprietary interest in the lands that would be sufficient to justify federal immunity on the basis of s. 91 (1A). The lands in question are listed in Schedule C of the VPA’s letters patent, and it is clear that Parliament explicitly chose to exclude Schedule C lands from the definition of federal lands and lands held in the name of the Crown by Crown agents. In including the lands in Schedule C, Parliament renounced any proprietary interest in them. The lands are held by the VPA in its own name, and not for the benefit of the Crown. [115] [119] [123-125]
The City’s by‑law is constitutionally inapplicable by reason of federal immunity in respect of the core of the navigation and shipping power under s. 91(10) of the Constitution Act, 1867 . The core of the s. 91(10) power necessarily extends to and includes the power to regulate land use planning and development for port lands in support of port operations. This provides the necessary link to navigation and shipping in order to trigger federal immunity, and it flows from the inclusion of ports and harbours generally within the federal power over navigation and shipping and, more specifically, from the inclusion of land use planning and development activities and decisions by port authorities in respect of port lands when such activities and decisions have a sufficient connection to navigation and shipping. The s. 91(10) power must also include and extend to federally regulated port authorities such as the VPA, whose creation, role and mandate are undeniably at the core of Parliament’s legislative authority over navigation and shipping insofar as their operations and functions are performed in support of port operations. The decision to recognize or deny federal immunity should not be based solely on whether the parcel of port lands in question is to be used directly for “port activities” or merely “in support of” port operations, and on fears that certain uses of the latter category would appear to be somehow less closely connected to shipping and navigation. The regulation of land use planning and development for all port lands lies at the core of s. 91(10) . So long as that regulation function is performed properly according to the federal undertaking’s terms and mandate and is concerned with port lands for activities in support of port operations (at a minimum), or directly for port activities, the specific status of a particular parcel of port lands and its specific intended use should not matter. Specific uses of land are relevant to the immunity analysis only to the extent that they might reflect an improper exercise of the core federal power over the regulation of land use for port lands. Here, under the Canada Marine Act , Schedule C lands have been deemed to be “necessary to support port operations”, and the VPA’s decision to approve the Lafarge project on such lands was consistent with a valid exercise of its power to regulate land use planning for port lands in support of port operations. Although certain aspects of the project, taken on their own and in isolation, may appear to be only loosely connected with shipping and navigation activities or operations, the project “supports” port operations given that its ultimate objective is to enhance competitiveness and commercial viability. Since the City’s by‑law clearly and significantly affects the VPA’s regulation of land use planning for port lands in support of port operations by imposing a zoning regime and an approval process for development proposals and projects on such lands, the by‑law is inapplicable because it affects a vital part of the federal power over navigation and shipping. [127] [130-131] [136] [138] [140] [142]
Cases Cited
By Binnie and LeBel JJ.
Followed: Canadian Western Bank v. Alberta, [2007] 2 S.C.R. 3, 2007 SCC 22; referred to: OPSEU v. Ontario (Attorney General), [1987] 2 S.C.R. 2; ITO—International Terminal Operators Ltd. v. Miida Electronics Inc., [1986] 1 S.C.R. 752; Montreal (City of) v. Montreal Harbour Commissioners, [1926] 1 D.L.R. 840; Cardinal v. Attorney General of Alberta, [1974] S.C.R. 695; Hamilton Harbour Commissioners v. City of Hamilton (1976), 21 O.R. (2d) 459, aff’d (1978), 21 O.R. (2d) 491; Canadian Dredge & Dock Co. v. The Queen, [1985] 1 S.C.R. 662; Greater Toronto Airports Authority v. Mississauga (City) (2000), 50 O.R. (3d) 641, leave to appeal refused, [2001] 1 S.C.R. ix; Bell Canada v. Quebec (Commission de la santé et de la sécurité du travail), [1988] 1 S.C.R. 749; Reference re Industrial Relations and Disputes Investigation Act, [1955] S.C.R. 529; Construction Montcalm Inc. v. Minimum Wage Commission, [1979] 1 S.C.R. 754; Spooner Oils Ltd. v. Turner Valley Gas Conservation Board, [1933] S.C.R. 629; Greater Toronto Airports Authority v. Mississauga (City) (1999), 43 O.R. (3d) 9; Coyne v. Broddy (1887), 13 O.R. 173; R. v. Ontario Labour Relations Board, Ex parte Ontario Food Terminal Board (1963), 38 D.L.R. (2d) 530; Westeel‑Rosco Ltd. v. Board of Governors of South Saskatchewan Hospital Centre, [1977] 2 S.C.R. 238; Halifax (City of) v. Halifax Harbour Commissioners, [1935] S.C.R. 215; Nova Scotia Power Inc. v. Canada, [2004] 3 S.C.R. 53, 2004 SCC 51; R. v. Eldorado Nuclear Ltd., [1983] 2 S.C.R. 551; Queddy River Driving Boom Co. v. Davidson (1883), 10 S.C.R. 222; Attorney‑General for Ontario v. Winner, [1954] A.C. 541; Johannesson v. Rural Municipality of West St. Paul, [1952] 1 S.C.R. 292; Re Orangeville Airport Ltd. and Town of Caledon (1976), 11 O.R. (2d) 546; Monk Corp. v. Island Fertilizers Ltd., [1991] 1 S.C.R. 779; Whitbread v. Walley, [1990] 3 S.C.R. 1273; Zavarovalna Skupnost Triglav v. Terrasses Jewellers Inc., [1983] 1 S.C.R. 283; Canadian Pacific Railway Co. v. Attorney‑General of British Columbia, [1948] S.C.R. 373, aff’d [1950] A.C. 122; Multiple Access Ltd. v. McCutcheon, [1982] 2 S.C.R. 161; Rothmans, Benson & Hedges Inc. v. Saskatchewan, [2005] 1 S.C.R. 188, 2005 SCC 13; Law Society of British Columbia v. Mangat, [2001] 3 S.C.R. 113, 2001 SCC 67; Bank of Montreal v. Hall, [1990] 1 S.C.R. 121; Re Sturmer and Town of Beaverton (1911), 24 O.L.R. 65; M & D Farm Ltd. v. Manitoba Agricultural Credit Corp., [1999] 2 S.C.R. 961.
By Bastarache J.
Referred to: Paul v. British Columbia (Forest Appeals Commission), [2003] 2 S.C.R. 585, 2003 SCC 55; Commission du salaire minimum v. Bell Telephone Co. of Canada, [1966] S.C.R. 767; Bell Canada v. Quebec (Commission de la santé et de la sécurité du travail), [1988] 1 S.C.R. 749; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; Multiple Access Ltd. v. McCutcheon, [1982] 2 S.C.R. 161; 114957 Canada Ltée (Spraytech, Société d’arrosage) v. Hudson (Town), [2001] 2 S.C.R. 241, 2001 SCC 40; Hamilton Harbour Commissioners v. City of Hamilton (1976), 21 O.R. (2d) 459, aff’d (1978), 21 O.R. (2d) 491; Construction Montcalm Inc. v. Minimum Wage Commission, [1979] 1 S.C.R. 754; Greater Toronto Airports Authority v. Mississauga (City) (2000), 50 O.R. (3d) 641; Holman v. Green (1881), 6 S.C.R. 707; Whitbread v. Walley, [1990] 3 S.C.R. 1273; Reference re Waters and Water‑Powers, [1929] S.C.R. 200; Air Canada v. Ontario (Liquor Control Board), [1997] 2 S.C.R. 581.
Statutes and Regulations Cited
Canada Marine Act, S.C. 1998, c. 10, ss. 2(1) “federal real property”, “port facility”, 5 “port”, 7(1), 8(2), 23(1), (2), 28(2), (3), (5), 31(3), 46(1), (2), 48.
Constitution Act, 1867, ss. 91 , 91 (1A), (9) , (10) , (11) , 92 , 92(8) , (10) , (13) , (16) .
Federal Real Property and Federal Immovables Act, S.C. 1991, c. 50, s. 2 .
Payments in Lieu of Taxes Act, R.S.C. 1985, c. M-13 .
Authors Cited
Bakan, Joel, et al., eds. Canadian Constitutional Law, 3rd ed. Toronto: Emond Montgomery, 2003.
Braën, André. Le droit maritime au Québec. Montréal: Wilson & Lafleur, 1992.
Canada. House of Commons. A National Marine Strategy. Report of the Standing Committee on Transport, 1995.
Canada. House of Commons. House of Commons Debates, vol. 135, 1st Sess., 36th Parl., October 10, 1997, p. 766.
Elliot, Robin M. “Constitutional Law—Division of Powers—Interjurisdictional Immunity, Reading Down and Pith and Substance: Ontario Public Service Employees Union v. Attorney‑General for Ontario” (1988), 67 Can. Bar Rev. 523.
Gibson, Dale. “Constitutional Law—Freedom of Commercial Expression under the Charter—Legislative Jurisdiction over Advertising—A Representative Ruling: Attorney General of Quebec v. Irwin Toy Limited” (1990), 69 Can. Bar Rev. 339.
Gibson, Dale. “Interjurisdictional Immunity in Canadian Federalism” (1969), 47 Can. Bar Rev. 40.
Hogg, Peter W. Constitutional Law of Canada, 2nd ed. Toronto: Carswell, 1985.
Hogg, Peter W. Constitutional Law of Canada, vol. 1, loose‑leaf ed. Scarborough, Ont.: Carswell, 1997 (updated 2005, release 1).
Hogg, Peter W., and Patrick J. Monahan. Liability of the Crown, 3rd ed. Scarborough, Ont.: Carswell, 2000.
La Forest, Gérard V. Natural Resources and Public Property under the Canadian Constitution. Toronto: University of Toronto Press, 1969.
Leclair, Jean. “L’étendue du pouvoir constitutionnel des provinces et de l’État central en matière d’évaluation des incidences environnementales au Canada” (1995), 21 Queen’s L.J. 37.
Leclair, Jean. “The Supreme Court of Canada’s Understanding of Federalism: Efficiency at the Expense of Diversity” (2003), 28 Queen’s L.J. 411.
Magnet, Joseph Eliot. Constitutional Law of Canada: Cases, Notes and Materials, vol. 1, 8th ed. Edmonton: Juriliber, 2001.
Monahan, Patrick J. Constitutional Law, 2nd ed. Toronto: Irwin Law, 2002.
Shorter Oxford English Dictionary on Historical Principles, 5th ed. Oxford: Oxford University Press, 2002, “essential”, “support”, “vital”.
Wilkins, Kerry. “Of Provinces and Section 35 Rights” (1999), 22 Dal. L.J. 185.
APPEAL from a judgment of the British Columbia Court of Appeal (Finch C.J.B.C. and Mackenzie and Thackray JJ.A.) (2004), 26 B.C.L.R. (4th) 263, 194 B.C.A.C. 78, 317 W.A.C. 78, 237 D.L.R. (4th) 466, 44 M.P.L.R. (3d) 169, [2004] 7 W.W.R. 27, [2004] B.C.J. No. 355 (QL), 2004 BCCA 104, reversing a decision of Lowry J. (2002), 32 M.P.L.R. (3d) 205, [2002] B.C.J. No. 2245 (QL), 2002 BCSC 1412. Appeal dismissed.
Nancy E. Brown and Nathalie Hepburn Barnes, for the appellant.
James Sullivan and Gloria Chao, for the respondent Lafarge Canada Inc.
D. Geoffrey Cowper, Q.C., and W. Stanley Martin, for the respondent the Vancouver Port Authority.
No one appeared for the respondent the Burrardview Neighbourhood Association.
Patsy J. Scheer, for the respondent the City of Vancouver.
Peter M. Southey, for the intervener the Attorney General of Canada.
Shaun Nakatsuru and Mark Crow, for the intervener the Attorney General of Ontario.
Alain Gingras, for the intervener the Attorney General of Quebec.
Written submissions only by John G. Furey, for the intervener the Attorney General of New Brunswick.
Robert J. Normey and Nick Parker, for the intervener the Attorney General of Alberta.
The judgment of Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ. was delivered by
1 Binnie and LeBel JJ. _ Vancouver possesses by far the busiest port in Canada, and its vast operations constitute not only a vital part of the shipping and transportation industry but generate economic activity, commercial opportunities and environmental concerns for the eight surrounding municipalities. Changing land use patterns and more efficient modern shipping methods (containerization, for example) have released stretches of waterfront for other types of development. Vancouver’s original Coal Harbour is now a forest of luxury hotels and high-priced condominiums. Elsewhere smokestacks have given way to parkland. Warehouses have been converted into trendy office buildings. Yet shipping activities flourish. The realities of mixed transportation/industrial/commercial/residential development along urban waterfronts pose a challenge to the venerable “watertight compartments” division of federal legislative jurisdiction over navigation and shipping, on the one hand, and provincial jurisdiction over property and civil rights on the other. How to give practical effect in the harbour context to the exercise of these potentially conflicting legislative and regulatory powers is the central question posed by this litigation.
2 The immediate controversy is the proposal by the respondent Lafarge Canada Inc. to build an “integrated” ship offloading/concrete batching facility in the east harbour area on what is known as the Sterling Shipyard site. Aggregate is to be barged in by sea from the Sunshine Coast, offloaded, stored temporarily in silos on the waterfront, then mixed with cement, and thereafter dispatched to various construction sites, particularly within downtown Vancouver. Some material like cement is to be trucked in. The mixing component of the facility is described as a “twin batch plant” because the ingredients can either be tumbled on site (“wet mix”) and then loaded and dispatched, or loaded in their original state (“dry mix”) with water added in the rotating drums of concrete trucks. In the latter situation, the ingredients are churned into concrete on the way to a construction site. The respondents contend that as a matter of fact the “twin batch plant” will be integrated into the marine unloading facility.
3 The two levels of government are in agreement that the Lafarge project reflects good planning principles, but objection is taken by the Burrardview Neighbourhood Association (the “Ratepayers”). Their legal argument, advanced in this Court by the provincial attorneys general, is that the City ought to have insisted that Lafarge obtain a City development permit. The respondent, Vancouver Port Authority (“VPA”), replies that as a matter of law no City permit is necessary because VPA lands enjoy interjurisdictional immunity as federal “public property” within the meaning of s. 91 (1A) of the Constitution Act, 1867 , or their management is vital to the VPA’s “federal undertaking” pursuant to the federal s. 91(10) jurisdiction over “navigation and shipping”. In either case, the VPA says provincial land use controls are rendered inoperative. In the alternative, the respondents say, there is operational conflict between the federal land use controls and provincial land use controls, and the conflict, according to the doctrine of federal paramountcy, must be resolved in favour of federal jurisdiction.
4 For the reasons we gave in Canadian Western Bank v. Alberta, [2007] 2 S.C.R. 3, 2007 SCC 22, released concurrently, we agree with the approach outlined by the late Chief Justice Dickson in OPSEU v. Ontario (Attorney General), [1987] 2 S.C.R. 2, at p. 18, in which he characterized the arguments for interjurisdictional immunity as not particularly compelling, and concluded that they ran contrary to the “dominant tide” of Canadian constitutional jurisprudence. In particular, in our view, the doctrine should not be used where, as here, the legislative subject matter (waterfront development) presents a double aspect. Both federal and provincial authorities have a compelling interest. Were there to be no valid federal land use planning controls applicable to the site, federalism does not require (nor, in the circumstances, should it tolerate) a regulatory vacuum, which would be the consequence of interjurisdictional immunity. On the facts, however, there is valid and applicable federal legislation which is in conflict, both in its operation and in its purpose, with the provincial land use legislation and regulations adopted under its authority. The appeal is thus easily resolved in favour of the VPA on the basis of federal paramountcy. The British Columbia Court of Appeal rejected the Ratepayers’ challenge and, for somewhat different reasons, we agree with its conclusion.
5 The appeal should therefore be dismissed.
I. Facts
6 Vancouver harbour, for navigational purposes, is defined as a stretch of 233 kilometres of coastline from Roberts Bank near the U.S. border through Sturgeon Bank, English Bay, and Burrard Inlet to Port Moody. The VPA claims proprietary jurisdiction over 150 kilometres of shoreline. Within Burrard Inlet, the VPA is responsible for approximately 6,000 hectares of seabed and 460 hectares of “upland” (i.e. mostly reclaimed waterfront land).
7 The VPA has adopted a Port Land Use Management Plan (June 1994) (called “Port 2010”) whose “strategic rationale” is set out in part as follows:
. . . the port is situated within an urban region which is also experiencing significant growth. Accordingly, there is a need to effectively plan the interface of these two dynamics. [p. 2]
8 Port 2010 includes adjacent municipalities in its definition of “stakeholders” (p. 12) and acknowledges that
VPC [predecessor to the VPA] will need to work with the municipalities and communities to establish compatible land use plans that support a viable working waterfront. [p. 20]
9 The provincial assessment authority has effectively exempted from local taxes the Sterling Shipyard site and other port lands by assessing them at “nil” for municipal and provincial taxation purposes, although some monies are paid to the municipalities pursuant to the federal Payments in Lieu of Taxes Act, R.S.C. 1985, c. M-13 .
10 The City’s Central Waterfront Official Development Plan (which was adopted by By-law No. 5261, June 19, 1979) states that: “It is recognized that in order to realize the City’s basic objectives, full co-operation will be needed from the various waterfront property owners and authorities. The objectives of the different owners must be clearly understood by the City and must be respected in the planning of the Central Waterfront” (p. 4). Further, the City’s statement of planning policies continues:
The [VPA], which is a federal agency, is a major owner of the land, foreshore and water area of the Central Waterfront. The [VPA] provides vital port functions to the Vancouver Harbour, as well as the region. Such existing port functions should continue to operate effectively in the Central Waterfront. The development of urban uses on [VPA] property should be compatible with essential port functions.
The City recognizes that the [VPA], being a Crown Agency, has control over the uses of its property for port and other functions which are largely port-related and are compatible in character to the area, and is not legally bound by the City’s development regulations. However, [VPA] officials have clearly indicated to the City that they would endeavour to co-operate in achieving City objectives as long as port functions and future port development objectives are not jeopardized. [p. 4]
11 For some years, Lafarge has been attempting to find a suitable waterfront site for a new facility. A previous proposal had also been opposed by ratepayer groups and been rejected by the VPA’s Project Advisory Committee because it was incompatible with existing land uses in the area. In August 2001, Lafarge submitted for approval its present project to be built on land acquired by the VPA the previous year from the City. The site had for many years been used for shipping and industrial purposes. It is physically separated from residential and commercial uses to the south by a transportation corridor that includes roads and four sets of railway tracks. The City had initially planned to put its own asphalt plant on the site. From the City’s planning perspective, the project land lies within the area of Vancouver subject to By-law No. 6718, Burrard Waterfront, enacted August 28, 1990, and zoned CD-1 which allows a concrete batch plant.
12 In 1998, the City had entered into a protocol (called a “Charter”) with the VPA which recited in part that “the Port occupies a major proportion of the waterfront lands in the City of Vancouver, and . . . the [City] provides municipal services and access, essential to the effective operation of the port, and manages development adjacent to the port”. The protocol continues “the City and the . . . Port . . . are both committed to the economic development of the region, the provision of jobs, the efficient movement of goods and people, and the maintenance and enhancement of the environment [and] acknowledge the importance of each to the other, and the necessity for a good working relationship between the two bodies” (A.R., at p. 341). They agreed to “work together . . . ensuring that development on Port lands is compatible with both the economic development of the Port and the interests of the City . . . ensuring that development in the City is compatible with the economic development of the Port and the interests of the City [and] ensuring effective public consultation” (A.R., at p. 341).
13 A policy of Port 2010 is to promote “marine-related” port uses, and the Lafarge project was determined by the VPA (and the City) to qualify as such, stating:
Lafarge’s proposed use of the property includes the barging of aggregate to site. This marine activity is a critical component of their proposed operations. With respect to the batch plant itself, this is essentially a processing operation. There are many examples of processing activities that are permitted on port lands; fish processing plants, grain handling terminals, and a rendering plant, are a few such examples. [A.R., at p. 345]
14 The Ratepayers opposed the Lafarge plant on the Sterling Shipyard site on a number of grounds, including concerns about increased air and noise pollution, truck traffic, loss of trees and visual obstruction of the residents’ view over the harbour. They noted that part of the facility would exceed the City’s 30-foot height restriction. By letter dated January 31, 2002, the Ratepayers demanded that the City assert jurisdiction over the “twin plant” component of the Lafarge project. Underlying the Ratepayers’ position, it is fair to say, was the belief that elected City politicians would likely be more amenable to ratepayer interests than would be the appointed Board of Directors of the VPA.
15 The Lafarge proposal was referred to the City for comment and considered by its Urban Design Panel, which includes design professionals, architects, landscape architects, professional engineers and representatives of the development industry. Its role is to advise the City on significant development proposals. On November 14, 2001, despite Ratepayers’ opposition, the Urban Design Panel gave its support to the Lafarge proposal by a vote of 7 to 1.
16 On March 4, 2002, the Lafarge proposal was considered by the City’s Development Permit Board, which heard comments from City staff, representatives of the Vancouver Coastal Health Authority, the VPA, Lafarge, and 37 members of the public. Some ratepayers expressed opposition. In the end, the Development Permit Board supported the Lafarge proposal, subject to recommending certain modifications with respect to exterior colour, signage, retention of trees, and noise abatement. On March 13, 2002, the City wrote to the VPA indicating approval, subject to the stated modifications.
17 The VPA, in the meantime, had followed its own procedure of internal and external consultation pursuant to its Guide To Project Approvals In Port Vancouver. The VPA’s “Public Review Process” included public meetings and reports from technical advisors retained by the VPA who addressed issues of air quality and noise abatement. The Burrard Environmental Review Committee (comprised of various provincial and federal environmental agencies) also filed a report. These reports were considered by the VPA along with comments and advice from the City and input from the public at a public meeting and through written submissions.
18 On May 27, 2002, the Vice-President of the Ratepayers wrote the Mayor threatening to sue him personally for damages if the City of Vancouver did not assert jurisdiction over the “twin plant” component of the Lafarge project:
Pursuant to Section 208 of the Vancouver Charter, the Mayor’s duties are to enforce the law for government of the City and “to be vigilant and active at all time in causing the law for the government of the City to be duly enforced and obeyed”. I do not believe the conduct of the Staff has assisted the Mayor in being either vigilant or active in ensuring the bylaws are enforced.
. . .
In spite of my personal, positive opinion as to your abilities as Mayor, I feel compelled to tell you that one of the results may be that, in the event that our application to Court is successful, the [Ratepayers] may seek damages or other compensation from you, personally, arising from Section 208.
. . .
It may well be that the position adopted by the Staff and your personal obligations are not the same. [A.R., at p. 874]
19 On July 8, 2002, the VPA issued its Approval in Principle of the Lafarge proposal, subject to certain additional requirements, including satisfactory resolution of the Ratepayers’ challenge over land use jurisdiction. Mr. James P. Crandles, the Director of Port Development testified that the Lafarge project was acceptable because “the marine transportation of aggregate rock, as integrated into the processing of that aggregate rock, is ‘a process related to shipping’. Further, it is consistent with joint transportation-processing-manufacturing practices in other long-term Port of Vancouver industries. Finally, it realizes Policy 2.1 of the Plan, supporting port service industries reliant on waterfront access” (A.R., at p. 412).
The Ratepayers’ Application
20 On April 5, 2002, prior to the VPA’s Approval in Principle, the Ratepayers filed a petition in the Supreme Court of British Columbia objecting that the City had “declined to exercise jurisdiction over the Lands to require Lafarge to obtain a valid development permit as required by the City’s by-laws before any development on the Lands is undertaken” (A.R., at p. 122) and seeking an order
directing the Respondent, City of Vancouver (“City”), to enforce the provisions of its zoning and development by-law no. 3575 (the “By-law”) with respect to the Lands as defined herein and any development by the Respondent, Lafarge Canada Inc. (“Lafarge”) of a concrete batch plant or related facility to be constructed on the Lands, in particular, the mandatory By-law requirement that Lafarge obtain a valid development permit before any such development is undertaken; [A.R., at p. 119]
The Ratepayers also sought ancillary injunctive and declaratory relief.
II. Judicial History
A. Supreme Court of British Columbia (2002), 32 M.P.L.R. (3d) 205, 2002 BCSC 1412
21 Lowry J. accepted the VPA’s formulation of the constitutional issues as follows (at para. 18):
1. Is the land that is the subject of the proposal public property of Canada as contemplated by s. 91 (1A) of the Constitution Ac