Case information

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Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

The Lands which are the subject of this appeal (the “Lands”) are owned by the Respondent Vancouver Port Authority (“VPA”), a federal Crown corporation. In August 2001, the Respondent Lafarge Canada Inc. (“Lafarge”) submitted a proposal to the VPA to lease the Lands and construct a marine terminal for the offloading and storage of aggregate shipped to Vancouver from sand and gravel pits on the Sunshine Coast. The facility is to include an integrated batch plant where the aggregate would be mixed with cement and water to make concrete.

The Lands are within an area of the City of Vancouver that is subject to by-law No. 58, governing land-use development. The making of concrete is one of the permitted uses, but the VPA and LaFarge maintain that they do not need to apply for a development permit. Environmental concerns gave rise to resistance to the proposal. These considerations received high level review from the VPA. The City of Vancouver also considered the proposal in an advisory capacity, and the proposal has the support of various municipal committees, subject to some recommendations. The VPA approved the proposal, subject to recommendations, and intends to lease the land to Lafarge.

The Burrard Neighbourhood Association brought a petition seeking declaratory and injunctive relief. It contends that the VPA can lease the land for the development of a marine terminal, but that it cannot be given authority to lease the land for the construction of a batch plant. It sought an order compelling the City to enforce its by-law and enjoining the VPA from authorizing and Lafarge from constructing the batch plant. Lafarge and the VPA argue that the Lands are “public property” of Canada, as contemplated by s. 91(1A) “The Public Debt and Property” of the Constitution Act, 1867 and is therefore exempt from provincial or local laws even if occupied by a private entity. They also claimed that the proposed use falls within the federal legislative domain because under s. 91(10) of the Constitution Act, there is exclusive federal power to legislate in respect of navigation and shipping. The federal government can authorize land uses integrated with marine-based berthing, unloading, and storage, and the doctrine of interjurisdictional immunity applies to render the City of Vancouver’s by-law inapplicable. They further contend that the VPA has been authorized to lease the land for the proposed purpose, but that that issue is within the exclusive jurisdiction of the Federal Court of Canada.

The Supreme Court of British Columbia granted the Association’s application and made a declaration that the VPA cannot lease the Lands to Lafarge for the purpose of constructing a batch plant to make concrete. The parties subsequently met with the chambers judge, but he declined to vary the judgment. The Court of Appeal of British Columbia allowed the appeal.