R. v. Crown Zellerbach Canada Ltd.

R. v. Crown Zellerbach Canada Ltd.
Collection
Supreme Court Judgments
Date
1988-03-24
Report
[1988] 1 SCR 401
Case number
18526
Judges
Dickson, Robert George Brian; Beetz, Jean; McIntyre, William Rogers; Lamer, Antonio; Wilson, Bertha; Le Dain, Gerald Eric; La Forest, Gérard V.
On appeal from
British Columbia
Subjects
Constitutional law
Notes
SCC Case Information: 18526
Decision Content
r. v. crown zellerbach canada ltd., [1988] 1 S.C.R. 401
Her Majesty The Queen Appellant
v.
Crown Zellerbach Canada Limited Respondent
and
The Attorney General of Quebec and the Attorney General of British Columbia Interveners
indexed as: r. v. crown zellerbach canada ltd.
File No.: 18526.
1986: June 26; 1988: March 24.
Present: Dickson C.J. and Beetz, McIntyre, Lamer, Wilson, Le Dain and La Forest JJ.
on appeal from the court of appeal for british columbia
Constitutional law ‑‑ Distribution of legislative powers ‑‑ Ocean pollution ‑‑ Dumping of waste in provincial marine waters ‑‑ Federal legislation prohibiting dumping of any substance at sea except in accordance with the terms and conditions of a permit ‑‑ Definition of sea in federal legislation including internal waters of Canada other than fresh waters ‑‑ Validity of federal legislation ‑‑ Whether ocean pollution a matter of national concern falling within Parliament's power to legislate in respect of the peace, order and good government of Canada ‑‑ Ocean Dumping Control Act, S.C. 1974‑75‑76, c. 55, s. 4(1) ‑‑ Constitution Act, 1867, s. 91 "preamble".
During the conduct of its logging operations, respondent dumped woodwaste in the waters of Beaver Cove, an area within the province of British Columbia, and was charged with contravening s. 4(1) of the Ocean Dumping Control Act. The federal legislation prohibits the dumping of any substance at sea except in accordance with the terms and conditions of a permit, the sea being defined for the purposes of the Act as including the internal waters of Canada other than fresh waters. The respondent had a permit to dump under the Act, but it did not cover this site. The waters of Beaver Cove are navigable and flow into Johnstone Strait which is connected with the Pacific. There was no evidence of any dispersal of the woodwaste or of any effect on navigation or marine life. At trial, the Provincial Court judge dismissed the charges and the appeal by way of stated case was dismissed. Both the trial judge and the Court of Appeal held that s. 4(1) of the Act was ultra vires Parliament. This appeal is to determine whether s. 4(1) of the Act is constitutional in its application to the dumping of waste in waters, other than fresh waters, within a province.
Held (Beetz, Lamer and La Forest JJ. dissenting): The appeal should be allowed.
Per Dickson C.J. and McIntyre, Wilson and Le Dain JJ.: The Ocean Dumping Control Act is concerned with the dumping of substances which may be shown or presumed to have an adverse effect on the marine environment and may be characterized as directed to the control or regulation of marine pollution. The federal legislative jurisdiction under s. 91(12) of the Constitution Act, 1867 with respect to seacoast and inland fisheries is not sufficient by itself to support the constitutional validity of s. 4(1) of the Act because that section, viewed in the context of the Act as a whole, fails to meet the test laid down by this Court in Fowler v. The Queen, [1980] 2 S.C.R. 213, and Northwest Falling Contractors Ltd. v. The Queen, [1980] 2 S.C.R. 292. While the effect on fisheries of marine pollution caused by the dumping of waste is clearly one of the concerns of the Act, it is not the only effect of such pollution with which the Act is concerned. A basis for federal legislative jurisdiction to control marine pollution generally in provincial waters cannot be found in any of the specified heads of federal jurisdiction in s. 91 of the Constitution Act, 1867 , whether taken individually or collectively.
Section 4(1) of the Ocean Dumping Control Act, however, is constitutionally valid as enacted in relation to a matter falling within the national concern doctrine of the peace, order and good government power of the Parliament of Canada. The national concern doctrine, which is separate and distinct from the national emergency doctrine, applies to both new matters which did not exist at Confederation and to matters which, although originally matters of a local or private nature in a province, have since, in the absence of national emergency, become matters of national concern. For a matter to qualify as a matter of national concern in either sense it must have a singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of provincial concern and a scale of impact on provincial jurisdiction that is reconcilable with the fundamental distribution of legislative power under the Constitution. In determining whether a matter has the requisite singleness, distinctiveness and indivisibility, it is relevant to consider what would be the effect on extra‑provincial interests of a provincial failure to deal effectively with the control or regulation of the intra‑provincial aspects of the matter. The control of marine pollution meets the test. Marine pollution, because of its predominantly extra‑provincial as well as international character and implications, is clearly a matter of concern to Canada as a whole. The pollution of marine waters, including provincial marine waters, by the dumping of substances is sufficiently distinguishable from the pollution of fresh waters by such dumping to meet the requirement of singleness or indivisibility. While in many cases the pollution of fresh waters will have a pollutant effect in the marine waters into which they flow, marine pollution, because of the differences in the composition and action of marine waters and fresh waters, has its own characteristics and scientific considerations that distinguish it from fresh water pollution. Moreover, the distinction between salt water and fresh water as limiting the application of the Ocean Dumping Control Act meets the consideration, emphasized by a majority of this Court in the Anti‑Inflation Act reference, [1976] 2 S.C.R. 373, that in order for a matter to qualify as one of national concern falling within the federal peace, order and good government power it must have ascertainable and reasonable limits, in so far as its impact on provincial jurisdiction is concerned.
Per Beetz, Lamer and La Forest JJ. (dissenting): Under its general power respecting peace, order and good government, Parliament may legislate for the control of pollution in areas of the ocean falling outside provincial jurisdiction, and in so doing, Parliament is not confined to regulating activities taking place within those areas. In an application of the doctrine of national dimensions of the general power, Parliament may take steps to prevent activities in a province, such as dumping substances in provincial waters or emitting substances into the air, which pollute or have the potential to pollute the sea outside the province. Parliament's power to control ocean pollution under its general power may also be complemented by provisions made pursuant to the criminal law power. However, while Parliament may undoubtedly prohibit the dumping of anything into federal waters, such prohibitions against dumping substances into provincial waters must be linked to some federal power. Indeed, to respect the scheme of federalism provided by the Constitution, there must be an attempt to link the proscribed conduct and the actual or potential harm to what is sought to be protected‑‑here, the ocean. In the present case, s. 4(1) of the Ocean Dumping Control Act was ultra vires Parliament as there was no evidence of any such link. The provision was a blanket prohibition against depositing any substance in waters without regard to its nature or amount.
The control of the environment is not a proper subject for incorporation into the peace, order and good government power under the national dimensions doctrine. All physical activities have some environmental impact. Possible legislative responses to such activities cover a large number of the enumerated legislative powers, federal and provincial. To allocate the broad subject‑matter of the environmental control to the federal sphere under its general power would effectively gut provincial legislative jurisdiction and sacrifice the principles of federalism enshrined in the Constitution. Further, pollution is not a new phenomenon, and neither are many of the kinds of activities that result in pollution.
The same considerations apply to the creation of an environmental power restricted to the control of ocean pollution. Such subject is not marked by a singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of provincial concern. Marine waters are not wholly bounded by the coast and cannot be demarcated clearly. Moreover, the proposed federal power would have an impact on provincial jurisdiction irreconcilable with the division of legislative power under the Constitution. Finally, Parliament already has extensive powers to deal with conditions that lead to ocean pollution wherever they occur. The difficulty with the impugned provision in this case is that it seeks to deal with activities that could not be demonstrated either to pollute or to have a reasonable potential of polluting the ocean. The provision simply overreaches and, in its terms, encompasses activities‑‑depositing innocuous substances into provincial waters by local undertakings on provincial lands‑‑that fall within the exclusive legislative jurisdiction of the province. The federal Parliament does not have such wide legislative power over local matters having local import taking place on provincially owned property. The prohibition in essence constitutes an impermissible attempt to control activities on property held to be provincial.
Cases Cited
By Le Dain J.
Considered: Johannesson v. Municipality of West St. Paul, [1952] 1 S.C.R. 292; Munro v. National Capital Commission, [1966] S.C.R. 663; Re: Anti‑Inflation Act, [1976] 2 S.C.R. 373; R. v. Hauser, [1979] 1 S.C.R. 984; Labatt Breweries of Canada Ltd. v. Attorney General of Canada, [1980] 1 S.C.R. 914; Schneider v. The Queen, [1982] 2 S.C.R. 112; R. v. Wetmore, [1983] 2 S.C.R. 284; Fort Frances Pulp & Power Co. v. Manitoba Free Press Co., [1923] A.C. 695; Northwest Falling Contractors Ltd. v. The Queen, [1980] 2 S.C.R. 292; Fowler v. The Queen, [1980] 2 S.C.R. 213; Interprovincial Co‑operatives Ltd. v. The Queen, [1976] 1 S.C.R. 477; referred to: Attorney‑General for Ontario v. Attorney‑General for the Dominion, [1896] A.C. 348; Attorney‑General for Ontario v. Canada Temperance Federation, [1946] A.C. 193; MacDonald v. Vapor Canada Ltd., [1977] 2 S.C.R. 134; Reference re Ownership of the Bed of the Strait of Georgia and Related Areas (1976), 1 B.C.L.R. 97, aff'd [1984] 1 S.C.R. 388.
By La Forest J. (dissenting)
Fowler v. The Queen, [1980] 2 S.C.R. 213; Northwest Falling Contractors Ltd. v. The Queen, [1980] 2 S.C.R. 292; Interprovincial Co‑operatives Ltd. v. The Queen, [1976] 1 S.C.R. 477; Reference re Ownership of the Bed of the Strait of Georgia and Related Areas, [1984] 1 S.C.R. 388; Re: Anti‑Inflation Act, [1976] 2 S.C.R. 373; Reference re Validity of Section 5(a) of the Dairy Industry Act, [1949] S.C.R. 1; MacDonald v. Vapor Canada Ltd., [1977] 2 S.C.R. 134; Reference re Offshore Mineral Rights of British Columbia, [1967] S.C.R. 792; Reference re Newfoundland Continental Shelf, [1984] 1 S.C.R. 86; Re Canada Metal Co. and The Queen (1982), 144 D.L.R. (3d) 124; Saumur v. City of Quebec, [1953] 2 S.C.R. 299; Attorney‑General for Canada v. Attorney‑General for British Columbia, [1930] A.C. 111; In re Regulation and Control of Radio Communication in Canada, [1932] A.C. 304; Johannesson v. Municipality of West St. Paul, [1952] 1 S.C.R. 292; Munro v. National Capital Commission, [1966] S.C.R. 663; R. v. Hauser, [1979] 1 S.C.R. 984; Schneider v. The Queen, [1982] 2 S.C.R. 112.
Statutes and Regulations Cited
Constitution Act, 1867, ss. 91 "preamble", (9), (10), (12), (13), (27), 92(5), (10), (13), (16).
Constitution Act, 1871 (U.K.), 34 & 35 Vict., c. 28, s. 4.
Convention on the Law of the Sea (1982).
Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matter, signed by Canada on December 29, 1972, Art. I, III(3).
Ocean Dumping Control Act, S.C. 1974‑75‑76, c. 55, ss. 2(1) "Convention", "dumping", (2), (3), 4(1), (2), 5(2), 9, 10, 13(1)(c), 28(3), Schedules I [am. SOR/81‑721], II [am. idem], III.
Authors Cited
Beaudoin, Gérald A. "La protection de l'environnement et ses implications en droit constitutionnel" (1977), 23 McGill L.J. 207.
Gibson, Dale. "Measuring `National Dimensions'" (1976), 7 Man. L.J. 15.
Great Lakes Science Advisory Board to the International Joint Commission. 1980 Annual Report: A Perspective on the Problem of Hazardous Substances in the Great Lakes Basin Ecosystem, presented November 13, 1980, Toronto.
Great Lakes Science Advisory Board to the International Joint Commission. "Assessment of Airborne Contaminants in the Great Lakes Basin Ecosystem" in Appendix A & B of the 1980 Annual Report of the Great Lakes Science Advisory Board to the International Joint Commission, presented November 13, 1980, Toronto.
Hogg, Peter W. Constitutional Law of Canada. Toronto: Carswells, 1977.
Hogg, Peter W. Constitutional Law of Canada, 2nd ed. Toronto: Carswells, 1985.
Le Dain, Gerald. "Sir Lyman Duff and the Constitution" (1974), 12 Osgoode Hall L.J. 261.
Lederman, William R. "Unity and Diversity in Canadian Federalism: Ideals and Methods of Moderation" (1975), 53 Can. Bar Rev. 597.
UNESCO. IMCO/FAO/UNESCO/WMO/WHO/IAEA/UN/UNEP Joint Group of Experts on the Scientific Aspects of Marine Pollution (Gesamp). The Review of the Health of the Oceans. Reports and Studies No. 15, 1982.
APPEAL from a judgment of the British Columbia Court of Appeal (1984), 51 B.C.L.R. 32, 7 D.L.R. (4th) 449, [1984] 2 W.W.R. 714, 11 C.C.C. (3d) 113, 13 C.E.L.R. 29, dismissing an appeal by way of stated case from a judgment of the Provincial Court (1982), 11 C.E.L.R. 151, dismissing charges under s. 4(1) of the Ocean Dumping Control Act. Appeal allowed, Beetz, Lamer and La Forest JJ. dissenting.
T. B. Smith, Q.C., and D. R. Kier, Q.C., for the appellant.
Duncan W. Shaw, Q.C., and Brian D. Gilfillan, for the respondent.
Odette Laverdière, for the intervener the Attorney General of Quebec.
E. Robert A. Edwards, Q.C., for the intervener the Attorney General of British Columbia.
The judgment of Dickson C.J. and McIntyre, Wilson and Le Dain JJ. was delivered by
1. Le Dain J.‑‑The question raised by this appeal is whether federal legislative jurisdiction to regulate the dumping of substances at sea, as a measure for the prevention of marine pollution, extends to the regulation of dumping in provincial marine waters. In issue is the validity of s. 4(1) of the Ocean Dumping Control Act, S.C. 1974‑75‑76, c. 55, which prohibits the dumping of any substance at sea except in accordance with the terms and conditions of a permit, the sea being defined for the purposes of the Act as including the internal waters of Canada other than fresh waters.
2. The appeal is by leave of this Court from the judgment on January 26, 1984 of the British Columbia Court of Appeal (1984), 51 B.C.L.R. 32, 7 D.L.R. (4th) 449, [1984] 2 W.W.R. 714, 11 C.C.C. (3d) 113, 13 C.E.L.R. 29, dismissing an appeal by way of stated case from the judgment on May 26, 1982 of Schmidt Prov. Ct. J. (1982), 11 C.E.L.R. 151, who dismissed charges against the respondent of unlawfully dumping in the waters of Johnstone Strait near Beaver Cove in the province of British Columbia on the ground that s. 4(1) of the Ocean Dumping Control Act is ultra vires the Parliament of Canada.
I
3. The general purpose of the Ocean Dumping Control Act is to regulate the dumping of substances at sea in order to prevent various kinds of harm to the marine environment. The Act would appear to have been enacted in fulfilment of Canada's obligations under the Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matter, which was signed by Canada on December 29, 1972. That is not expressly stated in the Act, but there are several references to the Convention in the Act (see ss. 2(1), 4(2), 5(2), 9(6) and 28(3)), and Schedules I, II and III of the Act, with reference to "Prohibited Substances", "Restricted Substances" and "Factors To Be Taken Into Account In Granting Permits", appear to be modelled closely on Annexes I, II and III of the Convention. The Schedules of the Act have been amended to incorporate amendments to the Annexes of the Convention (see P.C. 1981‑2509, September 16, 1981, SOR/81‑721, September 21, 1981).
4. The concerns of the Act are reflected in the nature of the prohibited and restricted substances in Schedules I and II and in the factors to be taken into account by the Minister of the Environment in granting permits to dump, which are set out in ss. 9 and 10 of the Act and in Schedule III. What these provisions indicate is that the Act is concerned with marine pollution and its effect on marine life, human health and the amenities of the marine environment. There is also reference to the effect of dumping on navigation and shipping and other legitimate uses of the sea.
5. Section 4(1) of the Act, with the contravention of which the respondent was charged, reads as follows:
4. (1) No person shall dump except in accordance with the terms and conditions of a permit.
6. "Dumping" is defined by s. 2(1) of the Act as follows:
2. (1) In this Act,
...
"dumping" means any deliberate disposal from ships, aircraft, platforms or other man‑made structures at sea of any substance but does not include
(a) any disposal that is incidental to or derived from the normal operations of a ship or an aircraft or of any equipment thereof other than the disposal of substances from a ship or aircraft operated for the purpose of disposing of such substances at sea, and
(b) any discharge that is incidental to or derived from the exploration for, exploitation of and associated off‑shore processing of sea bed mineral resources;
7. "The sea" is defined, for the purposes of the Act, by s. 2(2) and (3) as follows:
2. ...
(2) For the purposes of this Act, "the sea" means
(a) the territorial sea of Canada;
(b) the internal waters of Canada other than inland waters;
(c) any fishing zones prescribed pursuant to the Territorial Sea and Fishing Zones Act;
(d) the arctic waters within the meaning of the Arctic Waters Pollution Prevention Act ;
(e) any area of the sea adjacent to the areas referred to in paragraphs (a) to (d) as may be prescribed;
(f) any area of the sea, under the jurisdiction of a foreign state, other than internal waters; and
(g) any area of the sea, other than the internal waters of a foreign state, not included in the areas of the sea referred to in paragraphs (a) to (f).
(3) For the purposes of paragraph (2)(b), "inland waters" means all the rivers, lakes and other fresh waters in Canada and includes the St. Lawrence River as far seaward as the straight lines drawn
(a) from Cap des Rosiers to the western‑most point of Anticosti Island; and
(b) from Anticosti Island to the north shore of the St. Lawrence River along the meridian of longitude sixty‑three degrees west.
8. Sections 9 and 10 of the Act respecting the authority of the Minister of the Environment to grant permits to dump read in part as follows:
9. (1) Subject to subsections (4) and (5), the Minister may grant any permit required by this Act upon receipt of an application in prescribed form.
...
(4) No permit may be granted under this section if the dumping or disposal described in the application is prohibited under any other Act of Parliament or if a licence or permit for such dumping or disposal is required under any such other Act and the licence or permit has not been obtained.
(5) No permit may be granted in respect of a substance specified in Schedule I unless, in the opinion of the Minister,
(a) the substance is rapidly rendered harmless by physical, chemical or biological process of the sea and does not render normally edible marine organisms inedible or unpalatable or endanger human health or the health of animals;
(b) with respect to any substance specified in items 1 to 5 of that Schedule, such substance is contained in another substance in a quantity or concentration that does not exceed the maximum quantity or concentration prescribed;
(c) the dumping or disposal of a certain quantity of the substance is necessary to avert an emergency that poses an unacceptable risk relating to human health and admits of no other feasible solution; or
(d) where the substance is to be transformed by incineration or other means of thermal degradation, any substance that results from such transformation is
(i) a substance specified in Schedule I in respect of which a permit may be granted by virtue of paragraph (a) or (b), or
(ii) a substance that is not specified in Schedule I.
...
10. (1) Upon receipt of an application the Minister, in determining whether to grant the permit,
(a) shall take into account the factors set out in Schedule III; and
(b) may take into account any other factors that he deems necessary.
(2) A permit shall contain such terms and conditions as the Minister deems necessary in the interests of human life, marine life or any legitimate uses of the sea and, without limiting the generality of the foregoing, may contain terms and conditions relating to such of the following as are applicable:
(a) the nature of the substance that may be dumped or disposed of and the quantity thereof;
(b) the method and frequency of dumping or disposal authorized including, if necessary, the date or dates on which dumping or disposal is authorized;
(c) the manner of loading and stowing the substance authorized to be dumped or disposed of;
(d) the site at which dumping or disposal may take place;
(e) the route to be followed by the ship or aircraft transporting the substance to the site of the dumping or disposal; and
(f) any special precautions to be taken respecting the loading, transporting, dumping or disposal of the substance.
9. Schedules I, and II, as amended by P.C. 1981‑2509 of September 16, 1981, and Schedule III of the Act are as follows:
SCHEDULE I
PROHIBITED SUBSTANCES
1. Organohalogen compounds.
2. Mercury and mercury compounds.
3. Cadmium and cadmium compounds.
4. Persistent plastics and other persistent synthetic materials.
5. Crude oil and its wastes, refined petroleum products, petroleum distillate residues and any mixtures containing any of those substances.
6. High‑level radioactive wastes or other high‑level radioactive matter that may be prescribed.
7. Substances in whatever form produced for biological and chemical warfare.
SCHEDULE II
RESTRICTED SUBSTANCES
1. Arsenic and its compounds.
2. Lead and its compounds.
3. Copper and its compounds.
4. Zinc and its compounds.
5. Organosilicon compounds.
6. Cyanides.
7. Fluorides.
8. Pesticides and their by‑products not included in Schedule I.
9. Beryllium and its compounds.
10. Chromium and its compounds.
11. Nickel and its compounds.
12. Vanadium and its compounds.
13. Containers and scrap metal.
14. Radioactive wastes or other radioactive matter not included in Schedule I.
15. Substances that by reason of their bulk would interfere with fishing.
16. Substances that, though of a non‑toxic nature, may become harmful due to the quantities in which they are dumped, or that are liable to seriously reduce amenities.
SCHEDULE III
FACTORS TO BE TAKEN INTO ACCOUNT IN GRANTING PERMITS
1. characteristics and composition of substance
(1) Total amount and average composition of substance dumped (e.g. per year).
(2) Form (e.g. solid, sludge, liquid or gaseous).
(3) Properties: physical (e.g. solubility and density), chemical and biochemical (e.g. oxygen demand, nutrients) and biological (e.g. presence of viruses, bacteria, yeasts and parasites).
(4) Toxicity.
(5) Persistence: physical, chemical and biological.
(6) Accumulation and biotransformation in biological materials or sediments.
(7) Susceptibility to physical, chemical and biochemical changes and interaction in the aquatic environment with other dissolved organic and inorganic materials.
(8) Probability of production of taints or other changes reducing marketability of resources (fish and shellfish).
2. characteristics of dumping site and method of deposit
(1) Location (e.g. co‑ordinates of the dumping site, depth and distance from the coast) and location in relation to other areas (e.g. amenity areas, spawning, nursery and fishing areas and exploitable resources).
(2) Rate of disposal per specific period (e.g. quantity per day, per week, per month).
(3) Methods of packaging and containment, if any.
(4) Initial dilution achieved by proposed method of release.
(5) Dispersal characteristics (e.g. effects of currents, tides and wind on horizontal transport and vertical mixing).
(6) Water characteristics (e.g. temperature, pH, salinity, stratification, oxygen indices of pollution‑‑dissolved oxygen (DO), chemical oxygen demand (COD), biochemical oxygen demand (BOD)‑‑nitrogen present in organic and mineral form including ammonia, suspended matter, other nutrients and productivity).
(7) Bottom characteristics (e.g. topography, geochemical and geological characteristics and biological productivity).
(8) Existence and effects of other dumpings that have been made in the dumping site (e.g. heavy metal background reading and organic carbon content).
(9) In issuing a permit for dumping, consideration should be given whether an adequate scientific basis exists for assessing the consequences of such dumping, as outlined in this Schedule taking into account seasonal variations.
3. general considerations and conditions
(1) Possible effects on amenities (e.g. presence of floating or stranded material, turbidity, objectionable odour, discoloration and foaming).
(2) Possible effects on marine life, fish and shellfish culture, fish stocks and fisheries, seaweed harvesting and culture.
(3) Possible effects on other uses of the sea (e.g. impairment of water quality for industrial use, underwater corrosion of structures, interference with ship operations from floating substances, interference with fishing or navigation through deposit of waste or solid objects on the sea floor and protection of areas of special importance for scientific or conservation purposes).
(4) The practical availability of alternative land based methods of treatment, disposal or elimination, or of treatment to render the matter less harmful for dumping at sea.
10. Section 13(1) of the Act provides:
13. (1) Every person who contravenes section 4, 5 or 6 is guilty of an offence and is liable on summary conviction to a fine not exceeding
(a) one hundred thousand dollars, where the offence involves a substance specified in Schedule I;
(b) seventy‑five thousand dollars, where the offence involves a substance specified in Schedule II; or
(c) fifty thousand dollars, where the offence involves any substance not specified in Schedule I or II.
11. The respondent was charged, in an information consisting of two counts, with contravening s. 4(1) of the Act, and thereby committing an offence under s. 13(1)(c) as follows:
Count 1: On or about the 16th day of August, A.D. 1980, in the waters of Johnstone Strait near Beaver Cove, Province of British Columbia, did unlawfully dump except in accordance with the terms and conditions of a permit in contravention of Section 4 of the Ocean Dumping Control Act, thereby committing an offence under Section 13(1)(c) of the said Act.
Count 2: On or about the 17th day of August, A.D. 1980, in the waters of Johnstone Strait near Beaver Cove, Province of British Columbia, did unlawfully dump except in accordance with the terms and conditions of a permit in contravention of Section 4 of the Ocean Dumping Control Act, thereby committing an offence under Section 13(1)(c) of the said Act.
12. The admitted facts concerning the location and nature of the dumping with which the respondent was charged are as follows. The respondent carries on logging operations on Vancouver Island in connection with its forest products business in British Columbia and maintains a log dump on a water lot leased from the provincial Crown for the purpose of log booming and storage in Beaver Cove, off Johnstone Strait, on the northeast side of Vancouver Island. The waters of Beaver Cove are inter fauces terrae, or as put in the stated case, "Beaver Cove is of such size that a person standing on the shoreline of either side of Beaver Cove can easily and reasonably discern between shore and shore of Beaver Cove." On August 16 and 17, 1980 the respondent, using an 80‑foot crane operating from a moored scow, dredged woodwaste from the ocean floor immediately adjacent to the shoreline at the site of its log dump in Beaver Cove and deposited it in the deeper waters of the cove approximately 60 to 80 feet seaward of where the woodwaste had been dredged. The purpose of the dredging and dumping was to allow a new A‑frame structure for log dumping to be floated on a barge to the shoreline for installation there and to give clearance for the dumping of bundled logs from the A‑frame structure into the waters of the log dump area. The woodwaste consisted of waterlogged logging debris such as bark, wood and slabs. There is no evidence of any dispersal of the woodwaste or any effect on navigation or marine life. At the relevant time the only permit held by the respondent under the Act was one issued on or about July 28, 1980, effective until July 25, 1981, to dump at a site in Johnstone Strait some 2.2 nautical miles from the place where the woodwaste was dumped.
13. In the Provincial Court of British Columbia, Schmidt Prov. Ct. J. found that the waters of Beaver Cove in which the woodwaste was dumped are within the province of British Columbia. In support of this finding he referred to the judgment of the British Columbia Court of Appeal in Reference re Ownership of the Bed of the Strait of Georgia and Related Areas (1976), 1 B.C.L.R. 97, in which a majority of the Court held that the waters of Johnstone Strait, of which Beaver Cove forms part, are within British Columbia. (An appeal from this judgment was subsequently dismissed by this Court in Reference re Ownership of the Bed of the Strait of Georgia and Related Areas, [1984] 1 S.C.R. 388.) Schmidt Prov. Ct. J. held that the regulation of the dumping of woodwaste in the respondent's log dump area in Beaver Cove, as part of the respondent's logging operations, fell within provincial legislative jurisdiction under head 92(5) of the Constitution Act, 1867 ‑‑"The Management and Sale of Public Lands belonging to the Province and of the Timber and Wood thereon". He further held that the regulation of such dumping did not fall within federal legislative jurisdiction under head 91(10)‑‑"Navigation and Shipping"‑‑or under head 91(12)‑‑"Sea Coast and Inland Fisheries". Applying this Court's judgment in Fowler v. The Queen, [1980] 2 S.C.R. 213, he concluded that s. 4(1) of the Act "makes no attempt to link the proscribed conduct to actual or potential harm to fisheries or to interference with navigation or shipping." Finally, Schmidt Prov. Ct. J. rejected the respondent's contention that the Parliament of Canada had legislative jurisdiction to enact s. 4(1) under its treaty implementation power. Applying what was said by Laskin C.J. in MacDonald v. Vapor Canada Ltd., [1977] 2 S.C.R. 134, he held that there was not a sufficiently clear indication in the Act that it was enacted in implementation of the Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matter. In the result, Schmidt Prov. Ct. J. held s. 4(1) of the Act to be ultra vires the Parliament of Canada and dismissed the charges against the respondent.
14. The appeal by way of stated case from this judgment was dismissed by unanimous judgment of the British Columbia Court of Appeal (Carrothers, Aikens and Macdonald JJ.A.) Macdonald J.A., delivering the judgment of the Court, rejected the appellant's contentions based on federal jurisdiction with respect to navigation and shipping and seacoast and inland fisheries for the same reason as that adopted by Schmidt Prov. Ct. J. Applying the judgments of this Court in Fowler, supra, and Northwest Falling Contractors Ltd. v. The Queen, [1980] 2 S.C.R. 292, he concluded that the Act made no attempt to link the proscribed conduct to actual or potential harm to navigation or fisheries and thus failed to meet the test laid down in those cases. Macdonald J.A. also rejected the appellant's contention based on federal jurisdiction to implement treaties, in reliance on what was said by Laskin C.J. in MacDonald v. Vapor Canada Ltd., supra. Macdonald J.A. held that the dumping of substances in Beaver Cove was a matter that fell within provincial legislative jurisdiction under heads 92(5), 92(13) and 92(16) of the Constitution Act, 1867 . He rejected the contention that it was part of a new matter, referred to as pollution of the sea, which did not exist at the time of Confederation, and not being a matter of a merely local or private nature in the province, fell within the peace, order and good government power of the Parliament of Canada on the authority of the judgment of this Court in R. v. Hauser, [1979] 1 S.C.R. 984.
15. On the appeal to this Court the constitutional question was framed as follows:
Is section 4(1) of the Ocean Dumping Control Act, S.C. 1974‑75‑76, c. 55, ultra vires of the Parliament of Canada, and, in particular, is it ultra vires of the Parliament of Canada in its application to the dumping of waste in the waters of Beaver Cove, an area within the province of British Columbia?
II
16. As the constitutional question indicates, the issue raised by the appeal is the constitutionality of the application of s. 4(1) of the Act to the dumping of waste in waters, other than fresh waters, within a province. The respondent concedes, as it must, that Parliament has jurisdiction to regulate dumping in waters lying outside the territorial limits of any province. It also concedes that Parliament has jurisdiction to regulate the dumping of substances in provincial waters to prevent pollution of those waters that is harmful to fisheries, if the federal legislation meets the test laid down in the Fowler and Northwest Falling cases. It further concedes, in view of the opinion expressed in this Court in Interprovincial Co‑operatives Ltd. v. The Queen, [1976] 1 S.C.R. 477, that Parliament has jurisdiction to regulate the dumping in provincial waters of substances that can be shown to cause pollution in extra‑provincial waters. What the respondent challenges is federal jurisdiction to control the dumping in provincial waters of substances that are not shown to have a pollutant effect in extra‑provincial waters. The respondent contends that on the admitted facts that is precisely the present case. The respondent submits that in so far as s. 4(1) of the Act can only be read as purporting to apply to such dumping it is ultra vires and, alternatively, that it should be read, if possible, so as not to apply to such dumping. In either case the appeal must fail. The Attorney General of British Columbia, who supported the attack on s. 4(1), as applied to the dumping of waste in Beaver Cove, and with whom the Attorney General of Quebec agreed, made a similar submission that s. 4(1) should be read down so as not to apply to dumping in provincial waters. He submitted that the constitutional question should be answered as follows: "Section 4(1) of the Ocean Dumping Control Act is constitutionally inapplicable to marine waters within a province and, therefore, the definition of `the sea' in s. 2(2) of the Act must be read to exclude from the term `internal waters of Canada' in paragraph (b) those internal waters which are within a province."
17. In this Court the Attorney General of Canada did not contend that there was a sufficient connection between the Act and navigation to support the validity of s. 4(1) on the basis of federal jurisdiction with respect to navigation and shipping. He did submit, as I understood his argument, that there was a sufficient connection between the Act and the protection of fisheries to meet the test laid down in Fowler and Northwest Falling, but I did not understand him to place very great reliance on this submission. His principal submission in this Court was that the control of dumping in provincial marine waters, for the reasons indicated in the Act, was part of a single matter of national concern or dimension which fell within the federal peace, order and good government power. He characterized this matter as the prevention of ocean or marine pollution. His reliance on the specific heads of federal jurisdiction with respect to navigation and shipping and seacoast and inland fisheries, as well as others of a maritime nature, was rather as indicating, in his submission, the scope that should be assigned to federal jurisdiction under the peace, order and good government power to regulate the dumping of substances for the prevention of marine pollution. The Attorney General of Canada made it plain that he was not relying in this Court on ancillary or necessarily incidental power. His contention was that the control of dumping in provincial marine waters was an integral part of a single matter of national concern. Nor did he rely in this Court on the peace, order and good government power as a basis of federal jurisdiction to enact the Ocean Dumping Control Act in implementation of the Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matter. He referred to the Convention and its Annexes as indicating the mischief to which the Act is directed and as supporting his characterization of the matter in relation to which the Act was enacted. In his factum the Attorney General of Canada also placed some reliance on the federal criminal law power under s. 91(27) of the Constitution Act, 1867 , as a constitutional basis for the enactment of s. 4(1) of the Act as a measure for the prevention of injury to public health, but I did not understand him to press this contention in his oral argument.
18. Before considering the relationship of the subject‑matter of the Act to the possible bases of federal legislative jurisdiction something more should be said about the characterization of that subject‑matter, according to the respective contentions of the parties. As I have indicated, the appellant contends that the Act is directed to the control or regulation of marine pollution, the subject‑matter of the Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matter. The respondent, on the other hand, contends that by its terms the Act is directed at dumping which need not necessarily have a pollutant effect. It prohibits the dumping of any substance, including a substance not specified in Schedule I or Schedule II, except in accordance with the terms and conditions of a permit. In my opinion, despite this apparent scope, the Act, viewed as a whole, may be properly characterized as directed to the control or regulation of marine pollution, in so far as that may be relevant to the question of legislative jurisdiction. The chosen, and perhaps only effective, regulatory model makes it necessary, in order to prevent marine pollution, to prohibit the dumping of any substance without a permit. Its purpose is to require a permit so that the regulatory authority may determine before the proposed dumping has occurred whether it may be per