Early Recovered Resources Inc. v. British Columbia

Early Recovered Resources Inc. v. British Columbia
Court (s) Database
Federal Court Decisions
Date
2005-07-18
Neutral citation
2005 FC 995
File numbers
T-588-00
Notes
Reported Decision
Decision Content
Date: 20050718
Docket: T-588-00
Citation: 2005 FC 995
Ottawa, Ontario, this 18th day of July, 2005
Present: The Honourable Justice James Russell
BETWEEN:
EARLY RECOVERED RESOURCES INC.
Plaintiff
and
HER MAJESTY IN RIGHT OF THE PROVINCE OF BRITISH COLUMBIA,
JIM DOYLE, MINISTER OF FORESTS
COAST FOREST PRODUCTS ASSOCIATION, and
INDEPENDENT TIMBER MARKETING ASSOCIATION
Defendants
REASONS FOR JUDGMENT AND JUDGMENT
NATURE OF THE PROCEEDING
[1] This proceeding is about the constitutional competence to regulate the recovery of No Mark Visible (NMV) logs from the Fraser River in British Columbia. The source and ownership of the logs in this case cannot be determined.
[2] The Plaintiff has conceived and presented the matter as a test case that calls upon the Court to consider and rule upon the constitutional validity, applicability or effect of Part 9 of the Forest Act, R.S.B.C. 1996, c. 157 ("Forest Act"), and the associated Log Salvage Regulation for the Vancouver Log Salvage District, B.C. Reg. 220/81 as amended ("Log Salvage Regulation").
[3] In effect, the Plaintiff says that Part 9 of the Forest Act is unconstitutional because it is ultra vires the British Columbia legislature by virtue of the federal government's exclusive jurisdiction over navigation and shipping under s. 91(10) of the Constitution Act, (1982), and by virtue of s. 52 of the Constitution Act, (1982).
[4] In the alternative, the Plaintiff claims that if Part 9 of the Forest Act is not ultra vires the Province it is inoperative to the extent that it conflicts with the Canada Shipping Act, R.S.C. 1985, c. 5-9 ("Shipping Act"), and the International Convention on Salvage, 1989 ("Convention") that has been incorporated into Canadian domestic law through s. 449.1 of the Shipping Act and which came into force in Canada on July 14, 1996.
[5] Her Majesty in Right of British Columbia and Jim Doyle, Minister of Forests ("Province") say that Part 9 of the Forest Act is constitutionally valid because it deals with matters that come within the exclusive jurisdiction of the legislature of British Columbia. The Province takes the position that Part 9 of the Forest Act is, in pith and substance, legislation that falls within the purview of the following sections of the Constitution Act, (1982):
(a) 92(5) - the Management and Sale of Timber and Wood on Public Lands belonging to the Province;
(b) 92(10) - Local Works and Undertakings;
(c) 92(13) - Property and Civil Rights in the Province; and
(d) 92(16) - Generally all matters of a merely local or private nature in the Province.
[6] In the alternative, the Province says that, to the extent that the Shipping Act and the Convention purport to regulate the recovery, sale and distribution of the proceeds of sale of logs in British Columbia, they are not valid legislation in relation to navigation and shipping, and so must be ultra vires the Parliament of Canada.
[7] Coast Forest Products Association, formerly coast Forest and Lumber Association ("Coast"), and Independent Timber Marketing Association ("Timber Marketing") support the position of the Province. Coast is a provincial non-profit association whose members include all of the major, and many of the smaller, forest product and logging companies operating in coastal areas of British Columbia. Timber Marketing is also a provincial association whose membership is composed of some of the log brokers, and some of the smaller logging companies, operating in the coastal areas of British Columbia.
[8] Coast and Timber Marketing were added as parties to this dispute by order of Prothonotary Hargrave dated May 2, 2003.
[9] The appropriate notices of constitutional question have been served. Justice Canada has taken the position that the matter is "private and provincial" and the Attorney General of Canada has declined to intervene. Other federal officials and departments (Transport and Salvage and Wreck) also appear to regard the matters in this dispute as falling exclusively within provincial competence.
FACTUAL BACKGROUND
[10] In order to create a context and a factual base for the constitutional challenge, the Plaintiff carried out a typical log salvage operation and produced detailed notes and photographs of what transpired.
[11] Between January 13 and 19, 1999, Ms. Shirley Weishuhn, a co-owner and employee of the Plaintiff company, recovered 65 floating logs from the Fraser River in the Vancouver Log Salvage District.
[12] At all material times, Ms. Weishuhn was the holder of a valid log salvage permit that authorized her to salvage logs in the Vancouver Log Salvage District. The permit was issued pursuant to the Log Salvage Regulation enacted under the Forest Act.
[13] All of the 65 logs were recovered with the use of a marine vessel called the Starter II, which is licensed under number 13K73797.
[14] In recovering the logs, Ms. Weishuhn navigated the Starter II within a couple of metres of each log and, while remaining in the boat, gained hold of each log by hand or with the aid of an axe or pike pole.
[15] After steadying the log in the water, she used an axe to hammer a uniquely numbered dogline into each log. A "dogline" is a specialized item used in the salvage of logs. The "dog" is a metal spike which is driven into the log. Each dog was attached to a line with a loop on the end with which each log was secured to the towpost of the Starter II. This allowed each log to be towed behind the boat.
[16] Using a log salvage identification hammer, Ms. Weishuhn applied a mark to the log and then attached the log to the Starter II for towing.
[17] As the logs were recovered Ms. Weishuhn secured them by their individually numbered doglines at various points along the Fraser River.
[18] On January 20, 1999, Ms. Weishuhn towed all 65 logs to the foreshore of her property at 10487 River Road, Delta, British Columbia, with the Starter II.
[19] From the 65 logs, 17 were selected which bore no visible timber marks. Some of the remaining 48 logs bore identifiable timber marks. The 17 logs with no visible timber marks are the logs in question in this action.
[20] All 17 NMV logs had cut ends indicating that they were not natural woody debris.
[21] On February 1, 1999, the Plaintiff advised the Ministry of Forests that it was holding 17 NMV logs.
[22] On February 10, 1999, the Province responded with a letter.
[23] On February 10 and 11, 1999, Ms. Weishuhn, with the Starter II, towed the 17 NMV logs to the Fraser River Receiving Station of Gulf Log Salvage Co-Operative Association ("Gulf Log").
[24] Gulf Log accepted 14 of the 17 logs. Two of the logs were deadheads, and Ms. Weishuhn was directed by an employee of Gulf Log to deliver those 2 logs to West Coast Cellufibre which accepts deadheads. The third unaccepted log was alder. As alder logs are not accepted by Gulf Log at the Receiving Station, the small alder log was placed into a debris bag for disposal.
[25] The 14 accepted logs were scaled by a log scaler employed by Gulf Log. The 2 deadheads delivered to West Coast Cellufibre were scaled at that location.
[26] On August 16, 1999, the Plaintiff demanded again that the federal Minister of Forests compensate it for the 17 NMV logs pursuant to the terms of the Convention.
[27] On October 15, 1999, the Minister of Forests, through his agent, the Director of Revenue Branch Ministry of Forests, refused the Plaintiff's claim on the grounds that the Log Salvage Regulation was applicable and that the Convention had no application in the circumstances of the case.
[28] Sixteen of the 17 NMV logs were dealt with by Gulf Log. The 14 logs delivered to the Receiving Station were sold by Gulf Log. As regards the 2 deadhead logs delivered to West Coast Cellufibre, the invoice for their sale was issued by Gulf Log.
[29] The Ministry of Forests invoiced Gulf Log for stumpage fees and Gulf Log paid stumpage fees on the 16 logs to the Ministry of Forests for British Columbia.
[30] The other 48 logs were towed to Gulf Log by Mr. Earl Weishuhn, on behalf of the Plaintiff. Gulf Log paid compensation for those 48 logs under the provincial scheme, which compensation was accepted by the Plaintiff.
[31] The Plaintiff has calculated the value of the 17 NMV logs as $639.62, based upon the Schedule of Three-Month Average Domestic Log Selling Prices issued by the Province for stumpage purposes. That table is derived from the sale of green (non-salvaged) logs. The offer of compensation by Gulf Log to the Plaintiff (which the Plaintiff has refused) was based upon the calculation of the market value of salvaged logs. Gulf Log calculated the market value of the 16 NMV logs (other than the alder) as $271.90.
[32] The Plaintiff says that, in following the procedure described above, Ms. Weishuhn salvaged valuable property at risk of damage or loss. That property was lost in navigable waters in the course of its transportation and/or storage on the Fraser River. Ms. Weishuhn offered to return the property to the Province, whom the Plaintiff believed had the best claim to ownership of the logs in question, and, in so doing, she provided a benefit in the form of the return of valuable property, the elimination of a navigational hazard, and the elimination of an environmental risk to important and already compromised marshes of the Fraser River estuary.
POSITION OF THE PARTIES
[33] The Plaintiff says that the purpose of the log salvage operation that Ms. Weishuhn conducted was to resolve legal ambiguities surrounding a system for log recovery that have negatively affected Ms. Weishuhn's chosen profession and livelihood, the operation of her family business, and the close-knit community of marine log salvors on the Fraser River with whom she is actively engaged.
[34] In order to resolve such ambiguities and negative consequences of the present system for log recovery on the Fraser River, the Plaintiff has formulated its prayer for relief in various ways during the course of these proceedings. At the conclusion of the trial the order sought was as follows:
(a) A declaration that Part 9 of the Forest Act and the Log Salvage Regulation are unconstitutional and ultra vires the Province in that they regulate a matter that is at the core of federal jurisdiction (namely, navigation and shipping);
(b) Alternatively, a declaration that Part 9 of the Forest Act and the Log Salvage Regulation are inoperative and of no force and effect to the extent that they conflict with the Shipping Act and the Convention;
(c) A declaration that the Shipping Act and the Convention apply to marine log salvage; and
(d) A declaration that the Plaintiff is entitled to receive compensation for the 17 NMV logs it salvaged in accordance with Article 13(1) of the Convention as incorporated by Part V of the Shipping Act, including, but not limited to, compensation pursuant to Article 13(1)(b) of the Convention.
[35] The Province (supported by Coast and Timber Marketing) takes the position that Part 9 of the Forest Act and the associated Log Salvage Regulation are intra vires the provincial legislature as being in pith and substance matters in relation to timber resources, the rights of timber companies with respect to the harvesting of timber, the regulation of ownership and sale of Crown timber, the disposition of the proceeds of the sale of Crown timber, and the regulation of the recovery and salvage of timber that might otherwise be lost.
[36] While the Plaintiff says that the log salvage activities in question fall squarely within the federal regulatory power over navigation and shipping in accordance with s. 91(10) of the Constitution Act, 1982, the Province says that even if Part 9 of the Forest Act and the Log Salvage Regulation do have any impact on navigation and shipping, it is only to a limited extent and is merely incidental and ancillary to a valid provincial regulatory scheme.
[37] In fact, the Province (once again supported by the other Defendants) has raised its own constitutional issue for determination in this case:
In the alternative, to the extent that the Canada Shipping Act and the International Convention on Salvage, 1989 purport to regulate the recovery and sale of logs and distribution of the proceeds from the sale of recovered logs in British Columbia, whether these provisions are valid legislation in relation to navigation and shipping, and are ultra vires the Parliament of Canada.
[38] Because of the nature of this dispute, the Province has indicated it is not seeking costs.
[39] The appropriate notices of constitutional question have been served.
THE ATTACK ON THE PROVINCIAL SCHEME
[40] At the heart of this dispute lies a constitutional attack by the Plaintiff on the Province's scheme for recovering and salvaging logs from the Vancouver Log Salvage District as that scheme is embodied in Part 9 of the Forest Act and the Log Salvage Regulation.
[41] The Forest Act and the Log Salvage Regulation are part of a comprehensive regime for managing forest resources in British Columbia. That regime also includes the Forest and Range Practices Act, S.B.C. 2002, c. 69, the Forest Practices Code of British Columbia, R.S.B.C. 1996, c. 159, the Scaling Regulation, B.C. Reg. 446/94, the Timber Marking and Transportation Regulation, B.C. Reg. 253/97, and the Forest Planning and Practices Regulation, B.C. Reg. 14/2004.
[42] The Plaintiff impugns the constitutional validity of Part 9 of the Forest Act and the Log Salvage Regulation in a somewhat oblique way. The Plaintiff has seized upon the concept of "marine salvage" to assert that the Province has sought to regulate a matter that is at the core of Canadian maritime law and the federal jurisdiction over navigation and shipping.
[43] It is true that the Plaintiff does refer to the conventional "pith and substance" approach to constitutional review set out by the Supreme Court of Canada in Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture), 2002 SCC 31, but the Plaintiff's analysis of the pith and substance of the impugned provisions is little more than an assertion that they "do intrude into the area of navigation and shipping as they seek to regulate the return or recovery of property lost in the course of its transport by water." As regards Part 9 of the Forest Act, the Plaintiff simply says that "these provisions apply to solely marine log salvage [emphasis is the Plaintiff's]" and that "anything that happens in the marine context is prima facie federal jurisdiction."
[44] The Plaintiff then addresses the assertions made by the Province that the impugned provisions regulate property rights and traffic in salvaged logs.
[45] As regards the regulation of property rights, the Plaintiff takes a somewhat literalist approach and argues that the impugned provisions "do not create a new basis for ownership of salvaged wood" and they "do not determine ownership in unmarked logs."
[46] As regards the traffic in logs, the Plaintiff argues that the impugned provisions do not provide regulation because they do not stipulate how the provincial licencee, Gulf Log, should sell the logs "other than to require those logs to be sold at the best price" and, although salvors are paid salvage fees, salvors "are not buying or selling the logs."
[47] Having concluded that the impugned provisions do intrude upon the federal navigation and shipping power because they "seek to regulate the return or recovery of property lost in the course of its transport by water," the Plaintiff then, in accordance with Kitkatla, addresses the issue of whether or not they are, nevertheless, part of a valid provincial legislative scheme.
[48] The Plaintiff's position is that, while the Forest Act in general does not intrude on federal jurisdiction, a "constitutionally invalid provision will not be saved by being put into an otherwise valid statute."
[49] The crux of the Plaintiff's argument as regards the scheme enacted by the Forest Act is that the provisions of Part 9 and the Log Salvage Regulation "are not sufficiently integrated with or essential to that scheme so as to make them valid legislation concerning property and civil rights to save them from such intrusion."
[50] This is because the "provisions are marine salvage provisions alone that apply only to logs salvaged from water below the high tide line - they do not apply to recovery of timber generally."
[51] Unlike the provisions in the Forest Act that deal with land salvage, the Plaintiff argues that "Marine log Salvage is not related to the harvest of trees. It is related to the recovery of timber lost in the course of their (sic) transport by water and associated storage." Hence, the Plaintiff says, "eliminating the Province's ability to regulate marine log salvage in no way affects its ability to regulate the harvest of timber," and the impugned provisions "are entirely severable from the rest of the legislative scheme set out in the Forest Act."
[52] To bolster its conclusions on pith and substance, the Plaintiff raises "the doctrine of inter jurisdictional immunity ... to preclude the Province from regulating marine log salvage at all." The Plaintiff's argument here is that the "general law of marine salvage falls within the core of federal jurisdiction over navigation and shipping. Further, the law of marine salvage is sufficiently well-developed that there is little room for effective provincial legislation affecting that field. As log salvage fits in the expanded definition of marine salvage it also (sic) at the core of Parliament's exclusive jurisdiction over shipping and navigation."
[53] The Plaintiff invokes ITO - International Terminal Operators Ltd. v. Miida Electronics Ltd., [1986] 1 S.C.R. 752 and Whitbread v. Walley, [1990] 3 S.C.R. 1273 for the proposition that "maritime jurisdiction is, for constitutional, historical and practical reasons, extremely broad." Ordon Estate v. Grail, [1998] 3 S.C.R. 437 is also enlisted to show that "each head of federal power possesses an essential core which the provinces are not permitted to regulate indirectly through otherwise valid laws of general application" and that the essential core of maritime law should be assessed with reference to "the national and international law dimension of maritime law and the corresponding requirement for uniformity in maritime law principles."
[54] The Plaintiff's conclusion is that "Ordon stands for the proposition that it is relatively rare that a provincial law of general application will apply to a matter otherwise governed by Canadian maritime law."
[55] With further regard to inter-jurisdictional immunity in the context of the federal marine jurisdiction, the Plaintiff cites the recent British Columbia Court of Appeal decision in R. v. Kupchanko, (30 January 2002), at Vancouver CA026665, [2002] B.C.J. No. 148 (Q.L.) (B.C.C.A.), and quotes the words of Esson CJA at para. 35 that "there is now a very limited scope for the application of any provincial law in the maritime context ... ."
[56] On the basis of these authorities, the Plaintiff urges the following conclusions on the Court concerning the case at bar:
(a) The core of exclusive federal maritime jurisdiction is unusually broad;
(b) Marine salvage is a vital or essential aspect of the federal maritime jurisdiction;
(c) The existence of a ratified international marine salvage convention creating uniform salvage rules demonstrates that marine salvage, including marine log salvage (which falls within the broad definition of property under the Convention), is within the unassailable core of federal maritime jurisdiction;
(d) Section 422.1 of the Shipping Act emphasizes the federal nature of salvage when it gives the federal Minister of Transport "the general superintendence of all matters relating to salvage" throughout Canada;
(e) Salvage is a legal cause of action known only to the admiralty courts;
(f) Marine log salvage, which necessarily occurs in navigable waters and involves navigating vessels to remove hazards to navigation cannot be characterized as anything but a maritime activity;
(g) The Forest Act and the Log Salvage Regulation intrude on vital aspects of the core federal maritime jurisdiction over marine salvage;
(h) Log booms are created for the express purpose of navigation and are vessels within the meaning of the Shipping Act and the Convention so that the logs in this case which, on a balance of probabilities, were the cargo of a vessel (i.e. a log boom), are salvage within the traditional definition of that term and are thus subject to the exclusive jurisdiction of Parliament.
[57] Looking at the Plaintiff's argument on the ultra vires of Part 9 of the Forest Act and the Log Salvage Regulation as a whole, it is clear that the inter-jurisdictional immunity doctrine is, in fact, the real basis of the Plaintiff's case. The pith and substance analysis offered is fairly superficial and amounts to little more than a general assertion that the impugned provisions intrude on the federal navigation and shipping power because "they seek to regulate the return or recovery of property lost in the course of transport by water" and "are not sufficiently integrated with or essential to the [Provincial scheme under the Forest Act] so as to make them valid legislation concerning property and civil rights to save them from such intrusion."
[58] The Plaintiff's central argument against the impugned provisions is, when boiled down to its essence as follows: log salvage is marine salvage; marine salvage is a core element of the federal maritime jurisdiction over navigation and shipping; the federal maritime jurisdiction is very broad; and there is no room constitutionally for a provincial scheme that deals with log salvage in navigable waters.
[59] The Plaintiff has been encouraged in this approach by the order of Mr. Justice Hugessen of February 15, 2002 which dismissed a motion by the Province for summary judgment in this case. In his reasons of February 20, 2002, that followed his dismissal order, Mr. Justice Hugessen made the following remarks concerning the merits of the case as it appeared to him at that time:
...
7. It is to be noted that the province has not in any way impugned the federal legislation so that a finding of the latter's applicability necessarily excludes the application of the provincial legislation. I think that concession by the province is entirely proper for recent case law has been very clear that the federal power in the area of maritime law and navigation and shipping is very broad indeed and I make reference to the well-known cases which were extensively cited in argument before me of ITO-International Terminal Operators Ltd. v. Miida electronics Inc., [1986] 1 S.C.R. 752, 28 D.L.R. (4th) 641, Whitbread v. Walley, [1990] 3 S.C.R. 1273, 77 D.L.R. (4th) 25, Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3, 88 D.L.R. (4th) 1, Ordon Estate v. Grail, [1998] 3 S.C.R. 437, 166 D.L.R. (4th) 193 and others.
8. It was urged upon me that the preparatory works to the 1989 Convention do not show that logs and log booms were within the contemplation of the drafters and reference is made to an article by Lord Justice Kerr in this regard: M. Kerr, "The International Convention on Salvage 1989 - How it Came to Be" (1990) 39 I.C.L.Q. 530. In my view, the omission of specific mention of logs and booms is of very little consequence. The words used by the drafters could not have been any broader and the fact that they did contemplate specifically in their preliminary works such things as buoys and fishing gear makes it plain to me that they did not intend any restriction and did not express any restriction. I simply cannot accept that there was any implied intention to exclude such things as logs and booms. It may be that the reasons that they were not discussed is because this country and perhaps the United States are really the only principal maritime nations in which an important part of commercial shipping takes place in the form of logs and booms. That may also be an explanation for the early view of the English Admiralty Court where, of course, the commerce in floating timber was never of the kind of importance that it has played for many years on both coasts of this country.
9. I conclude accordingly, that the claim as asserted is apparently within the jurisdiction of this Court as relating to salvage. That does not, of course, mean that the claim is well-founded or that it will succeed in due course. It does mean that it can go forward to trial and it also means that the provincial regulations whether they are viewed as invalid, inoperable or simply inapplicable do not play any role in the determination of the plaintiff's claim for damages. It also means, of course, that the motion must be dismissed. [emphasis added]
...
[60] So, Mr. Justice Hugessen took the position that the provincial scheme was not applicable to the facts of this case and that the matter should go forward as a salvage claim under federal jurisdiction.
[61] Notwithstanding the Plaintiff's assertions and its reliance upon the Order of Mr. Justice Hugessen, that Order was appealed, and although the Federal Court of Appeal dismissed the appeal by the Province and concurred with Mr. Justice Hugessen that the matter should proceed to trial, the Federal Court of Appeal also went a considerable distance in providing guidance on how this matter should be dealt with at trial. Pelletier J.A., writing for the Court, made the following findings and observations:
1. This is an appeal by Her Majesty the Queen in right of the Province of British Columbia (the Province) from the dismissal of her motion for summary judgment. The plaintiff (respondent in the appeal) has brought an action seeking a declaration of invalidity of Part IX [sections 122-126] of the Forest Act, R.S.B.C., 1996, c. 157, dealing with marine log salvage, and its associated regulation (Log Salvage Regulation for the Vancouver Log Salvage District, B.C. Reg. 220/81), on the ground that they are legislation in relation to salvage, a matter within exclusive federal jurisdiction. The Province sought to put an early end to the litigation by moving for summary judgment, asserting the constitutional validity of its legislation. However, its motion was dismissed for reasons which, while stopping short of a declaration of invalidity, left no doubt as to the Motion Judge's conclusion that the provincial legislation was ultra vires. That decision is reported at [2002] 4 F.C. 626 (T.D.).
2. The activity in issue is the recovery of logs left behind in coastal waters and rivers as a result of logging operations. The Province has enacted a scheme which provides for licensing of those who engage in log recovery, the establishment of a body to receive and dispose of the logs, and the distribution of the proceeds of the sale of the recovered logs to those who recovered them, and to those who claim an interest in them. The legislation describes all of this in terms of log salvage but on my reading of it, the legislative purpose could have been accomplished just as easily had the word recovery been used instead of the word salvage. All of which is to say that I attach no significance to the use of the word "salvage" in the legislation.
3. The respondent believes that the amounts paid to those who recover logs under the provincial scheme are too low and, by way of a declaration of invalidity of the provincial legislation, seeks to bring itself within the more generous scheme contemplated by the International Convention on Salvage, 1989 to which Canada is a signatory and which has been incorporated into theCanada Shipping Act, R.S.C., 1985 c. S-9 (the Shipping Act). If it is successful, responsibility for an activity which the Province has regulated for some considerable time will pass to the Government of Canada which evinces little interest in assuming this burden as it has not appeared in these proceedings to assert the jurisdiction which the plaintiffs seek to bestow upon it.
4. Section 449.1 of the Shipping Act declares the International Convention on Salvage, 1989 (the Convention) to have the force of law in Canada. The Convention [at Article 1] defines "salvage operation" as "any act or activity undertaken to assist a vessel or any other property in danger in navigable waters or in any other waters whatsoever". Property is defined as "any property not permanently and intentionally attached to the shoreline and includes freight at risk". Salvage is not defined in the Shipping Act so that the definition in the Convention applies for purposes of this litigation.
5. The learned Motions Judge concluded that once it is found that the subject-matter of Part IX of the Forest Act and its associated regulation falls within the definition of salvage in the Convention , there is no room for the Province to assert jurisdiction in relation to that subject-matter. He concluded, on the strength of the wording of the Convention and its incorporation into domestic law, that "Parliament has clearly legislated so as to extend the scope of marine salvage to include 'property' such as logs and booms of logs within the scope of the law of salvage". He observed that when the drafters of the Convention made it applicable to "property of any kind", they did not intend any restriction on the nature of the property.
6. Salvage is not itself an enumerated head of power under section 91 of the Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) so that the fact that the subject-matter of the legislation falls within the definition of salvage is not conclusive of constitutional competence. Salvage is matter of federal jurisdiction because it comes within one of the enumerated heads, namely shipping. The definition of salvage in the Convention cannot alter the division of powers under the Constitution. Consequently, the question is not whether the provincial log recovery scheme falls within the expanded definition of salvage but whether that scheme has a sufficient connection to shipping such that the expanded definition of salvage would apply to it. In other words, log recovery is not an aspect of shipping (and subject to federal jurisdiction) simply because it falls within the definition of salvage. If the provincial scheme falls within federal jurisdiction, it is because it is necessarily ancillary to shipping and is therefore properly characterized as salvage. [emphasis added]
7. The question of the validity of the provincial legislation is to be decided by employing the pith and substance analysis as set out inKitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture), [2002] 2 S.C.R. 146, at paragraph 58:
1. Do the impugned provisions intrude into a federal head of power, and to what extent?
2. If the impugned provisions intrude into a federal head of power, are they nevertheless part of a valid provincial legislative scheme?
3. If the impugned provisions are part of a valid provincial legislative scheme, are they sufficiently integrated with the scheme?
8. The Province has set out its position with respect to the connection between log recovery and logging and forestry. However to dispose of this matter in the manner sought by the Province would require me to find that there is no sufficient connection between log recovery [page454] and shipping to justify federal jurisdiction. I do not have before me a record upon which I could make such a determination. Even though this is an application for summary judgment where the onus is on each party "to put their best foot forward" (see Feoso Oil Ltd. v. Sarla (The), [1995] 3 F.C. 68 (C.A)), a court ought not to rule upon the constitutional validity of legislation except upon an adequate factual record.
...
[62] In my view, the crucial words of Pelletier J.A. for the approach that the Plaintiff has taken on this matter occur in paragraph 6 of his judgment where he says:
Consequently, the question is not whether the provincial log recovery scheme falls within the expanded definition of salvage but whether that scheme has a sufficient connection to shipping such that the expanded definition of salvage would apply to it. In other words, log recovery is not an aspect of shipping (and subject to federal jurisdiction) simply because it falls within the definition of salvage. If the provincial scheme falls within federal jurisdiction, it is because it is necessarily ancillary to shipping and is therefore properly characterized as salvage.
[63] As I read the Plaintiff's argument attacking the constitutional validity of Part 9 of the Forest Act and the Log Salvage Regulation, the emphasis is very close to the approach that the Federal Court of Appeal said should not be taken on this issue, and is very much a reassertion of the approach of Mr. Justice Hugessen that the Federal Court of Appeal appears to reject in its judgment.
[64] In my view, the correct approach to reviewing the impugned provisions of the Provincial scheme has to be the one directed by the Federal Court of Appeal in paragraph 7 of its reasons quoted above. And although the Plaintiff certainly refers to this approach in its argument, in my opinion, it is somewhat superficial in its analysis on the pith and substance issue and seeks to make up for such shortcomings by trying to direct the Court's attention to the approach of Mr. Justice Hugessen through its introduction, elaboration and emphasis of the doctrine of inter-jurisdictional immunity.
[65] However, my understanding of the role of the doctrine of inter-jurisdictional immunity is that it does not come into play unless the impugned provisions in this case go to the core of a federal power. I am thinking here of the words of LeBel J. in Kitkatla, where the Supreme Court of Canada concluded that the impugned provisions of the Heritage Conservation Act R.S.B.C. 1996, c. 187 were, in pith and substance, law under property and civil rights and did not intrude into the federal jurisdiction over Indians:
Given this conclusion, it will not be useful to discuss the doctrine of inter-jurisdictional immunity. It would apply only if the provincial legislation went to the core of the federal power (see Ordon Estate v. Grail, [1998] 3 S.C.R. 437, at para. 81; Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, supra, at paras. 177-78, per Lamer C.J.
[66] In the case at bar, it is the Plaintiff's position that Part 9 of the Forest Act and the Log Salvage Regulation do go to the core of the federal power over navigation and shipping, and so bring into play the doctrine of inter-jurisdictional immunity. The Plaintiff's assertions in this regard, however, are based more upon an expanded view of the meaning of "salvage" and its relation to the federal maritime jurisdiction than upon a detailed pith and substance analysis of the impugned provisions of the provincial scheme.
[67] Before considering whether the doctrine of inter-jurisdictional immunity is brought into play by the facts of this case, the Court must first determine the pith and substance of the impugned provisions.
PITH AND SUBSTANCE
General Guidelines
[68] Although sections 91 and 92 of the Constitution Act, 1982 allocate "matters" of exclusive legislative authority between the federal and provincial governments, legislative endeavour isn't always neatly classifiable in accordance with the discrete topics of the constitution. Even without intentional poaching, the practicalities of governing a federal state such as Canada make it impossible for either level of government to operate within the strict nomenclature of constitutional categorization. Hence, the Courts have been compelled over time to develop a set of principles against which the constitutional validity of particular statutes and regulations can be tested.
[69] For purposes of the present case, I believe that the principles for testing the constitutional validity of Part 9 of the Forest Act and the Log Salvage Regulation are well-known, and there is no point in my pretending to invent yet another account of what those principles are. They have been reiterated in numerous cases, and I merely choose what I regard as being a particularly thorough and adept encapsulation of the relevant jurisprudence that I believe assists with the facts before me. Here is Mr. Justice Burnyeat of the Supreme Court of British Columbia in the recent case of Laboucane v. Brooks 2003 BCSC 1247, paras. 17-30 in which he was called upon to review the constitutional validity of s. 10(1) of the Worker's Compensation Act, R.S.B.C. 1996, c. 492:
17. Regarding the constitutionality of s. 10(1) of the Act, there is a presumption that legislation is constitutional so that the onus rests on a party challenging the validity of a law to prove that it is unconstitutional: Nova Scotia (Board of Censors) v. McNeil, [1978] 2 S.C.R. 662; and Reference re Firearms Act, [2000] 1 S.C.R. 783. Accordingly, the onus is on Mr. Laboucane to establish that s. 10(1) of the Act is constitutionally inapplicable in these circumstances.
18. I am satisfied that, when the constitutional applicability of an enactment is challenged, the first step in the constitutional analysis is to determine the "pith and substance" of that enactment. After determining the essential character or dominant feature of the provision, the second step is to determine whether the pith and substance of the enactment relates to one of the heads of power granted to the enacting legislature: Ward v. Canada (Attorney General), [2002] 1 S.C.R. 569; Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture), [2002] 2 S.C.R. 146; and R. v. Eurosport Auto Co. (2003), 225 D.L.R. (4th) 277 (B.C.C.A.).
19. In Ward, the Court dealt with whether a charge under the Federal Marine Mammal Regulations which prohibited the sale, trade or barter of whitecoat and blueblack seals came within the power of the federal government to legislate in relation to fisheries or the criminal law or whether the prohibition fell under the provincial power to legislate on matters involving property and civil rights. The Court adopted the pith and substance analysis in reviewing the legislation. The Chief Justice on behalf of the Court stated:
The pith and substance analysis asks two questions: first, what is the essential character of the law? Second, does that character relate to an enumerated head of power granted to the legislature in question by the Constitution Act, 1867? (at para. 16)
The Chief Justice then set out the appropriate approach to be taken in applying the pith and substance test:
The first task in the pith and substance analysis is to determine the pith and substance, or essential character of the law. What is the true meaning or dominant feature of the impugned legislation? This is resolved by looking at the purpose and the legal effect of the regulation or law .... The purpose refers to what the legislature wanted to accomplish. Purpose is relevant to determine whether, in this case, Parliament was regulating the fishery, or venturing into the provincial area of property and civil rights. The legal effect refers to how the law will affect rights and liabilities, and is also helpful in illuminating the core meaning of the law .... (at para. 17)
20. In Kitkatla, the Court dealt with the question of whether legislation under the Provincial Heritage Conservation Act fell within the provincial responsibility for property and civil rights or within the federal responsibility for Indians and lands reserved to Indians. It was argued that the Heritage Conservation Act, to the extent that it allowed for the alteration and destruction of native cultural obje