Date: 20000606
Docket: A-26-98
(T-2875-96)
CORAM: LINDEN J.A.
SEXTON J.A.
MALONE J.A.
IN THE FEDERAL COURT OF APPEAL
BETWEEN:
NANOOSE CONVERSION CAMPAIGN
APPELLANT
- and -
THE MINISTER OF ENVIRONMENT
RESPONDENT
Heard at Vancouver, on Friday, May 26, 2000.
Judgment delivered at Ottawa, on Tuesday, June 6, 2000.
REASONS FOR JUDGMENT BY: LINDEN J.A.
CONCURRED IN BY: SEXTON J.A.
MALONE J.A.
Date: 20000606
Docket: A-26-98
(T-2875-96)
CORAM: LINDEN J.A.
SEXTON J.A.
MALONE J.A.
IN THE FEDERAL COURT OF APPEAL
BETWEEN:
NANOOSE CONVERSION CAMPAIGN
APPELLANT
- and -
THE MINISTER OF ENVIRONMENT
RESPONDENT
REASONS FOR JUDGMENT
LINDEN J.A.
[1] The sole issue in this appeal is whether the Minister of the Environment erred when he decided to discontinue an investigation pursuant to section 109 of the Canadian Environmental Protection Act (CEPA) concerning certain waste from warships testing torpedoes in the Straight of Georgia, off the eastern coast of Vancouver Island, British Columbia.
I. The Facts
[2] The Motion's Judge held that there was no reviewable error made by the Minister in exercising his discretion pursuant to subsection 109(3) of CEPA, which permits him to discontinue an investigation where the Minister is of the opinion that the alleged offence does not require further investigation. I am of the view that the Motion's Judge was correct in deciding as he did and that the appeal must be dismissed.
[3] The Canadian Department of National Defence and the U.S. Navy conduct certain military tests over some 75 square miles of water in Nanoose Bay, 22 kilometers north of Nanaimo, B.C. In these tests, torpedoes without warheads are fired from ships and directed by copper wires, through sound waves propagated by sonobuoy units. These torpedoes are later retrieved, but in the testing procedure certain torpedo debris falls to the bottom of the ocean and remains there, 450-550 metres down. This debris consists of plastic-covered copper wire, dead weights, sonobuoy hardware and lithium batteries.
[4] The appellant, Nanoose Conversion Campaign (NCC), a non-profit organization, seeks to prevent this testing, which it thinks is harmful to the environment and in violation of section 67 of the CEPA, which prohibits "dumping" any substance into the sea from any ship, unless a permit is granted by the Minister to do so, which process requires a public hearing.
II. Analysis
[5] The Minister, pursuant to an application by two persons from the NCC, pursuant to section 108, investigated the matter and concluded in his report to them under section 109, that there was no violation of section 67 of CEPA, which is based on the definition of dumping set out in section 66 of Part II of CEPA and reads as follows:
66. (l)
[...]
"dumping" means
(a) the deliberate disposal at sea from ships, aircraft platforms or other anthropogenic structures, including disposal by incineration or other thermal degradation, or any substance of
(b) the disposal of any substance by placing it on the ice in any area of the sea referred to in paragraph (2)(a) to (e),
but does not include
(c) any disposal that is incidental to or derived from the normal operations of a ship, aircraft, platform or other anthropogenic structure or of any equipment on a ship, aircraft, platform or other anthropogenic structure, other than the disposal of substances from a ship, aircraft, platform or other anthropogenic structure operated for the purpose of disposing of such substances at sea, and
(d) any discharge that is incidental to or derived from the exploration for, exploitation of and associated off-shore processing of sea bed mineral resources;
"immersion"
a) Rejet délibéré de substances en mer, à partir de navires, aéronefs, plats-formes ou autres-ouvrages, notamment par incinération ou emploi d'autres moyens de dégradation thermique;
b) est assimilé à l'immersion le rejet de substances sur les glaces de la mer dans les zones de mer visées aux alinéas (2)a) à e);
c) sont exclus de la présente définition:
(i) les rejets consécutifs à l'utilisation normale d'un navire, d'un aéronef, d'une plate-forme ou autre ouvrage --ou de leur équipement --, sauf les rejets de substances effectués à partir d'un tel matériel lorsque celui-ci est affecté à cette fin,
(ii) les déversements consécutifs à la recherche, à l'exploitation ou au traitement en mer des ressources minérales sous-marines
It is obvious that the limited purpose of this legislation and the treaty on which it is based is to reduce the amount of waste deposited deliberately into the ocean, but not to interfere with normal shipping operations.
[6] Using the definition of ship in section 661, the Motion's Judge concluded that "a warship is no less a ship than any other kind of vessel, boat or craft used for marine navigation". He cited the French definition of "navire" to support his conclusion. I can see no error in this determination.
[7] The more difficult question was whether the activity engaged in by the ships involved dumping, as defined by the CEPA. The Motion's Judge decided that it was "open to [the Minister] to find that the loss of copper wire, torpedo weights, sonobuoy hardware and batteries did not constitute dumping, but was only incidental to or derived from the normal operations of a warship or of any of its equipment." I cannot disagree with that conclusion.
[8] The appellant argued that the exception concerning "normal operations of a ship" was limited to the discharge arising from the vessel-source pollution of the ship, such as galley wastes, bilge water, ballast, cleaning operations and machinery leaks. This is wrong. If it were so, the language prohibiting "disposal of substances from a ship...operated for the purpose of disposing of such substances at sea", an effort to prevent the activities of garbage scows, for example, would not be needed in the legislation. Moreover, the appellant's interpretation ignores the words "of any equipment on a ship", which clearly encompasses the disposal of waste from various commercial and other activities that take place on ships and were meant to be exempted. It also ignores the fact that the word "operations" is used in the plural form. If Parliament meant only to except vessel source disposal from the ship, it would have used the singular form of the word. The plural form indicates that the disposal can be not only vessel source disposal but also from other operations taking place on the ship.
[9] In my view, there is no inconsistency between this interpretation and the language and objectives of the Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matter. (U.N.T.S. 1046/119 signed December 29, 1972, ratified November 13, 1975). It is also in harmony with the interpretation of the U.S. legislation pursuant to that Convention in at least one U.S. decision. (See Romero-Barcelo v. Brown, 478 F. Supp. 646 at 667 per Torruela D.C.J. (D.C.P.R. 1980), affirmed in part, vacated and remanded in part 643. F 2d 835 C.A. 198l); vacated and remanded in part 102 S. Ct. 1798 (1982)).
[10] In my view, the argument that making the CEPA apply to Her Majesty affects this interpretation is without merit. The CEPA does apply to Her Majesty and to Her Majesty's ships, but that does not alter the meaning of the legislation. All ships are subject to the CEPA, including those belonging to the Crown, but only if their operations violate the terms of the legislation, which has not occurred in this case. Similarly, the contention about the sovereign immunity exception affecting the interpretation of the Act does not assist the appellant.
[11] The appeal should be dismissed with costs.
"A.M. Linden"
"I agree J. Edgar Sexton J.A." J.A.
"Iagree Brian Malone J.A."
__________________
1"ship" includes any description of vessel, boat "navire" Tout engin flottant qui sert ou peut servir, or craft used or capable of being used solely exlusivement ou partiellement, à la or partly for marine navigation without regard navigation maritime, qu'il soit pourvu to its method or lack of propulsion; ou non d'un moyen propre de propulsion.
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