Federal Court Decisions

Date: 20020305

Docket: T-1509-99

Neutral Citation: 2002 FCT 236

BETWEEN:

SOCIETY PROMOTING ENVIRONMENTAL CONSERVATION

                   on its own behalf and on behalf of its members

                                                                                              Applicant

                                                 - and -

                      ATTORNEY GENERAL OF CANADA

                                                                                          Respondent

                      REASONS FOR ORDER AND ORDER

CAMPBELL J.

[1]                On the West Coast of Canada, strong objection exists to the presence of nuclear weapons and nuclear powered vessels. As a result, the intended Expropriation of British Columbia sea bed and lands in 1999 for continued use as a test firing torpedo range by the military of Canada and United States raised massive objection by persons and groups for many reasons, including adamant objection by those dedicated to the non-proliferation of nuclear weapons. Nevertheless, the Federal Government went ahead with the Expropriation, which is now under attack in the present application by a lead objector organization.

[2]                The application raises fundamental questions about the procedural and substantive requirements provided in the Federal expropriation legislation, which, for the reasons that follow, I find have not been met. In the end result, I find the Expropriation is flawed and cannot stand.

I. Factual Background

[3]                The Applicant's uncontested analysis of the factual background provides useful contextual detail to the expropriation of the seabed and lands in question which comprise the Canadian Forces Maritime Experimental Testing Range ("CFMETR") located at Nanoose Bay, British Columbia:

Nanoose Bay and the current test range in the Strait of Georgia has, for a number of years, been used as a site for testing torpedoes and other underwater weaponry and detection devices. The seabed of the bay is shallow and sandy (but not muddy) which allows for the easy retrieval of torpedoes which sink (approximately .6% of those tested). CFMETR is used by Canada and its NATO allies, including the U.S. and U.K. as well as other nations such as Chile.

The Department of National Defence has installed a number of monitors and sensing devices on the seabed for use in the tests conducted at the facility. Under the Constitution Act, 1867 the Province of British Columbia has control and jurisdiction over the seabed of inland seas, including Nanoose Bay and the Strait of Georgia. In 1984 the Supreme Court of Canada held the seabed of the Strait of Georgia belongs to the Province of British Columbia.

The Federal Government established CFMETR in 1965. The Federal Government then sought and received a licence from the Province of British Columbia to continue to operate CFMETR. The terms of the licence were set out in a lease dated September 5,1989, which expired September 5, 1999.

For many years citizens groups, including the Applicant, have expressed serious environmental, public safety, strategic and other concerns relating to the presence of U.S. and U.K. nuclear weapons and nuclear powered vessels at CFMETR and in other Canadian ports generally. In part as a result of public pressure the legislature of British Columbia passed a declaration making British Columbia a nuclear weapons free zone.

On May 23, 1997, as a result of public concern about the presence of nuclear powered and nuclear capable vessels in Canadian waters, the Province of British Columbia exercised its right to cancel the lease. However, the Federal Government challenged the legality of the cancellation in the Federal Court.

In 1999, with the term of the lease about to expire, the Federal and Provincial Governments entered into negotiations towards a new lease. On May 5,1999 these negotiations resulted in an agreement of principles being signed by the senior negotiators for the two Governments, which included provisions for compensation, environmental stewardship and the prohibition of nuclear warheads at CFMETR.

The following day the Federal Government's chief negotiator advised his Provincial counterpart that the nuclear weapons ban was not acceptable to the Federal Government.

According to the Federal Government, the negotiations broke down primarily due to the attempts of the Government of British Columbia to use the threat of non-renewal of the lease as leverage in a dispute with the United States over salmon. The Provincial Government, by contrast, maintains that negotiations broke down when the Federal Government backed out of a commitment in the agreement to prohibit the presence of nuclear warheads within the licence area (Applicant's Memorandum of Fact and Law, pp.1-2, adapted without references).

Whatever the reason, there is no doubt that the breakdown in negotiations received wide public attention.

[4]                Shortly after the breakdown, expropriation proceedings were initiated to acquire the CFMETR site by the Minister of Public Works and Government Services Canada (the "Minister") under the Expropriation Act, R.S.C. 1985, c. E-21 (the "Act"). The first step in the process was taken on May 14, 1999, being the registration of a Notice of Intention to Expropriate, which was published in the Canada Gazette on May 22, 1999. As a result, approximately 3,000 objections were filed with the federal Department of Public Works and Government Services.

[5]                On July 5, 1999, the Attorney General of Canada appointed the Honourable Michael Goldie (the "Hearing Officer"), a retired Justice of the British Columbia Court of Appeal, to hold hearings and to report to the Minister on the objections. The Expropriation Hearings were conducted from July 19 to 30, 1999, in Nanaimo, and continued from August 3 to 17, 1999, in Vancouver. More than 220 objectors appeared. On September 2, 1999, the Hearing Officer filed his Report with the Minister. After reviewing the Hearing Officer's Report, on September 10, 1999, the Minister confirmed the expropriation of a part of the site in question. The Minister issued a Statement of Reasons on September 13, 1999.

[6]                Thus, from start to finish, the whole expropriation process was completed in less than four months. This result has generated three parallel but separate lines of litigation.

[7]                The Applicant in the present judicial review is an environmental organization established in 1969 and based in Vancouver, which has since its inception been an active advocate on a wide range of environmental and safety issues. The Applicant has no proprietary interest in the CFMETR site, but as a vocal objector to the Expropriation and active participant in the hearing conducted, is well placed to bring this application and to reflect the views of other similarly interested public interest organizations.

[8]                As will be explained in detail below, the attack in the present case on the Expropriation is not by way of a challenge to the exercise of discretion by the Minister to confirm the Expropriation, but is based on an argument that the Hearing Officer failed to meet requirements of the Act. To facilitate this wide ranging challenge in one judicial review, the Applicant obtained a declaration that the various steps taken under the Act constitute a single process culminating in the Expropriation (SPEC v. HMTQ, Federal Court, T-1509-99, Order of Prothonotary John Hargrave dated December 6, 1999).

[9]                Although the Province of British Columbia, through its Department of Intergovernmental Relations, made considerable effort to encourage public objection and involvement in the Hearings conducted, it is not a party to the present application. However, the Province of British Columbia has launched a constitutional challenge to the Expropriation in the Supreme Court of British Columbia; and, in addition, the Human Rights Institute of Canada, in conjunction with other individuals and organizations, has brought parallel Federal Court actions challenging the validity of the Expropriation.

[10]            With respect to the present application, the provisions of the Act will be analysed in detail below, but as a preliminary point in the analysis it is important to gain an understanding of the pressure imposed on the Hearing Officer by the stringent provisions of the Act.

[11]            As a result of being granted a maximum 30-day extension, the Hearing Officer completed the hearings and filed his Report, as required by the Act, within merely 60 days of his appointment. About this statutory requirement and the practical situation in hand, the Hearing Officer made these comments:

The effects of the large number of objections to the intended expropriation permeated the entire process.

...

The time limits in the Expropriation Act (the "Act") governing the hearing and delivery of a hearing officer's Report become progressively more antithetical as the number of objectors increases.

...

As it was evident normal procedures within the time limits of the Act could not provide an adequate response to this problem the first step was to obtain the maximum time permitted under the Act (Respondent's Record, Affidavit of Theresa Johannsen, Addenda to the Report, pp.1, 2 & 4).

It is obvious that the undue pressure placed on the Hearing Officer had a significant impact on the manner in which the hearings were conducted, and the form and content of the Report filed. However, as also explained below, this understandable factor does not rectify what I believe to be a flawed attempt to comply with the Act.

II. The Requirements of the Act

[12]            The Act affords the Minister a broad and significant power to acquire property rights without the consent of the owner of those rights (E.C.E. Todd, The Law of Expropriation and Compensation in Canada, 2^nd ed. (Toronto: Carswell, 1992) ("Todd").    This extraordinary power is granted in s.4 which reads as follows:

The exercise of the power granted is accomplished by meeting the requirements of seven discrete steps to be described. The emphasis placed on the word "shall' in the provisions is important to the analysis below.

A. Public notice of the intended expropriation is to be given

[13]            The expropriation process begins when the Minister registers a "Notice of Intention to Expropriate" the land concerned. Section 5(1) governs the content of the notice and reads as follows:

[14]            Once the Minister decides to register a notice of intention, he or she must comply with the requirements of s.8 of the Act. Section 8 requires publication of the notice as follows:

[15]            As required to be sent by s.8(3), the provisions of s.9 are as follows:

Objections

9. Any person who objects to the intended expropriation of an interest in land to which a notice of intention relates may, within thirty days after the day the notice is given, serve on the Minister an objection in writing stating the name and address of that person and indicating the nature of the objection, the grounds on which the objection is based and the nature of the interest of that person in the matter of the intended expropriation.

R.S., c. 16(1st Supp.), s. 7.

Opposition

9. Toute personne qui s'oppose à l'expropriation envisagée d'un droit réel immobilier visé par un avis d'intention peut, dans un délai de trente jours à compter du jour où l'avis est donné, signifier au ministre une opposition par écrit indiquant ses nom et adresse et indiquant la nature et les motifs de son opposition et son intérêt à s'opposer à l'expropriation envisagée.

S.R., ch. 16(1er suppl.), art. 7.

B. A public hearing is to be held

[16]            If an objection is filed, the Minister must order a public hearing. This requirement is outlined in s.10(1) of the Act as follows:

Pursuant to s.10(2), upon ordering the public hearing, the Minister must immediately ask the Attorney General of Canada to appoint a hearing officer, being someone who is not employed in the Public Service, but is otherwise suitable to hold the position.

C. Notice is to be given of a public hearing

[17]            Once appointed, the hearing officer has the responsibility of performing specific procedural requirements. The duties of a hearing officer are outlined in s.10(4), including giving notice, as follows:

D. A hearing is to be conducted

[18]            As outlined, s.10(4)(b) is a disjunctive provision which grants the hearing officer discretion to decide to either allow all persons who filed objections to be heard, or only those deemed necessary to convey the nature and grounds of the objections. The hearing officer is afforded further direction and procedural discretion in conducting a hearing by the following provisions:

E. A report is to be submitted

[19]            Pursuant to 10(4)(d), the primary purpose of the public hearing is to allow the hearing officer to gather information about the objections filed, and to report this information to the Minister.    The hearing officer is granted discretion in how the report is to be prepared; however, s.10(4)(d) requires that it must be in writing "on the nature and grounds of the objections made". Reference to this minimal standard for the content of the report is also contained in s.10(4)(b).

F. The Minister is to act to rectify failure in the process

[20]            Section 10(10) of the Act imposes a duty on the Minister to maintain the hearing and reporting process as follows:

G. The Minister is to consider and confirm or abandon the expropriation

[21]            Section 11(1) and s.14 outline the final steps to be taken before the authority to expropriate may be exercised as follows:

III. The Issue

[22]            As mentioned above, the attack on the Expropriation is not brought by challenging the actual exercise of the Minister's discretion confirming the Expropriation. Rather, the Applicant attacks the confirmation of the Expropriation by the Minister under s.11(1)(a)(ii) by arguing that certain mandatory procedural and substantive requirements of the Act were not met by the Hearing Officer, and this failure constitutes an error going to the jurisdiction of the Minister to exercise his discretion. I agree with this submission. While s.10(10) creates an obligation on the Minister to act to rectify outright failures in the process, the actual compliance by the Hearing Officer with the detailed requirements of the Act is really what is being judged in the present application.

[23]            Therefore, the questions are: did the Hearing Officer correctly interpret the provisions of the Act, and if he did, did he follow them as required?

IV. The Applicant's Procedural Attack

[24]            I find that the Hearing Officer acted in literal compliance with the procedural requirements of the Act, with the exception of s.10(4)(a). Thus, the question on the procedural attack is narrowed to: did the Hearing Officer correctly interpret s.10(4)(a), and did he follow it as required?

A. Non-compliance with s.10(4)(a) of the Act?

[25]            Under this provision, a hearing officer "shall" do a number of things, including send, within seven days of the hearing officer's appointment to each person who served an objection on the Minister, a notice of the time and place fixed for the public hearing. The Applicant's procedural challenge is with respect to an administrative error that led to the Hearing Officer's failure to serve all objectors with the Notice of Public Hearing in compliance with the seven-day requirement.

[26]            The Hearing Officer was appointed on July 5, 1999, and, as required, he set the date, time and place for the hearings and sent out notices within the seven-day deadline, being July 12, 1999. However, by error, some 570 objectors were not sent the Notice by that day. The Hearing Officer and his staff discovered the error and attempted to correct it by, on July 27, 1999 sending those same 570 individuals an Amended Notice of Public Hearing, and by adding two extra hearing dates to the hearing schedule.

[27]            It is important to note that, in his opening address at the Nanaimo hearings on July 19, 1999, the Hearing Officer expressed the opinion that the requirements of the Act are mandatory as follows:

Where it is detailed and mandatory in its direction it must be obeyed to the letter and such a direction cannot be varied, ignored or amended other than by another Act of Parliament. Where discretion is to be exercised the power to do so is clearly defined (Respondent's Record, Affidavit of Theresa Johannsen, The Report, Miscellaneous Correspondence and Documents, p.275).

[28]            Thus, the Hearing Officer's approach to conducting the Hearing was one of strict compliance. For example, this approach was used as the rationale for refusing objections not sent by registered mail as stipulated in s.3(2) of the Act. In fact, the Hearing Officer's attempt to correct the failure to serve the Notice of Public Hearing was the Hearing Officer's only deviance from the strict construction approach. No rationale is stated for this deviance; it seems to have been simply an attempt to safeguard the integrity of the Expropriation process well underway.

[29]            Was the Hearing Officer correct in his opinion that the requirements of the Act are mandatory? Interestingly, the Respondent argues that, regardless of how the Hearing Officer saw it, at least the requirement of Notice under s.10(4)(a) is really not mandatory at all, but merely "directory" in nature.

B. Are the requirements of s.10(4)(a) "mandatory" or "directory"?

1. Mandatory?

[30]            Given the constant use of mandatory language as emphasized in the provisions quoted, without some other compelling evidence to the contrary, the general conclusion can be drawn that the requirements are mandatory.

[31]            In addition, this conclusion is reinforced by commentators who have addressed the general principles of construction to be applied to expropriation proceedings as follows:

The exercise of the power of expropriation interferes drastically with private property rights and therefore courts generally construe expropriation statutes strictly and in favour of the individual whose rights are affected (Todd, p.26).

The power of expropriation should be exercised in accordance with the procedural requirements of the enabling statute and as a general rule it can be stated that unless the expropriating body complies strictly with procedural requirements it acts without authority ... (Todd, p.29).

Perhaps the most severe interference with property rights is expropriation, where the courts are particularly astute to impose a strict construction (F.A.R. Bennion, Statutory Interpretation, A Code, 3^rd ed. (Butterworths: United Kingdom, 1997) at p.653).

[32]            Support for the conclusion that the requirements in the Act are mandatory is also found in judicial precedent where it has been determined that: an expropriation of land must conform in substance and procedure with the specific wording and intent of the enabling statute (Minister of Industry and Natural Resources v. MacNeill (1964), 49 D.L.R. (2d) 190 at pp.191-2); and while the Courts generally have demonstrated a significant level of deference to a government authority's actual decision to expropriate, expropriation proceedings may be invalidated when procedural conditions precedent to the exercise of the power to expropriate are not met (Costello et al. v. City of Calgary (1983), 143 D.L.R. (3d) 385 (S.C.C.), and Thorcon Enterprises Ltd. v. West Vancouver (District), [1988] B.C.J. No. 323 (B.C.S.C.).

2. Directory?

[33]            Nevertheless, the Respondent submits that the time requirement in s.10(4)(a) must be considered a "directory", as opposed to mandatory, provision. As such, it is argued, technical non-compliance with the provision does not affect the Minister's jurisdiction to confirm the Expropriation.

[34]            In support of the argument, the Respondent cites the classic test for determining whether a provision is mandatory or directory as stated in the Montreal Street Railway Co. v. Normandin, [1917] A.C. 170 at page 175 as follows:

When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience, or injustice to persons who have no control over those entrusted with the duty, and at the same time would not promote the main object of the Legislature, it has been the practice to hold such provisions to be directory only ..

[35]            The Normandin test has been applied by the Supreme Court of Canada in British Columbia (Attorney General) v. Canada (Attorney General), [1994] 2 S.C.R. 41, where, as here, a finding was required as to whether the word "shall" is mandatory or directory in its effect. Justice Iacobucci at paragraph 148 comments on the fact that the outcome of applying the test depends on the individual circumstances of the situation being judged:

There can be no doubt about the character of the present inquiry. The "mandatory" and "directory" labels themselves offer no magical assistance as one defines the nature of a statutory direction. Rather, the inquiry itself is blatantly result-oriented. In Reference re Manitoba Language Rights, supra, this Court cited R. ex rel. Anderson v. Buchanan (1909), 44 N.S.R. 112 (C.A.), per Russell J., at p. 130, to make the point. It is useful to make it again. Russell J. stated:

I do not profess to be able to draw the distinction between what is directory and what is imperative, and I find that I am not alone in suspecting that, under the authorities, a provision may become directory if it is very desirable that compliance with it should not have been omitted, when that same provision would have been held to be imperative if the necessity had not arisen for the opposite ruling.

The temptation is very great, where the consequences of holding a statute to be imperative are seriously inconvenient, to strain a point in favor of the contention that it is mere directory....

Thus, the manipulation of mandate and direction is, for the most part, the manipulation of an end and not a means. In this sense, to quote again from Reference re Manitoba Language Rights, supra, the principle is "vague and expedient" (p.742). This means that the court which decides what is mandatory, and what is directory, brings no special tools to bear upon the decision. The decision is informed by the usual process of statutory interpretation. But the process perhaps evokes a special concern for "inconvenient" effects, both public and private, which will emanate from the interpretive result.

In the result, the majority found s.268(2) of the Railway Act, R.S.C., 1985, c. R-3, to be directory because of the potential financial hardship private railway companies would suffer through no fault of their own.

[36]            Therefore, the outcome of applying the Normandin test depends on how an individual judge, or panel of judges, view the quality of the inconvenience or injustice argued to result from a finding that a specific statutory provision is mandatory. That is, a purely subjective analysis is required and accepted. Not surprisingly, both parties to the present judicial review, when looking at the same situation, make different arguments as to the nature of the inconvenience and injustice of interpreting s.10(4)(a) as mandatory.

[37]            The Respondent argues that the requirements of s.10(4)(a) should be interpreted as "directory" because the understandable clerical error made in not serving 570 objectors with Notice was rectified, and, thus, the Expropriation should not be invalidated for such a minor failure in detail. In support of this latter argument, the Respondent makes the following written submissions:

First, it would constitute a serious general inconvenience if a failure to adhere to the technical time limit in s.10(4)(a) could result in the nullification of a federal expropriation. By definition, such expropriations may only be undertaken when an interest in lands "is required by the Crown for a public work or other public purpose." The expropriation at Nanoose Bay was undertaken "for a purpose related to the safety or security of Canada or of a state allied or associated with Canada"; and for "defence purposes". In his Reasons for Confirming the Expropriation, the Minister stated that: "CFMETR is important to Canada's national security, and is integral to Canada's ability to fulfil its alliance commitments. It is essential to our security and defence considerations"....

To nullify an expropriation for technical non-compliance with s.10(4)(a) would frustrate a public purpose and, in this case, risk compromising the integrity of a military facility which is essential to Canada's national security. To do so would not be in the public interest, and indeed may be harmful to the public interest. The following observation of the Federal Court of Appeal, made in the context of injunctions against the Crown, is apposite here:

When a public authority is prevented from exercising its statutory powers, it can be said.... that the public interest, of which that authority is the guardian, suffers irreparable harm.

Canada v. Fishing Vessel Owners' Association of B.C. (1985), 61 N.R. 128 at 130

See also: R. v. F, supra at 360 (risk to general public militating in favour of directory interpretation)

(Respondent's Memorandum of Fact and Law, pp. 30-31, adapted without references).

[38]            The Applicant argues that at least some if not all of the 570 objectors were negatively affected by the error, either by being deprived of the right to be heard at the Nanaimo hearings or by having significantly less time to prepare their submissions. The Applicant's primary argument is that s.10(4)(a) is a mandatory provision that must be strictly construed in accordance with specific expropriation jurisprudence.

C. Conclusion

[39]            The first question that needs to be answered is: does the Normandin test apply to expropriation proceedings?

[40]            In Costello, supra, the Supreme Court of Canada found that the notice provisions contained in the Alberta Expropriation Procedure Act are mandatory, and failure to comply with them invalidated the expropriation there under review. In reaching this decision, Justice McIntyre made an important statement at page 395 about non-compliance with apparently mandatory provisions:

It may be said that the error of the respondent was a small one and that the departure from the statutory provisions regarding service of notice was not, in the circumstances of this case, significant. It may be said that the mailing was required to be made on October 30^th or 31^st (it was made on November 3^rd, only three days late) and that the courts should relieve against such a minor failure. But then the question arises: how far should the courts go in relieving municipalities from following mandatory provisions regarding service where the interest of private citizens is threatened? If an error of three days is forgivable, then what about one or four, or five, or ten days? Surely, the line must be drawn somewhere to give the citizen any protection. In my view, the line should be drawn where the Legislature chose to put it and not where individual judicial discretion may fix it on a case-by-case basis. [Emphasis added]

[41]            Justice McIntyre's opinion leads me to conclude that the inherently subjective analysis required in applying the Normandin test has no place in expropriation proceedings.

[42]            But, even assuming that the Normandin test does apply to expropriation proceedings, the analysis is a contextual one, where both public and private inconvenience is to be assessed. To have the test apply, three criteria are required to be proved:

1. serious general inconvenience or injustice;

2. suffered by persons who have no control;

and

3. a finding that a provision is mandatory would not promote the main object of the legislation under consideration.

On the facts of the present case, I find that the criteria are not proved.

[43]            First, all 570 people affected registered objections to the Expropriation, and it can be safely assumed that they would not agree to any attempt to remedy a failure to follow a mandatory requirement of the Act which would permit the Expropriation to proceed; remedial efforts rather than mandatory requirements would be viewed by them to work to their prejudice.

[44]            Under s.10(4)(d), notice was required to be served by July 12, 1999; however, the 570 objectors did not receive notice until two weeks later. Given the tight deadlines contained in the Act, in particular the requirement that a hearing be conducted and a report be filed within a maximum of 60 days, the delay of two weeks can be considered significant. The Applicant submits that it is reasonable to infer that some of the 570 objectors were negatively affected by the loss of time. I agree. In my opinion, the notice error should be regarded as effectively prejudicing the ability of the 570 objectors to exercise the participatory rights afforded to them under the Act.

[45]            The Act contains specific and rigid time-lines and there is no evidence to suggest that the use of the word "shall" should be read any other way than to establish mandatory requirements. Withing this set procedural structure, except for special circumstances as stated in s.10(11) of the Act, Parliament clearly intended to promote public participation in expropriation proceedings. The public is to receive notice of the intention to expropriate, any member of the public may serve an objection, the hearing process is triggered by a single objection, and all objectors are to be served with a notice of the public hearing. In my opinion, these participatory rights cannot be compromised once invoked.

[46]            Second, with respect to the first two criteria, the test is clearly not designed to give relief to the Government of Canada, which has complete control over the Expropriation through the Attorney General's appointee (the Hearing Officer) and the political decision maker (the Minister).

[47]            Third, while the Respondent argues against the obvious "inconvenience" of nullifying the Expropriation, being potentially the waste of time and money to hold another hearing and obtain another report in conformity with the Act, the argument is being made only from the point of view of the party who selected the process to acquire the land in question, and who had effective control over the process. As noted, the Normandin test is not intended to address such an inconvenience.

[48]            Fourth, I am not persuaded by the implicit urgency communicated in the Respondent's "safety and security of Canada" argument. If such a condition existed at the time of the breakdown in negotiations with the Province of British Columbia, it was open to the Minister to proceed under s.10(11) of the Act which reads as follows:

[49]            The reasons the Expropriation action was taken are provided in the letter of May 14, 1999, sent to the Honourable Glen Clark, Premier of British Columbia, from the Honourable Arthur Eggleton, Minister of Defence which reads as follows:

May 14, 1999

The Honourable Glen Clark, M.L.A.

Premier of British Columbia

Room 166, West Annex

Parliament Buildings

Victoria BC V8V 1X4

Dear Premier:

I am writing to inform you that the Government of Canada has commenced the formal steps to expropriate the seabed at Nanoose Bay so as to preserve for Canada and our allies the Canadian Forces Maritime Experimental and Test Ranges. The continued operation of this important facility without interruption is essential. With the leases expiring on September 4, 1999, we have no option but to proceed with expropriation now. The military installation at Nanoose is a key defence training facility. It is important to the preparations and training of Canadian naval forces.

We have made clear on numerous occasions in the past that the activities which this facility supports are very important to our defence effort and, in the interests of all Canadians, must be preserved. Current events show the importance of Canada's defence capability and I have the greatest difficulty understanding why your government would take action so contrary to the federal government's management of its clear responsibility for national defence.

We are also cognizant of the potential economic impact that closure of this facility would have on the small coastal community of Nanoose Bay. The sixty jobs, and between $6,000,000 and $8,000,000 worth of economic activity annually in the region associated with this facility are important to the economic health of this community.

Expropriation was not our preferred way of resolving this disagreement with your government. We made clear for many months that we were prepared to negotiate on Nanoose. Some weeks ago, you agreed our officials could meet and we entered into discussions in good faith.

As you know, our officials initialled the principles of an agreement last week, whereby the federal government would have paid a very great deal more to British Columbia, every year for 30 years, than the seabed is actually worth. In order to have an agreement rather than be forced to expropriate, we were prepared to make very generous payments.

You decided that you could not approve the principles of agreement negotiators were recommending to both governments because you insisted on the resolution of an unrelated issue with respect to the fishery.

The position of the federal government was made very clear: the resolution of Nanoose cannot be made subject to other issues unrelated to National Defence. However, even so you were offered a meeting at your convenience with the Prime Minister after the signature of an accord on Nanoose to discuss on its own merits any other issues which you might want to raise. You rejected this. We believe that the Government of Canada went more than the extra mile to achieve a good agreement on Nanoose and to assure you that any other issues of importance to your government would be raised and discussed with the Prime Minister on its merits.

As I stated at the outset, it is with regret that we begin this action. The Nanoose Bay facility is important to our defence alliances, our treaty obligations and the good training of Canadian naval personnel should they be called upon to go into harm's way. This facility is also important to British Columbia and critical to the economic well-being of the local community. You recognize that we have turned to expropriation only as a last resort and only when it was clear we had no choice if we are to ensure continued operation of this facility after expiry of the licence.

Sincerely,

Arthur Eggleton

(Applicant's Record, Affidavit of A. Welch, Exhibit 31, p.92) [Emphasis added]

[50]            As stated in the letter, CFMETR is a training facility. While I accept that the reasons for the Expropriation supplied in the letter have to do with the safety and security of Canada, I do not accept that a condition has been proved which, at the time the Expropriation proceedings were commenced, or now, can elevate the reasons given to a point where the mandatory terms of the Act can somehow be effectively disregarded.

[51]            Fifth, to find that the s.10(4)(a) deadline does not apply to the 570 objectors produces an absurd interpretation of the provision whereby the deadline would apply to two, but not the third procedural duty assigned to the Hearing Officer. In my opinion, to find this provision directory and not mandatory would render the deadlines of the provision meaningless (Regional Municipality of Ottawa-Carleton v. Canada Employment and Immigration Commission (1986), 86 CLLC 14,053, at p.12,308). Consequently, I find that the Respondent's argument also fails under the third criterion of the Normandin test because, on the plain meaning of the words used, it was clearly Parliament's intention that all the deadlines contained in the Act, including those found in s.10(4)(a), are to be considered mandatory.

[52]            In answer to the question first posed in this Section, I find that the Hearing Officer correctly interpreted s.10(4)(d), but did not follow it as required.

[53]            Therefore, I find that the failure to serve the Notice of Hearing on the 570 objectors within the deadline imposed by s.10(4)(a) is an error which prevents the Minister from acquiring jurisdiction to exercise his discretion under s.11(1)(a)(ii) of the Act.

V. The Applicant's Substantive Attack

[54]            With respect to the reporting obligations on a hearing officer, there is no dispute that the requirements of s.10(4)(d) of the Act are mandatory. However, a principal dispute does exist as to whether the Hearing Officer in the present case met the obligation assumed.

[55]            The Applicant also argues that the Minister's decision to confirm the Expropriation is so contrary to the will of the people of Canada that it cannot stand. While I appreciate the Applicant's submission that significant objection existed to the intended Expropriation, I cannot agree that a legal basis exists to support the argument advanced.

A. The purpose of the reporting requirement in s.10(4)(d)

[56]            It is important to keep in mind that the Act is only brought into play after the Minister is undoubtedly informed of the factual situation concerned, and on this basis has made a policy decision to expropriate. Thus, the general question is: what would one expect of a hearing officer's report of the "nature and grounds" of objections? Some assistance in reaching a conclusion is provided in the following excerpt from Todd at page 45 where the purpose of the hearing was discussed:

The intended purpose of the Canada inquiry was indicated by the Minister of Justice during the Third Reading Debate on the Canada Bill when he said:

The hearing is not a judicial inquiry; it is not an adversary procedure pitting the Minister against the expropriated owners or others interested. The purpose of the hearing is to bring to the public attention the objections and the reasons for those objections. The purpose is not to force the Minister of Public Works, on behalf of the people of Canada, to a trial of necessity. The Minister of Public Works will be responsible for the Expropriation to his colleagues and to the Parliament of this country, and that is a responsibility he will have to accept. His responsibility will be a political one not a judicial one because the decision to expropriate is, in the first instance, an administrative decision for which he bears political responsibility here. [Emphasis added]

[57]            Thus, there an important public interest component to the hearing requirement. The central purpose of the hearing and the overall objection process is intended to provide a forum for public participation through which substantive information regarding the actual potential effects of the expropriation may be obtained and, accordingly, to allow the Minister to gauge the breadth and depth of the public response.

[58]            It seems obvious that the report of the hearing officer must provide accurate and useful information about the "nature and grounds" of objections to an intended expropriation to allow the Minister an opportunity to decide whether the policy decision already taken should be confirmed. I believe that the public nature of the airing of objections legitimately creates this expectation in the public mind. That is, members of the objecting public are right to expect that what they have to say will be seriously considered, and perhaps impede, change, or end the expropriation under way. Therefore, ideally the report should provide the Minister with information he or she might not already know, and which might make a difference.

[59]            Therefore, the obligation accepted by a hearing officer is informational, both to the public and the Minister.

B. The meaning of "nature" and "grounds" in s.10(4)(d)

[60]            By requiring a hearing officer to report on the both the "nature" and "grounds" of the objections, Parliament is clearly imposing a two-part content requirement for a report to the Minister. Thus, in order to assess the Hearing Officer's compliance with s.10(4)(d), the ordinary meaning of the terms "nature" and "grounds" must be found.

[61]            The New Oxford Dictionary of English (Oxford: Clarendon Press, 1998 at p.1235) outlines various definitions of the word "nature". The definition most applicable to this review is "the basic or inherent features of something, especially when seen as characteristic of it". The applicable definition of "grounds" is "factors forming a basis for action or the justification for a belief"(New Oxford Dictionary of English, supra at p.811). In the legal context, Black's Law Dictionary (6^th ed. St. Paul Minnesota: West Publishing Co., 1990 at pp. 704 and 1027) defines "nature" as "a kind, sort, type, order; general character" and "grounds" as "the foundation or basis".

[62]            The definitions quoted support the Applicant's submission that in the context of expropriation proceedings, "nature" refers to a description of the objection and "grounds" refers to an explanation of the reason for an objection. I find that this is a correct interpretation of the requirements for the report outlined in s.10(4)(d) of the Act.

C. The Hearing Officer's Report

[63]            The Report is almost 300 pages in length, with information found at six different tabs. Tabs 3-5 consist of 200 pages of tables which give information about objections to the intended Expropriation. At Tab 6, the Hearing Officer includes "miscellaneous documents and correspondence".

1. The cover letter

[64]            Behind the first tab is the Hearing Officer's cover letter which is important for the statements it contains. Except for the pages explaining the costs claimed by objectors pursuant to s.10(9) of the Act, it reads as follows:

Dear Mr. Gagliano:

Re:            Nanoose Bay Expropriation

Acting upon the direction of the Attorney General of Canada as stated in her letter of July 5, 1999, I hereby deliver my report on the nature and grounds of 2,369 objections to the intended expropriation of certain lands at Nanoose Bay, the description of which was published in the Canada Gazette on May 22, 1999.

My report is in tabular form contained in two grey binders. Each contains the same information. The first, marked "BY NAME" is arranged alphabetically by objector surname. The second marked "BY IDENTIFICATION NUMBER" is arranged in the numerical sequence adopted by your officials at your offices in Ottawa and Vancouver.

To explain how the tables are read I set out here a sample page of the "BY NAME" binder. Reading from left to right, the first vertical column is the identification number (ID #) your staff assigned to a Notice of Objection. All in the sample page were processed in Vancouver.

The second vertical column is the surname of the objector, followed by his or her first name or initials.

An entry "D" in the next vertical column opposite the name of an objector indicates that the document so identified is either or both a multiple filing of the same document or the filing of two or more documents by the same individual. I refer to both kinds of duplication as "duplicates".

The final number of objectors could not be forecast during the period of 30 days following publication of your Notice of Intention to Expropriate on May 22, 1999. The hand delivery of a large number of Notices of Objection took place in Vancouver on June 21. Your officials had no choice but to mark every document which came in. They had no opportunity to determine whether one Notice of Objection was a duplicate of another. In the sample attached ID #10 and #83 are duplicates. When duplicates were uncovered they were so marked and only one Notice of Objection is counted to avoid conveying the sense there were two objectors when if fact there is but one. By August 17, the last day of the hearing, it had been determined that of the 2733 otherwise valid Notices of Objection processed in your offices, 364 were duplicates.

The next vertical column "Group 1 - 4" refers to the characteristics of the objectors and when read in conjunction with the heads of objections reflects my evaluation of the nature and grounds of the objections advanced. This is explained in greater length in the Addenda to this report.

Where the letter "C" occurs in the vertical column headed "Comments" the reader should turn to the Comments section in the Addenda to my report. Under the General section will be found observations about objector interrelationships, amongst other things. In the Particular section, observations will be found about certain objectors.

95 objectors availed themselves of the opportunity to be heard at the public hearings in Nanaimo in the weeks of 19 July and 26 July. Another 120 objectors were heard in Vancouver in the weeks of 2 August (less 3 August) and 9 August and for two days on the following week - August 16 and 17.

It will be apparent that the consideration you and your advisors give this report will require an understanding of the methodology underlying the tables from which the sample is taken.

In the Addenda I will discuss the problem created by the number of objections; the solutions adopted to meet this problem and the methodology underlying the solutions. I will also refer in greater detail to the nature and grounds of objection of the Province of British Columbia and of the Nanoose First Nation. In respect to the first I note the submission of the Province, stated in the alternative, that the extent of the land taken is excessive and that the nature of the interest should be limited. These submissions are found in Volume 4 of the Province's submission under Tab G and are referred to in my Comments on the Province's Submission.

Yours truly,

D.M.M. Goldie

Hearing Officer

(Respondent's Record, Affidavit of Theresa Johannsen, p.11). [Emphasis added]

A copy of the sample page included with the cover letter is attached to these reasons.

2. The tables

[65]            As emphasised above, the Hearing Officer states that the Report required to be submitted under s.10(4)(d) is, in fact, the 200 pages of tables included. Therefore, understanding how and why the four "characteristics of the objectors" and 21 "heads of objection" were developed, and how these labels were applied to the people and objections received by the Hearing Officer is essential to determining whether the Report meets the requirements of s.10(4)(d). The Addenda to the Report provides this information.

3. The Addenda

[66]            An Addenda is contained at Tab 2 of the Report. In this portion of the document, the Hearing Officer discusses the problems created by the number of objections, the steps taken to address these problems, and provides greater detail regarding the objections of British Columbia and the Nanoose First Nation.

a. the 21 heads of objection

[67]            The Hearing Officer explains that:

An initial examination of the [objections] when delivered from the Minister's Vancouver office revealed the grounds of objection could be reasonably identified and categorized under some 21 heads, the accuracy of which was substantially confirmed in Nanaimo. This permitted an expanded use of this database. With the exception of the vertical column headed Group 1-4 it is the basis for the remainder of the headings of the vertical columns in the tables (Respondent's Record, Affidavit of Theresa Johannsen, p.26).

[68]            Thus, with respect to some 3,000 objections filed, the Hearing Officer and his staff reviewed the objections and categorized them into 21 heads of objection as follows:

1     Nuclear submarines / weapons in BC waters

2     Misuse of expropriation power by federal government

3     Environmental damage caused by using area as a test range

4     Danger of nuclear accident

5     Concerns for Canadian sovereignty

6     Violation of World Court ruling / International law regarding nuclear weapons

7     General objection

8     Questions proposition that there is a need for nuclear weapons

9     U.S. should test in their own waters

10 Interference with right of free passage

11 Trespass on rights of / failure to consult First Nations people

12 Possibility that area will become a military target

13 Lack of economic compensation for expropriation / Chilean submarine

14 Less than full disclosure of purpose of the expropriation

15 Too expensive to keep range open

16 Concerns re adverse impact on tourism

17 More appropriate test sites

18 Nanoose Bay is listed by US as an American base

19 Negative effect on property value

20 Threat of US aggression against Canada

21 US is the only country that has invaded us in the last 220 years

[69]            The Hearing Officer states that the formulation of these heads provides the means by which a quantitative analysis may be made of the grounds of objection (Respondent's Record, Affidavit of Theresa Johannsen, p.11). The Addenda provides both a pre-hearing and post-hearing analysis of the number of objections that fall under each of the heads of objection.

b. the group characteristics

[70]            The Hearing Officer states in the Addenda that:

I found it relevant to my assessment of the nature and grounds of the objections of each individual (or, in a few instances, an organisation) to understand in some measure the linkage amongst the objectors. This was one of the purposes I attempted to reflect in the grouping (Respondent's Record, Affidavit of Theresa Johannsen, p.32).

[71]            Thus, the Hearing Officer developed and applied the following "group characteristics" analysis to the objections received:

The groups I formulated are four in number. No recommendation is intended or implied. I believe my analysis provides a reasonably consistent basis for the particular group I have allocated to each objector. The characteristics are as follows:

Group 1 Characteristics

1. Opposition to use of ranges by U.S. nuclear powered submarines was manifested before current dispute arose between Canada and British Columbia over lease renewal terms.

2. Has played an active, high profile leadership role in organized opposition to the existence of the Base.

3. Active to this end at all levels - community, province, Canada.

4. Opposition characterized by a disbelief in statements from U.S. and Canadian military sources minimizing danger of nuclear use, both for propulsion and for weapons.

5. Likely to express belief in the power and dominance of U.S. military in promoting the continued use of the Base in its alliance with the defence industry in that country and to a lesser extent in Canada.

Group 2 Characteristics

1. Opposition to use of ranges by U.S. nuclear powered submarines most likely manifested before current dispute arose between Canada and British Columbia over lease renewal terms.

2. Role in organized opposition to existence of the Base more likely to have been as a participant.

3. Active at local and political community levels.

4. Likely to express disbelief in statements from U.S. and Canada sources minimizing nuclear risks generally and specifically in respect to Nanoose.

5. Likely to express belief in the power and dominance of U.S. military in promoting the continued use of the Base in its alliance with the defence industry in that country and to a lesser extent in Canada.

Group 3 Characteristics

1. Opposition to continuation of present uses at Nanoose likely to be of more recent origin than those within Groups 1 and 2.

2. Support for, but not necessarily participation in, organized opposition.

3. Focus of opposition more likely to be on the danger to world peace from continued reliance on nuclear arms.

4. Suspicious of U.S. military and its links to U.S. defence industry and suspicious of the credibility of Canadian assurances with respect to the presence of nuclear weapons in Canadian waters.

5. More likely to emphasize the use of federal power of expropriation to take Provincial Crown lands as a bad precedent and harmful to intergovernmental relations and to Canada as a nation.

Group 4 Characteristics

1. Opposition to intended expropriation more likely to be linked to concern over proliferation of nuclear weapons and consequent danger to world peace.

2. Motivation more likely to emphasize personal concerns, including those of a religious or spiritual nature, over continued use of nuclear weapons.

3. Likely to accept at face value the reasons for opposing continued use of test ranges. Some readiness to accept explanatory statements from Canadian sources.

4. Opposition to intended expropriation may be expressed in terms of harm to Canada of a bad precedent despite provocative behaviour of British Columbia leaders.

5. Interest in exploring compromises was expressed by some objectors falling within this group.

In this formulation I have sought to reflect the difference between the apparent homogeneity of opposition to nuclear powered submarines in Canadian waters and the absence of homogeneity in the underlying reasons or grounds without going into these distinctions in every individual case.

The inferences I believe are permissible as within my mandate are:

The opposition from those who come within Group 1 will continue unless the intended expropriation is abandoned.

The opposition from those who come within Group 2 will also continue in support of what is initiated by the leaders in Group 1.

There will continue to be opposition from those in Group 3.

There may be continued opposition from Group 4 but interest would be shown in variations in the terms of the intended expropriation which reflected a compromise solution(Respondent's Record, Affidavit of Theresa Johannsen, pp. 28-31). [Emphasis added]

[72]            The above description explains how the Hearing Officer dealt with the objections, and the following statement from the Addenda explains why such a reporting style was adopted:

The other requirement needed to complete my report on individual Notices of Objection, except for those of the Province of British Columbia and the Nanoose First Nation, was the grouping of the characteristics or circumstances of an objector in a manner which would permit a report to be made of the large number of objectors within the time laid down in the Act. I experimented with individual reports. This proved to be too time-consuming (Respondent's Record, Affidavit of Theresa Johannsen, p.28). [Emphasis added]

Therefore, it is clear that the form and substance of the Hearing Officer's Report was driven in large part by the time constraints of the Act.

[73]            As emphasized on page three of the covering letter, the "characteristics of the objectors" read in conjunction with the "heads of objections", in combination with greater explanation in the Addenda, reflects the Hearing Officer's evaluation of the "nature and grounds of the objections advanced" pursuant to s.10(4)(d)of the Act. The question now becomes: did the Hearing Officer meet the obligations imposed by s.10(4)(d) of the Act.

D. Non-compliance with s.10(4)(d) of the Act?

1. Argument

[74]            The Respondent persuasively argues that the Act grants a hearing officer considerable discretion in how the report is to be prepared and presented, and Parliament intended to extend a wide measure of flexibility in the preparation of a report, including the ability to synthesize, categorize and generalize the objections.

[75]            However, the Applicant's primary argument is that, by undertaking a survey approach which relies on oversimplified heads of objection resulting in the predominantly tabular format, the Report does not meet the requirements of the Act in that it fails to communicate to the Minister, in any meaningful way, both the nature and grounds of the objections. That is, the "heads of objection" approach is inherently limited and does not contain the context and history that the Minister requires to make an informed decision under the Act. In particular, the Applicant argues that the Report contains virtually no discussion of the grounds of objection.

[76]            The Respondent responds that the Hearing Officer's Report is in compliance with s.10(4)(d) of the Act in that it contains a significant degree of detail regarding the nature and grounds of the objections filed, including the heads of objections, a discussion of four groups of objectors, and general and specific commentary on the objectors.

2. Conclusion

[77]            I can say without reservation that I agree with the Applicant's submissions. In my opinion the Hearing Officer misunderstood the requirements of s.10(4)(d), and, as a result, gave contentious subjective analysis that is not required and failed to report information that is required by the Act.

a. the misunderstanding

[78]            In my opinion, the approach taken by the Hearing Officer, being that of classifying and emphasizing the characteristics of the objectors rather than the content of their objections, is taken in error.

[79]            A hearing officer's obligation is to report information; he or she functions as a scribe or human tape-recorder (Todd, supra at p.49). There is no allowance in s.10 of the Act to do more or less.

[80]            In the Addenda, the Hearing Officer states that the "other requirement" needed to complete his Report was the grouping of the characteristics or circumstances of an objector (Respondent's Record, Affidavit of Theresa Johannsen, p.28). As described, the Hearing Officer went on to classify the objectors into four groups and described each group's characteristics, including likely beliefs and likelihood of continued opposition to the Expropriation. To repeat, the Hearing Officer opens his comments by saying:

I found it relevant to my assessment of the nature and grounds of the objections of each individual (or, in a few instances, an organization) to understand in some measure the linkage amongst the objectors. This was one of the purposes I attempted to reflect in the grouping (Respondent's Record, Affidavit of Theresa Johannsen, p.32)

[81]            The Hearing Officer's opening notes for the Hearings, which were prepared and distributed in order to clarify his role to the objectors, disclose his views on the obligations placed upon him by the Act. The following statement was included in the notes distributed at the Nanaimo hearings:

The role of the Hearing Officer is to identify the nature of the interests affected by the Notice of Intention to Expropriate and the grounds of objection(Respondent's Record, Affidavit of Theresa Johannsen, p.283). [Emphasis added]

[82]            In my opinion, the above passage reveals a misunderstanding. Section 9 of the Act states that persons choosing to file an objection are to indicate their interest in the matter of the intended expropriation, but the Act does not impose a duty to report on this information as concluded by the Hearing Officer.

[83]            It seems that the misunderstanding is a cause of the Hearing Officer preparing and including an unnecessary subjective analysis of the objectors. For example, while the "Comments" section of the Addenda does detail the grounds of objection provided by specific objectors including the Province of British Columbia and the Snaw-naw-as First Nation, the primary focus of the commentary is on the classification of the objectors, which is not required, rather than the content of their objections, which is required.

b. the subjective analysis

[84]            While it might be reasonably argued that there is no harm in reporting the interest of the various objectors, I find that the "group characteristics" analysis quoted above constitutes subjective political commentary which might not only be erroneous, but is potentially prejudicial to the reputations of the individuals and organizations so designated, and, as a result, might unfairly affect the weight to be given to the objections made.

c. the failure to report

[85]            While the Report contains information about the nature of the objections in the identification of the 21 heads of objection, and information is provided and conclusions are drawn about the objectors, there is limited information about the "grounds" of the 21 heads of objection identified.

[86]            While a description of the grounds of specific objectors is included in the "Comments" section of the Addenda, in my opinion, the Report does not convey the totality of the grounds of the objections to the Expropriation. The Hearing Officer chose to highlight the objections of specific groups or individuals, and while some of these discussions do contain description of the grounds of objection raised by these objectors, other discussions simply reiterate the heads of objections without clarification. Consequently, the total content of all the descriptive elements of the Report does not provide the grounds for all of the heads of objection identified. In my opinion, once the Hearing Officer identified 21 kinds or types of objection, he was required to provide a corresponding description of the ground, or basis, of each. The Hearing Officer failed to do so.

[87]            The Respondent submits that imposing a requirement for detail of each objection is inconsistent with the Act. I find that this is a correct assessment, since the Act simply requires a description of the nature and grounds of the objections as a whole. However, in my opinion, a tabular presentation of 21 heads of objection with virtually no description of the corresponding grounds does not meet the minimum standard required by the Act.

[88]            Thus, in my opinion, the Report lacks critical information on the grounds of the objections received which the public and the Minister required. Two examples will help to make the point.

[89]            The Hearing Officer's tables indicate that the Applicant's objections fall under five of the 21 heads of objection, including "Nuclear submarines / weapons in BC waters", and "Danger of nuclear accident". The Hearing Officer's quantitative analysis indicates that the Applicant's objections are shared by numerous other objectors. The objections regarding nuclear submarines and weapons in British Columbia waters are referenced 1,693 times by other objectors, while concerns regarding the risk of a nuclear accident are referenced 969 times. Despite this overwhelming concentration on these two heads of objection, the Report only contains sporadic discussion of the substantive concerns that formed the basis of these heads of objection.

[90]            The Georgia Strait Alliance, an environmental group formed in 1990 to specifically address the environmental and ecological well-being of the Strait of Georgia and its adjoining waters, appeared at the Hearing and made oral and written submissions on the following topics: nuclear weapons, naval nuclear reactors, lack of emergency preparedness, non-nuclear impacts on the marine environment, access and marine safety, and public response to the Nanoose test range (Applicant's Book of Documents, Tab 3).

[91]            The Hearing Officer classified the Alliance's objection as falling under eight heads of objection, including "Nuclear submarines/weapons in BC waters" and "Danger of nuclear accident". A review of the Alliance's submissions shows that, while these heads capture the general nature of its objections, the corresponding grounds involve extremely complex issues based on a wide ranging body of information from a variety of sources. This complexity is not addressed in any meaningful way in the Report.

[92]            The following excerpts from the Alliance's submission illustrate this point:

A study done by Dr. Jackson Davis of the University of California analysed the impact of two nuclear accident scenarios at CFB Esquimalt. The first was specific to nuclear weapons: it looked at the incineration (not detonation) of a single nuclear warhead in a shipboard fire. Dr. Davis found that the resulting radioactive cloud would contain concentrations of plutonium that exceeded Nuclear Regulatory Commission limits for air contamination by up to 10,000 times and ground contamination by up to one million times. As a result over 3400 people in the area could die from cancer. Since the density of population of our region has grown a great deal since this study, it would be safe to assume that the number of cancer fatalities now would be significantly higher. We note that Nanoose is situated right in the centre of the Georgia Basin, where two thirds of British Columbia's population lives.

Nuclear weapons accidents have occurred elsewhere in which nuclear bombs have split open releasing radioactivity into the environment. In the 60's, hundreds of tons of radioactive ice and soil had to be removed in Greenland after a B-52 bomber crashed. In this case and in another accident in Spain, the US government at first denied there were nuclear weapons involved - thus contaminating people unnecessarily in the interests of US naval secrecy. Various US Navy fleet instruction manuals over the years say that in the event of a weapons accident, on-scene commanders should "recover or remove ... all evidence of the nuclear weapon accident", and that public affairs officers should characterize the accident as "non-nuclear". According to one leading naval analyst, the reason for this secrecy is that admitting that a nuclear weapon accident has occurred in a host nation or even at-sea would severely damage US strategic access to Pacific ports. In other words, US naval access is more important than the lives or health of local people. [Sources: "OPNAVINST 3040.5B" (1992) and "USCINCPACINST S8110.4C" (1984).] (Applicant's Book of Documents, Tab 3)

[93]            This submission is just one of many examples of how objectors voiced concerns regarding the implications of the presence of nuclear weapons and/or nuclear powered vessels in British Columbia waters. Whether the grounds presented have a sound basis in fact was not for the Hearing Officer to assess, all that was required of him was to convey them in an accurate and meaningful way.

[94]            The lack of information communicated to the Minister is apparent even for the less complex heads of objection identified. For example, four hundred and thirty references were made to what is categorized as the "Violation of World Court ruling/International law regarding nuclear weapons" head of objection. In argument, the Applicant identified a wide range of international documents that were cited by different objectors; these included the Law of the Seas Treaty, the Convention on the Rights of Indigenous Peoples and the Principles and Objectives for Nuclear Non-Proliferation and Disarmament. The Hearing Officer failed to refer to even one of these international law instruments.

[95]            In my opinion, the Hearing Officer also erred in refusing to accept objections based on allegations of bad faith on the part of the Government of Canada. In the Addenda, the Hearing Officer states:"I do not consider bad faith to be a proper ground of objection when the other party cannot be heard" (page 17). In my opinion, the Hearing Officer had no legal basis for refusing this objection.

[96]            Section 10(5) of the Act grants a hearing officer discretion to disregard certain objections, but only if the objections are frivolous, vexatious or not made in good faith. It was not open to the Hearing Officer to refuse an objection because the Government of Canada was not present to answer to the allegation. The objection does not require a determination of validity on the part of the Hearing Officer; to the contrary, it merely requires reporting in the manner set out in s.10(4)(d).

[97]            The Respondent submits that a review of the Report should keep in mind the significant restrictions resulting from the rigid deadlines imposed by the Act. As previously discussed, I am sympathetic to the difficulties faced by the Hearing Officer, but cannot find that the requirements of the Act can be compromised by the practical difficulties experienced. The Minister selected the process, and is bound by its constraints.

[98]            Therefore, in addition to the Hearing Officer's failure to comply with the notice requirements of s.10(4)(a) as found in Section IV above, I find that the failure on the part of the Hearing Officer to report according to mandatory requirements imposed by s.10(4)(d) constitutes an error which prevents the Minister from acquiring jurisdiction to exercise his discretion under s.11(1)(a)(ii) of the Act.

                                                                Attachment

                                                               O R D E R

Accordingly, for the reasons provided, I quash the Minister of Public Works and Government Services Canada's confirmation made in the present case under s.11(1)(a)(ii) of the Expropriation Act, R.S.C. 1985, c. E-21 for want of jurisdiction.

I award costs to the Applicant.

Judge

OTTAWA, Ontario

FEDERAL COURT OF CANADA

TRIAL DIVISION

NAMES OF COUNSELS AND SOLICITOR OF RECORDS

DOCKET:                                T-1509-99

STYLE OF CAUSE: SOCIETY PROMOTING ENVIRONMENT CONSERVATION ET AL.

                                                                     and

ATTORNEY GENERAL OF CANADA

PLACE OF HEARING:         Vancouver, B. C.

DATE OF HEARING:           January 29, 2002

REASONS FOR ORDER AND ORDER OF MR. JUSTICE CAMPBELL

DATED:                                 March 05, 2002

APPEARANCES:

Mr. Andrew Gage / Mr. David Wright                                                   FOR THE PLAINTIFF

Mr. John Hunter / Mr. K. Micheal Stephens                                 FOR THE RESPONDANTS

SOLICITORS OF RECORD:

West Coast Environment Law Assoc.                                                   FOR THE PLAINTIFF

Vancouver , B. C.

Davis & Company                                                                        FOR THE RESPONDANTS

Vancouver, .B. C.