Federal Court Decisions

Date: 19971217

Docket: T-2875-96

BETWEEN:

     NANOOSE CONVERSION CAMPAIGN

     Applicant

AND:

     THE MINISTER OF ENVIRONMENT

     Respondent

     REASONS FOR ORDER

JOYAL, J.

[1]      This is an application for judicial review of a decision by the Minister of Environment, dated November 28, 1996, pursuant to sections 108 and 109 of the Canadian Environmental Protection Act, R.S.C. 1989, c. C-15.3 ("CEPA"). The Minister of Environment decided that an ocean dumping permit under CEPA was not required by the Department of National Defence and the United States Navy at the Canadian Forces Maritime and Experimental Test Ranges ("the CFMETR") at Nanoose Bay, British Columbia.

The Facts:

[2]      The applicant, Nanoose Conversion Campaign ("NCC"), is an non-profit organization committed to the conversion of the CFMETR at Nanoose Bay to more peaceful pursuits.

[3]      The CFMETR is an underwater weapons testing facility located in the Straight of Georgia, used by the Canadian Department of National Defence and the United States Navy. The testing is done over a range of some 75 miles and is located along the eastern coast of Vancouver Island, some 22 km north of Nanaimo. The testing consists mostly of Mack 46 and Mack 48 torpedoes fired from ships and directed by copper wires. Direction or bearing is by underwater sound waves propagated by sonobuoy units. In the testing procedure, the copper wire, the lead weights on the torpedoes and the sonobuoy hardware (including lithium batteries) fall to the bottom of the ocean, some 450 to 550 metres down. To date, this debris includes about 93,000 km of plastic-covered copper wire used for torpedo guidance and 8,500 km of sonobuoy wire, 1300 tons of lead weight, 60,000 sonobuoy cases and 51,000 sets of sonobuoy entrails containing lithium batteries.

[4]      The amount of torpedo guidance wire used depends on the length of the run of the torpedo. The sonobuoys, for strategic and security reasons, sink roughly eight hours after launching and are generally not retrieved. In 1990, approximately 2,000 sonobuoys were used in the testing range.

[5]      In July 1996, the applicant requested an investigation of these activities under sections 108 and 109 of CEPA, alleging that the deposit of debris in the ocean violated sections 67 and 70 of same.

[6]      On September 11, 1996, the Regional Director advised the applicant that the matter had been forwarded to the Investigations Section for further action. An inspector visited the CFMETR, questioned the Commanding Officer, reviewed the environmental assessment report of the operational testing exercises and concluded that the ocean disposal sections of CEPA did not apply to the activities investigated.

[7]      By letter dated November 28, 1996, the Minister informed the applicant that the Canadian Department of National Defence and the United States Navy were not violating sections 67 or 70 of CEPA, and that an ocean dumping permit was not required.

The Issue:

[8]      The applicant submits that the Minister of Environment erred in law when he determined (a) that the CFMETR did not violate sections 67 and 70 of CEPA, and (b) that the Canadian Department of National Defence and the United States Navy did not require an ocean dumping permit.

The Statute:

[9]      The relevant provisions may be found in sections 66, 67 and 70 under Part VI (Ocean Dumping) of CEPA, and in sections 198 and 109 of Part VII (General) of same. These provisions read as follows:

66.      (1)

[...]

"dumping" means

(a) the deliberate disposal at sea from ships, aircraft, platforms or other anthropogenic structures, including disposal by incineration or other thermal degradation, of any substance, or

(b) the disposal of any substance by placing it on the ice in any area of the sea referred to in paragraphs (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;

"master" includes every person having command or charge of a ship but does not include a pilot;

"owner", in relation to a ship, aircraft, platform or other anthropogenic structure means the person having for the time being, either by law or by contract, the possession and use of the ship, aircraft, platform or structure;

"ship" includes any description of vessel, boat or craft used or capable of being used solely or partly for marine navigation without regard to its method or lack of propulsion;

67.      (1) Subject to subsection (2) and section 68, no person shall dump any substance

(a) in any area of the sea referred to in paragraphs 66(2)(a) to (f) from any ship, aircraft, platform or other anthropogenic structure;

(b) in any area of the sea referred to in paragraph 66(2)(g) or (h) from any Canadian ship or Canadian aircraft; or

(c) in any area of the sea referred to in paragraph 66(2)(g) or (h) from any ship or aircraft that is not a Canadian ship or a Canadian aircraft and onto which the substance has been loaded in Canada.

(2) A person may dump a substance

(a) as described in paragraph (1)(a) or (c) in accordance with a permit granted under section 71; and

(b) as described in paragraph (1)(b) in accordance with a permit granted under section 71 or a permit granted in accordance with the Convention by a contracting party other than Canada.

70.      (1) No person shall dispose of any ship, aircraft, platform or other anthropogenic structure in any area of the sea referred to in paragraphs 66(2)(a) to (f) except in accordance with a permit granted under section 71.

(2) No person shall dispose of any Canadian ship or Canadian aircraft in any area of the sea referred to in paragraph 66(2)(g) or (h) except in accordance with a permit granted under section 71 or a permit granted in accordance with the Convention by a contracting party.

108.      (1) Any two persons resident in Canada who are not less than eighteen years of age and who are of the opinion that an offence has been committed under this Act may apply to the Minister for an investigation of the alleged offence.

(2) An application for an investigation shall be accompanied by a solemn or statutory declaration

(a) stating the names and addresses of the applicants;

(b) stating the nature of the alleged offence and the name of each person alleged to be involved in its commission; and

(c) containing a concise statement of the evidence supporting the allegations of the applicants.

109.      (1) On receipt of an application under section 108, the Minister shall acknowledge receipt of the application and investigate all matters that the Minister considers necessary for a determination of the facts relating to the alleged offence.

(2) Within ninety days after receiving an application under section 108, the Minister shall report to the applicants on the progress of the investigation and the action, if any, that the Minister proposes to take.

(3) The Minister may discontinue an investigation where the Minister is of the opinion that the alleged offence does not require further investigation.

(4) Where an investigation is discontinued, the Minister shall

(a) prepare a report in writing describing the information obtained during the investigation and stating the reasons for its discontinuation; and

(b) send a copy of the report to the applicants and to any person whose conduct was investigated.

Position of the Applicant:

[10]      The applicant structures its argument on the statute which specifically regulates the dumping of any substance from a ship except in accordance with a ministerial permit. In brief, it is the applicant's case that the warship operations do not come within the statutory exceptions, that the disposal of lead, copper and plastic wire constitutes deliberate dumping and that such disposal is not "disposal incidental to the operations of the vessels".

[11]      According to counsel for the applicant, the purpose of the statute before the Court is to protect the environment, marine or otherwise. The applicant relies on such a purposeful interpretation of the statute by reason of the anti-dumping provisions in prior legislation, including the 1972 International Convention on Ocean Dumping, in force since 1975; an extensive analysis of this particular field is found in an article by Elaine Hughes, published in the Canadian Yearbook of International Law¹. In such circumstances, argues the applicant, an interpretation of the statute should be consonant with its general regulatory scheme and advance its purpose and objects.

[12]      Furthermore, counsel for the applicant argues that a determination of "disposal incidental to or derived from the normal operation" of a warship to include the dumping of pieces of ammunition or of war booty is an error of law. In counsel's mind, the disposal incidental to or derived from the normal operation of a warship is to be limited to normal operational discharge, such as galley waste, bilgewater, cleansing operations, but not extended to "nuclear warhead" testing and sonobuoy release. The Court presumes that this reference to nuclear warhead is not a reference to reality. Indeed, the record before me indicates that, for testing purposes, the two types of torpedoes used carry no warheads at all.

[13]      To conclude, the applicant argues that the scheme and purpose of the statute are intended to create a blanket prohibition. It is preventative, not curative, legislation. Dumping may only be done by permit.

Position of the Respondent:

[14]      Counsel for the respondent argues that the Minister's decision is entirely legitimate and that in the exercise of his discretion, the Minister relied on both the situation of fact before him and on the relevant provisions of the statute. On the situation of fact, the Minister determined that:

1.      The Mark 46 torpedo, which is launched from a ship, aircraft or a platform, is equipped with lead weights for the purpose of counteracting the buoyancy created by the removal of the warhead. In the course of a test, these weights are released in order to recover the torpedo which would otherwise be lost in the waters or on the bottom of the Georgia Strait. When the lead weights sink to the bottom of the Georgia Strait in the range, they become embedded into the soft sediments there. Attempts to recover these lead weights have been unsuccessful because they cannot be located in the sediments.

2.      The Mark 48 torpedo, which is launched from a ship or platform, is equipped with thin plastic-coated copper wire for the purpose of guiding the torpedo's movement during the test. Attempts to recover this plastic-coated copper wire at the end of a test have not been successful because the wire breaks.

3.      The sonobuoys are launched from aircraft or ships for the purpose of providing acoustic information about the underwater activities of vessels or torpedoes. These sonobuoys are designed to sink within 8 hours to prevent them from becoming a hazard to navigation and, in conflict situations, to prevent their being retrieved by the enemy. Attempts to recover sonobuoys in the test range are not successful because most sink before they can be located in the 75 square mile range.2

[15]      In deciding as he did, the Minister further relied on an environmental assessment of the testing exercises in Nanoose Bay conducted in March 1996 by the Pacific Marine Technology Centre. This assessment was later reviewed by the Head of Investigations, Environmental Protection Branch of the Department of Environment, who concluded that the debris from the weapons testing activities was not likely to have any detectible environmental effect. The March report had noted that the accumulation of debris constituted more of an aesthetic problem than one of physical impact on the environment.

[16]      With this background in mind, counsel for the respondent submits that the Minister's ultimate decision was duly authorized by, and in conformity with the statute. According to counsel:

1.      there was compliance with the provisions of s.66 of the statute, which defines "dumping" and which is particularly relevant to the provisions of ss. 108 and 109 respecting investigations following a complaint;

2.      the statute requires that first of all, some prior determination be made that dumping has or will occur, and if in the opinion of the Minister, this threshold test has not been met, then it is evident that the scheme of the statute is not engaged.

Analysis:

[17]      The power conferred upon the Minister to investigate offenses under the statute is set out in s. 109. Of interest is s-s. (3), where the Minister may discontinue an investigation where the Minister is of the opinion that the alleged offense does not require further investigation.

[18]      Of further interest are the specific definition of "dumping" under s. 66 and the prohibitions against "dumping" under s. 67. It is clear, I believe, that these provisions are concerned with the dumping of substances which have an adverse effect on the marine environment and are part of a regulatory scheme to deal with such dumping.

[19]      In the mind of the Minister, a warship is a ship. The definition of "dumping" from a ship, as found in s-s. 66(1), excludes any disposal that is incidental to or derived from the normal operations of that ship. Ministerial logic puts the pieces together and concludes that the firing of test torpedoes and the floating of sonobuoys, as well as the subsequent disposal of the weights, wires or other debris mentioned earlier constitute disposal that is incidental to a warship which is provided with torpedo tubes and whose function in the Nanoose Bay Range is to conduct testing of marine weapons and marine gear generally.

[20]      Questions may now be put. What is the Minister's field of discretion under sub-section 108(2)? Is it an error of law for the Minister to rule that activities at Nanoose Bay do not constitute dumping?

[21]      Inviting the Court to comment on these two questions imposes some restraint. The Court here is dealing with judicial review, not with an appeal process as such is generally understood. Furthermore, the field of ministerial discretion conferred by statute has long been interpreted as a fairly wide one. As far back as 1946, Thorson J. could state the following

The governing principle that runs through the case is that when Parliament has entrusted an administrative function involving discretion to an authority other than the Court, it is to be performed by such authority without interference by the Court, either directly or indirectly. When a person has been given jurisdiction to form an opinion and act according. The Court has no right to review such opinion or the considerations on which it was based; the accuracy of the opinion is quite outside this jurisdiction.3

[22]      There were additional relevant comments by Thorson J. in the Pure Spring case, at p. 502:

[...] the authorities make it quite clear, in my opinion, that the Minister in making his discretionary determination under Section 6(2) is not restricted to the same considerations as would govern a court of law in arriving at a judicial decision; he is not confined to provable facts or admissible evidence, but may obtain his information from any source he considers reliable; he may use his own knowledge and expertise or that of his officers in his department in whom he has confidence and he may take the benefit of their advice which recommends itself to him; in a field exclusively assigned to him by Parliament he is free to act as Parliament itself; he may use his own judgment and in doing so, be guided by the "intuition of experience which outruns analysis", as Mr. Justice Homes put it; he may use all the aids which will enable him to carry out honestly the administration and definition of a policy that Parliament has entrusted to him.

[23]      Similar views were expressed in other cases⁴. Furthermore, everyone is now very familiar with the statement of the law by Mr. Justice McIntyre, of the Supreme Court of Canada, in Maple Lodge Farms Ltd. v. Canada⁵, where he said:

It is, as well, a clearly-established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility. Where the statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere.

[24]      Is there error by the Minister in finding that a warship is included in the genus "ships, aircraft, platforms" in para. 66(1)(a) of the statute? That section goes on to state that "ship" includes "any description of vessel, boat or craft used or capable of being used solely or partly for marine navigation without regard to its method of lack of propulsion". The French definition is more global in scope: "navire" - tout engin flottant qui sert ou peut servir, exclusivement ou partiellement, à la navigation maritime, qu'il soit pourvu ou non d'un moyen propre de propulsion. In my respectful view, a warship is no less a ship than any other kind of vessel, boat or craft used for marine navigation.

[25]      Of greater concern might be the Minister's opinion that the disposal of copper wire, weights and the like is incidental to or derived from the normal operations of a warship or of any equipment on a ship. At first blush, this might impose an extended meaning to the words found in the enactment. A more studied approach, however, leads me to conclude otherwise:

1.      The discretion conferred on the Minister in s-s. 109(3) to discontinue an investigation when he is of the opinion that no further investigation is called for is a far-reaching discretion and its exercise is strongly immune from judicial intervention.

2.      the Minister took note of the extensive and very thorough environment assessment, indicating minimal environmental impact from the accumulation of debris. "As with litter on land", says the report, "the accumulated litter from the range activities is essentially a 'housekeeping' issue, more related to aesthetics than to direct physical impact".

3.      The environmental literature is in no way pure whitewashing. It does observe certain negative consequences of the operations at Nanoose Bay and recommends ways and means of mitigating them.

4.      These weapons testing activities have been going on for many years at Nanoose Bay, and the safety record of the place has been described as "excellent".

5.      Although environmental studies indicate that the activities at Nanoose Bay meet or exceed environmental standards, the spirit and intent of the regulations relating to ocean dumping or to fisheries generally must always be respected. A cautionary approach is to be maintained.

[26]      The foregoing is but a summation of the various circumstances facing the Minister when he decided as he did. In my respectful view, it was open to him 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. Furthermore, I fail to find any reviewable error where, in the factual content of this case, the Minister could conclude that in his opinion, no further investigation of the complaint was warranted.

Conclusion

[27]      The application for judicial review is accordingly dismissed. The Court very much appreciates the helpful application records filed by counsel for both parties.

                                 L-Marcel Joyal

    

                                 J U D G E

O T T A W A, Ontario

December 17, 1997.

__________________

     ¹      Vol. XXVI, 1988, p. 155.

     ²      The foregoing is drawn from the Respondent's Application Record, and repeats para. 8 of the affidavit evidence of Robert Gordon Thompson, sworn January 29 1997 (TAB 1).

     ³      Pure Spring Company Ltd. v. MNR, (1946) Ex.C.R. 471.

     ⁴      See Calgary Power Ltd. et al v. Clarence Copithorne , (1959) S.C.R. 24; Associated Provincial Picture Houses v. Wednesbury Corporation, (1947) 2 All E.R. 680.

     ⁵      (1982) 2 S.C.R. 2.