Early Recovered Resources Inc. v. Gulf Log Salvage Co-Operative Assn. (C.A.) [2003] 3 F.C. 447
Date: 20030124
Docket: A-106-02
(T-588-00)
CORAM: ROTHSTEIN J.A.
BETWEEN:
GULF LOG SALVAGE CO-OPERATIVE ASSOCIATION,
HER MAJESTY IN RIGHT OF THE PROVINCE OF BRITISH COLUMBIA,
AND JIM DOYLE, MINISTER OF FORESTS
APPELLANTS
and
EARLY RECOVERED RESOURCES INC.
RESPONDENT
and
COAST FOREST AND LUMBER ASSOCIATION AND INDEPENDENT
TIMBER MARKETING ASSOCIATION
INTERVENER
Heard at Vancouver, British Columbia on Wednesday, December 18, 2002.
Judgment delivered at Ottawa, Ontario, January 24, 2003.
REASONS FOR JUDGMENT BY: PELLETIER J.A.
CONCURRED IN BY: ROTHSTEIN J.A.
CONCURRING REASONS BY: MALONE J.A.
Date: 20030124
Docket: A-106-02
(T-588-00)
Neutral citation: 2003 FCA 35
CORAM: ROTHSTEIN J.A.
BETWEEN:
GULF LOG SALVAGE CO-OPERATIVE ASSOCIATION,
HER MAJESTY IN RIGHT OF THE PROVINCE OF BRITISH COLUMBIA,
AND JIM DOYLE, MINISTER OF FORESTS
APPELLANTS
and
EARLY RECOVERED RESOURCES INC.
RESPONDENT
and
COAST FOREST AND LUMBER ASSOCIATION AND INDEPENDENT
TIMBER MARKETING ASSOCIATION
INTERVENER
REASONS FOR JUDGMENT
[1] This is an appeal by Her Majesty the Queen in right of the Province of British Columbia (the Province) from the dismissal of her motion for summary judgment. The plaintiff (respondent in the appeal) has brought an action seeking a declaration of invalidity of Part IX of the Forest Act R.S.B.C 1996, c. 157, dealing with Marine Log Salvage, and its associated regulations (Log Salvage Regulation for the Vancouver Log Salvage District, B.C. Reg. 220/81), on the ground that they are legislation in relation to salvage, a matter within exclusive federal jurisdiction. The Province sought to put an early end to the litigation by moving for summary judgment, asserting the constitutional validity of its legislation. However, its motion was dismissed for reasons which, while stopping short of a declaration of invalidity, left no doubt as to the Motion Judge's conclusion that the provincial legislation was ultra vires. That decision is reported at 2002 FCT 184, [2002] F.C.J. No. 234.
[2] The activity in issue is the recovery of logs left behind in coastal waters and rivers as a result of logging operations. The Province has enacted a scheme which provides for licensing of those who engage in log recovery, the establishment of a body to receive and dispose of the logs, and the distribution of the proceeds of the sale of the recovered logs to those who recovered them, and to those who claim an interest in them. The legislation describes all of this in terms of log salvage but on my reading of it, the legislative purpose could have been accomplished just as easily had the word recovery been used instead of the word salvage. All of which is to say that I attach no significance to the use of the word "salvage" in the legislation.
[3] The respondent believes that the amounts paid to those who recover logs under the provincial scheme are too low and, by way of a declaration of invalidity of the provincial legislation, seeks to bring itself within the more generous scheme contemplated by the International Convention on Salvage 1989 to which Canada is a signatory and which has been incorporated into the Canada Shipping Act, R.S.C. 1985 c. S-9 (the Shipping Act). If it is successful, responsibility for an activity which the province has regulated for some considerable time will pass to the Government of Canada which evinces little interest in assuming this burden as it has not appeared in these proceedings to assert the jurisdiction which the plaintiffs seek to bestow upon it.
[4] Section 449.1 of the Shipping Act declares the International Convention on Salvage 1989 (the Convention) to have the force of law in Canada. The Convention defines "salvage operation" as "any act or activity undertaken to assist a vessel or any other property in danger in navigable waters or in any other waters whatsoever". Property is defined as "any property not permanently and intentionally attached to the shoreline and includes freight at risk". Salvage is not defined in the Shipping Act so that the definition in the Convention applies for purposes of this purposes of this litigation.
[5] The learned Motions Judge concluded that once it is found that the subject matter of Part IX of the Forest Act and its associated regulations fall within the definition of salvage in the Convention, there is no room for the province to assert jurisdiction in relation to that subject matter. He concluded, on the strength of the wording of the Convention and its incorporation into domestic law, that "Parliament has clearly legislated so as to extend the scope of marine salvage to include 'property' such as logs and booms of logs within the scope of the law of salvage". He observed that when the drafters of the Convention made it applicable to "property of any kind", they did not intend any restriction on the nature of the property.
[6] Salvage is not itself an enumerated head of power under section 91 of the Constitution Act 1867 30 & 31 Victoria, c. 3. (U.K.) so that the fact that the subject matter of the legislation falls within the definition of salvage is not conclusive of constitutional competence. Salvage is matter of federal jurisdiction because it comes within one of the enumerated heads, namely shipping. The definition of salvage in the Convention cannot alter the division of powers under the Constitution. Consequently, the question is not whether the provincial log recovery scheme falls within the expanded definition of salvage but whether that scheme has a sufficient connection to shipping such that the expanded definition of salvage would apply to it. In other words, log recovery is not an aspect of shipping (and subject to federal jurisdiction) simply because it falls within the definition of salvage. If the provincial scheme falls within federal jurisdiction, it is because it is necessarily ancillary to shipping and is therefore properly characterized as salvage.
[7] The question of the validity of the provincial legislation is to be decided by employing the pith and substance analysis as set out in Kitkatla Band v. British Columbia 2002 SCC 31 at para. 58:
1. Do the impugned provisions intrude into a federal head of power, and to what extent?
2. If the impugned provisions intrude into a federal head of power, are they nevertheless part of a valid provincial legislative scheme?
3. If the impugned provisions are part of a valid provincial legislative scheme, are they sufficiently integrated with the scheme?
[8] The Province has set out its position with respect to the connection between log recovery and logging and forestry. However to dispose of this matter in the manner sought by the Province would require me to find that there is no sufficient connection between log recovery and shipping to justify federal jurisdiction. I do not have before me a record upon which I could make such a determination. Even though this is an application for summary judgment where the onus is on each party "to put their best foot forward" [see Feoso Oil Ltd. v. Sarla (The), [1995] 3 F.C. 68 (C.A)], a court ought not to rule upon the constitutional validity of legislation except upon an adequate factual record.
[9] Consequently, I am unable to dispose of the question which was before the Motions Judge. The matter will therefore have to be decided by the trial judge on a fully developed record. The matter must proceed to trial, as the learned motions judge directed, but on the understanding that the constitutional validity of the provincial legislation has yet to be decided. Since this results in the same disposition of the motion for summary judgment as was arrived at by the Motions Judge, the appeal must be dismissed. By agreement of the parties, all will bear their own costs.
"J.D. Denis Pelletier"
J.A.
"I agree
Marshall Rothstein
J.A."
MALONE J.A. (concurring)
[10] I concur with the reasons of Pelletier J.A. in this appeal but wish to add the following observations.
[11] Aside from the constitutional validity of the legislation one further matter must be addressed. In bringing her motion for summary judgment, the Province relied on undisputed constitutional facts agreed to by the respondent. However, during the course of argument, it became clear that there are other relevant but disputed facts that will bear upon the ultimate disposition of the action should the federal legislation and the Convention ultimately prevail.
[12] These disputed facts raise genuine issues for trial in connection with the applicability of Chapter 3 of the Convention dealing with the rights of salvors and log recovery on the Fraser River. Without limiting in any way the issues for trial, these would include whether a log boom from which the floating logs escape is a vessel as that term is defined in the Convention; whether the Province's ownership claim satisfied the ownership requirements of Article 8 dealing with the duties of the owner of a salved vessel or salved property; whether the subject logs threaten the environment so as to give rise to a claim under Articles 13 and 14; and, finally, whether a claim for special compensation assessable under Article 14 could successfully be advanced against the Province in these circumstances.
[13] While the record is unclear as to whether all of these issues were canvassed before the Motions Judge, collectively, they give rise to genuine issues for trial.
"B. Malone"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-106-02
(T-588-00)
STYLE OF CAUSE: Gulf Log Salvage Co-operative Association et al v.
Early Recovered Resources Inc.
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: December 18, 2002
REASONS FOR JUDGMENT BY: PELLETIER J.A.
DATED: January 24, 2003
CONCURRED IN BY: ROTHSTEIN J.A.
CONCURRING REASONS BY: MALONE J.A.
APPEARANCES:
Mr. Tim Leadem, Q.C. FOR APPELLANT
Ms. Nancy Brown
Ms. Angela McCue FOR RESPONDENT
Ms. Margot Venton
SOLICITORS OF RECORD:
Ministry of Attorney General FOR APPELLANTS
Victoria, BC
Sierra Legal Defence Fund FOR RESPONDENT
Vancouver, BC