Nanoose Conversion Campaign v. Canada ( Minister of Environment )
T-2875-96
Joyal J.
17/12/97
13 pp.
Judicial review of Minister's decision Department of National Defence, United States Navy at Canadian Forces Maritime and Experimental Test Ranges (CFMETR) at Nanoose Bay, B.C. not requiring ocean dumping permit under Canadian Environmental Protection Act (CEPA)-CFMETR underwater weapons testing facility-In testing procedure copper wire used to direct torpedoes, lead weights on torpedoes, sonobuoy hardware (including lithium batteries) falling to bottom of ocean-Minister holding CFMETR not violating CEPA, ss. 67 (prohibiting dumping in sea from ship except in accordance with permit), 70 (prohibiting disposing of ship, aircraft in sea)-By definition (s. 66) "dumping" not including any disposal incidental to or derived from normal operations of ship, aircraft-Applicant arguing determination "disposal incidental to or derived from the normal operation" of warship including dumping of pieces of ammunition or of war booty, error of law-Submitting disposal incidental to or derived from normal operation of warship limited to normal operational discharge, such as galley waste, bilgewater, cleansing operations, but not extended to "nuclear warhead" testing and sonobuoy release-Court presuming reference to nuclear warhead not reference to reality-Record indicating for testing purposes, types of torpedoes used carry no warheads at all-Application dismissed-S. 109(3) providing Minister may discontinue investigation where of the opinion alleged offence not requiring further investigation-Ministerial logic concluding firing of test torpedoes, floating of sonobuoys, as well as subsequent disposal of weights, wires or other debris constituting disposal incidental to warship provided with torpedo tubes, whose function in Nanoose Bay Range to conduct testing of marine weapons, gear generally-Field of ministerial discretion conferred by statute long interpreted as fairly wide-As far back as 1946 in Pure Spring Co. Ltd. v. Minister of National Revenue, [1946] Ex. C.R. 471 Thorson P. stating governing principle that when Parliament entrusting administrative function involving discretion to authority other than Court, function to be performed by such authority without interference by Court either directly or indirectly-Warship no less ship than any other kind of vessel used for marine navigation-Minister's opinion disposal of copper wire, weights incidental to or derived from normal operations of warship of greater concern-At first blush might impose extended meaning on words found in enactment, but more studied approach leading to different conclusion: Minister noting extensive, thorough environmental assessment, indicating minimal impact from accumulation of debris; and environmental literature observing certain negative consequences of operations at Nanoose Bay, recommending ways, means of mitigating them-Open to Minister to find loss of copper wire, torpedo weights, sonobuoy hardware, batteries not constituting dumping, but only incidental to or derived from normal operations of warship or of any of its equipment-Canadian Environmental Protection Act, R.S.C., 1985 (4th Supp.), c. 16, ss. 66, 67, 70, 108, 109.