The potential for overlapping legislation in marine pollution has been reduced by another interlocutory judgment in the ongoing MARATHASSA case.
The Defendant ship asked for a directed verdict (the equivalent of a dismissal motion on the civil side) in relation to a charge of unlawful disposal at sea under the Canadian Environmental Protection Act, 1999 (CEPA). The provisions in question prohibit the disposal at sea of a substance unless it is prescribed waste (which does not include oil) and the disposal is carried out via Canadian permit. Disposal that is incidental to or derived from the normal operations of a ship is not disposal under the Act.
CEPA is an “omnibus” environmental statute which applies broadly in the non-marine sector. The Part dealing with disposal at sea was “tacked on” via consolidation, and was originally in the old Ocean Dumping Control Act. There has long been debate about the application of the disposal provisions to unintentional discharges of pollutants, notably oil, given that other statutes address such discharges specifically. But it has been rare that charges in such cases have also been brought under CEPA, and the overlapping issue has never been dealt with conclusively; so the overlap has continued to be part of the potential liability matrix.
In R. v. M/V MARATHASSA, the B.C.Provincial Court decided that CEPA’s disposal-at-sea provisions only apply to intentional disposal. In particular, the Court considered the legislative history of the provisions, noting that the original legislation was for the purpose of enacting the 1972 London Convention on the Prevention of Marine Pollution by Dumping (… etc.) and its 1996 Protocol. The Court noted that “dumping”, which later morphed to “disposal”, was always understood in the context of deliberate disposal, which originally was explicitly referred.
For reasons of statutory interpretation, the later dropping of the explicit reference to “deliberate” did not mean that Canada had broadened the statute to include non-deliberate disposal. One of the considerations was that the exclusion of disposals during normal ship operations reinforced that the provisions are aimed at the prohibition of intentional disposal.
We understand that the Crown (the prosecuting authority) has already filed an appeal.