¹ “Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter,” [1979] Can. T.S. No. 36, hereafter “Convention.”

² The Convention entered into force on August 30, 1975 and became effective for Canada on December 14, 1975 following ratification on November 13, 1975. See International Maritime Organization Doc. LDC 9/INF. 2, May 28, 1985.

³ R.S.C. 1985, c. 0-2, revised and re-enacted since the case was heard as Part VI of the Canadian Environmental Protection Act, 1988 c. 22.

⁴ [1988] 1 S.C.R. 401.

⁵ See Convention, Art. 4.

⁶ Annex I to the Convention is the “black list” ; Annex II is the “grey list.”

⁷ Section 4 [revised and re-enacted S.C. 1988, c. 22 s. 67].

⁸ The “grey list” and the “black list” have become Parts I and II of Schedule III to the Canadian Environmental Protection Act.

⁹ R.S.C. 1985, c. 0-2, s. 13. However, the gradation in the maximum level of fines for dumping the three categories of substances appears to have been dropped from the Canadian Environmental Protection Act, S.C. 1988, c. 22, s. 113 para. (m).

¹⁰ Article 3, para. 3. At international law the internal waters of a State are those on the landward side of the baselines of the territorial sea. United Nations Convention on the Law of the Sea, 1982, Art. 8.

¹¹ R.S.C. 1985, c. 0-2, s. 2; S.C. 1988, c. 22, s. 66. The definition of internal waters in the Act excludes fresh waters as well as the area inland of a specified Une in the Gulf of St. Lawrence.

¹² Bays and inlets that are intra fauces terrae or “within the jaws of the land” are generally considered to form part of the adjacent province. See Capital City Canning and Packing Co. v. Anglo-British Columbia Packing Co. (1905) 11 B.C.R. 333, per Duff, J. at 339. Such bays and inlets invariably form part of the internal waters of Canada. On the status of Georgia Strait and the Bay of Fundy, see Re Ownership of the Bed of the Strait of Georgia [1984] 1 S.C.R. 388 and R. v. Burt (193a) 5 M.P.R. 112.

¹³ United Nations Convention on the Law of the Sea, 1982, Art. 2.

¹⁴ Ibid., Arts. 17 and following.

¹⁵ See Timagenis, , “International Control of Dumping at Sea,” (1973) 2 The Anglo-American Law Review 157 at 178–79.CrossRefGoogle Scholar

¹⁶ R. v. Crown Zellerbach Canada Ltd. (1982) 11 C.E.L.R. 151 (Prov. Ct.); (1984) 7D.L.R. (4th) 449 (B.C.C.A.).

¹⁷ [1980] 2 S.C.R. 213.

¹⁸ Attorney-General for Canada v. Attorney-General for Ontario [1937] A.C. 326.

¹⁹ [1977] 2 S.C.R. 134.

²⁰ R. v. Crown Zellerbach Canada Ltd. supra note 4, at 443.

²¹ As noted at pp. 427–28 of the decision, the “peace, order and good government” power is now considered to have three branches: (a) the emergency power; (b) new matters that cannot be assigned to the provincial list; and (c) matters that go beyond local concern and are inherently of concern to the nation as a whole. It is this third branch of the power that is termed the “national concern” or “national dimensions” doctrine. See generally Hogg, , Constitutional Law of Canada (2nd ed., 1985), 375 and following.Google Scholar

²² R. v. Crown Zellerbach Canada Ltd. supra note 4, at 432.

²³ Ibid., 436.

²⁴ Ibid., 436–37.

²⁵ Ibid., 436.

²⁶ Ibid., 438.

²⁷ Ibid., 437.

²⁸ The two are not necessarily the same. “Internal waters” cover more extensive areas than “provincial waters” for two reasons. First, there are large bodies of internal waters by historic title such as Hudson Bay and James Bay that are not within any province. Second, one element of the test for waters intra fauces terrae is generally considered to be visibility from shore to shore, which restricts the size of such areas. Under international law much larger areas can be enclosed by straight baselines. Thus individual bays can be enclosed by baselines of up to 24 nautical miles in length across the mouth (United Nations Convention on the Law of the Sea, Art. 10). Moreover, there is no specific limit on the length of baselines along a deeply indented coast or a fringe of islands and in practice such baselines can exceed 100 nautical miles (ibid., Art. 7).

²⁹ Ibid., Arts. 3–16 inclusive.

³⁰ For example, in The Fagernes (1927) p. 311, the Court wondered whether the “fauces” or “jaws” in the Latin tag referred to “the jaws of a man or a crocodile” : in other words, it is not clear how enclosed the bay or inlet must be in order to meet the test. See also the Australian case of A. Raptis & Son v. South Australia 51 A.L.J.R. 637, where it was held that the test is both multi-factoral and subjective.

³¹ R. v. Crown Zellerbach Canada Ltd. supra note 4, at 457.

³² (1970) 1 O.R. 331 (Ont. CA.).

³³ Labatt Breweries of Canada Ltd. v. Attorney-General for Canada [1980] 1 S.G.R. 914; Schneider v. The Queen [1983] 2 S.G.R. 112 at 131 ; Hogg, op. cit. supra note 21, at 380.

³⁴ R. v. Crown Zellerbach Canada Ltd. supra note 4, at 434. See also p. 432.

³⁵ This, of course, is the central theme of the opinion of Beetz, J. dissenting in Re Anti-Inflation Act [1976] 2 S.C.R. 373 at 442–59.Google Scholar

³⁶ Johannesson v. West St. Paul [1952] 2 S.C.R. 292, at 327 per Locke, J. (italics added).

³⁷ R. v. Crown Zellerbach Canada Ltd. supra note 4, at 438.

³⁸ Ibid., 432; Gibson, , “Measuring ‘National Dimensions’” (1976) 7 Man. L.J. 15.Google Scholar

³⁹ R. v. Crown Zellerbach Canada Ltd. supra note 4, at 433.

⁴⁰ Ibid., 434.

⁴¹ Ibid., 447.

⁴² Ibid., 448.

⁴³ Ibid., 448.

⁴⁴ Ibid., 449.

⁴⁵ Ibid., 456–57.

⁴⁶ Ibid., 457.

⁴⁷ Ibid., 445.

⁴⁸ Interprovincial Co-operatives Ltd. v. The Queen [1976] 1 S.C.R. 477.

⁴⁹ Ibid., 446.

⁵⁰ Ibid., 447.

⁵¹ Ibid., 459.

⁵² Ibid., 420.

⁵³ Goodyear Tire and Rubber Co. v. The Queen [1956] S.C.R. 303.

⁵⁴ R. v. Crown Zellerbach Canada Ltd. supra note 4, at 450.

⁵⁵ Ibid., 450.

⁵⁶ Ibid., 420.

⁵⁷ Ibid., 447.

⁵⁸ (1982) 144 D.L.R. (3d) 134.

⁵⁹ Ibid., at 129.

⁶⁰ R.S.C. 1985, c. 1–20.

⁶¹ Supra note 19.

⁶² R. v. Crown Zellerbach Canada Ltd. supra note 4, at 436.

⁶³ “The Labour Conventions Case Revisited” (1974) 12 Canadian Yearbook of International Law 137.

⁶⁴ Ibid., 145–47.

⁶⁵ R. v. Crown Zellerbach Canada Ltd. supra note 4, at 445.

⁶⁶ (1982) 39 A.L.R.417.

⁶⁷ (1983) 158 C.L.R. 1.

⁶⁸ 10 March 1988. As yet unreported. At pp. 51–52.

⁶⁹ Dawson, J. dissented in the Tasmanian Dam case but voted with the majority in Richardson.

⁷⁰ Supra note 67, at 124.

⁷¹ Koowarta v. Bjelke-Petersen supra note 66, at 453. Stephen, J.’s opinion was later regarded as pivotal in several opinions in the Tasmanian Dam case because it represented the narrowest majority view in a 4–3 decision : see for example, (1983) 158 C.L.R. 1 at 122, per Mason, J.

⁷² Ibid., 101.

⁷³ See for example, Stephen, J. in Koowarta v. Bjelke-Petersen supra note 66, at 454–56 and Mason, J. ibid., at 464. Similarly in the Tasmanian Dam case, which was concerned with the Convention for the Protection of the World Cultural and Natural Heritage, a wide range of international instruments and activities demonstrated an international concern about the “world heritage,” which is “calculated to achieve intellectual and moral solidarity of mankind and so reinforce the bonds between people which promote peace....” Per Murphy, J. supra note 67, at 176.

⁷⁴ Laskin, Bora, “Some International Legal Aspects of Federalism : The Experience of Canada,” Ch. 14 of Federalism in the New Nations of Africa, ed. Currie, D.P. 402 (Chicago, 1964).Google Scholar