The Province of British Columbia had enacted Part IX of the Forest Act RSBC 1996, c 157 as a legislative scheme for marine log salvage. The scheme licensed those who engage in log recovery, established a body to receive and dispose of the logs, and distributed the sale proceeds of the recovered logs to those who recovered them and to those who claimed an interest in them.

The respondent recovered logs left behind in coastal waters and rivers as a result of logging operations, but found the compensation under the provincial scheme too low. The respondent observed that the scheme contemplated by the Salvage Convention 1989 was more generous and so challenged the validity of the provincial scheme.

The Salvage Convention 1989 is given effect in Canada via s 449(1) of the Canada Shipping Act, RSC 1985 c S-9. The Salvage Convention 1989 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' (art 1.a), and 'property' as 'any property not permanently and intentionally attached to the shoreline and includes freight at risk' (art 1.c). The definitions in the Salvage Convention 1989 apply because 'salvage' is not defined in the Canada Shipping Act.

The respondent argued that Part IX of the Forest Act was legislation in relation to salvage - a matter within exclusive federal jurisdiction - and sought a declaration of invalidity for the scheme.

Her Majesty the Queen in right of the Province of British Columbia (appellant) applied for summary judgment. The application was dismissed by the Motion Judge, who concluded that the provincial legislation was ultra vires. The judge reasoned that the scope of marine salvage included 'property' such as logs and booms of logs within the scope of the law of salvage.

The appellant appealed.

Held: Appeal dismissed.

Even though Part IX of the Forest Act describes the activity as 'log salvage', the legislative purpose of Part IX could have been accomplished just as easily with the word 'recovery' instead of 'salvage'. The use of the word 'salvage' in the legislation was not significant.

Salvage was a matter of federal jurisdiction because it fell within one of the enumerated heads of power - shipping - under s 91 of the Constitution Act 1867 30 & 31 Victoria, c 3 (UK). However, the definition of salvage in the Salvage Convention 1989 could not alter the division of powers under the Constitution. Log recovery neither acquired the aspect of shipping by falling within the definition of 'salvage' of the Salvage Convention 1989 nor had a sufficient connection to shipping for an expanded definition of 'salvage' to apply to it. This made the federal jurisdiction’s constitutional competence over log recovery inconclusive. However, the provincial log recovery scheme might be characterised as salvage because it was necessarily ancillary to shipping. Accordingly, the matter should proceed to trial, but on the understanding that the constitutional validity of the provincial legislation had yet to be decided.

Malone JA further identified four issues in respect of the Salvage Convention 1989 that could arise at trial. First, whether a log boom from which the floating logs escape was a vessel (art 1.b). Second, whether the Province's ownership claim satisfied the ownership requirements of art 8. Third, whether the logs threatened the environment which would give rise to a claim under arts 13 and 14. Fourth, whether a claim for special compensation assessable under art 14 could successfully be advanced against the Province in these circumstances.