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Je vais néanmoins tenter de la considérer en fonction des qualités ou attributs dont on dit qu'ils caractérisent les sujets qui ont été jugés comme relevant de la clause en matière de paix, d'ordre et de bon gouvernement, à titre de questions d'intérêt national. Un tel sujet, a‑t‑on dit, doit être caractérisé par une unicité, une particularité et une indivisibilité qui le distinguent clairement des questions d'intérêt provincial.
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72. It is true, of course, that we are not invited to create a general environmental pollution power but one restricted to ocean pollution. But it seems to me that the same considerations apply. I shall, however, attempt to look at it in terms of the qualities or attributes that are said to mark the subjects that have been held to fall within the peace, order and good government clause as being matters of national concern. Such a subject, it has been said, must be marked by a singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of provincial concern. In my view, ocean pollution fails to meet this test for a variety of reasons. In addition to those applicable to environmental pollution generally, the following specific difficulties may be noted. First of all, marine waters are not wholly bounded by the coast; in many areas, they extend upstream into rivers for many miles. The application of the Act appears to be restricted to waters beyond the mouths of rivers (and so intrude less on provincial powers), but this is not entirely clear, and if it is so restricted, it is not clear whether this distinction is based on convenience or constitutional imperative. Apart from this, the line between salt and fresh water cannot be demarcated clearly; it is different at different depths of water, changes with the season and shifts constantly; see U.N. Report, op. cit., at p. 12. In any event, it is not so much the waters, whether fresh or salt, with which we are concerned, but their pollution. And the pollution of marine water is contributed to by the vast amounts of effluents that are poured or seep into fresh waters everywhere (id., at p. 13). There is a constant intermixture of waters; fresh waters flow into the sea and marine waters penetrate deeply inland at high tide only to return to the sea laden with pollutants collected during their incursion inland. Nor is the pollution of the ocean confined to pollution emanating from substances deposited in water. In important respects, the pollution of the sea results from emissions into the air, which are then transported over many miles and deposited into the sea; see id., at p. 15; I.J.C. Report, op. cit., at p. 22. I cannot, therefore, see ocean pollution as a sufficiently discrete subject upon which to found the kind of legislative power sought here. It is an attempt to create a federal pollution control power on unclear geographical grounds and limited to part
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