TRAN Committee Meeting

    I call to order this meeting of the Standing Committee on Transport, Infrastructure and Communities, 42nd Parliament.

    Pursuant to Standing Order 108(2), we are doing a study of the subject matter of clauses 688 to 747, also referred to as divisions 22 and 23, of Bill C-86.

    As witnesses, in the first part of our meeting, we have, from the Department of Transport, Natasha Rascanin, Assistant Deputy Minister, Transformation; and Marc-Yves Bertin, Director General, Marine Policy.

    From the Department of Fisheries and Oceans, we have Julie Gascon, Director General, Operations, Canadian Coast Guard; and Marc Sanderson, Acting Director General, National Strategies, Canadian Coast Guard.

    Welcome to all of you.

    I would ask that you keep your comments to five minutes or under in order to give the committee sufficient time for their questions.

    Whoever would like to start can go ahead.

     I will start.

    Good morning, everyone. I do have a deck and I will keep it to five minutes. I think in the interest of time, I will jump in exactly to the proposed legislative changes rather than doing a long introduction.

    That's a great idea.

     I will set the context a little bit.

    The government has been engaging broadly over a number of years to set up and launch the oceans protection plan, and this engagement is ongoing as it moves through implementation of the oceans protection plan. This suite of legislative amendments that we are discussing today is one of the commitments and important measures in that regard within the oceans protection plan.

    The proposed amendments aim to strengthen safeguards to protect marine environments from the impacts of shipping and navigation activities. They enhance marine safety, with an emphasis on improving response and liability and compensation, and they strengthen deterrence and enforcement. They further support research and innovation for marine safety and environmental protection.

    We are improving. These pieces of legislation haven't been modernized in a number of years—I think 25 years, at least in one case. We're proposing to strengthen the ability to put in place the appropriate safeguards to protect marine environments by strengthening regulatory authorities to protect marine environments and to carefully consider in that regard developing regulations that may be necessary to regulate, for example, navigation or operational measures in order to support efforts to protect sensitive ecosystems, including endangered whale populations.

    Certain regulatory requirements could have variation orders to be more dynamic and nimble, for example, variation orders to address or respond to evolving environmental situations in particular geographic areas, such as unforeseen changes in whale population movements.

    Interim orders would also be enabled to address urgent risks to the marine environment and marine safety where timing is critical. These interim orders would allow immediate action when required and when regulations do not currently exist. This would allow for the rapid addressing of risk to marine environments, and it would only be used on an exceptional basis. There are a number of transparency provisions included, such as tabling within Parliament and publishing in the Canada Gazette.

    Other measures that are in the proposed legislative amendments have to do with enhancing marine safety and response. In Canadian waters, the number and volume of ship-source oil spills have actually been declining consistently since the 1990s, but traffic is growing. Measures are being proposed to have a single, clear federal voice for the Coast Guard to act very rapidly, earlier and more effectively should the need arise.

    We're also committed to strengthening the polluter pay principle and modernizing the ship-source oil pollution fund. Amendments now to the Marine Liability Act include full compensation in the instance of an incident so that there would no longer be a per incident limit to the liability for claims, and backstops on how that would be addressed should a polluter not be available, willing or able to pay and how that could be.... The government would temporarily make a loan to the fund for this measure and would establish a modern levy mechanism to replenish the fund without relying on taxpayer dollars.

    There are other measures in there, but this is to give you a very quick overview.

    Going back to deterrence—

    Sorry, but your five minutes is up.

    We all have the deck in front of us, as well.

    We'll go to you, Ms. Gascon, please, for five minutes, or whoever wants to do the presentation on your side.

     There's only one presentation.

    That's wonderful. That's terrific.

    We're going to Ms. Block for questions.

    Thank you very much, Madam Chair.

    I welcome our witnesses here this morning. I'm looking forward to hearing from all our witnesses in this three-hour study of this section of the bill.

    Are the changes to the Canada Shipping Act and the Marine Liability Act part of the government's commitments under the oceans protection plan? You probably already answered that when you said this is part of a very long consultation period.

    The official consultation period for the OPP potential legislative changes concluded on Friday, October 26. Is that correct?

    That was in relation to the discussion paper that was posted online and input was asked for by then, but certainly it doesn't mean that we closed consultation. We're taking input and we're taking consideration.

    Sure. I'll interrupt you there.

    The discussion paper was circulated. That consultation in particular began in August with the discussion paper. Was it in relation specifically to the changes we are hearing about today?

    Yes.

    When did the Department of Finance need Transport Canada's input to include anything out of that consultation in BIA 2, given that it was tabled on Monday, October 29 and this consultation period ended on Friday, October 26?

    I don't know the exact date, but there's a very tight time frame prior to tabling in which final amendments can still be introduced.

    Are you suggesting that the results of the discussion paper, that consultation, made its way into this bill that we're studying by Monday when it closed on Friday?

    Those considerations were taken into account, yes.

    Were they included in this legislation? When does this legislation go to print?

    You'd have to ask the Department of Finance. I don't know the date, but they were considered and the consultation paper was not the only part of the consultation.

    Right. We've tried to do due diligence in the time that we've had to understand the changes to these two acts that are being recommended. My understanding is this discussion paper was specifically for the changes that were being contemplated in BIA 2 or to these two acts.

     I would question whether or not whatever recommendations or feedback you might have heard from the shipping community writ large.... They probably aren't in BIA 2 because that was tabled on Monday.

    The conversations around these proposed amendments have been going on since the oceans protection plan was launched and input has been considered. All kinds of conversations and various ways of input have been put into play.

    Are these the most substantial changes to the Canada Shipping Act in 10 years? I think you said even in one case 25 years.

    There hasn't been a significant modernization, and this is one of the elements that we are now bringing forward.

    It's being brought forward in a budget implementation act rather than stand-alone legislation.

    That's right.

    There are substantive changes to two acts which haven't been changed in 25 years in one case and 10 years in another, and they're buried in an 800-page budget implementation act. Does Transport Canada feel that's the best way to deal with substantive changes to legislation that they are responsible for?

    There has been significant consultation across indigenous groups and stakeholders over years, not just in the period of that consultation paper.

    My colleague wants to add something.

     Building on what Natasha was saying around the years of consultation that have gone on, a discussion paper on the provisions surrounding the Marine Liability Act was issued in 2017. We engaged with industry not only in the transportation sector but also the energy sector and received feedback.

     Right. I would just say that with years of consultation, and recognizing that these are significant substantial changes, probably we should have seen this study done in a stand-alone way. I think we've done a disservice to our shipping community by burying it in a budget implementation act.

    Thanks.

    Thank you, Ms. Block.

    We now move to Mr. Iacono.

    Thank you, Madam Chair.

    I want to thank the department representatives for joining us this morning.

    You mentioned the Canadian Coast Guard. Can you describe its current role, the nature of the proposed changes and the benefits of those changes?

    The current legislation requires us to respond to an incident only if the incident involves an imminent and serious risk. The legislative changes will give us the power to act more quickly if there's a risk of a significant environmental issue.

    For example, you're likely familiar with the Kathryn Spirit, a vessel that was once managed by the Canadian Coast Guard and that was subsequently abandoned. You'll recall that there were still traces of oil. According to the legislation, this didn't necessarily constitute an imminent risk. However, it was still an unacceptable risk to the public. Since the vessel was moored, Transport Canada considered that it didn't pose a risk to navigation. This created a legal gap.

    The legislative amendments will enable us to act much more quickly. This will close the legal gap and ensure that the two departments can work much more closely together.

    Will these amendments have any economic impact? Can you elaborate on this?

    The amendments largely, for example the regulatory amendments, are rule-making authority. They're giving authority to the minister to make rules and make regulations. Going forward, any of the regulations that may be required will absolutely be going through the normal regulatory process that includes CG I and CG II, various consultation elements, economic impact. It is possible there are going to be economic impacts in some of these regulatory amendments as we go forward, but they are not at this time being contemplated. What the amendments propose for the regulatory component is the ability for the minister to proceed in the environmental context, and then regulations that may be needed will in fact be addressed through the normal completely standard process that takes time and that has consultative sessions within that.

     At what point is a spill considered to have occurred? Have any changes been made in terms of the people authorized to respond and how and when they can respond?

    The Canadian Coast Guard is still the federal agency responsible for responding to incidents. That said, the legislative amendments will enable us to make decisions much more quickly. As a result, we won't be wondering about the matter in the field. When there's a risk, we'll act immediately.

    This will enable us to prepare and respond better before a spill occurs. In the event of a spill, the current system involving recognized organizations will still exist, and the same principles will continue to apply. In other words, the polluter will always be responsible for responding. We'll continue to support the system. We'll be able to act much more quickly if the polluter is unable to respond.

    This will significantly improve our emergency preparedness.

    What does this preparedness involve?

    What exactly is it that you're going to be doing? What are the checks and balances you're going to be performing in order to arrive at that?

    It won't necessarily change the work in the field. However, it will alleviate the concerns of the people in the field who must wait for the decision on whether to respond. If there's a risk of pollution, it will give us the power to act faster, which will alleviate the concerns regarding whether we should respond.

    How can you know that an incident may occur?

    As a result of the marine communications and traffic services and the way that everything works, we know what types of vessels pass through Canadian waters, what types of cargo they carry, what their certification is and where they come from. Transport Canada has an idea of how well these vessels comply with the various applicable regulations. We have a good idea of the vessels that pass through our waters and the types of individuals or vessels that we're dealing with.

    There are many factors. The marine communications and traffic services can determine whether an individual has behaved appropriately and followed the regulations, whether the individual's vessel is certified and in proper form, which sailors are on board, and whether everything has been done according to the rules. As a result, if any issues arise, we know what we're dealing with.

     Thank you very much.

    Next is Mr. Aubin.

    Thank you, Madam Chair.

    I want to thank the witnesses for joining us.

    To begin, I have a quick question for Ms. Rascanin.

    At the end of your presentation, I believe you said that the consultations weren't finished. Is so, when will they end?

    In terms of the oceans protection plan, we continue all kinds of engagement and consultation. The parliamentary process when bills are tabled is absolutely another process of consultation and part of that whole discussion.

    I must admit that I'm having some trouble with the workload imposed on us over a few hours. This isn't your fault and this isn't a criticism. Seriously, I'm using my sleep time to review the documents in order to understand them better and ask you a few questions. Given the significant number of amendments proposed, the process is rushed, to say the least.

    I've found some things and I haven't found other things in what I've read so far. I'll provide an example.

    According to Transport Canada, the Marine Liability Act “is a comprehensive Act dealing with the liability of marine operators in relation to passengers and other third parties, cargo, pollution and property damage.” I've read a great deal about oil spills, but I haven't seen any mention—if I'm wrong, tell me where I can find it—of an issue such as the incident in Yamachiche, which you may remember. If you don't remember, I'll provide a quick summary.

    Over a year ago, the Minister of Transport issued a directive instructing pilots to pass through at a safe speed. It's a little hard for me, as a novice, to determine what constitutes a safe speed. A vessel that passed through Saint-Pierre Lake generated waves that were large enough to damage dozens of houses on the shores of the lake. The investigation clearly showed that the damage wasn't the result of natural disaster or a special situation, but was related to the speed of the vessel.

    There are no amendments in the bill to resolve this type of issue. If there's anything concerning this matter, I haven't seen it.

    I can't answer that specific case question. We would have to get back to you.

    You're much more familiar with the amendments than I am. If you can't answer me, it means that there aren't any amendments to resolve this issue.

    In addition, there has been a great deal of talk about safety. In another parallel study we're conducting on economic corridors, many witnesses have informed us of the alarming situation—this isn't an exaggeration—involving icebreakers. However, there doesn't seem to be any particular focus on speeding up the work to make navigation in our waterways safer. I'm referring specifically to the St. Lawrence-Great Lakes corridor. The renewal of the icebreaker fleet has been anticipated for a number of years.

    Once again, have I missed anything? Is this issue not part of the bill? The budget bill contains dozens and dozens of legislative amendments, but it doesn't include the amendments that business owners and ship owners are eagerly awaiting? Have I made a mistake or missed something?

    Thank you for your questions, Mr. Aubin.

    I don't have all the details concerning the specific incident in Yamachiche. However, I can assure you that the Canadian Coast Guard's marine communications and traffic services are working with the Corporation of Mid St. Lawrence Pilots and Transport Canada. We're constantly working on the use of the water column when vessels pass through. When we look at a marine corridor, we take into account all the conditions. These conditions include the ice cover, the lack of an ice cover, flooding, lower water levels, and so on. The safe passage speed obviously depends on the draft and the type of vessel. We really work together.

    In the case that you mentioned, I believe that the water level was already extremely high, and deep draft vessels needed to pass through. We had to work with the Corporation of Mid St. Lawrence Pilots and with the Laurentian Pilotage Authority.

    There may be damage sometimes, but the Canadian Coast Guard works very closely with all its partners to determine the best way to use the water column.

    I can provide more details on this specific incident.

    I'm sure that you're working, but I want to know about the possible compensation for the people affected. There was a deep draft vessel, the water level was high and work was done with the corporation of pilots. I'm sure that every effort was made, but in the end, there was still collateral damage. In this instance, it wasn't the type of environmental damage that would occur in an oil spill, but the damage had just as much impact on the people living along the river.

    We haven't even been able to determine whether the pilot was fined or, if applicable, the amount of the fine. If fines were imposed, could the money be used to compensate the victims? For two years, there has been total silence. We haven't learned anything more about the situation.

    Given the major amendments that we're preparing to incorporate into the two acts concerning the marine sector, I was hoping that we would have been courteous enough to remember these incidents so that we can ensure that—

     Thank you very much, Mr. Aubin.

     Mr. Aubin raised some important issues. Could you strive to get the information to the committee by the end of today? We would very much appreciate that.

    Mr. Sikand.

     Good morning.

    Canada has the longest coastline in the world, and it continues to grow as the Arctic melts. I grew up in, live in and represent a riding in Mississauga in the GTA, so I'm not close to any of the coastline, but shipping for us very much means commerce and commercial goods coming to our area. That's the angle of my approach.

    What struck me as a bit odd was that previously when whales would be struck, a lot of the legislation was geared to protecting the ship and its personnel. We want them to be safe, but the changes have now afforded more protections to marine life. A main tenet of our government is that it's unacceptable now to only focus on business without taking into consideration the environment around it.

    Under the Canada Shipping Act, the liability and the fines would be increased to $250,000. Do you think that's acceptable or a high enough maximum?

    I will make a couple of comments.

    Certainly, in terms of all of Canada's coasts and the Great Lakes included, there is shipping, and all of these measures apply to all waterways of that nature where these kinds of incidents could occur.

    In terms of the measures being proposed here, the objectives are around having safe shipping and ensuring that is clearly there, and at the same time also ensuring that appropriate environmental protections are fully in place, so that the two go hand in hand, and are considered and addressed appropriately.

    Previous to this, we discussed airplane noise and how that affects people's quality of life. I'm right beside Pearson, so it's very important to me. I also saw here the effects of shipping noise on marine life and whales. Could I get some comments on that?

     We are working very closely with Department of Fisheries and Oceans scientists and various scientists who are doing work internationally in the International Maritime Organization to look at the noise impacts from shipping.

    What is really important to understand is the very interrelated nature of these threats. It's not noise from shipping in and of itself that is potentially damaging. In the case of the Pacific coast for the southern resident killer whale, it's an interplay of limited prey and contaminants and shipping noise, and the science is ongoing to look at that. Each type of vessel has a different impact as well. For example, ferries have a certain noise signature that is higher if they slow down.

    A lot of work is happening around understanding both the impacts on marine mammals and the nature of the shipping noise itself, so that we can make appropriate regulation as we go forward.

    I will give the remainder of my time to a colleague who has a coastline.

    Thank you, Madam Chair.

    Thank you all for being here.

    I have a few questions about the state of the ship-source oil pollution fund. That's been around for a while, and I notice that in division 23 there's an intention to rely more on that. What is the state of that fund right now?

    If by state you mean—

    I mean the amount of money.

    The amount of money currently stands at $410 million.

    This is a fund that was brought into existence in 1972. Levies were collected for a period of around four years and ceased in 1976. At that time the fund was valued at $36 million. Of course with accrued interest it's now up to $410 million.

    That would suggest there's adequate money at least to cover a couple of major oil spills, God forbid that they actually happen.

    I think it's fair to say that the health of the fund is quite good, and that's a source of assurance.

    I notice there's some language in here that talks about funding for the Coast Guard when it responds to an oil spill. Is the Coast Guard required to get additional funding to make that response?

    There are two things in these proposed amendments that speak to the question you've just posed.

    The first is that, similar to the amendments under the CSA, the Canada Shipping Act, we're telegraphing that into the MLA, the Marine Liability Act, to ensure that the Coast Guard could act on a more proactive basis. That's important in trying to preclude the possibility of a situation becoming quite grave, on the one hand enabling them to do that and on the other being able to recover the costs associated with that more proactive approach.

    Mr. Hardie, you're now on your own six minutes.

    Thank you. I'm on my time.

    I want to dig into that a little more deeply. Does the Coast Guard not have in its budget the funding to respond immediately or does it have to wait to know that there's the surety of funding before it responds?

    The second element that I was going to refer to speaks to the specific issue of emergency funding. Basically in situations where we're talking about a significant event, we're talking about a very significant event—

    I'll ask you to keep your answer fairly short if you could, please.

    Fair enough.

    Basically, in order to enable them to maintain a lean forward posture and to take the actions that are required, this legislation would enable an emergency funding mechanism that would provide them up to $10 million.

    But we've never been in a situation where they've had to hold back because they don't know where the money is going to come from.

    That is correct, but I defer to my colleagues.

    The complementary bills that are folded into this initiative—Bill C-48, the crude oil moratorium on the north coast, Bill C-64 regarding wrecked, abandoned and dilapidated vessels, and BillC-68 and Bill C-55, a couple that relate to the Fisheries Act and the Oceans Act—are they basically all enclosed, if you will, in divisions 22 and 23, or do they comprise what's going forward in this budget implementation bill that's of concern to this committee?

     I'm not sure I follow the question.

    Is there more to it?

    Having had the advantage of sitting on both the fisheries committee and this committee, I recognize that every one of these bills has been through the committee process and has been studied line by line. There have been recommendations, amendments and so on. At least on this list from your deck, there has been a fair amount of consideration already, but is there more in what's going forward in these two divisions to finance that we need to focus in on?

    I guess the simple answer is that these two parts stand alone, but they obviously intertwine and complement other legislative initiatives that you've just referred to.

    Okay.

    One of the things that some of these bills do is provide the Minister of Transport or the Minister of Fisheries with a lot more discretionary power. That may concern some people, and that may make some people feel a bit more confident.

    Can you very briefly go over what sort of discretion these ministers can now apply to situations as they come up?

    You're talking specifically about the regulatory power and the variation in the interim order, I think.

    Yes. In this case, what can the Minister of Transport do to respond more efficiently to an emerging situation?

    Right.

    I'm actually going to respond to Mr. Aubin's question using an example. One of my colleagues was able to get some information as we were speaking.

    As I mentioned, the proposed amendment would give the minister rule-making authority so that regulations, as needed, could be enacted. It also gives authority for variation orders and interim orders that would be used in unforeseen, unusual contexts.

    That's mostly governmentese you're speaking. Let's put that into something that the folks listening can understand.

    In the case of Yamachiche, which Mr. Aubin was talking about, I'm told that example dealt with a particular pilot not following a specific order during a flooding situation. The interim orders that are being proposed to be enacted, which the minister would have, would be a tool that could be used in that situation to action something specific that is otherwise unforeseen, such as a weather event or whales moving into an area where they have never been in the past. That is a new additional flexibility for the minister, to be able to act in those very unforeseen contexts.

    With respect to the process under way, the budget implementation act, is the inclusion of all of this in this bill somehow necessary to actually get the money allocated to make things happen? Is that why it's here?

    Sorry, the money allocated...? Are you talking about—

    Why are these provisions in this bill? What function is being served by having these provisions in this bill?

    They are important commitments under the oceans protection plan.

    Do they need money?

    For the ship-source oil pollution fund to have unlimited authority, yes.

    Okay.

    Thank you.

    Next is Mr. Liepert.

    Ms. Rascanin, you are the assistant deputy minister. Is that correct?

    Yes.

    I've had the privilege in the past of delivering a budget at the provincial level, and I know from experience that departments are given somewhere in the range of 45 to 60 days to submit their proposals for the budget.

    Can you tell me when you were given direction by the Department of Finance to have your submissions in for this particular document?

    Well, this is budget 2018. The budget process usually starts in the fall.

    I'm talking about this particular legislation.

    This particular document has to go to print. That can take up to a month, or more.

    Yes.

     What was the deadline you were given to have your submission in for this particular document?

    We were proceeding on developing—

    I want to know a specific date.

    I don't have a specific—

    I presume there was a memo sent by the Minister of Finance to your department indicating when you had to have your submissions in for this particular document to be included in it.

    You're the assistant deputy minister. You should know that.

    Respectfully, there was no memo from the Minister of Finance.

    Okay, so was this actually something that the Department of Transport wanted in here? Is this something that maybe showed up from the Department of the Environment, and the Department of Transport had to go along with it?

    The decisions around legislative amendments are approved by cabinet and looked at.

    Were they recommended by your department?

    Yes, these are legislative amendments that we recommended.

    You recommended them.

    When would you have recommended them?

    They have been in the works for quite a while.

    For a long time.

    In other words, getting back to what my colleague was questioning about, the whole consultation process under the oceans protection plan then seems to be a bit of a sham.

    Respectfully, I don't agree with that.

    We have been consulting.

    You were making your recommendations without listening to the submissions of folks who are directly affected by these particular pieces of legislation. You had to have, without waiting for the submissions to come in from the various stakeholders.

    Is that correct?

    No, that is not correct.

    We have been talking—

    The submissions didn't close until October 26. We've just talked about a timeline we've gone through.

    That is for one piece of the consultative process. We have been consulting for a number of years on these very important measures.

    This is the oceans protection plan, which is a signature piece of legislation by the Government of Canada. I presume that the reason you did the consultation was that it was such a significant piece of legislation. You went ahead and made these recommendations before you heard all of the submissions from the stakeholders.

    Is that right?

    No, that is not correct.

    Is that correct?

    My answer is no.

    No. How could you say that, sitting in front of this committee, when stakeholders had until October 26 to submit their submissions?

    We have done intensive consultation. We have had numerous meetings with various stakeholders.

    No, I'm talking about this consultation process on the oceans protection plan specifically that you launched as a department, as a consultation for stakeholders to have their input.

    Will you admit today that you did not wait until you got all of the submissions from the stakeholders before making these recommendations? Will you say that to the committee?

    My position and my statement is that we have been consulting extensively and we have been—

    Okay, so the answer is no.

    Thank you.

    Next is Mr. Badawey.

    Thank you, Madam Chair, and thank you, folks, for being here today.

    I will show you the respect that you deserve based on the work that you have done.

    What I want to do is drill down on the—

     [Inaudible—Editor]

    —emergency preparedness response that I'm sure you've worked on with governments at the local level on many occasions.

    You mentioned the fact, first off, that there's a reserve in place for about $410 million, the reserve that Mr. Bertin has accessed when you have these responses to embark on.

    When you work with different emergency services, as well as local municipalities, when you have an emergency response situation, are those municipalities and/or services of different agencies able to access that $410 million to recoup the costs? I'm sure that reserve is also recouped through the polluters who must pay when they pollute and that keeps topping it up as time goes on.

    Are governments at the local level, as well as different agencies, able to access that reserve?

    Absolutely. Any individual, including level of government, is able to access, to make a claim to the administrator of the ships from some of the pollution fund, and after review, receive compensation either for damages or their role in responding to a spill.

    Again, I'm not going to try to coerce you into giving me the answers that I want. I want to get answers that are actually sincere and truthful, as well as to further this process along in due respect to those who are involved as well as affected by it. I'll make that very clear from the outset.

    That said, with respect to working and aligning of jurisdictional responsibilities, is there a protocol or process in place that, before the fact, before situations do happen, aligns one jurisdictional responsibility? When I say jurisdictional, I don't just mean levels of government but also different agencies.

    Also, is there a process aligning established protocols of ministerial responsibilities? In my former life, I've often seen a fracture internally—and when I say internally, I mean a certain level of government—with respect to one ministry not recognizing or not having knowledge of the responsibility of another and therefore there's a bit of stumbling that happens.

    Are those jurisdictional responsibilities and ministerial responsibilities in place so that when these situations do happen, it's a seamless process?

     I might turn to my colleagues at the Coast Guard to answer, in terms of how we deal with and align the various players in an incident. I would only say that with respect to ministerial responsibilities and accountabilities, the statutes clearly lay out the roles of the various ministers involved here, the Minister of Fisheries and Oceans and the Minister of Transport, as well as when they consult one another and in which context.

    Why don't I turn it over to my colleagues from the Coast Guard.

     There are about four different elements of division 22 that are worth mentioning, very briefly.

    One is, to your question, clarifying the lead federal agency in spill response and incident response. That's what's contemplated in these amendments, to make it clear, if necessary, that the Coast Guard's direction and orders supersede those of any other federal agency.

    The primary element of these amendments is removing ambiguity about when the Coast Guard in particular could take action. There's not a material change in the role of a shipowner or in the role of the Coast Guard. This is, rather, about increasing some options from our proactive response. There's no limitation necessarily now to wait until there's a likely discharge of a pollutant into the water, but rather, a discharge that may occur. In that threshold, there's a significant difference in the ability of the Coast Guard to respond and/or the shipowner, which, of course, is always the preferred option and the underpinning of our polluter pay principle here in Canada.

    There are a couple of other amendments that speak to crossing over private lands, if necessary, to effect an immediate response, as well as extending immunity to people who advise the Coast Guard and our partners, including shipowners, response organizations and others, to make sure that we can mount the best response for each individual incident. That's what, I think, is the most important thing, that each incident has its own specifics, and my colleague spoke earlier about all the different variables at play.

    Of course, what I'd like to say is this really allows us to right size the Coast Guard's response to a situation. We can scale it up or down as needed, but the important thing is that we're there as soon as possible assessing things and making the right decisions with the right parties involved. As I say, it's always with the shipowner or polluter, in this case, or potential polluter, to make sure that we prevent any damage to the marine environment.

    I will go back to my initial question, Mr. Bertin, with respect to the reserve.

    Is there a process after the fact that the different agencies, including the municipalities, would make application to access that reserve for compensation?

    Absolutely. Right now, the process exists. People apply and their claims are assessed.

    What this statute would do is actually institute a fast track system to ensure that the monies are put in the hands of people and organizations that need them as quickly as possible. What we're looking at is basically a claimant being able to seek compensation from the Canadian fund through a lightened attestation process. They would need some basic criteria, just the facts around the fact that they've suffered a damage or a loss of some form and be able to attest to the fact that they have supporting documentation, if needed, to prove that claim. Basically, for under $35,000, people could avail themselves of this mechanism.

    Good.

    Thank you.

    Thank you very much.

    Next is Mr. Jeneroux.

    Thank you, Madam Chair.

    I just wanted to ask a question for anyone at the table.

    Did you do an industry sensitivity analysis on how changes to the Marine Liability Act would impact the small local shippers?

    With respect to shippers, we are not, in this statute, proposing to change their liability level. Ostensibly, their liabilities are set under international convention. Where Canada has an opportunity to tweak its regime is with respect to its domestic fund, and the domestic fund, of course, is sourced from the importers and exporters of oil products. From that perspective, there is no impact on the shipping community.

     We have a three-hour meeting today. I encourage you to stick around and listen to the testimony of the—I think there are at least five—stakeholders coming up. Quite honestly, I think you'll hear something different about what you're assuming you did in terms of your consultation. We're hearing extensively—and to be honest, that's why you're hearing a line of questioning from our side of the table—that not a lot of people feel they've been consulted. For you to sit here and say that you've consulted time and again I think only frustrates and irritates those stakeholders even more. I'd encourage you to stick around, but also, to consider potential amendments they may be proposing to some of the legislation when it comes forward.

    Again, a bunch of stakeholders out there are quite upset with the process that has occurred. For you, Ms. Rascanin, to say that the consultation ended on Friday and that all of it was considered in terms of this legislation.... Quite honestly, you can't possibly be serious that that's the case.

    Again, thank you for being here, but I sure do hope you stick around and hear the testimony from the rest of the witnesses today.

    Mr. Aubin.

    Thank you, Madam Chair.

    I want to thank Ms. Rascanin and her team for trying to find an initial answer to my question. However, I must admit that I'm not sure whether I fully understood it. I'll need some clarifications.

    You said that the amendments to the act proposed in this bill would give the minister new regulatory powers so that he can act more quickly in a given situation. However, I'm looking for information in the bill indicating that the victims in Yamachiche, for example, could have access to the type of compensation fund available to victims of an oil or hydrocarbon spill.

    For instance, could we add victims of a marine incident to the list of people who can register for or request compensation? The victims' issues aren't resolved by the fact that the minister has additional regulatory powers that enable him to act more quickly to impose certain practices, as he did in the case of the restrictions concerning whale movements. The incident occurred. The question is what to do next.

    In short, would the minister's regulatory powers enable victims to receive compensation?

    Thank you for the question.

    The regulatory authorities are focused on marine safety and environment risks and being able to act in critical, unforeseen situations. What I was talking about is in that regard.

    Thank you.

    In this case, clearly the new regulatory powers have no impact in a situation such as the one that I described. I regret, once again, that this situation wasn't taken into account. It happened once in my area and we don't want it to happen anywhere else. However, given the growth of marine transportation, we can't think that nothing of this nature would happen in Canada.

    The review of the act must make it possible to resolve this issue. We've missed the mark yet again.

    I'm still concerned about the fact that we need to provide a response by Friday, even though the consultations aren't over. Some people believe that they haven't been sufficiently consulted. I look forward to hearing from the witnesses who will be appearing over the next two hours. I'm wondering whether these people, who are directly affected by the two acts on a daily basis, had the time to respond after the budget was tabled. If they tell me that they haven't had time to respond, I'll be even more concerned.

    I'll stop here for now.

    Thank you, Madam Chair.

    Thank you very much.

    We will end this section of the meeting and excuse our witnesses, and then invite the others via video conference and so on.

    I will suspend for a few minutes.

     I'm calling the meeting back to order.

    For this session we have, from the Chamber of Shipping, Robert Lewis-Manning, the President. From Clear Seas Centre for Responsible Marine Shipping, we have Peter Ellis, Executive Director, by video conference. From the Shipping Federation of Canada, we have Sonia Simard, Director, Legislative and Environmental Affairs.

    Welcome to all of you.

    Mr. Ellis, why don't we start with you for five minutes.

    Madam Chair and committee members, thank you for giving me the opportunity to speak to you today.

    Clear Seas Centre for Responsible Marine Shipping is an independent not-for-profit organization that sponsors research and produces communications and engagement programs related to sustainable marine shipping in Canada. We were launched in the summer of 2015—so we're about three years old—with seed funding from Transport Canada, Alberta Energy and the Canadian Association of Petroleum Producers.

    Our purpose is to provide impartial, reliable and evidence-based information on shipping in Canada on the premise that better information leads to better decisions. Our independence is protected in our funding agreements and all of our program is accessible on our website at www.clearseas.org.

    My observations today are based on some of the work we've done through our research and website publications, engagement with stakeholders, participation in many forums and working groups related to marine shipping, and of course observations from media and social media. I offer that the importance of marine shipping to our well-being and prosperity is underappreciated by most Canadians. To gauge Canadians' attitudes toward marine shipping, we conducted a public opinion poll in partnership with the Angus Reid Institute in the spring of 2016. We've just completed another round of polling on Canadians' attitudes to see if there are any trends. The data is currently being analyzed, and we aim to publish the results by the end of November.

    A common theme raised in the 2016 poll and that persists today is the concern Canadians have for the potential environmental impacts of shipping. The proposed legislative changes are clearly aimed at enhancing confidence in and effectiveness of what is already a sound system.

    Clause 689 of Bill C-86, for example, in providing the explicit authority of the minister to enter into agreements with indigenous groups, stakeholders and other levels of government clearly recognizes the complexity of the marine environment, its many jurisdictional interfaces, the issues of aboriginal rights and title, and the variability of local considerations. These realities are already recognized at the tactical level in such plans as the Canadian Coast Guard's greater Vancouver integrated response plan, for example. I suggest the development of such agreements should be subject to extensive engagement with stakeholders.

    The proposed authority of the minister to make interim orders in clause 690 of the bill is an application of the precautionary principle, allowing greater flexibility to respond to short-fuse developments. Notwithstanding the interim nature of the orders, these decisions should be evidence-based and consider the best information available at the time. Enhancing the flexibility to intervene earlier in the cases where pollution may occur, but has not yet occurred, supports more timely action, which is a key element of effective response. Potentially preventing already rare pollution incidents or containing such events more swiftly to limit the spread of a spill are important elements of reducing risks associated with shipping. Likewise, the authority to enter private property and use private property in a response scenario is likely to improve effectiveness.

    The provision of immunity for persons providing assistance, bounded by what is reasonable in the circumstances, is supported. It should be noted that this change may alleviate some concerns that have been expressed by American response personnel with regard to their liability in potential transborder operations. The changes to administrative and monetary policies applied judiciously will clearly support the polluter pays principle and enhance public confidence, which has been undermined somewhat by lengthy and inconclusive proceedings such as those following the Marathassa spill.

    The changes to the ship-source oil pollution fund are also likely to increase confidence in the system by broadening the scope of what can be compensated. While extending the compensation available to economic loss indirectly related to pollution incidents makes sense and is consistent with the polluter pays principle, it raises significant questions as to the impacts on insurance rates, civil liabilities and other effects. These need to be clarified and clearly understood.

    For some this change will not go far enough, as a portion of the population believes that compensation ought to extend to such areas as the loss of use of public land for recreational, cultural or other reasons.

     Clear Seas supports the provisions of this bill, but notes that additional engagement with stakeholders is required as this bill moves forward.

    I would also note that the focus seems to be on the response phase, with little being added to the preventive pillar.

    Thank you again for giving me the opportunity to participate in this meeting.

    I'm now ready to answer your questions.

    We will now go to Ms. Simard from the Shipping Federation of Canada, for five minutes, please.

    Good morning. My name is Sonia Simard.

     I am appearing today on behalf of the Shipping Federation of Canada.

    Our objective is to provide the perspective of shipowners on some of the marine amendments contained in Bill C-86.

    Although we are grateful for the opportunity to appear before this committee, we are indeed concerned with the very fast pace at which the bill is proceeding right now. Yesterday we submitted a brief to this committee in which we outlined some of our concerns with Bill C-86 and proposed some specific amendments.

    More specifically, we recommended, first, that the marine transportation amendments be extracted from Bill C-86 and addressed as a stand-alone bill in order to ensure that there is sufficient time to proceed with a proper examination of the proposal.

    If this is not done, we would urge this committee to proceed, at a minimum, with some specific amendments. Today we are addressing, more specifically, division 22 of Bill C-86.

    That division provides the minister and the Governor in Council with additional powers in relation to regulation for protection of the environment. The shipowners and vessels we represent are committed to safe and sustainable transportation, so our concerns with the proposals are not with the objectives. We support the objectives, but we are asking for specific amendments to ensure that we have the proper safeguards around the new powers that are proposed.

    Going into a little bit of detail, clause 690 of Bill C-86 would enable the minister to issue interim orders in the marine mode for any type of risk to marine safety or the marine environment that he or she views as requiring immediate action. These orders could remain in effect for up to three years without any of the basic safeguards provided in the normal regulatory process, such as consultation with affected stakeholders or regulatory impact statements that we do when we have regulations.

    In our opinion, the proposed framework for interim orders in the marine mode is much broader than what we have found in other Canadian legislation. We have more detail in our brief, but just to make a summary of the common features we have seen in other Canadian legislation, usually ministerial interim orders are for a type of risk that meets a threshold, and that threshold is generally “significant risk” or “immediate threat”.

    Furthermore, the lifetime duration of an interim order in the legislation we have seen is more tightly constructed. Those ministerial orders can stand alone for 14 days, after which time the Governor in Council must approve such interim orders and then extend the power by either one year, as we see in most of the legislation, or two years, as we see occasionally.

    When we looked at the interim order framework being proposed here, we found it to be much broader. That's why what we have proposed is not an objection to the interim order, but rather, specific amendments to ensure that we find the proper safeguards around those interim order powers.

    The second element we have outlined in our submission relates to clause 692 of the bill. I believe you have discussed this with the witnesses before. That's the power of the minister to vary Governor in Council recommendations. Again, we find powers to vary a regulation outside of the normal regulatory process. Because of the same concerns I have mentioned, we have also in our bill proposed specific amendments to ensure that we have proper safeguards.

    The issue here is not whether or not there is a need to act fast. We understand that those situations happen. We just want to make sure we have proper safeguards around those powers.

    On the other elements, we have brought more comments on division 22, but as we are running out of time, I'll ask you to refer to them in our brief.

    The one point I would like to make in finishing is the fact that we unfortunately haven't been able to fully review the proposed amendments to the Marine Liability Act, but we will continue our review and we intend to submit comments in front of the Senate.

    Thank you for your attention.

     Thank you very much, Ms. Simard.

    Next is Robert Lewis-Manning.

     Good morning, Madam Chair and members of the committee. I appreciate the opportunity to offer observations and early recommendations that pertain to certain sections of the most recent budget bill tabled last week.

    The chamber has worked closely with government, coastal communities and other stakeholders on most aspects of the oceans protection plan, including critical work associated with protecting species at risk and the numerous conservation initiatives currently under way.

    You are well aware, particularly after your recent committee trip to British Columbia, that marine transportation is critical to supporting Canada's international trade, and that a safe, competitive and predictable operating framework is good for Canadians, the Canadian economy and the many industries that drive that economy and rely upon marine transportation.

    I'll speak to four elements of the proposed legislation, and some of it will be repetitive, namely the three that refer to authorizations under the Canada Shipping Act. I have more general comments with respect to the Marine Liability Act.

    With respect to the Canada Shipping Act, Bill C-86 amends the act, and explicitly provides the authorization for the administration and enforcement of the act to other levels of government, including provinces and indigenous groups. If there is intent to delegate authorities to a province, for example, we would be concerned about the capability of a delegated authority to fulfill such a complex mandate and the increasing potential for a patchwork approach to administering Canada's supply chain.

    The oversight of Canada's supply chain is managed nationally by the federal government, because it is complex, and there is a high degree of integration and reliance across transportation modes. This helps to ensure a predictable and competitive environment for Canadian businesses.

    The draft bill also authorizes regulatory powers to protect the marine environment. This makes sense, and we understand and support the intent of this regulatory power. Notwithstanding that, we also have reservations about its implementation and the potential for associated regulations conflicting with Canada's commitment to international conventions, such as the United Nations Convention on the Law of the Sea. This may have also been a lost opportunity for seeking additional regulatory powers such as those to designate anchorages, not just regulate or prohibit such operations.

    We have significant concerns about the regulatory power to prohibit the loading and unloading of a vessel, as it already exists under the Canadian port state control regime. It appears to be another mechanism with which to implement a moratorium on specific commodities through regulations or an interim order, and contradicts the objectives of providing a predictable supply chain.

    Bill C-86 also authorizes the minister to make interim orders. Overall, this also makes sense, and there are many examples of when it could have been employed in the past. However, in its current form, this authority lacks appropriate guidance to the minister on its use, and has requirements to consult with other ministers on the science justification, for example.

    In both cases of these relevant clauses, 690 and 692, there needs to be a requirement for compelling evidence and/or science that ensures that such regulations or interim orders are sensible, and that such action will not have adverse consequences to marine safety or marine protection.

    With respect to the Marine Liability Act, Bill C-86 provides for changes to liability of the ship-source oil pollution fund for economic loss when property has not been impacted, creating a potentially unmanageable situation where claims for pure economic loss lack any sensible limits or guidelines.

    The potential for unsubstantiated claims of pure economic loss could increase the exposure of the fund, and consequently the exposure of shippers, receivers and carriers, and potentially the economy as a whole, if the fund has to absorb that cost. Ultimately, this may not address the challenge it is aiming to resolve, and could result in increased costs, making Canada's supply chain less competitive. We just don't know at this point.

    We believe that this aspect of the bill has not been subject to any consultation, could have significant and long-lasting impacts, and therefore should be delayed and properly examined. Despite our specific concerns that I've already mentioned, we acknowledge the positive amendments designed to enhance the flexibility to and timeliness for intervening when a pollution incident may be possible or imminent.

    Commercial marine transportation depends on a predictable, global regulatory framework in order to plan and deliver a safe, reliable, responsible and cost-effective transportation solution. As Canada progresses with improvements to its pollution response, compensation and liability regimes, it should recognize that major changes to this regime need thorough analysis, dialogue with stakeholders, especially regulated industries, and sufficient time for protection and indemnity providers—insurers—to evaluate increased levels of exposure.

     Marine transportation providers come in all shapes and sizes. There are numerous small Canadian commercial operators that may not even be aware of the changes as proposed, let alone be in a position to abide by them in short order and without the appropriate time to review their own operations and commercial practices.

    Thank you, Madam Chair.

    Thank you very much, Mr. Lewis-Manning.

    Ms. Block.

    Thank you very much, Madam Chair.

    I do thank our witnesses for joining us. It's very important that we hear from you today on the proposed legislation that is before us in the second budget implementation act.

    I take very seriously the concerns that you've raised around the very tight timelines and the fact that this legislation is part of a budget bill. It echoes, perhaps, our disappointment on this side of the table, given some of the signature pieces of the transportation strategy that the minister has outlined, such as the oceans protection plan, which this is apparently part of. We know that the minister has a 2030 strategy when it comes to transportation, and there is our own undertaking of a Canadian transportation logistics strategy study. It's a very lengthy and, I think, expensive endeavour that we have undertaken to go across the country to understand some of the challenges that are facing our transportation system.

    I'm not sure whether my colleagues on the other side are as disappointed as we are in terms of something as significant as these changes, these substantial changes—and those are the words of the deputy minister—that have been made to the Canada Shipping Act, 2001 and the Marine Liability Act.

    What I would ask you to comment on is, perhaps, how the process has unfolded for you, Mr. Lewis-Manning. I know that Ms. Simard already provided her comments on that. Further, would you expand a bit more on clause 692 and how this clause impacts the shipping industry in British Columbia? I'm wondering if you can give an example of how this will impact the shipping industry as a whole and how it will impact Canadian competitiveness.

    I have a short response with regard to the consultation. Consultation does happen continuously. In having listened to departmental officials, yes, there has been dialogue over the last two years on a lot of different issues. I don't think any of us really saw that it was coming to a legislative amendment so quickly, or we probably would have focused our energy differently. That's to say there's a lot going on. There's a lot that's happening for the departments, and I think we're all feeling the pressure of death by consultation, to be quite honest.

    We do this full time. There are a lot of people who do it part time who would never have any idea that some of these changes are in the making.

    In answer to your question about clause 692, the powers to protect the marine environment, it's difficult to speculate what it might impact. As far as regulatory powers are concerned, obviously anything that goes through a regulatory process has consultation built into it. I don't want to speculate that this could be very negative. In fact, there are probably a lot of situations where regulating for environmental reasons makes sense. In practicality, it's how it's done and what evidence and science feeds into it. That's a relatively new space for both the industry and the government departments as a whole.

    Every chance that it can be a deliberate process, and with the right investment in resources for a positive outcome, will be a good improvement. I don't want to make it sound like this is a risk.

    If you take those same powers in an interim perspective, there's a lot that could easily go wrong quickly. As you can imagine, we're not dealing with small powerboats. We're dealing with ships that are 300-plus metres long and weigh 180,000 tonnes. How they react and how they're regulated count, and there are no quick solutions.

    We had a recent good example. Over the last year and a half, as I think everyone would know, everybody's been working really hard on the west coast to protect southern resident killer whales. From the science that came out of one department, one top recommendation was that we should be convoying these huge ships. Now you can imagine that when that landed on the desk of shipping professionals, we laughed. Our response was, “Why didn't you include us up front? We would have saved a year of time.” The Minister of Transport took the right action. We asked for a risk analysis, and he made it happen. We could have probably done that much more quickly if the right consultation process had been set up right from the beginning.

    The details matter when it comes to the safety of shipping and its impacts on the environment.

     Thank you.

    You have 30 seconds.

    Take those 30 seconds, Ms. Simard.

     I don't know what you can offer in 30 seconds, Ms. Simard, but you have the opportunity.

    I'll respect that.

    Actually, we've been given similar examples. On the east coast as well, when powers are needed, they're needed fast and deep, but they should be interim in nature if they are needed fast. That's an important point. Changing the procedures of routings or the way the ship operates does have major consequences—millions of dollars, for example, for the Gaspé community on the east coast, for the crew's destination last season.

    Thank you very much, Ms. Simard. Well done.

    Mr. Hardie.

    Thank you, Madam Chair. I have a quick question and I'll then toss it to my friend Mr. Badawey.

    A lot of the provisions, as we heard from the last panel, have been consulted in the process of developing bills C-48, C-64, C-68 and C-55. Between this committee and the fisheries committee, we've done a deeper dive into it, clause-by-clause, recommendations, etc., but there was one example that helped me understand the nature of your concern. That was with respect to protecting the north Atlantic right whale. There was a slowdown and fishing bans in certain areas, and it was ultimately discovered that they had probably overreacted, that they could have taken a more refined approach to protecting that whale from ship collisions, in this case.

    Based on what we've heard from you, would you be content if an interim order came down—as you mentioned, Ms. Simard, for a short period of time—that allowed for refinements to come forward that might mitigate what otherwise would be unnecessary impacts on your industry?

    I agree. We would be content, as you put it, this way, but that's why we think we need those safeguards in the act and in procedures within the department.

    Did Transport Canada need to act fast last year? Definitely. We are not opposed to the need to act fast or the need to consult quickly. Science—

    All right. Thank you.

    Sorry, Mr. Hardie, but there's been a vote called.

    Shall we take a couple of minutes to finish with Mr. Hardie's questions, then break, go over to the House to vote and return here?

    I think if we're going to allow Mr. Hardie to finish, we should probably allow Mr. Aubin to put a question to these witnesses.

    Mr. Aubin, my time is yours.

    Thank you. I'll try to be brief.

    Ms. Simard, my first question is for you.

    You probably work miracles at home. I was very surprised that you managed to prepare a report for us in such a short amount of time. You already answered my first question in your opening remarks. I was wondering whether you had time to address the whole issue. Obviously, the answer is no.

    I'm sure that you have the authority to speak on behalf of the members of the association that you're representing. However, could you tell me the extent to which these people feel affected by Bill C-86 or are aware of what's happening?

    There were consultations regarding the general concepts. In terms of what's happening with Bill C-86, it's obviously very difficult for the industry to keep up. The brief is the result of two days of work over the weekend.

    Are all the members of my association aware of the details of the proposals? No. We had to do our best.

    Thank you.

    I was entitled to a question, but I can speak later, can't I?

    Yes, if it's very short.

    I needed to have unanimous consent to continue with Mr. Aubin. We did. That was fine. Thank you very much.

    We will suspend, go to the House for the vote and return here immediately following the vote, please.

    I apologize to our witnesses but a vote has been called in the House and we have to suspend the committee. Thank you so much. I'm sure that our members can get in touch with you if there are any critical questions that they would like answered.

    The meeting is suspended.