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
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 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—
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 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.
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.
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?
—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?
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?
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.
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?
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.
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 , 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.
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 .
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 and proposed some specific amendments.
More specifically, we recommended, first, that the marine transportation amendments be extracted from Bill 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 .
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 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.
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 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 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 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, 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, 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 , , and . 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?