Proceedings of the Standing Senate Committee on
Transport and
Communications
Issue 5 - Evidence
OTTAWA, Friday, December 12, 1997
The Standing Senate Committee on Transport and Communications, to which was referred Bill S-4, to amend the Canada Shipping Act (marine liability), met this day at 8:30 a.m. to give consideration to the bill.
Senator Lise Bacon (Chairman) in the Chair.
[Translation]
The Chairman: Resuming debate and our study of Bill S-4, we welcome today officials from Transport Canada.
[English]
Thank you for appearing before us on short notice and early this morning. The committee on Tuesday, December 9 heard testimony to the effect that within Bill S-4 was a clause that changed the definition of "pollutant" in the Canada Shipping Act, and that that caused a certain surprise to the marine industry. They also said, although they were not necessarily against such a change, that they felt that it should be done in consultation with interested parties and that such a change would be better addressed when dealing with a bill that is making various amendments to the Canada Shipping Act, such as Bill C-15, and not with Bill S-4 whose main objective is to implement international convention.
Mr. André Pageot, Director General, Marine Policy and Program, Transport Canada: To answer your question about the definition of "pollutant," we are reviewing many aspects of the Canada Shipping Act. We were trying to harmonize definitions across all legislation, including the definition of "ships" as well as "pollutant". In the old Bill C-73, which became Bill C-15 with Shipping Act amendments, they were proposing a definition of "pollutant," and this is the reason there was disharmonization. If there is need to have a discussion on precise definition, we recognize that it could be done in the context of a Canada Shipping Act amendment rather than in the context of Bill S-4.
Mr. Jerry Rysanek, Chief, Policy Development, Marine Insurance, Transport Canada: It is quite correct, as you heard from the witnesses that appeared on Tuesday, that this particular prohibition was not in Bill C-58. We thought it was wise to lift it from Bill C-73 to achieve the harmonization which was envisaged by the combined effect of Bill C-73 and Bill C-58, and indeed that is exactly the effect of Bill S-4. If you wish to review the reasons for the amendment of the definition of "pollutant," the need for it, from a technical point of view, my colleague Mr. Morris will be able to address it. If you only look at the aspects of the inclusion, the provision in the liability section of Canada Shipping Act which is the focus of Bill S-4, certainly on that aspect it could be possible to review it, and the government would be prepared to review it and deal with it at some other time in the future.
The Chairman: Do you want to add anything Mr. Morris?
Mr. Tom Morris, Senior Technical Officer, Environment Protection, AMSE, Marine Safety, Transport Canada: Not unless you have a question on why we did it in the first place.
Senator Spivak: I understand that the reason for putting this in here, apart from making sure that the acts are harmonized, is that then this puts liability as a cause of liability. We heard from the shipping organization that this might really be a hardship, but then if you remove it, how will you enforce the monitoring of ballast water for containing aquatic organisms? We have had a terrible experience with this in our country; it has cost billions of dollars and will continue to.
Mr. Morris: That is correct. It was part of the overall amendments that we were doing in Bill C-73, and the amendment to the actual definition of "pollutant" was to clarify that we had the authority to bring in some regulations. It could be interpreted to mean that we have the authority right now. Again, it was the legislative lawyers who thought it should be in there for clarification. In Bill C-15, we are adding what we think will be sufficient to bring in regulations for ballast water. It was merely to clarify that the authority was there.
Senator Spivak: If we amend this proposed legislation, there will still be a cause of liability under Bill C-15. What is the means of enforcement if someone violates what is in Bill C-15?
Mr. Morris: That will come under Part XV of the Canada Shipping Act. That is the prevention side, which is what I deal with.
Senator Spivak: That does not answer my question. What is the enforcement mechanism by which, if a ship knows that that might be a cause of liability, it will sharpen the concentration. At the moment, there are voluntary guidelines. How are you enforcing those voluntary guidelines?
Mr. Alfred H.E. Popp, Senior General Counsel, Admiralty and Maritime Law, Department of Justice: There are two aspects to this. The problem here is that we are only focusing on one aspect through the vehicle of Bill S-4. The important thing to remember is that Bill C-15 also contains some provisions which are relevant to this, and in particular it will contain a regulation-making power to deal with ballast water control, or ballast water including this aspect of it. So to answer your question about enforcement, the enforcement mechanism will be in Bill C-15, which, when it becomes law, will give power to adopt a regulation which will then become enforceable as any regulation under Part XV with penalties and so on. Part XV, which is the prevention and enforcement part, will be modified in this way by Bill C-15. Bill S-5 deals merely with civil liability.
Senator Spivak: It would only answer my question if indeed you are saying here today that there will be legal liability of some sort under the regulations of Bill C-15, and that this is not a means of removing that liability should such occur. Are you in discussion with other countries? Will those discussions take place?
Mr. Popp: You are correct. If Bill C-15 goes through without any further amendment, at least on that subject, there will be a regulation-making power which will entitle the Governor in Council to adopt regulations which will then be enforceable regardless of any international discussion on the subject.
Senator Spivak: Is that your intention at the moment? That is what is being proposed for Bill C-15?
Mr. Morris: That is correct.
Senator Poulin: In the past, who have been the state parties to develop the regulations and who appoints them based on Article XV?
Mr. Popp: When we are talking about these aquatic organisms?
Senator Poulin: The regulations.
Mr. Popp: I do not know if we can answer that question. I do not know to what extent that has been discussed at the IMO.
Mr. Morris: The International Maritime Organization is developing regulations that will apply internationally. Our regulations will be based on those. They IMO regulations are expected to be finalized by about the year 2000; Canada has been part of their development. At this point, quite a few countries are participating. However, like all international regulations, countries must sign on after they are developed. Right now, it is basically Canada, the U.S., Australia, New Zealand who are the main proponents bringing this in.
The Chairman: Thank you, gentlemen. I would ask you to remain here while we proceed to consideration of the bill.
Senator Forestall: Can we proceed to clause-by-clause examination of the bill? I gather we are ready to get to that now. There are two amendments.
The Chairman: Yes, senator; that would be easier.
Senator Forestall: I move, seconded by Senator Adams, that Bill S-4, in clause 4, be amended on page 8 by replacing lines 2 to 30 with the following:
4. The definition "ship" in section 654 of the Act is replaced by the following:
The Chairman: Is it agreed, honourable senators?
Hon. Senators: Agreed.
Senator Poulin: I move, seconded by Senator Forrestall, that Bill S-4, in clause 5, be amended (a) on page 8 by replacing line 37 with the following:
"Convention," "owner" and";
(b) on page 9, by deleting lines 36 to 43; and (c) on page 10, by deleting lines 1 to 18.
The Chairman: Is it agreed, honourable senators?
Hon. Senators: Agreed.
The Chairman: Are there any other amendments?
Shall I report the bill, as amended.
Senator Forestall: We should go through it clause by clause.
The Chairman: No, we do not have to.
Shall I report this bill, as amended, to the chamber?
Mr. Rysanek: Madam Chairman, I thought there was an amendment dealing with a typographical error.
The Chairman: I took care of it.
Mr. Popp: There was one.
The Chairman: Did you see anything else, Mr. Popp?
Mr. Popp: There is one other one which is not affected by the deletion of "pollutant." It is also in relation to clause 5, and it relates to line 8 on page 9.
Senator Forestall: I move that Bill S-4, in clause 5, be amended by replacing, in the English version, line 8 on page 9 with the following: "eral oil, or."
Mr. Popp: That is the one.
The Chairman: Shall I report the bill, as amended, honourable senators?
Hon. Senators: Agreed.
The committee adjourned.