Proceedings of the Standing Senate Committee on
Energy, the Environment and Natural Resources
Issue 7 - Evidence - February 17, 2005
OTTAWA, Thursday, February 17, 2005
The Standing Senate Committee on Energy, the Environment and Natural Resources, to which was referred Bill C- 15, to amend the Migratory Birds Convention Act, 1994, and the Canadian Environmental Protection Act, 1999, met this day at 8:05 a.m. to give consideration to the bill.
Senator Tommy Banks (Chairman) in the Chair.
[English]
The Chairman: This is a meeting of the Standing Senate Committee on Energy, the Environment and Natural Resources to begin consideration of Bill C-15, which is an act to amend the Migratory Birds Convention Act of 1994 and, as a consequence, parts of the Canadian Environmental Protection Act of 1999. To begin the hearings this morning, we have before us department officials Mr. Stephen Wendt, Mr. Swerdfager and Ms. Waters.
Mr. Trevor Swerdfager, Director General, Canadian Wildlife Service, Environmental Conservation Service, Environment Canada: Good morning. As the chairman indicated, I am the Director General of Canadian Wildlife Services, which is part of Environment Canada. We are pleased to be here with you this morning. We have a very short overview of what is in the bill and what has motivated it and our intent. I am sure you have received presentations ad nauseam, and I will not engage in an extensive presentation.
I will point out briefly that this bill is motivated by a severe and pressing environmental consideration. Many of you are aware from some of the discussion before today that we have ships frequently transiting our waters on the Atlantic Coast and, to a lesser degree, on the Pacific Coast. On occasion ships' captains, ships' crew and ships themselves cause oily wastes to be put over the side of the ship. Often that floats on the surface of the sea, and birds are exposed to oil. We use this analogy: Think of a diver going below the sea in a scuba suit; if there is a very small hole in their suit, water gets into that hole once they get down deep. Once there is water inside the diver's suit, he or she is dead. The same thing happens with birds. The image we carry around of birds, black and covered with oil, looking crippled and sad is certainly bad news for birds. Once oil penetrates their feathers it creates a hole in their defences the size of a dime, and will cause them to freeze and die.
It is not a case of having individual birds exposed to huge amounts of oil. The impact of these spills that do occur is severe, even though they may seem to be small in size and nature. It is estimated that off our coast in Atlantic Canada, approximately 300,000 birds a year are killed by oil at sea. We do not have firm numbers with respect to the Pacific Coast. Currents and ocean patterns behave differently so that when birds are exposed to oil, they sometimes wash out to sea and sink; therefore it is harder to track where they are. We know that birds are exposed to oil on the Pacific Coast. We are not able to quantify the exposure to the extent we would like to, but we have problems on both our coasts. To date, the Atlantic Coast has been more prominent in the public eye.
The bill before you is designed to help the Government of Canada, and indeed others, address this problem. Essentially, the Migratory Birds Convention Act and the Canadian Environmental Protection Act both address the issue of oil at sea and the deposition of oil at sea. In the last little while, it has been shown that the powers the government has to enforce those pieces of legislation at sea are not adequate. In particular, both the Migratory Birds Convention Act and the Canadian Environmental Protection Act do not contain appropriate and sufficient provisions to allow them to be enforced in the exclusive economic zone. Bill C-15 clarifies the enforcement powers and provides the government with the ability to effectively enforce both statutes in the exclusive economic zone.
It is important to keep in mind the two acts: the MBCA of 1994 and the Canadian Environmental Protection Act of 1999. The Migratory Birds Convention Act was established in 1917. It was an act to implement a convention signed by Great Britain, on behalf of Canada, and the United States to protect birds in a continental context. The Canadian Environmental Protection Act came into place in the 1990s and was revised in 1999. Both acts make it clear that the deposition of oil into waters frequented by migratory birds or into marine ecosystems is not something that Canada condones. They are explicit with respect to oil being discharged into Canadian waters. The problem is that neither act contains sufficient enforcement authorities necessary to make them effective deterrents. This bill would clarify and fix that.
I would like to stress that the bill will change the government's ability to enforce both pieces of legislation. It does not create new standards or policy approach. It does not put new restrictions in place on anyone: the shipping industry, individual Canadians, fishers, whomever. This bill addresses a series of operational flaws or defects in the current legislation to allow the government to more effectively enforce the law.
I will touch on how the bill could be made operational. The business of monitoring and surveillance at sea is an extremely difficult one, as you can imagine. The area being covered is enormous; the operational and logistical challenges are severe. Surveillance operations are challenged by harsh weather and the sheer size of the area. Over the last while, Canada has become a world leader in the use of earth observation satellites and that technology in general. I find this part of my job very interesting. We have a lot of cool stuff happening. The RADARSAT, in particular, is a tool that we are now able to use to detect oil slicks from space. We are able to identify oil on the water and vector aircraft out to observe them directly. This allows us to more effectively monitor the area and eventually be able to detect ships that are putting spills into the water.
Our ability to detect oil spills and trace them back to ships is getting better, although there is still room for improvement. Our challenge is to ensure that we have the ability to enforce the act once we do detect a spill and trace it back to a ship. The technical tools are evolving rapidly, and our desire is to ensure that our legislative and enforcement arrangements keep pace.
Some of you may have encountered disagreements between departments of governments. There is sometimes a sense that government agencies are not effectively collaborating on the enforcement of legislation. Much of the difficulty we have in ensuring that federal enforcement is well coordinated and linked is that there is uncertainty around the respective powers under various pieces of legislation. This bill will clarify specifically the enforcement aspects of the MBCA and CEPA. We are close to completing a memorandum of understanding with Transport Canada on how to put this bill into operation to ensure that the government performs effectively, efficiently and in a cohesive manner in conducting enforcement activities. To the extent there was overlap, we are confident that this bill will help rectify duplication or conflict between agencies with respect to enforcement.
We are occasionally asked why a ship operator would deposit oil at sea, causing enforcement actions to be necessary. Our regulations require that oil and oily substances be handled in a certain way when a ship is in port, and there is a cost to that. Some ship operators conclude that it is much cheaper to keep oil wastes in the hull and dump them over the side when they leave port, and that is what leads to this problem. We want to make it absolutely clear to people that that is not a more cost-effective and efficient way to deal with the problem and that discharge of oil at sea is simply not acceptable.
I will note a couple of concerns that have been expressed by some members of the shipping industry, and some of the materials we have circulated to you touch on those. I do not wish to be seen to be speaking on behalf of the shipping industry; however, some points of concern have been raised with us. The first is whether we should, in this bill and probably in other environmental legislation, be considering laying charges against people who are intentionally reckless as opposed to those who experience an accident.
This bill is in keeping with government policy. It has taken Bill C-15 into account and provides due diligence as a defence to any charge laid. To lower the bar in the way we apply environmental legislation to a mens rea type offence would be a substantial change in federal policy and in relation to policy around the world with respect to environmental legislation. The strict liability regime has been in place for quite some time, and to diminish it would not be useful.
There are some who believe that we should distinguish in the bill between large and small spills — the assumption being that large spills are worse than small spills. Strictly speaking, I guess that is so. However, when birds are exposed to oil, they do not notice whether the oil is part of a large or a small spill. It is just as lethal regardless, and it is the additive effect of numerous small spills that is creating the situation we are now in. We are not looking at cataclysmic Exxon Valdez type spills. These are small-scale spills, but numerous, and cumulatively they are very significant. We want to ensure that we do not give the impression that small spills are of no significance. They are, individually and cumulatively.
The aspect of minimum fines was inserted into the bill in the other place. The bill now provides that vessels over 5,000 metric tonnes that are found guilty of contravening the Migratory Birds Convention Act will face a minimum fine of $100,000 for a summary conviction and $500,000 for an indictable offence.
The point of this is to send an unequivocal message to anyone who views Canada as a haven for dumping oil. Offences of this nature will be treated extremely seriously. They will not be tolerated and the penalty for such activity will be severe.
The Migratory Birds Convention Act contains clauses dealing with Aboriginal people, and the bill does not touch those in any way. It has been noted that the implementation of this bill will create challenges for shipping companies moving north. As the bill is focused on the enforcement provisions of the act and does not create new policy standards or regulations of any kind, we do not believe it will have any impact on northern communities. Shipping operators who are in compliance with the law will not notice any difference with the passage of this bill, regardless of where they are operating.
The Chairman: With respect to the specific liability matter as opposed to mens rea in the law, does the present act have a provision for prosecution under the act? Does strict liability exist today?
Mr. Swerdfager: Yes, it does.
Senator Milne: Mr. Swerdfager, there has been some discussion as to whether this puts us in contravention of some of the international conventions such as the International Convention for the Prevention of Pollution by Ships, MARPOL, and the United Nations Convention on the Law of the Sea, UNCLOS. You say it does not; however, there have been questions raised, so I would ask you to be more specific.
Mr. Swerdfager: It is the role of the Department of Justice in building legislation to ensure that it does not contradict existing Canadian law or any of the international conventions to which we are a party, or if it does, that it does so with an explicit purpose. In the preparation of this bill we worked closely with the Department of Justice and the legal advisers in the Department of Transport, Environment Canada and elsewhere to ensure that the complex network of domestic and international law that is in place with respect to the maritime environment is not contravened in any way. The challenge is that, when looking at a bill, it is difficult to point to what is not there. It is difficult to identify for you all the areas in this bill that are lined up with the international regime. We have satisfied ourselves that the provisions in the bill do not contradict any international laws or conventions.
Environment Canada and the other government departments are active participants in MARPOL and have worked hard to ensure that the regime we are building is in conformity with it. We have made a number of additions to Bill C- 15 to address some technical questions that were raised with the version that was introduced in the last session, and we are fairly confident that we have addressed the situation.
Senator Milne: I sincerely hope you are right, because I understand that legislation similar to this was discussed in the European community and that the opposition of the shipping industry has caused them to stop such discussions.
Mr. Swerdfager: The European legislation talked about was much more comprehensive than this. They were trying to modify an existing environmental and legislative regime, and some very substantial policy changes were being considered. This bill is simply oriented on fixing administrative provisions of the act with regard to how it is enforced. We are not creating new directions, standards, procedures and so on and are therefore not into the same kind of debate that characterized the situation in Europe.
Senator Gustafson: My questions are related to the ability to police the industry. You mentioned that the industry is moving north. How much of the Canadian shipping industry has their domiciles outside of Canada?
Mr. Stephen Wendt, Acting Director, Migratory Birds Branch, Canadian Wildlife Service, Environmental Conservation Service, Environment Canada: We do not know that, but we know that in the context of birds oiled at sea much of the shipping is from outside of Canada and not bound to ports in Canada.
Senator Gustafson: How about so-called Canadian companies?
Mr. Wendt: There are some important Canadian shipping companies.
Senator Gustafson: Yes, companies that are outside of Canada. I think it would be important to know with whom you are dealing when you are trying to police the industry.
Mr. Swerdfager: With this legislation we are not trying to police or regulate the industry so much as we are trying to detect violations at sea and enforce the law with respect to them. The industry is, for the most part, an extremely effective performer with respect to environmental standards. This is not a dirty industry. A very small minority of operators are creating fairly significant problems. This bill will allow us to target individual ships at sea and apply the act to them. The standards that are in place for the industry and the regulation of the industry overall, both domestically and internationally, are quite sound, and the bill simply applies this tool to them in a specific way.
Senator Gustafson: My questions arrive from an experience I had on a cruise ship. I was talking with one of the owners from whom I tried to learn about the tremendous advantage derived by moving their domicile to countries where they are not too highly taxed. There are many companies that do that. In fact, it might be hard for you to identify one that does not. It appears to me that it would be very difficult to police ships that you do not control.
Mr. Wendt: This act improves enforcement of all ships, be they registered in Canada or elsewhere. There are various ways to approach enforcement: Some require dealing with the flag of registry and some require dealing with the port to which the ship is bound; however, the bill also allows us to deal with a ship in place.
You are right that there are challenges in enforcement, but this bill moves us in the right direction in terms of dealing with ships of various nations.
The Chairman: To be clear, this act does not distinguish between a ship flying a Canadian flag and a ship flying a Liberian flag? If those ships contravene this law, would the enforcement be exactly the same?
Ms. Susan Waters, Legal Counsel, Legal Services, Environment Canada: In our enforcement powers we do treat foreign vessels differently. In order to comply with our international obligations, we have included safeguards to ensure that we will act in accordance with those agreements. When we are inspecting a foreign vessel, the enforcement officer requires the consent of the minister. With regard to powers of arrest or direction of ships, we require the consent of the Attorney General, which we do not require with Canadian vessels. That is specifically to address the international conventions.
Senator Adams: I come from the Arctic. If oil spills were to happen up there, they would be more difficult to clean up. I am on the Standing Senate Committee on Fisheries and Oceans as well, where we are also concerned about oil spills. Tankers from other countries sometimes come inside our 200-mile limit and flush dirty water and oil into the sea. You have said that you are not monitoring the ships of other countries.
In a study that we did quite a few years ago, we learned that oil tankers sometimes sit out at sea and wait to learn who the highest bidder is before they come in to sell their oil. You do not monitor that, do you?
If a foreign oil tanker carrying millions of litres of oil has a spill either inside or outside the 200-mile limit, do we fine them? Will only Canadians have to pay such fines?
Mr. Swerdfager: Regardless of what flag a ship is flying, if we detect a spill, be it intentional or accidental, this bill will allow us to effectively enforce the provisions of the act. As my colleague from Legal Services has just explained, the way in which we do so differs slightly depending on whether it is a foreign- or a domestic-flagged vessel. The procedures we use for a foreign vessel are in keeping with those in place for all foreign vessels, in terms of when we can go onto the ship, whether we can detain it, arrest it or turn it around. There are procedures that must be followed for foreign vessels. The procedures differ slightly for domestic vessels. The application of the act, insofar as targeting the enforcement, will be regardless of flag. How we physically go onto the vessel if required, or radio it and direct it back — those sorts of procedural aspects will differ slightly in terms of how we apply the act. The flag of the vessel is really not at issue as to whether or not the act will be applied; it is how it rolls out in terms of enforcement action.
Senator Adams: You mentioned vessels up to 5,000 metric tonnes. Are you talking about freighters or oil tankers carrying 5,000 metric tonnes?
Mr. Swerdfager: Any vessel.
Senator Adams: If it is a 5,000 metric tonne ship — cargo or oil — is it a tanker?
The Chairman: I think the 5,000 metric tonnes refers to displacement, does it not?
Mr. Swerdfager: Yes, Senator Banks had it right. What is in it is neither here nor there.
Senator Adams: I live in the Arctic, and we have cargo ships coming up the sea lanes. We sometimes have big tankers, and I do not know how many millions of litres of fuel are sitting out at sea. There might be one or two ships coming to fuel up the tanks; one ship can go into a community with up to 5,000 litres of fuel in the tank. If that ship is damaged, or if there is a spill, that oil tanker is fined up to $500,000?
Mr. Swerdfager: The bill provides that all ships, if they are caught and detained, go through the court process. All ships will be treated by the courts in a way that will presumably apply fines to them. The bill defines large ships as 5,000 metric tonnes and above. The logic is that the operator, the owner, of a ship of that size is typically a fairly large company as opposed to an individual fisher. The fine applied to that kind of operation will be at this certain minimum as specified in the bill.
It is important to note that the bill contains clear sentencing guidelines that the courts must take into account as they determine what penalty to apply. It has to do with severity of the offence and a number of other things. Essentially, the court will say that we have a ship that is above or below the line in terms of size, and that will affect how it goes about applying the fine. Ships that are smaller than 5,000 tonnes will be eligible for a large fine, but one may not necessarily be applied at that level.
Senator Milne: I have a follow-up on that, if I may. What would happen if a larger ship were anchored out in Hudson's Bay, transferred oil to a smaller ship that was going to take it on shore, and there was a spill in between the two ships? Who would get nailed on that?
Mr. Swerdfager: It would depend on which ship the charge was applied against. If it were the larger ship that had caused the spill to occur, the charges would presumably be laid against that vessel and the minimum fine provision would apply. If it were the smaller ship that caused the spill, the charge would be laid against that vessel and the minimum fine would not apply. It would just depend on which vessel. If it were both, then the minimum would apply to the larger one.
Senator Adams: Is this including barges?
Mr. Swerdfager: Pardon me?
Senator Adams: Barges like those on the Mackenzie Delta. They start from Hay River. Is it the same fine?
Mr. Swerdfager: Yes, it is.
Senator Adams: Is it different in freshwater than in the sea?
Mr. Wendt: The prohibition applies throughout Canada. It applies to all kinds of vessels.
I also want to make a comment about the sensitivity of Arctic waters to oil spills. Bill C-15 is designed to look to the Canada Shipping Act for the oil pollution standard. The international standard for merchant ships is 15 parts per million, but in Canadian Arctic waters, recognizing they are more sensitive, the standards are more stringent. I will not be quoting the details of the Canada Shipping Act, but the intent is to have no oil released in the Arctic. My comments also show how the various acts work together, how the Migratory Birds Convention Act and the CEPA link back to the Canada Shipping Act to get the standards.
Senator Adams: How many types of oil are we talking about? They have heavy oil and light oil; is it all the same? We get sizes up to number one fuel in the Arctic, and if we go a little thicker than that, we cannot burn it with the freeze. What type of oil percentage are we talking about? In the heavy oil, I think there is more protection for the birds. I would like to know what oil type we are talking about.
Mr. Wendt: Bill C-15 is dealing with a prohibition in the Migratory Birds Convention Act that was put in regulations in 1948. The definition for birds talks about substances harmful to birds. Some of the different substances you are talking about could be addressed that way in terms of the relationship to birds. From my understanding of the way the Canada Shipping Act is written and the amounts that are codified there, it does not matter about the type of oil.
Senator Adams: That is why I am asking. Every time we find we are going to go higher, tonnages go up for the stuff coming into our community, and that is my concern. Right now it is costing over $350 a tonne in the Arctic — maybe more. If you pass that bill, maybe we will go up to $500 dollars a tonne. Everybody will make sure they have insurance in case anything is damaged. Sometimes you make the laws and it is nice, and people are protecting the birds. In the meantime, it is going to cost a lot more money.
The Chairman: I did not quite understand the answer to one of Senator Adams' earlier questions. This applies in freshwater as well as in salt water. This applies to shipping in the Mackenzie, shipping in the St. Lawrence?
Mr. Wendt: An aspect of Bill C-15 is to clarify how it operates outside freshwater and territorial waters and to deal with the relationship to international conventions. The existing protections in the Migratory Birds Convention Act and CEPA apply throughout the country. The prohibition in the Migratory Birds Convention Act that is presently in place is not only restricted to water. If substances harmful to birds are deposited on land, it could be applicable as well.
Senator Angus: Having read certain speeches about this bill, I would like to get a sense of the process that was followed, if any, with respect to consulting the stakeholders. Could you describe that for me? Who has been consulted and how, and what kind of opportunity, if any, was the industry given?
Some people, both in the House of Commons and in the Senate, have given speeches saying there was wide consultation. I can tell you that my information is to the contrary, so I would like to have what happened on the record, please.
Mr. Swerdfager: This bill has a history that predates this government. It was introduced in the previous Parliament as Bill C-34, and it would be accurate to say that the bill moved very quickly through the process at that time. In its previous incarnation, the bill moved in such a way that extensive consultations were not possible. There is no other way to characterize it, I think, other than that.
It would not be accurate to say the previous bill afforded a wide range of consultation. In fact, the case was very much the opposite. That gave rise to some fairly substantial procedural concerns, not only on behalf of certain elements in industry, but more generally as well across the board of interested participants.
This bill moved at a different pace. It was drafted largely identical in text to the previous bill, but because we knew of many of the concerns of some members of the industry — they had written to ministers, to parliamentarians, to us and so on — we had some of that to draw upon. Then we had an opportunity in the other place for committee hearings, which people were invited to participate in and did, so there was some input there.
Senator Angus: Without unduly interrupting you and to be sure that I understand, this would have been after the bill was in the parliamentary process; this was not pre-drafting consultation with the stakeholders.
Mr. Swerdfager: No, there was not an extensive consultation process in terms of building the content of the act itself; that is correct.
Senator Angus: I was pleased to hear you say that there are some differences between Bill C-15 and Bill C-34. Without using our valuable time to go into each little change, could you file with the committee a sheet of paper that would outline the specific changes? I know I can take out Bill C-34, but could you give us the reasons, a one-liner saying why this was done?
Mr. Swerdfager: Yes, we will do that.
Senator Angus: Given the circumstances as you described them in your opening statement, and in your answer to my first question, are you in a position to say to this committee that this bill is uncontroversial and everyone is in favour of it?
Mr. Swerdfager: I would never be so bold as to make the statement that everyone is in favour of it. We know that is not the case.
Is it controversial? There are certainly some people who feel that the bill has some flaws in it; that is an accurate statement. In our view, much of the controversy and debate around that has flowed from a misunderstanding of what the bill is intended to do.
In my opening remarks, I emphasized, clearly I hope, the point that the bill does not change the operational circumstances under which the shipping industry in Canada, or transiting Canadian waters, must operate. It does not change the standards; it does not change any of the regimes that are in place. It simply says that this bill will now be enforceable in the exclusive economic zone, EEZ. Pretend the bill were in place tomorrow. The regime that a ship operator or an individual company must operate under today will not be different tomorrow.
However, the ability that we will have to enforce this act, as it applies today, will now include the EEZ. Any sense that we have changed, or are about to change, the standard that the shipping industry or any other operators at sea must adhere to through this bill is incorrect; we are simply not doing that.
Senator Angus: To complete my line of thought on that question, would you agree with me that this bill is quite controversial — not only the substance but the process? I understand, for example, that it is controversial within government.
Mr. Swerdfager: Let me just break your question into the two parts, and deal with the second one first. It is not controversial within government so far as I am aware. We have worked very closely at the officials' level. I know that ministers have spoken about this bill and are in complete accord. We are not aware of any fissures or cracks within the government with respect to this bill. If there are differences of opinion, they have not been brought to my attention.
I will point out and re-emphasize the very strong desire we have to make sure that, when we get around to putting the bill into operation, we in Environment Canada and our colleagues in Transport Canada are absolutely in accord, in terms of how we will go out on the land or on the sea to enforce the bill and to ensure that we do not have a disconnect. We have had them in the past; there is no doubt about that.
We have agreements in place in Atlantic Canada now that we are going to tune up after this bill; and we will make sure that appropriate mechanisms are in place on the Pacific Coast as well, so that putting it into operation will not cause any internal problems.
In my view at least, there is no controversy within government on this bill. With respect to the degree to which it is controversial outside government, I know there are some members in the shipping industry who have voiced opinions about the bill. I would not characterize this as highly controversial — at least not in comparison to some of the other things that are being debated in the public arena these days.
It is difficult for me to say it is or is not controversial. From my perspective, this is a fix to an administrative problem. Frankly, I do not see it as a big deal from that point of view; it simply allows us to apply an act that, when the drafters were building it in the first place, did not really think about the EEZ. Now we are, because we had a couple of instances where we realized that we cannot do what we thought we could do.
The Chairman: For the audience at home, would you explain what you mean by EEZ?
Mr. Swerdfager: Exclusive economic zone.
Senator Angus: Which goes out how many miles?
Mr. Swerdfager: Two hundred miles.
Senator Angus: I am not trying to trick you or anything like that. We are all in agreement on this committee; we do not like to see birds affected by oil or any other noxious substance any more than you do.
We had a bill here the other day. We had done our research and we had our department people in. Within an hour, we were through it clause by clause and had reported back. Indeed, it has now gone and is ready for Royal Assent. That is what I call a non-controversial piece of legislation.
I am also not one who expects everything we do in Parliament to be non-controversial; otherwise, there would hardly be any need for us. However, I put it to you that an issue that has arisen around this kind of legislation is that it is quite different at sea when dealing with these very valuable capital assets — ships — crewed by complements of individuals who sail around the world in these vessels. It is a different world from on land. In the motor vehicle world, even though you have vehicles that get into collisions, you have a totally different regime for dealing with that than you do with collisions at sea or pollution at sea.
There is quite a bit of legislation already on our books, in particular the Canada Shipping Act, and the Canada Marine Liability Act, and a whole family of statutes that deal with comings and goings at sea. The Migratory Birds Convention Act, which is a fine piece of legislation as well as an international convention dealing in its particular domain, is not necessarily the place to start dealing with maritime law. I am hearing that that is where the controversy lies and that is not the appropriate place to deal with ships and impose maritime law.
I will provide two examples of what I am hearing and of what seems logical to me. When the bill came before the legislators to enact, it contained no minimum fines. You must have considered that and decided not to include them. Yet, one evening in the other place, someone thought it would be a great idea to include huge fines in the bill. That was outside the purview of Environment Canada. I am asking you point blank, Mr. Swerdfager, whether nor not you think that was a good addition. Would that addition to the act place an enhanced criminalization on the maritime industry that may or may not mesh nicely and logically with the regimes already in place? Is that worth looking at again?
Mr. Swerdfager: I will touch on a couple of points as I respond to your question. The business of how the Migratory Birds Convention Act and the Canadian Environmental Protection Act intersect with the Canada Shipping Act and other marine legislation has been thought through quite carefully. Indeed, in this bill there are references to the Canada Shipping Act and the regime that applies at sea. The vast majority of the regulation of the shipping industry is done under the auspices and in the domestic context of the Canada Shipping Act as well as internationally in a whole variety of ways, to which Canada is a party. The MBCA and the CEPA have been on the books for a very long time and always have been a part of that mix, if you will. Essentially, this bill clarifies how the enforcement of those acts could occur. The change in the maritime law management regime is extremely small. It states that this act can be enforced in a certain way. There is no policy change therein and no change to the maritime law regime. It simply states how the pieces of legislation would apply.
In the matter of the minimum fine, you are correct. When the bill was being drafted, the issue of whether there should be minimum fines included, at any level, was considered. We felt that there were sufficient sentencing guidelines included in the bill to make it clear what the government deemed appropriate for the courts to penalize for a particular offence. In the debate surrounding the bill in the House, there were strong arguments made on either side of this issue about whether a minimum fine would be a valuable addition to the bill.
Certainly, the Department of the Environment was seized with both sides of the argument, to be perfectly honest. It was not a case of the issue being a no-brainer such that it is obviously good or bad. That was not the nature of the debate internally. The department thinks that the addition of the minimum fine provision for large ships sends an extremely strong signal about the government's intentions with respect to this area. It is also the department's sentiment that it changes the initial version of the act, the MBCA, in a relatively minor way. There is some real strength to it. It makes it perfectly clear that if some fines are levied under that provision, or under the act in general, through an additional amendment made in the other place, those fines would be assured of being directed to the environmental damages fund. If a fine were levied in this context, the revenue would not go into general revenue fund but into a dedicated fund designed and managed in a way that would address the damages that occur. The department views those changes as quite positive. There are pros and cons around the minimum fine issue, but the department is comfortable with the way the bill is written in this aspect.
Senator Angus: All senators need to understand this in a similar way. Judging by what Senator Adams said a minute ago, I do not think he realizes that the minimum fines would be $100,000 for a summary conviction and $500,000 for an indictable offence. The fines would start at those amounts and escalate to an unlimited amount. The judge in such a case would have total discretion as to the amount of the penalty levied, as I understand this.
Mr. Swerdfager: There are maximum amounts in place.
Senator Angus: I am told that it would have been smarter to leave it out of the act. Armed with these guidelines that provide considerable latitude enabling a judge to take into account any mitigating circumstances — such as an accident as opposed to deliberate — a judge would be stuck with those minimum amounts. A judge would have to levy a fine even though there might be tremendous extenuating circumstances. Is that not a fact?
Mr. Swerdfager: That is certainly an available argument; there is no doubt about that. Your point is extremely important to emphasize in terms of the fine structure that we are talking about. The act lays out sentencing guidelines and maximum fines such that the sky is not the limit. Those maximums are substantially higher than they are in the current legislation. In introducing this bill the government said that the fine structure in place for the MBCA and the CEPA is not adequate and so it raised the fine levels substantially.
Senator Angus: It was the way to send the signal, was it not?
Mr. Swerdfager: That was one way. In addition, it states that for a certain class of vessel, 5,000 metric tonnes and above, there would be a minimum fine applied. We should emphasize that the large vessels would warrant the larger fines up to the maximum. This bill states the level of fine that would be applied to certain vessel sizes.
The scenario you have painted is potentially feasible. From a policy perspective, regardless of the dollar figure or tonnage that is set, if you adopt in principle the notion of a minimum fine, then there is the potential for the scenario that you describe. A ship whose operation record has been nothing short of stellar may incur a small fine. The judge's ability to take into account the previous performance record would be lesser. That risk is created with this approach. There are some positive aspects to it on the other side of the ledger as well.
Senator Angus: I will not pursue that. I have two other points, if I may. Mr. Swerdfager, you said that with all the departments involved, the government wants to tighten up the enforcement. It is one thing to have laws that provide the authority, which this bill clearly would do for the Department of Environment; however, without the other necessary tools and resources to enforce, this authority is not worth much. I understand that there is nothing in this bill that is not already in the Canada Shipping Act in terms of severity or the ability to bring these tortfeasors to heel. The reality is that they have not been used much, and whether it is the Department of Defence or our Coast Guard, we currently do not have the resources to enable us to protect, for example, our fishery from foreign intruders or our maritime environment from polluters.
Mr. Swerdfager: Senator, you would fall out of your skin if a bureaucrat ever came forward and told you not to worry because government has enough resources, ``Do not send any more money.''
Senator Angus: Some do say that, but the tolls are not being used.
Mr. Swerdfager: We are challenged by our ability to enforce this act in terms of putting in place the resources required to make it fully operational. The department is making substantial internal reallocations to provide resources to make this program operational and not just a paper tiger, but the costs of operating at sea and in space are high. In the immediate term, we will not have an extremely comprehensive enforcement regime or a high degree of confidence detected every third spill. That will not happen. However, putting this in place with the necessary resources will substantially improve the situation.
Senator Angus: On that score I put to you that witnesses will come before this committee to say that this kind of remedy to protect the birds could be tantamount to throwing the baby out with the bathwater, because it might destroy an industry. We currently have the necessary authority to bring to justice people who contravene the law. However, it is the activities of the few that would be criminalized in an industry where the vast majority operate within the law and invest a great deal of money to try to make trade go well. This aspect of the bill will not facilitate that.
Do you know of any other countries, other than the U.S.? Senator Milne made reference to the withdrawal of onerous, criminal type legislation from the Order Paper in the European Parliament recently. I have some background in this field, but I do not know of any country that has onerous provisions of this nature. Can you tell us of any other country that has such criminal provisions, or will Canada be in the vanguard on this?
Mr. Swerdfager: Senator, are you speaking specifically to the minimum fines proposed in the bill?
Senator Angus: No, I am referring to the other provisions contained in this new regime that will give Environment Canada, as opposed to people who deal with the shipping industry on a regular full-time basis, the authority to take punitive action against such vessels and their crew members. I do not believe such provisions exist in any other country, but I am asking you to tell us if they do exist.
Mr. Swerdfager: Essentially they do, do they not?
Mr. Wendt: These provisions do not operate independently of our international obligations. The application of these laws will work closely with the Department of Transport. We do not anticipate that the kind of situation you are speaking of will arise.
Senator Angus: Are there other countries with such provisions? The bill is controversial, I am beginning to understand; therefore you could have two schools of thought. I want to ensure that we have an enlightened school of thought so that all the facts are in front of us. Have any other countries gone this far, other than the U.S. about which I am unsure?
Mr. Swerdfager: I misunderstood your question and I apologize for that. Essentially, this bill will bring the Canadian fine structure into harmony with that which is currently in place in the U.S. In many areas, the Canadian fine structure is weaker than that of the U.S. and this bill will address that.
As Mr. Wendt mentioned, the systems in place internationally, to which Canada is a party, will not be amended in any way, shape or form. The change will not put Canada in the van, if you will, with respect to the application of environmental legislation in Canada. This bill proposes to change the ability of the government to enforce an existing act out to the edge of the EEZ, which is not effectively enforced now. It varies greatly across the globe. This will not put Canada in a minority of one globally.
Senator Angus: We will see. I am told that it is the nature of the enforcement. The buzz phrase is ``criminalization of a civil statute.'' It is either happening or not happening, and I guess we will find out in our study. I am told that this provision is unique, apart from the U.S., given that the world is working through a UN agency, the International Maritime Organization, to harmonize the legislation among the family of nations so that we work cooperatively. In that way, a ship in country A is treated the same way in country B or C or D, in respect of the main trading partners. That was my point. Without going any further into this, I will ask one illustrative question: Are you familiar with the case of the Tecam Sea oil spill?
Mr. Swerdfager: I am.
Senator Angus: This, senators, was a case of a large oil spill. A report of the House of Commons Standing Committee on Fisheries and Oceans from March 2004 speaks to the incident. A large oil spill occurred from a Panamanian-owned and Greek-operated ship called the Tecam Sea that was en route to Gibraltar from the Gulf of St. Lawrence. The Tecam Sea incident occurred only a few days following the beginning of a six-month project using this satellite technology to which you just referred.
Environment Canada officials took over and sought technical expertise from Transport Canada. Once reached, Transport Canada refused to get involved. In the meantime, Environment Canada arrested the Tecam Sea and charged the captain and the chief engineer in the company with dumping oil into Canadian waters. Six charges were laid under the Fisheries Act, the Migratory Birds Protection Act, the Canadian Environmental Protection Act and two charges under the Canada Shipping Act. These charges under the Migratory Birds Convention Act had never been used in similar circumstances. The captain and the chief engineer were jailed but were released on bail. Together with satellite imagery and Coast Guard surveillance, evidence of a large discharge of oil through the oily water separator onboard the Tecam Sea was found, and the chief engineer could not account for nearly 15,000 litres of used oil. Nevertheless, in April 2003, the Department of Justice and Transport Canada dropped all charges in the Newfoundland and Labrador provincial court. Everyone arrested was released, and they went home. I am told that this kind of incident could be exacerbated by this proposed legislation, because it will put more crooks into the broth when the real problem was that we did not put in place the resources to enforce the existing laws. Do you have a comment on that?
Mr. Swerdfager: The summary of the incident was very good. I would agree with all of it except the part that references Transport Canada refusing to get involved, because that is not quite correct. There were some differences of view as to how, but not whether, Transport Canada was involved.
Your final point is extremely interesting in that the whole reason we are moving this bill forward is to address the very problem you have identified for us. Our conclusion is somewhat different, because if we had had this legislation in place at the time of the Tecam Sea, those charges would not have been dropped. That ship committed a series of egregious violations that were documented and that resulted directly in the death of a large number of birds. Perhaps that sounds overly dramatic; nevertheless, it was a severe event. Those charges were dropped because of some of the deficiencies in the MBCA and the CEPA. Those deficiencies will not be there if Bill C-15 is passed as it stands.
Essentially, we have brought this forward to address the very problem that the Tecam Sea exposed, where we laid a series of charges that arguably were not likely to stand because of some of the deficiencies in the act. We were exposed to some legal difficulties, because the act did not allow us to do effectively what we should do.
The Tecam Sea also exposed for the first time that the technology that we had been working on for a while was starting to work. Part of the reason this issue is coming forward as it is now is because our ability to detect spills at sea in the past was extremely limited. It is still not great, but it is a heck of a lot better than it was, and it is going to get better in Canada and internationally.
As a result, we are going to find more of these circumstances, and our ability to make sure that we can say to a ship, ``We gotcha,'' is going to go up. Second, we are going to be able to get out there and track this, and if we have in place the provisions that are being talked about in this bill, we will be able to follow through. Today we cannot.
Senator Angus: This quotation to which I have just referred you came to my attention in the research I am doing as the sponsor of a bill that is also coming forward at this time, Bill C-3.
A few years back the Coast Guard — our once-proud Coast Guard — was under Transport Canada. For some reason, suddenly out of the blue, came a bill like this, and the Coast Guard was transferred to Fisheries and Oceans. In the process, it went way downhill — its number of ships and its proud reputation were debilitated. I am getting this from documents the government officials have given me.
They admitted a mistake was made, and now Bill C-3 is to put the Coast Guard back under Transport Canada, for maritime people, coast guards, enforcers of wet matters at sea, should be in the hands of the experts in Transport Canada, and not in other ones dealing with the environment.
I am just wondering if we are not dealing in a conflicting way. That is just a comment, if you have any thoughts on that.
Senator Milne: Senator Banks, I would point out this is aside from this bill. There are some of us who still have some questions to ask, and I have clause-by-clause of another bill in half an hour.
The Chairman: We will move Bill C-3 when we get it.
Senator Milne: Senator Angus, I would point out that you talked of this being previously under a civil statute. This has always been criminal law. The punishment of an activity by the state is always criminal law. I just wanted to make sure that is on the record as correct.
Am I correct, Mr. Swerdfager, when I say that the only thing that this bill does is increase the fines and strengthen the due diligence defence to counteract that increase of the fines?
Mr. Swerdfager: What do you mean by ``strengthen the due diligence defence?''
Senator Milne: It clarifies section 283, the defence of due diligence.
Ms. Waters: The reference to due diligence existed in common law, so we made it explicit in this statute. It existed previously, so we just wanted to make it explicit.
Senator Milne: The bill increases the fines; is that basically what it does? Does it extend the application of the limits of our laws from the old 12-mile limit to the 200-mile economic zone?
Mr. Swerdfager: The act, in our view, has always applied out to the EEZ. There has been some deficiency in our ability to enforce it out to that limit. The act does not change its application. What this is doing is improving the government's ability to enforce it to the same extent.
Senator Milne: Good. We need these things clearly on the record. Can you compare Canadian law to American law? If this bill were passed, would our laws then be similar, or would they be stiffer than American law?
Mr. Swerdfager: What these changes would do is bring the fine structure in place in Canada into harmony — and I choose that word carefully — with the United States. It will not make the provisions and the regimes identical.
The American legislative regime is different. If you were looking for a direct link between this set of provisions and the American one, because their legislative regime is different, that direct tie is more difficult to draw. What it would do is make the fine structure equal to that which is in place in the United States, whereas today that is not the case. Canada's fine structure is much more lenient.
Senator Milne: Good. We need that on the record too. Mr. Wendt, you interested me when you said that this would apply on land. Does it apply only to ships on land?
Mr. Wendt: The provision in the migratory bird legislation now talks about substances harmful to birds in areas frequented by birds.
Senator Milne: If a company, for example, dumped barrels of oil or some other toxic substance into the Wye marsh, a breeding area for migratory birds — or into some of the sloughs out on the Prairies, or on some of the property owned by Ducks Unlimited — would they be charged under this act?
Mr. Wendt: Yes, they would. They would be subject to the act as it stands now in the regulations. A lot of the things in Bill C-15 that improve enforcement in the EEZ would not be necessary in those cases. Those charges would occur in either event.
Senator Buchanan: I have a comment first and then a question. I know what the answer will be, but I will ask it anyway.
For over 25 years, both politically and in the government, I had the honour to represent fishermen in the Atlantic area and in Nova Scotia particularly; therefore, the interests and the concerns of the fishing industry and fishermen are, and have always been, at the top of my agenda. I suspect that there is no objection from fishermen in Atlantic Canada with respect to Bill C-15. Is that right?
Mr. Swerdfager: If there are objections, I am not aware of them.
Senator Buchanan: I wanted to ask the question and make the comment, because over 90 per cent of the fishermen in Atlantic Canada are ``fisherman'' — not ``fishers'' as you say in Ottawa. There is no such thing as a fisher being a fisherman. A fisher is a rodent. I did not mean to attack you on that; I just want to get the message out that all the fishermen in Atlantic Canada do not like to be called ``fishers.''
The Chairman: I have a couple of questions for clarification of what you have said. You said it does not make any sense to have fines based on anything to do with the size of the spill, and I understand how you explained that; however, I want to make sure I understand that a ship of 4,000 tonnes, which made an egregious disposal of a toxic substance, might be susceptible to a very large fine — even the maximum — but determining that fine is at the entire discretion of the judge. On the other hand, a ship of 6,000 tonnes of displacement that made a smaller, less egregious error, in which they were nonetheless susceptible to a charge under the act, would be susceptible only to a fine no less than the minimum set out in the act, which is a much larger fine. Do I understand that correctly?
Mr. Swerdfager: You do.
The Chairman: I will take extreme examples: A very large offence is committed by a ship of 4,999-tonne displacement and it receives a small fine, yet a ship of 5,001-tonne displacement might commit a small offence — if there is such a thing — and be susceptible to a very large fine, up to the maximum perhaps. Is that reasonable?
Mr. Swerdfager: You put your finger on the debate around the use of minimum fines. If you have a 5,001-tonne vessel with a stellar record, that has never had so much as a thimbleful of oil go over the side, commit some kind of offence that is detected and then is charged severely for that offence, you create the scenario you depict. I will defer to my colleague from Legal Services in a second with respect to how those fines are applied. If we do have the minimum fine in place, your characterization of ``up to the maximum'' is an important one to remember. The minimum fine does not necessarily mean that it shall be that. It is not a maximum, although there is a danger it could become so.
The Chairman: No, it is a minimum. It constrains the freedom of action of a judge.
Mr. Swerdfager: The bill offers specific sentencing guidelines that judges will be required to take into account. The assessment of an appropriate penalty still will be at the discretion of the court, but it is not unfettered. There are guideline directions.
The Chairman: I want to understand what you are saying. Is it correct that any leak or disposal of anything by a ship of larger than 5,000-tonnes displacement is subject to a fine that may not be less than the amount prescribed in the act? Is that correct?
Ms. Waters: If a ship has a spill, there is a discretion that plays out. When the enforcement officer comes upon the scene, they have discretion whether or not to lay a charge under the act. If you have a large ship with a small spill, the enforcement officer may not see it is in the public interest to proceed with a charge.
The Chairman: I am talking about when the charge is laid and guilt has been established.
Ms. Waters: I am building up to the steps of discretion. If the enforcement officer lays the charge, then it is reviewable by the Attorney General of Canada. The Federal Prosecution Service examines whether there is enough evidence to proceed with the charge and whether it is in the public interest.
The Chairman: A prosecution will not proceed. I understand.
Ms. Waters: Some of the considerations of whether it is in the public interest may be the fact that there is a $500,000 minimum fine, and the ship has deposited a small amount which has not harmed the environment and the ship is a good actor.
The Chairman: ``Trust me,'' is what it boils down to. ``We are the good guys.''
Ms. Waters: There are guidelines with respect to making that decision and procedures that are carried out. Once the charge gets into the court, the Crown has the obligation to prove the fact that the offence occurred beyond a reasonable doubt.
The Chairman: It does?
Ms. Waters: Yes.
The Chairman: How is that consistent with the liability question that we asked earlier?
Ms. Waters: It is a strict liability offence, so the Crown has the burden to prove that the action occurred. That proof has to be beyond a reasonable doubt. In a strict liability offence, the accused has the defence of due diligence, and the burden is on the accused to show that the accused exercised all reasonable care to prevent that offence from occurring. The court has discretion to look at that defence of due diligence. If the accused can show that they exercised all reasonable care, and they have been a good actor in the past so that there was no damage to the environment, then they could escape liability for that offence. That is where the discretion comes into play. The court is not obligated to impose the minimum fine for a 5,000-tonne ship.
The Chairman: If the officer determines to lay the charge, and if it is proved beyond a reasonable doubt in court that oil did leak into the water and that it was an intentional act, notwithstanding the previous history, and the ship — I find it interesting a ship can be convicted — is convicted of that offence, then the judge has to either let him go or charge him no less than the minimum amount set out in the act. Is that correct?
Ms. Waters: That is correct. If the judge finds that the evidence shows that the act was intentional and did not satisfy the defence of due diligence, then the accused would not escape liability. That would be the minimum fine.
The Chairman: Thank you. You talked about land, which was brought up by Senator Milne. If a farmer unwisely disposes of some extra oil, which he has been holding over from his garage, in a wetland, he would be charged under the provisions of this act in the same way?
Mr. Swerdfager: Yes.
Senator Angus: Minimum fine?
The Chairman: I am curious to know if there is a comparable minimum fine if someone dumps a tankerload of old stuff into someone's back forty? There is not a comparable minimum fine applied?
Mr. Swerdfager: No, it applies to vessels only.
The Chairman: The judge in the case of the land offence has complete discretion?
Mr. Swerdfager: Yes, this bill increases the maximum fines available under the act. If someone were hauling waste and decided, ``I can get away with a freebie if I dump it somewhere in Saskatchewan,'' and felt that was a cheaper way to do business and we caught them, this act would allow us to lay charges and apply them accordingly.
Senator Lavigne: Does that mean that this person will have to pay $100,000?
Senator Angus: There is no minimum. It does not apply. The judge can go to high fines. He has the discretion, which he does not have with the ships.
The Chairman: We should allow the witness to answer the question.
Senator Lavigne: This is just in the ocean, not for the farmer?
Mr. Swerdfager: Essentially, the act establishes maximum fines. Again, if we are back on land now and we have someone dumping into a slough, the fine available to a court is from zero to the maximum. The minimum is zero.
Senator Lavigne: There is no minimum?
Mr. Swerdfager: Correct.
The Chairman: On land.
Senator Adams: I have a short question. In the community that I represent, only the Coast Guard can get in there to deliver the oil. Is it the same for the Coast Guard? If they spill the oil, they are subject to a maximum $100,000 fine, even though they are owned by the government?
Mr. Swerdfager: If they are a ship of over 5,000 tonnes, yes.
Senator Adams: We were going to build a hospital in Iqaluit, and last year we found out that the land was contaminated by oil. We had to postpone the project for one year in order to clean up the land.
We have a lot of exploration and mining in the North. Does this bill apply to mining? Mining companies sometimes spill oil on the land. Will you monitor that under Bill C-15?
Mr. Swerdfager: We are ranging a little far in terms of the environmental regime. The Migratory Birds Convention Act applies on land today, and has for a long time. With regard to mining and other site-specific things, the Migratory Birds Convention Act is a tool to be used, but it is not the primary regulatory vehicle; nor is the Canadian Environmental Protection Act.
We technically could apply the Migratory Birds Convention Act to a mining-related incident if the incident involved depositing substances that are harmful to migratory birds into waters frequented by birds. That is not the set of provisions that we would normally use. There are a lot of other tools in place for that.
Senator Hubley: As the sponsor of this bill, a paper was referred to me by the coalition of marine groups. They have asked that the presumption of innocence be restored to the act. Could you explain to the committee the reason for this request? What is there in this bill that is not in the current act?
Ms. Waters: We have not changed the burden of proof at all in this bill. The offence remains the same. We have strengthened the enforcement powers. As I mentioned before, this is a strict liability offence, and the Crown has the burden to prove the act of the offence beyond a reasonable doubt. The burden has not shifted to the accused. Also, the accused has the opportunity to show that they took all reasonable care. That burden is on the accused, because they are best placed to provide that information to the court. That burden is not beyond a reasonable doubt but beyond a balance of probabilities. Since the first instance of this, which I believe was in 1928, the courts have confirmed that this is the best way to deal with public welfare offences.
The Chairman: I would like to pursue a question that was asked earlier about enforcement. I am not a sea-going person, so I have to ask the question in a land sense in order to understand it.
When there is an outbreak of breaking and entering or car thefts in a city, the first reaction of the public is that the penalties for these crimes must be increased. However, if the police do not have the capacity to catch the offenders, increasing the penalties will not put the criminals out of business.
We have heard in other committees that Canada is deficient in its capacity to deliver people who have the legal authority to the places where they need to be in order to exercise extant legal authority with respect to enforcement matters. Do you agree that we are deficient in those capacities? I believe you indicated that we are. Is there anything in this bill that would have the effect of improving the capacity of extant authorities to enforce extant law?
Mr. Swerdfager: It is important that we do not lose sight of the fact that the shipping industry is not a poor performer with respect to the environment. We believe that the offenders are a very small minority of the industry. In the example you used, breaking and entering is a fairly common offence. What we are dealing with here is not.
We are convinced that a strong communications campaign with the shipping industry will deal with many of the compliance issues. There are exceptions, but we believe that the majority of operators, given the opportunity to better understand the implications of what they are doing, will voluntarily come into compliance.
The Chairman: Why do they not comply now?
Mr. Swerdfager: In some cases, they simply wilfully do not comply. It is cheaper to put oil over the side than to treat it. A certain component of the industry will behave that way no matter what we do, and the enforcement tool is necessary for that component.
The Chairman: Are you hopeful that the master of the vessel who found it worth the risk to dump oil will no longer be willing to take the risk because of the size of the fine provided for in this bill?
Mr. Swerdfager: Yes, because we are changing the stakes, and the consequences of losing are much higher. There is no guarantee they will get caught. It is not easy to catch people putting oil over the side at night in the fog. If the communication and outreach approach does not work and we do not get the voluntary compliance we want, this bill will raise stakes.
On the fundamental point of your question, Canada has historically enforced its legislation less stringently than is common elsewhere. In Canada, there are 55 conservation officers employed by the Canadian Wildlife Service. Of those, 10 work in Hull. The U.S. Fish and Wildlife Service has approximately 4,000 enforcement officers. Even using the normal formula of 10 of them for one of us, it does not add up.
The number of people we can bring from the enforcement community to the location of a potential offence is small. This bill will not lead directly to a sufficient appropriation of resources, but it will result in internal reallocation to put more people to work on the issue, to enhance technology development and to ensure that the resources we do have are used more effectively.
Someone asked if we can effectively enforce this regime, or is it a paper tiger? It is not likely that anyone in a position such as mine in the government will say, ``Don't worry; we have enough resources.'' With respect to enforcement, we do not. Minister Dion has said that on a number of occasions as well.
The Tecam Sea incident that we spoke of earlier illustrated clearly that while our resources may not be adequate for the task, they are a long way from zero. This bill will improve the situation, and hopefully it will continue on a positive trend.
Senator Adams: We are talking about migratory birds. If a spill happens in a place where there are no migratory birds, does the law still apply?
Mr. Swerdfager: The Migratory Birds Convention Act deals with spills of any substances that harm birds, as Mr. Wendt pointed out earlier. If a spill occurred in an area where there were no birds to be harmed, charges would not be laid under the Migratory Birds Convention Act and probably not under the Canadian Environmental Protection Act, but they would be laid under some other statute.
The Chairman: There is other legislation under which a charge could be laid for that type of thing.
Senator Adams: In our communities, private companies deliver oil. Pipes are sometimes laid without a good foundation and sometimes they break. They are covered with snow and no one knows that a pipe has been broken. I do not think that anyone has been charged for such a spill in the community.
The Chairman: I want to thank the witnesses for a perfect start to what will be an interesting and informative process. We may ask you to speak to us again. I remind you of the undertaking you gave to Senator Angus to provide us with information. Please send that to our clerk.
The committee adjourned.