Proceedings of the Standing Senate Committee on
Energy, the Environment and Natural Resources
Issue 12 - Evidence - April 19, 2005
OTTAWA, Tuesday, April 19, 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 5:10 p.m. to give consideration to the bill.
Senator Tommy Banks (Chairman) in the chair.
[English]
The Chairman: I see a quorum and I call the meeting to order. This is a meeting of the Standing Senate Committee on Energy, the Environment and Natural Resources, which is considering Bill C-15, an amending bill in respect of the Migratory Birds Convention Act.
Before we proceed with today's business, honourable senators, I will remind you there is a small piece of housekeeping, as usual, at the end of today's meeting that we will be required to take care of, and some matters of information that I will want to make sure that you have.
I think you have had distributed to you a letter from the minister in response to some questions that I asked him in my letter of May 8. I have here, in addition, a piece of paper that I just asked Senator Milne's permission to duplicate, which I would suggest is useful to us. If you want it, I will be happy to give it to you. I only have it in one language, but it is a useful observation that Mr. Paul has made about some of the questions we have asked.
As I said, we are considering Bill C-15. We have with us today some important and interesting witnesses in that respect, the first of whom is the Hon. Tom Osborne, Minister of Environment and Conservation of the Province of Newfoundland and Labrador. Welcome, minister. He is accompanied by Mr. John Drover, the Director of Policy and Planning for the Department of Environment and Conservation of the Province of Newfoundland and Labrador. Welcome, gentlemen.
I am presuming that you would like to say some things to us. I would ask that you do so with whatever alacrity you can, as long as you are sure we have heard everything that you wanted to say, so that we can have time for a conversation afterwards. Minister, you have the floor.
The Honourable Tom Osborne, Minister of Environment and Conservation, Government of Newfoundland and Labrador: It is a pleasure to have the opportunity to appear before the committee today on this extremely important matter. It is my privilege as a minister of the Crown and my personal responsibility and obligation to present our views on Bill C-15. It was also my privilege in November 2004 to address the Commons Standing Committee on the Environment and Sustainable Development on this same issue. My purpose today, quite simply, is to urge senators to provide speedy passage to Bill C-15 without further amendment.
I know that this committee has been bombarded with data, contradictory and otherwise, and, no doubt, self-serving opinions on what Bill C-15 will and will not do. I also understand that you will be seeking independent legal opinions on issues related to international commitments. I want to convey to the committee today the view of those of us who are closest to the problem, who have for centuries derived our economic livelihood, our recreational enjoyment and our culture from the sea and the shoreline and who, even today, can walk along the shoreline and find dead and dying birds. We witness firsthand the insurmountable negative consequences of not protecting the environment and the species that are under our care.
Senators, it is difficult to comprehend how a civilized and progressive society, which we claim to be, can continue to tolerate the callous, cruel and unnecessary destruction of hundreds of thousands of seabirds every year for so little savings in cost to vessel owners. Many of us have seen the effects of large oil spills and the oil slicks trailing behind vessels that pollute our beaches. However, when you see firsthand the effects that even minor amounts of oil have on seabirds, how it reduces the insulating capacity of feathers, how it prevents them from digesting food and how it leads to a slow and cruel death, you have to wonder. When you see the evidence of the deliberate and criminally negligent release of bilge oil into the ocean by those navigating our waters, the magnitude of the destruction and the insignificance of the financial gain, your responsibility as legislators and as human beings becomes quite clear.
In my submission, you will see that I have enclosed photographs, taken by my staff, that provide just a glimpse of the problem. I am sure that you have seen Environment Canada's website, where you can view videos that show the level of destruction on our Atlantic coast from deliberate dumping of bilge oil in our oceans. One needs only to view such photographic evidence to understand the necessary urgency in moving Bill C-15 forward. My staff suggested that I bring along with me some oiled seabirds to this hearing, but I did not want to be overly dramatic. However, their point was well taken, because it would have allowed senators to see the consequences of inaction and delay up close and personal.
We have been seeing reports of oiled seabirds off the coast of Newfoundland and Labrador for half a century. The Canadian Wildlife Service reports that between 1984 and 1999, 62 per cent of dead birds found on Newfoundland's beaches were oiled birds; and I have seen higher estimates than that. I know that in the United States it is less than 10 per cent.
I am sure that you have been told that for every oiled bird, there are 10 that you do not find. It is estimated that over 300,000 birds die each year off the coast of Newfoundland and Labrador as a result of oil. I noted during my presentation to the House of Commons Standing Committee on the Environment and Sustainable Development that 300,000 dead birds per year is equivalent to the effects of the Exxon Valdez oil spill or the Prestige disaster each and every year. Just imagine the Exxon Valdez disaster each and every year in our waters. What a catastrophe; but it is happening. Is there any justification or even a rationalization for our lack of action on this issue? Can we even point to some economic benefit, some greater good or any overriding defensible need or policy consideration to delay the passage of Bill C-15? Senators, I think not.
Honourable senators, I have reviewed the minutes of your previous deliberations. It is encouraging to see that every representative of the shipping industry has given wholehearted support to the objectives and purposes of Bill C-15. Even Environment Canada acknowledges that the shipping industry is, generally, a clean and environmentally responsible group and that Canadian shippers are the best of the lot. However, the industry also acknowledges that there are disreputable rogue vessels, rogue companies and irresponsible captains — 5 per cent, I believe — who are causing all of the problems. Industry is offering to help weed out the bad guys, the pirates, the rogues and the incompetents. This is all good news and bodes well for the future.
Where was the shipping industry prior to this proposed legislation coming forward? Why has the shipping industry not gone after these rogue vessels before now? I have raised this issue on several occasions in our legislature over the past seven years, and I have raised it publicly. It has been noted in local and national media on a regular basis. Certainly the shipping industry was aware of this issue. Why are they offering to police themselves only now? Why is it that vessels continue with such blatant disregard for our coastal environment and choose to pollute in Canadian waters and not in American waters? The answer to this question is simple: These vessels choose to pollute Canadian waters prior to entering American waters because in American waters they face a stronger patrol, better enforcement capabilities, more severe penalties when caught; and there is greater resolve in the United States to prevent this kind of environmental crime, even at the judicial level. Why should we even consider amending this bill before the Senate?
Honourable senators, some of the photographs that I referred to were taken at the Cape St. Mary's Ecological Reserve bird sanctuary on the east coast of Newfoundland. It is a beautiful, marvellous and magical place that no photograph can adequately capture. It would be my pleasure to host a tour if any of you were to find yourselves in our beautiful province. The sanctuary is one of the most popular tourist attractions in Newfoundland. Every year, people from many countries visit this site to see firsthand now one of the last such sanctuaries on the planet.
Just imagine, as a tourist, seeing oil-drenched and dying birds on an ecological reserve. The Cape St. Mary's Ecological Reserve is a breeding ground for numerous seabirds, including dovekies, murres and common eiders. It is also a wintering area for loons, cormorants, gulls, the rare king eider, kittiwakes and others. It is home to black scoters, which is a declining species, and the largest concentration of harlequin ducks in Eastern Canada. Until recently, the harlequin duck was on the endangered species list, and it is recovering only now. Unfortunately, this sanctuary is directly in the path of oil that comes ashore on an annual basis.
Despite the courageous and dedicated efforts of professionals and volunteers to clean oiled birds — and I applaud those efforts — such efforts are, unfortunately, for the most part a futile task. An oiled bird is a dead bird.
Honourable senators, when I presented to the Commons standing committee, some in the shipping industry argued that the purposes of Bill C-15 could be met by existing legislation, that we should rely on current international agreements, that we let industry deal with the issue and not subject vessel masters and chief engineers to liability.
My response to such positioning and posturing is simple: What we have now is clearly not working. The international agreements are not protecting our ecosystem and the industry has not policed itself. We have to make owners, captains and operators responsible for their actions in order for our laws to be effective. Several of those on the standing committee took positions similar to mine.
MP Bob Mills of Red Deer noted that he first became involved in the issue in 1996 and went on to say that "Nothing much has changed," that the continued release of bilge oil at sea "does not show very much integrity from the shipping industry" and that vessel captains "cannot just keep passing the buck, saying it is someone else's responsibility."
MP Biron Wilfert of Richmond Hill noted that "the more we delay on this, the more we are going to have a major environmental problem." Personally, I would go one step further and suggest that we already have a major environmental problem.
Honourable senators, that is why I am here today. That is why I urge you to pass Bill C-15 in an expeditious manner.
Environment Canada officials have told you that the powers government has to enforce these pieces of legislation at sea are not adequate. They have stated that Bill C-15 is motivated by a severe and pressing environmental consideration. They say that Bill C-15 simply clarifies enforcement powers and provides the government with the ability to more effectively enforce both statutes — the MBCA and CEPA — in the exclusive economic zone.
Environment Canada also contends that Bill C-15 will bring our fine structure into harmony with the United States. As you know, many vessels navigate Canadian waters on their way to U.S. ports and many rogue vessels find it more profitable to dump their bilge oil in Canada, where fines are substantially lower.
Even if these vessels are caught in Canadian waters and convicted, the average fine is $25,000. The average fine in American waters is $1 million. It is simply a risk analysis, a cost analysis, and it is a risk that the 5 per cent who are rogue vessel owners are now willing to take.
I wish to take this opportunity to applaud our colleagues in Environment Canada on their noble effort in bringing forward this important proposed legislation. There is no doubt that greater enforcement resources will be required and developing surveillance technologies will help, but we need stronger laws first.
Honourable senators, with respect to the shipping industry, in which many of my own constituents are involved, given their seemingly unqualified support for the basic need to do something about this environmental disaster of Exxon Valdez proportions, let us root out the bad apples, the bottom 5 per cent, the irresponsible and the incompetent, the environmental criminals. The good guys have nothing to lose, nor do they have anything to fear.
I wish to add that this is not just about birds. I consider birds to be an indicator. We also have to be concerned about the cumulative biophysical and economic effects that oil spills have on our fish, our onshore and offshore ecosystems, tourism, and our ongoing ability to clean up the mess that is left by these rogue vessels and rogue owners, particularly those that are merely passing through Canadian waters as a matter of convenience.
Honourable senators, what does it take for industry to comply with the proposed act? I would suggest that the costs are minor and, in any case, they are a cost of doing business. We cannot impress upon you enough the seriousness and the urgency of speedy and unamended passage of Bill C-15.
I thank you again for this opportunity to present our views and concerns on this serious issue on behalf of the Government and people of Newfoundland and Labrador and, indeed, all of Atlantic Canada. I have had several conversations with my counterparts, the ministers of environment in each of the other Atlantic provinces and Quebec. We have met on this particular issue, at my request, on a couple of occasions. I can assure you that my Atlantic counterparts support me in bringing this message to the Senate.
Be assured that the Province of Newfoundland and Labrador is prepared to fully support the federal government on passing Bill C-15, which is critical to ensuring better protection of our marine environment and wildlife, for the benefit of present and future generations and of the many people who rely on the environment for their livelihood, including fishermen, tour boat operators and tourism businesses. We must protect this ecologically significant area of our country.
I would be pleased to answer any questions.
Senator Cochrane: I want to welcome you, minister, and Mr. Drover. I am very pleased that you took the time to be with us today. Being from Newfoundland myself, I realize the terrible charge against our birds. Illegal dumping is uncalled for. We have let it happen for so long, but the time has come that something must be done.
As a result of the spill in March, eider ducks were covered in oil and drifted to shore. When any bird encounters this oil, it loses its buoyancy and drowns if it is not pushed to shore by the wind. That is awful to think of.
Has any vessel yet been charged with illegal dumping of waste oil in that case? If not, why not? That happened in March, and I understand that this illegal dumping occurred close to shore.
Can you give us an update on this incident?
Mr. Osborne: No vessel has been charged. In fact, they were not able to find the vessel. I have been assured by the federal environment minister that once Bill C-15 passes there will be a reallocation of resources and additional enforcement will be put in place, which we certainly need. With the ability to detect oil spills in the ocean with the use of radar we are finding more of these spills, but we do not always find the perpetrators. In foggy conditions and at night it is very difficult to see the ships that violate our waters.
I have already put the federal minister on notice that once this bill is passed I will be looking for additional resources for enforcement. The federal minister seems very positively disposed toward that.
Senator Cochrane: Did he acknowledge that he would provide a specific amount? We are not yet sure about extra resources.
Mr. Osborne: No, he has not, but he did say that in the past, at times there was disharmony among some of the federal departments, and one of the aims of Bill C-15, I am assured, is to bring greater harmony. As an example, with respect to the Tecam Sea, about which there was a great deal of evidence, if this bill had been in place at that time, that vessel would not have escaped. There would have been sufficient power through Bill C-15 to lay successful charges against that vessel.
Senator Cochrane: Therefore, charges were laid against that vessel, but they were the minimum?
Mr. Osborne: I guess because of the disharmony at that time. The bill certainly aims to bring the federal departments together and the resources that are needed from the different departments. "The reallocation of resources," I think was the phrase used by the federal minister, and from our department's and our government's perspective, and in conversations with the federal government, we are certain that if Bill C-15 had been in place at the time, the Tecam Sea would never have gotten away. We all know they were guilty, but they simply got away with it.
The Chairman: Just for the record, we understand the ship did not escape.
Mr. Osborne: No.
The Chairman: They were charged and the ship was known to be there, but the charges were not proceeded with. That is what you mean by "getting away."
Mr. Osborne: That is correct, Mr. Chairman. One of the things that Bill C-15 will do is extend the ability to pursue vessels beyond 12 miles to the exclusive economic zone, which is 200 miles. Right now, we do not have the ability that we would under Bill C-15 to pursue criminal charges against a violator 50 miles off our coast.
Senator Cochrane: Representatives of the shipping industry have told the Standing Committee on Environment and Sustainable Development that the bill would penalize the vast majority of shipping companies that are good operators, in their view, in response to a problem caused by a few rogue ships.
Shipowners also argued there may be practical barriers to practical operations, including a lack of waste oil disposal facilities in Canadian ports.
How can Bill C-15 penalize good operators?
Mr. Osborne: I am certainly not a lawyer, but I have looked at this bill and under proposed section 13, subsection (1.8), it states that:
A person or vessel that establishes that they have exercised due diligence to prevent the commission of an offence under this Act, other than an offence under paragraph 5.2(a), (c), or (d) or section 5.3, shall not be found guilty of the offence.
In addition to that, the enforcement officers would have the discretion to lay a charge. If a vessel was generally one that had a clean record and it was a small amount of oil that caused little or no damage to the environment, the inspection officers have some discretion. That is then reviewed by the Attorney General of Canada. The Crown would have the discretion to pursue the charge and determine if it was in the public interest, and the courts would have the ability to determine a conviction. The Crown would have to prove beyond a reasonable doubt that the offence occurred before a fine would be levied.
Senator Cochrane: That is what the shipowners are complaining about. If they feel they are innocent, they do not want to take the time out to prove it. That is one argument that has been presented to us.
Senator Milne: I do not know who pays for cleanup on the beaches of Newfoundland and Labrador. Is it the government? Is it all volunteer groups, such as the Sierra Club, from whom we will hear later today? If it is the government, how much has it cost you in the last year to clean up after spills?
Mr. Osborne: That is a very good question, senator. I am sorry I do not have that information in front of me, but generally speaking, this oil is difficult to clean because of the ocean conditions. Generally speaking, it is impossible to clean.
The oil that does eventually make it to our shores would be a provincial responsibility.
We see thousands and thousands of oiled birds on several occasions every year, and we have a situation where the fines are dissimilar to those in the United States, because the judicial system here in Canada for some reason just has not accepted that this is a very serious issue. The fines have been in the range of $25,000. The risk is worth it. Our coastal environment, the people who derive their livelihood from it and the birds do not stand a chance at this stage of the game.
Senator Milne: You are preaching to the converted here. I am just wondering how much of Newfoundland's budget goes to cleaning up scenic areas where you are expecting tourists to come. Do you just leave the dead birds there in the sea to eventually disintegrate and vanish? What happens? There must be some costs that you budget for.
Mr. Osborne: There is some grant money given to some of the volunteers who collect the birds and clean up.
Senator Milne: Is it mainly done by volunteer groups?
Mr. Osborne: It is at this point.
Senator Angus: Minister, welcome. It is nice to have you here. Mr. Drover, thank you for coming.
I read and listened to your evidence with great interest. I apologize for being a little late arriving today. I was at another hearing.
I do not dispute anything you are suggesting to us. We share a common goal, to somehow deal with this national problem. It is not just in Newfoundland, of course. We have a fragile marine environment in other places. There are many sources of the pollutants, not just ships. You know that yourself.
In fact, it is, relatively, a minor percentage, according to documents that have been filed with us. There are all kinds of sources, apparently, other than ocean-going vessels. I think there was a report from the United Nations that showed that only about 5 or 10 per cent of the oil is sourced from ships.
Mr. Osborne: No, that is not accurate. Approximately 62 per cent of the birds that are found dead on our shores are the result of oil, which means that about 38 per cent are not.
Senator Angus: However, it could be oil from other places. I do not want to get into a dispute. I am just quoting from a report.
You were saying the laws are not adequate, and I think you are saying C-15 is needed. Do you think that perhaps a lack of enforcement is also the problem?
Mr. Osborne: We need greater enforcement, but above all, we need larger fines. Until we bring our fines in harmony with those of the United States, ships will simply continue to see Canadian waters as a safe haven for this activity. They will continue to dump their bilge oil in Canadian waters before they enter American waters. I would contend that the vast majority of the ships that are violating our waters and committing this egregious and environmental crime never stop in a Canadian port.
Senator Angus: You may or may not be right. I am only interested in fixing the problem, as you are, but I do not want to do it on the wrong premise.
I am sure you are aware of the Canada Shipping Act. I will just read to you from section 191 an example of fines in the Canada Shipping Act, which is an up-and-running statute of Canada.
It says:
Every person who, or vessel that, contravenes any of the following commits an offence:
It talks of section 187, discharge of a pollutant, and it goes on under "Punishment":
Every person or vessel that commits an offence under subsection (1) is liable on summary conviction to a fine of not more than $1,000,000 or to imprisonment for a term of not more than 18 months...
That law has been on our books for many years, and I am asking would you not think that is a fairly substantial fine? Why are we imposing these low fines?
Mr. Osborne: I will throw the question back. As a lawyer yourself and a former president of the Marine Law Association, you know that those fines have never been enforced, that the lawyers that represent these rogue vessels have been successful in getting them the minimum fines, at worst, and generally speaking, getting them off without ever paying a fine.
Certainly, senator, you know that as a former president and a lifetime member of the association.
Senator Angus: Honorary lifetime member. I must have done something right.
Mr. Osborne: You know that those fines have never been enforced.
Senator Angus: I do not want to argue with you. I think all we are interested in here, in helping us determine whether this is good or bad law, is the facts. You are saying the average fine is $25,000. I read in the newspapers, as I am sure you did, not more than a year ago that a vessel of the company that is owned by the Prime Minister or his family received the highest fine in our history, some $280,000, if not more.
We have a law; I just read you the section where it allows for the fines. While driving up here from Montreal this morning, somebody brought to my attention a very recent case. I will read to you from it. This was in Canadian Sailings of March 14:
Fishing vessel, captain fined for dumping oily substance.
A fishing vessel, not a rogue international shipper, and we have had evidence here that the majority of this over-the-wall illegal throwing into the sea of oily bilge waste is done by small vessels that are not perhaps subject to some of these other processes. It says here, dateline Halifax, that:
A Japanese fishing vessel and its captain have been fined a total of $60,000 in Nova Scotia Provincial Court for offences stemming from the unlawful dumping of an oily substance into Canadian waters.
The name of that ship is the Hime Maru No. 38.
My only point is it is much more than $25,000. I have shown you that there is another law on the books that provides for fines up to $1 million. I am trying to ask you is the problem perhaps not the lack of tough laws, but rather the lack of resources, the lack of —
Mr. Osborne: Absolutely not. The problem, senator, with great respect —
Senator Angus: Could I just ask the question?
Mr. Osborne: Certainly.
Senator Angus: Contrary to what you have just said, we have heard that the Tecam Sea case was not due to the lack of Bill C-15 but to the fact that the Coast Guard had been put under the Department of Fisheries and Oceans. Now there is a bill before us, C-3, to reverse that. The House of Commons Committee on Fisheries and Oceans used the Tecam Sea in their report as an example, because it should have been referred to the Coast Guard. I do not know. I am just asking you if that is not possibly the reason.
Mr. Osborne: As I say, with great respect, I disagree with your statement.
Senator Angus: Fair enough. I have no problem with that.
Mr. Osborne: I feel compelled to say again that about 3 per cent of the dead birds that are found on American shores have oil on them. Over 60 per cent of the birds that are found on Newfoundland shores have oil on them. Oil has its own fingerprint. We can trace it; and no, it is not caused by other sources. We know that it is caused by bilge oil.
If I could be permitted to continue for a moment, we know that the death of these birds that are found on our shores is caused in the vast majority of cases by bilge oil. That is 62 per cent of the birds being found, and we know that there are literally dozens of cases of bilge oil being pumped out off our coast on an annual basis. That is not happening in the United States.
The United States may have better enforcement, absolutely. Do we need better enforcement? Absolutely, but the reason the offences are not happening in the United States, I would contend, is due in large part to the fact that the fines there will cause a ship's owners to think seriously about whether they want to take that risk. In our waters, they are prepared to take the risk because the fines are so low and so infrequent. The exceptions to the rule are the two cases that you have mentioned.
The maximum fine in Canada is $1 million. Again, as a lifetime honorary member of the Canadian Marine Law Association, you know, senator, with great respect, that the vast majority of these ships are getting away with this. The fines are too low. The average cost of cleaning their bilge oil in port is between $5,000 and $10,000. If a ship's owner knows that the chances of getting caught, the chances of being convicted are very slim and the average fine is $25,000, it is a risk analysis. It is a cost analysis, and at the end of the day, they will take the chance and dump their oil in our waters, affecting our marine ecosystems, because they feel that the risk is worth it. That is the bottom line.
Senator Angus: As you said, that is your opinion, and you were asking me do I not agree. Well, in this case, with all due respect, I submit to you that you are wrong.
For example, the most heinous recent oiling of birds in your area was not the result of any oily waste being thrown off a ship. It was due to a big leak at one of the offshore oil developments. You know that yourself.
Mr. Osborne: Absolutely not; and being honest, I will say that it was determined from the fingerprint that oil left that it was bilge oil. Those harlequin ducks were affected by bilge oil; it had nothing to do with the Terra Nova platform. The Terra Nova platform was an accident, absolutely; but we monitored the dead birds. Our provincial department kept a close eye on that, and there were very few dead birds found as a result of the Terra Nova accident. The harlequin ducks were killed by bilge oil.
Senator Angus: You know the reason. It is good that you monitored it and contained the damage, but that was an example of another source of pollutant, the Terra Nova incident. There has been another one, as you know, at the Sable Island development.
You used the word "accident." All I am saying is that accidents happen. I am also disagreeing with your position because we already have laws. I put it to you that it is possible that we have adequate laws. The problem is that there was confusion because the enforcers did not know who was on first base, whether it was Environment or whether it was Transport —
Mr. Osborne: Bill C-15, in part, will correct that.
Senator Angus: I did not interrupt you. I will not ask any more questions.
The Chairman: Just before we continue, minister, following along that line, the Canada Shipping Act puts in place a maximum fine of $1 million. C-15 would put into place a maximum fine of $1 million. The problem seems to be not the maximum fine that is allowed in an act of Parliament, but rather the use of the capacity to fine by the courts. Could you talk about that for a minute?
Notwithstanding whether those two bills are both needed, if we already have a regime in place that would result in a fine of $1 million, which has never been levied, what would we achieve by putting in place another act that also has a fine of $1 million? Why would we think that it would be done then? Could you answer that?
Mr. Osborne: Mr. Chairman, thank you for the question. Each carries a maximum fine of $1 million. The difference in Bill C-15 is that it would impose a minimum fine of $0.5 million or $100,000, depending on the offence. We all know that we need additional resources for enforcement. If these vessel owners, especially of the rogue vessels, know that there is a $0.5 million fine, although they also know that Canada simply does not have the same resources as the U.S. to monitor this, that fine would at least be a huge deterrent. These rogue vessels would know that if they were caught dumping their bilge oil and writing it off, which is cheaper than having it removed legally in port, the cost of such a fine would far outweigh that cost of doing it legally.
The Chairman: The minimum fine to which you refer is for vessels over 5,000 tonnes displacement. Is that right?
Mr. Osborne: That is correct.
Senator Christensen: One of the concerns, as you are probably aware because you read the transcripts of the shipowners' evidence, is that Bill C-15 would be enforced using game wardens as opposed to pollution prevention officers, who are appointed under the Canadian Shipping Act and are more familiar with the shipping industry. What are your thoughts on that?
Mr. Osborne: I thank you for that excellent question, senator. Obviously, although there is a severe lack of resources and lack of ability to enforce the regulations that are in place, all of us would rather see Transport Canada or Coast Guard officials doing this. However, game wardens or conservation officers would be able to detain a vessel until the proper officials can arrive and do the paperwork. At least we would have additional resources through game wardens and conservation officers who are in place now.
Senator Christensen: We have heard that Bill C-15 contravenes existing international agreements. Did your department find any evidence of that in its research?
Mr. Osborne: In speaking with Environment Canada, we were assured that it does not contravene any international agreements. I am not a lawyer and I would defer to the legal opinions that your committee will seek on that subject.
Senator Christensen: I wondered whether your department had looked into that.
Mr. Osborne: No, the ministry did not do that, except to ask Environment Canada officials about any contraventions. Environment Canada assured us that they have run this through the Department of Justice and are satisfied that the i's are dotted and the t's are crossed.
Senator Christensen: We have heard from the shipping industry that this proposed legislation will discourage young people from becoming mariners because of the potentially large fines and the need to prove due diligence. It has been suggested that persons who have spent their whole lives at sea and attained the level of master or chief engineer are saying that no one will look at that kind of career in the future. Coming from a Maritime province, I am concerned about that. What are your thoughts? Do you see this proposed legislation as discouraging young people from joining the service?
Mr. Osborne: No, I do not see it that way. The enforcement and the fines in the United States are much more severe. I can assure you that employment opportunities in the United States are much greater than they are in my province. However, the severe penalties have not deterred people in the United States from getting involved in marine opportunities. Not to minimize your concern, but you could probably make an analogy with highway speeding and a fine on conviction. The onus is on the driver to prove in court that he did not speed on the highway as stated by the enforcement officer. That does not stop you from driving a car.
Senator Christensen: I have one more question about the fines. The shipowners are saying that when the captains or the engineers are charged, it puts a huge burden on them and their families in respect of the costs to be borne. It would seem to me that an employee of a shipping company works under its auspices and direction, so would it not be the company that would be liable to bear the cost of any fines rather than the individual employee?
Mr. Osborne: There has to be some responsibility on the ships' captains and crew for dumping bilge oil. If there is not, then they will feel no obligation to do the right thing.
Senator Christensen: Thank you.
Senator Buchanan: Thank you for being here, minister. I want to touch on the criminalization aspect of the bill, which bothers me a great deal. I have met with union people who are captains, masters and engineers. Their concern is that the master and/or the engineers could be charged for a first-time, accidental spill. The answer to that, I have been told, is yes, but if they are charged and can prove due diligence, that it was not their fault, they would be acquitted. That is not a good answer because a person charged with a criminal offence, even though acquitted, carries a mark against his record, not only with the shipping company but also throughout the shipping world.
Contrast that with the United States, where an accidental spill does not lead to a criminal charge. A fine is levied but there is no criminal charge. A criminal charge could be laid only if the offence were intentional and wilful spilling of bilge oil, with mens rea. That would change the criminal aspect. A master or engineer would not be charged for an accidental spill; that is the difference. One of the concerns that people have with this part of Bill C-15 is that it will discourage young people from wanting to become a master, an engineer or a captain in Canada.
You said that there is greater opportunity in the United States, and that is so. However, keep in mind that in the United States there is no criminalization for accidental spills. That makes a big difference.
Mr. Osborne: Your point is well taken. I concur that there is a difference between Canadian and American legislation.
Senator Buchanan: That is the part of the bill that I do not like. As you know, I am a Nova Scotian.
Mr. Osborne: Yes, I have followed your career over the years. It is a pleasure to meet you, senator.
Senator Buchanan: The principle behind the bill is excellent; there is no question about that. I have two concerns about the bill. The first is the imposition of criminal charges for an accident. Second, I really wonder about using game wardens to charge people for spills. In Nova Scotia, a game warden is someone who catches people who are illegally hunting deer or fishing out of season.
Those are the two aspects of the bill that are a little disconcerting to a lot of people in the shipping industry. In the Atlantic provinces, and particularly in Halifax, we rely on the shipping industry. We have two of the largest container terminals on the Atlantic seaboard.
You are right that a lot of the birds are killed off Newfoundland. More oil is dumped by international vessels off Newfoundland than off Nova Scotia, and I think it is because the shipping lanes are very close to shore.
Unfortunately, although this bill is designed to catch the international vessels, it will catch many in the Canadian shipping industry as well.
The Chairman: Not if they do not do anything wrong.
Senator Buchanan: I am speaking of accidental spills. With the reverse onus, if 10 gallons of oil are found next to a vessel, a game warden could charge the captain.
Mr. Osborne: As the chairman said, if they did not do anything wrong, there is nothing to fear. There is a due diligence clause in the proposed legislation.
Senator Buchanan: They could be charged.
Mr. Osborne: Yes, but in order to inspect a vessel you have to have the concurrence of the minister. In order to direct or arrest a vessel, you have to have the concurrence of the Attorney General. In addition, the inspectors have some discretion in laying a charge. The Crown would determine whether to pursue a charge once an inspector makes a determination that it should be laid. The Crown, through the Attorney General, would have the discretion to pursue the charge if it is in the public interest, or to drop the charge.
Senator Buchanan: Unless I am wrong, under this bill game wardens can lay a charge without the consent of the minister, although they cannot lay a charge against an international vessel without it.
Mr. Osborne: Before it proceeds to the court, the Crown would make a determination on whether to pursue it.
Senator Buchanan: As a very smart Newfoundland politician, would you object to this bill being amended to ensure that captains and engineers are not charged criminally for accidental spills?
Mr. Osborne: If it is determined to be an accidental spill, I would not have a problem with that. I would have a problem with the bill being amended to eliminate the minimum fine.
Senator Buchanan: I understand what you are saying. The people I have spoken to have great concerns about being classified as criminals, even if acquitted, for an accidental spill with which they had nothing to do.
Mr. Osborne: If they can prove that it is an accidental spill — and I emphasize "accidental" — I would agree.
Senator Buchanan: If it is wilful, they should be charged.
Senator Spivak: How would an accidental spill of bilge oil occur? Would that result from turning the wrong crank? How reasonable is it to expect accidental spills of bilge oil when a ship has not collided with anything?
Mr. Osborne: Chances are that if it is bilge oil pumping, it is deliberate. There are other sources of oil pollution that could be deemed accidental, but the chances of bilge oil pumping being accidental are small.
Senator Spivak: I ask that because the risk of being prosecuted for accidental offences would not be great in the case of bilge oil. Oil from another source would create a totally different kind of investigation. We are so worried about the accidental spills, but I think our system of law is such that innocent people are not dragged into the courts and prosecuted, especially in an area as technical as this.
Mr. Osborne: While I agree with your point, I also agree with Senator Buchanan. The Terra Nova incident was deemed accidental. It is almost impossible to pump bilge oil accidentally.
To return to a point that Senator Buchanan made, if it can be proven beyond a shadow of a doubt that it was accidental, I would not have a problem with that type of an amendment. However, when it is deliberate — such as in the case of bilge oil — I want to see these offenders nailed to the wall so tightly they would never get away.
The Chairman: Happily, minister, in the example that you give the burden of proof is to show due diligence, it is not beyond a reasonable doubt. It is only on the balance of probability, which is less onerous.
Mr. Osborne: You are correct.
Senator Adams: Are vessels allowed to dump pollutants outside the 200-mile limit off Canada and the United States?
Mr. Osborne: Unfortunately, senator, there is no Canadian jurisdiction over the area outside the 200-mile limit. This committee is tasked with the challenge of determining the best way to deal with rogue vessels that pollute our waters within the 200-mile limit.
Senator Adams: Many American tankers come through there. They must know there is no legal dumping.
Mr. Osborne: It is a no man's land. That would be an area where international marine law would probably have to play a role.
Senator Adams: Do you have an environmental department in Newfoundland?
Mr. Osborne: Yes.
Senator Adams: Do you do a lot of studies as well as the environmental people?
Mr. Osborne: Yes.
Senator Adams: Do you sometimes work with environmental people regarding either illegal spilling or damage to birds? I just want to make sure. Do those pictures come from your government or from the environmental ministry?
Mr. Osborne: My own staff took those pictures.
Senator Adams: According to the environmental people, 300,000 birds are killed by oil every year. Is that true?
Mr. Osborne: Yes, that number was determined by a doctor who is doing a study over time, and it is my understanding that he erred on the side of caution, which, in cases such as this where you cannot give a definitive number, is the general rule of thumb they follow. They err on the side of caution. The chances are it is much greater than 300,000.
Senator Adams: About a month ago, our committee asked how they were able to count 300,000 birds a year. You do not have the equipment to do it on the sea. The only way you can find out is from a few dead birds on the shore. How do you calculate 300,000?
Mr. Osborne: I am going back now to the report that was done on the study. If I remember correctly, there were floats put in the water to simulate birds. It was very carefully calculated, but I believe they looked at the number of floats that actually made it to shore. Regarding this study and these numbers, there was a peer study that followed through. I have full confidence that these numbers are, in fact, a conservative estimate.
The Chairman: Senator Adams, that study was distributed to members, and we can get you another copy of it, but we have had testimony and we have had the report.
Senator Adams: I want to make sure of the floats they are talking about. Is that a machine or a duck floating in the water?
The Chairman: We will get another copy of the report to you, because it is described fully in the report. It was given to us by Nature Canada.
Mr. Osborne: My policy director tells me the methodology is fully described within that report as well.
Senator Adams: I have a little difficulty. I live with migratory ducks in the Arctic. The environmental people are saying that so many are killed. He was saying — the Inuit have the problem — that eider ducks are being killed by oil spills. We live up there, and sometimes we hunt, but we do not hunt eider ducks too often. We mostly collect a few eggs for two months. Is it eider ducks that migrate in the sea around Newfoundland?
Mr. Osborne: Yes, there are several different species of birds. There are some pictures in the information that I handed out about the bird sanctuary. As an example, I believe there are 300,000 pairs of our puffin at that particular bird sanctuary as well. That bird sanctuary is in the direct shipping lane. In the most recent spill, for example, eider ducks were affected. The oil and oil-soaked birds literally in the hundreds had washed up within the ecological reserve itself, in addition to those found outside the reserve. They literally collected hundreds and hundreds of ducks that were soaked in oil.
Senator Adams: We are concerned about the same thing. We asked the ministry of the environment in Ottawa about more enforcement. They work mostly on the land anyway. With the shippers, you have different types of oil. Other times, we do not know who did it because the ship was gone. Now, when we pass Bill C-15, we will put in more enforcement on the sea. Will it work?
Mr. Osborne: My belief is that it will. Certainly my hope is that it will.
Senator Adams: You need equipment. According to the shippers, they have to have a sample of the different types of oil. If the ship is gone and you do not have a sample, who will you catch?
Mr. Osborne: I guess being able to trace a sample from an oil-soaked bird and analyze the type of oil is similar to fingerprints or DNA. They can trace that oil, and if they are able to take a sample from a suspected vessel, they can conclusively match the oil that is found on that bird with the oil on the vessel. Each type of oil has very specific chemical characteristics, and they can be matched, without doubt. I do not know if that answers your question.
Senator Adams: According to the shippers, the oil sticks anywhere. Even innocent people, as soon they hit the oil slick in the water, it sticks to their boat.
Mr. Osborne: They would not take a sample from the hull. They would actually sample the oil that is used to drive the vessel.
Senator Cochrane: I have another question. Last week, we heard from the Shipping Federation of Canada. Seven members were here. They were saying that one of the probable reasons this illegal dumping is taking place is that we do not have the appropriate port facilities where ships can go in and dump their waste oil.
What would you have to say about that?
Mr. Osborne: I know in St. John's there are two companies that can capably remove bilge oil from a vessel, one of which is Crosbie Industrial. There are two that I know of that service vessels that come into port.
I have been the minister now only for a year and a half. Our government has been the government for only a year and a half, so I can admit with some liberty that our waste-management facilities in the province lag far behind that of any other province in the country. We know that. We know that we do not have the same facilities or resources, but a number of the ports in our province have the ability to remove bilge oil.
Senator Cochrane: Have you noticed at any time or has it been reported that a lineup of vessels was waiting for this service?
Mr. Osborne: No.
Senator Cochrane: You do not see this as a problem, then?
Mr. Osborne: No, I do not. I see Bill C-15 as creating some economic opportunity on land as well, because we cannot force a ship that simply navigates our waters en route from Europe to the United States to stop at a port. They have the ability to travel our waters freely. While we cannot force a vessel to stop at a Canadian port, of those that do, if there are more vessels that require facilities to discharge their bilge oil legally, it may certainly create the opportunity for an economic spinoff.
Senator Cochrane: Thank you for coming.
The Chairman: So that could be a good thing. It could create jobs.
Mr. Osborne: Absolutely.
The Chairman: Are there, to your knowledge — and I do not know whether you know this, minister — ports in Newfoundland and Labrador, to which significant-sized ships might go, that do not have such facilities? Is there any such thing?
Mr. Osborne: Any of the ports that are capable of taking large vessels are in areas where there are economic hubs with what I would term, in Newfoundland and Labrador, a fairly significant population. For someone from Edmonton, they would probably be considered a very small population.
The Chairman: We have very few ships coming to Edmonton.
Mr. Osborne: Certainly, any of the ports in our province that are capable of taking larger vessels would have access to the waste-management companies that can take bilge water.
The Chairman: We are inquiring about that, senators, from the relevant department, which is the Department of Transport, to get definitive answers as to the cost of those facilities in ports. We know that Halifax has them.
One question before you leave, minister: When Crosbie's goes and picks up some bilge oil from a ship in St. John's, what do they do with it?
Mr. Osborne: It is treated properly. Actually, I will defer to Mr. Drover because he follows that in the department more closely than I do, but I know that they do have to follow a proper protocol. There are areas in the province that burn used oil, for example, as a source of fuel.
The Chairman: As long as it is properly treated. We do not want to trade a problem at sea for a problem on land.
Mr. Osborne: It is now illegal to dump hydrocarbons in any of our landfills.
Mr. John Drover, Director, Policy and Planning, Department of Environment and Conservation, Government of Newfoundland and Labrador: Companies like Crosbie's do have treatment facilities. They use oil/water separators, and then they treat the oil for any other contaminants. It is a fairly routine process, and as the minister indicated, there are only certain levels they are allowed to dump in our sewers. They do treat it.
There is something of a market, especially with large industrial facilities that are burning, say, Bunker C, where they can also burn this type of fuel. Some of these companies also process used oil from vehicles and that sort of thing. In terms of economics, there are people who are ready to expand their operations to take on this role, if there is a demand. I know you are not legislating to create a demand, but if there is a demand for these services there are companies that will respond and expand their facilities.
Senator Hubley: About 5 per cent of the shipping industry are not complying and not handling their bilge water responsibly. There must be paperwork involved, is there not, whereby a ship can verify that it has discharged a certain percentage or a certain volume of bilge water at a facility? Is that the way it happens?
Mr. Osborne: It is my understanding that they have to keep records, but a large part of the problem is ships that never dock at a Canadian port. They simply navigate our waters en route from Europe to the United States. Unless we were to come to some sort of an agreement with American ports to share that information and have joint enforcement and penalties or whatever, that would probably be a very complex route to try to follow.
Senator Hubley: I just wondered if it was possible. It seemed like it might be an avenue to ensure that all ships handle their bilge water properly. Thank you.
Mr. Osborne: You are welcome.
The Chairman: Thank you for being with us, we are grateful. Minister, did you want to say something?
Mr. Osborne: I wanted to say certainly it is an honour to be able to present to you. I would like to thank each of the senators on the committee and all of the staff involved in hearing us today.
The Chairman: Thank you, minister. We will hear from our next witnesses, Ms. Elizabeth May, from the Sierra Club; and Ms. Leigh Edgar and Ms. Sandy Baumgartner, from the Canadian Wildlife Federation.
Ms. Elizabeth May, Executive Director, Sierra Club of Canada: I hope this will not be taken as too light-hearted, given the importance of the topic, but we save the occasional political cartoon and I thought this one was worth sharing. It seemed so apropos.
The Chairman: Is it in both languages?
Ms. May: I am afraid it is unilingual English.
The Chairman: Perhaps because it is a cartoon we could make an exception to the rule.
Ms. May: I was just passing them out hoping no one noticed the rules.
I know you have my brief and I will skip through the preamble on the organization, with which you are familiar. I will mention some important highlights that are relevant to Bill C-15. We have worked on the development of a number of pieces of proposed legislation that included strict liability and the defence of due diligence. I will save time by stating our support for positions and testimony that you have already heard from the World Wildlife Fund, Nature Canada and the International Fund for Animal Welfare. I want to avoid repeating their evidence but I do want to reinforce, as Minister Osborne did, that we know from a good, scientific study, which I have today, that approximately 300,000 seabirds die each year off the coast of Newfoundland and Labrador because of oil dumped at sea. We lack good data in other areas. Two years ago in Nova Scotia, in two separate incidents, seabirds were washing up on the shores from North Cape to Cape Sable. It was confirmed that 650 birds died from oil in that period. There was one reason that the birds' bodies washed ashore instead of travelling further out to sea. There was a highly unusual period of 10 days of southwest winds that blew the birds towards shore. We have no way of knowing whether those were the only birds killed by oil or if they were the only birds that we saw, thanks to the unusual wind conditions.
I just want to re-emphasize that the estimate of 300,000 dead birds off the Newfoundland and Labrador coast is likely a large underestimate of the extent of the carnage from sloppy shipping practices, and particularly from dumping bilge oil. I read through the evidence of the various shippers and shipping organizations that appeared before you, and I felt it was important to return to the origins of Bill C-15. I heard earlier this afternoon the discussion of the Tecam Sea. The decision of the prosecutors to drop the charges prompted real outrage across Canada. It was on both CBC and CTV television.
I remember the coverage vividly. The devastated investigators from Environment Canada told how they had painstakingly made the case that on Sept 8, 2002, Tecam Sea was in a slick over 100 kilometres long off the shore of Newfoundland. The captain, chief engineer, owners and contract operators of the Tecam Sea were charged under the Migratory Birds Convention Act, the Fisheries Act, the Canadian Environmental Protection Act and the Canada Shipping Act.
Some time later, in April 2003, prosecutors made the decision to withdraw the charges. They could not make a case, despite having what any sensible person would consider proof. They had eyewitness accounts, video footage of the Tecam Sea trailing the 100-kilometre slick of oil and chemical analysis from the ocean water. A serious slick was involved and there was environmental damage. All of this they had. What they could not do was prove it under mens rea — proof beyond a reasonable doubt — and so Canadians were outraged.
Environment Canada and Transport Canada began to try to find a solution, and Bill C-15 is an important, essential part of that, although it is not the complete solution. More needs to be done, but passage of C-15 is extremely important.
I take you back to the Tecam Sea because shippers who have come before you have told a persuasive story. They have raised concerns about the Charter of Rights, the criminalization of good business people and the uselessness of minimum fines. They have even questioned why, suddenly, they are hearing about dead, oiled seabirds. Their evidence ignored what goes on in real life. They have ignored the practical impossibility of prosecuting and fining polluters off Canada's shores.
Before I move on to the nature of strict liability in such cases, I will mention some of the red herrings put forward in the shipping industry testimony. In evidence before you on March 22, Capt. Réjean Lanteigne, Vice-President of the Canadian Shipowners Association, argued against minimum fines based on a claim that they are not considered an effective deterrent. The example he used was marijuana grow operators. First, he would like honourable senators to accept the unproven suggestion that his premise is correct, that is, minimum fines do not deter marijuana grow operators; and second, that the same logic applies to the shipping industry. I apologize if this is too obvious to require correction, but I will point out that there is no comparison between these two cases.
In one case, we have a shipping company doing business and seeking to remain profitable in pursuit of its legal activity, and in the other case we have a bunch of criminals operating outside the law and with huge profit margins by selling an illegal drug. Did Capt. Lanteigne really think the cases and the deterrent effect would be identical? If so, I maintain that he is the only witness before you who has sought to criminalize the shipping industry. With low fines, a business person — one lacking an environmental conscience, but such people do exist — might decide that the proper practice of returning to port to discharge bilge legally is too expensive and that the occasional fine is simply the cost of doing business. Low fines constitute a pollution permit.
They also talked in their evidence about whether it was a deterrent to getting good people into the shipping business and whether it was difficult to get labourers. Mr. Peter Lahay testified before the committee on March 22, 2005, for the International Transport Workers' Federation. In making the case that this used to be a good business that attracted young people, that these kinds of laws would drive people away and that people have a choice, given rapidly developing economies such as China, India and the Philippines, he said, "It used to be an attractive job to go to sea to make up to U.S. $1,400 per month." If I may say so, these are exploitive wages in a very hard line of work, which they have described as like being in jail with the chance of death. They want people to go to work for U.S. $1,400 per month. They are now finding it difficult to hire Chinese seafarers because the Chinese economy has improved. Mr. Lahay said: "You can see that, with people not being attracted to this vocation, our labour is second rate." If you want to make a case that you are running a good business and your employees will not be negligent, then he is giving you evidence to the contrary. I found that astonishing.
The use of strict liability in pollution offences is, as you have heard from previous witnesses, routine in Canada. The defence of due diligence is not a denial of the presumption of innocence. The presumption of innocence is practically sacred in this country, as it should be. It is a legal principle that is hard-wired to the protection of a defendant in a criminal case facing a mens rea offence, with a high standard of proof — beyond a reasonable doubt. It does not apply in the lesser strict liability offences because the stakes are lower and the nature of the offence is different. Pollution at sea is not an offence of the order of murder or armed robbery.
There is one element completely missing from the shipping industry's attack on C-15. Again, I draw from real life, where prosecutors do not pursue the trivial. The change in the law achieved by C-15 would not be used against the fisherman who deposits a quarter-sized pool on the surface of the water. Rather, it would be used in cases such as the Tecam Sea. Prosecutors have limited resources.
In cases where the prosecution chooses to proceed, the defendant would have the burden of proof, on the lesser standard of the balance of probabilities, that all reasonable precautions have been taken and proper procedures followed. Any of their good operators will have no problem establishing such evidence. Proper record keeping and an otherwise clean operation will be strong evidence, likely enough to discharge any charge. That is exactly why only the sloppy operators would be prosecuted. I do not believe the Government of Canada, the prosecutors and the Department of Justice, or any other departments involved in prosecuting and keeping track of marine pollution, are interested in pursuing those who will not be convicted because they are quite good operators.
With regard to why we need C-15, as honourable senators have heard from previous witnesses, other jurisdictions have been toughening their laws to protect coastal waters from pollution. The most relevant regime for Canadians is what is done in the immediate proximate waters of the United States. By having lower fines and an almost impossible prosecutorial challenge under current law, Canada has accidentally created a pollution haven.
Under NAFTA, Canada has moved to harmonize its laws and regulations with those in the United States. Unfortunately, in some cases that has meant reduced environmental protection. In this case it means stronger environmental laws. We must raise our fines to a level comparable to the United States.
On April 5 there was a story out of Los Angeles that a shipping company, ironically named Evergreen, was fined U.S. $25 million for pollution offences. In this regard it is also relevant to note that criminal sanctions do apply under U.S. law for spills that are considered negligent, and I do not know what an accident is if it is not a negligent spill. It is tautological.
If we do not raise our fines, if we do not have laws as tough as those in the U.S. or in the U.K., we invite unscrupulous owners and crews to dump oil before they get to U.S. waters. As other witnesses have testified, the fact that only 2.5 per cent of dead birds on U.S. shores show evidence of being oiled, while between 1984 and 1992 the Canadian Wildlife Service found 62 per cent of birds on Canada's beaches were oiled, is evidence that is very suggestive of a pollution haven in effect in Canadian waters.
We need to work with international police — INTERPOL — to find and prosecute polluters at sea. We need to better equip our harbours and ports to accept oily bilge. That is, indeed, another job-creation opportunity.
The first step is improved enforcement with C-15. I cannot say this strongly enough in a climate where we may lose this government any minute, although perhaps that is not something I should say: Please, God, get this bill passed. Without it, we and our seabirds are dead in the water.
Ms. Sandy Baumgartner, Executive Director, Programs and Communications, Canadian Wildlife Federation: Thank you very much, Mr. Chairman and honourable senators. It is a great pleasure for us to be here. I will introduce you very briefly to the Canadian Wildlife Federation and then Ms. Edgar will highlight some of the elements of our brief.
The Canadian Wildlife Federation is a non-profit, non-government conservation organization. We are over 40 years old now and have approximately 300,000 members and supporters across the country.
Minister Osborne earlier said that this is a Maritime issue, but I would argue that this is a Canadian issue. Our programs run coast to coast. One of our programs, for example, is ocean education. We take a watershed approach to making Canadians aware that, no matter where you live in the country, be it on the Prairies, in the territories, in Ontario or on the coast, oceans are important to us all, and we teach them why.
We get thousands of letters from schoolchildren and average Canadians who want to know what they as individuals can do to help Canada's wildlife, even if it is not in their backyard. Canadians from across the country want to know what they can do to help oiled birds. Unfortunately, in this case we cannot tell them to do anything other than to contact politicians like you to ensure that you pass this bill. It is critical that these amendments to the acts go forward in order to protect the seabirds of which the previous presenters have spoken.
As Ms. May pointed out, the industry might suggest that this will harm them and cause them to be unable to do business. We would argue that if you are a good operator following the proper rules, there should be no impact on your business. We think this is just another step to ensure the protection of Canada's seabirds.
We think that prevention is the ultimate cure, and the only way we can prevent these birds from dying each year is by ensuring that the deterrents are effective. Clearly, the present deterrents are not. We continue to have a problem. This is nothing new. The industry has known about this issue for probably 10 years, as we all have. This is the best way to move forward to stop this activity.
Ms. Leigh Edgar, Conservation Researcher, Canadian Wildlife Federation: I appreciate the opportunity to speak to you today on this very important issue.
We are here to offer our wholehearted support for Bill C-15. As a wildlife conservation organization, it very much touches on everything we do every day in terms of environmental education.
We believe that oil dumping at sea is absolutely unnecessary and is a preventable source of wildlife mortality. We have an Exxon Valdez occurring in slow motion every year.
In terms of values and legislation, wildlife values, in this case, are expressed through the Migratory Birds Convention Act. That is where you find that Canadians have values in terms of wildlife. The shipping values are seen most evidently in the Canada Shipping Act. There are those distinctions, although there are some overlaps with regard to pollutants at sea. We need to adopt Bill C-15 as an evolutionary approach to wildlife values. We also need to increase the fines in tandem with wildlife values and legislative advances.
Wildlife in Canada is owned by all Canadians. It is mine; it is yours; it is your kids'; it is your grandkids'. It is held in trust by governments. We get calls from people who are landlocked somewhere in Manitoba who are really concerned about these issues and that it seems there is nothing that they can do about them, that they are exclusively in the hands of government.
This affects only those people who intentionally dump oil in Canadian waters. We have heard time and again that it is a minority of 5 per cent. We believe that the shipping industry is quite clean, but it suffers immensely because of these negligent acts and people who choose to save time and money by dumping their bilge waste as they pass through our waters. This bill targets those criminals, not the honest business people.
Why the bill? We have had examples of trial and error, and what we have currently is not working. Nothing has improved. Even with 950 pollution prevention officers, ships are not being caught and prosecuted.
We have something of an issue with Transport Canada, via the Canada Shipping Act, being both a regulator and a promoter of this industry. They want to advance this industry, and we recognize that shipping is a valuable and irreplaceable industry, not only for Canada but also for the world. We are not trying to bash it or diminish it. We want it to be sustainable.
We have heard it said that lots of pollutants come from the land or from various specific sources and that we should deal with that. Shipping is a specific preventable source and enforcement powers could be granted to Environment Canada through the Migratory Birds Convention Act. It is a different avenue.
We obviously need more enforcement within Canada's exclusive economic zone. Polluters will not come within 12 nautical miles of shore to dump their oil; they will be further out.
As Ms. May stated, the fines are too low and enforcement is too weak to act as a deterrent. I agree with her completely that this is turning Canadian waters into a dumping ground.
We think that being more in sync with U.S. legislation on oil pollution enforcement and fines creates continent-wide enforcement that will enable us to say, "Do not try to pollute in North American waters."
It will not destroy the industry. The American approach has not, to my knowledge, damaged industry at all. What it has accomplished is that only 2.5 per cent of beached birds are oiled. I think 2.5 per cent compared with our 60 per cent, when you consider our enforcement and fines and their enforcement and fines, it speaks for itself.
With the technology improving, for example, through radar sat and from other sources, we need to make sure, not that we will have all of these means of catching illegal polluters, but rather, legislation that reinforces that it is not just a slap on the wrist — do not do this to Canadians, and do not do this to wildlife.
In terms of accidents versus deliberate acts, accidents will happen, and the initial investigation can determine that quite quickly. The enforcement officers will proceed if they have reason to believe that a crime has been committed. There are log books and certifications — those types of basic avenues — the vessel can use to prove that they have been acting responsibly.
If there is oil, it is a sign that something is wrong. There will not be oil unless there has been a grounding or a collision. Something is wrong.
Now, whether that is a deliberate discharge or there is something mechanically wrong with the ship, my understanding is that would apply to the Canada Shipping Act. There are those distinctions.
We would like to see this bill passed so Environment Canada and the Canadian Wildlife Service can uphold their mandate from Canadians to protect species and uphold international commitments to protect our migratory birds.
On behalf of our nearly 300,000 members and supporters across the country, we urge you to accept Bill C-15 as it is currently before you.
The Chairman: Thank you.
Senator Christensen: We have been told by the shipping companies that they were never consulted by the department when this proposed legislation was being drafted. It is often the case that organizations that have an interest in new legislation would be consulted to give their input. Were any of your organizations consulted on this particular drafting?
Ms. May: No, we were not specifically consulted.
Senator Christensen: Your remarks, Ms. May, on the Nova Scotia incident were interesting. We see Newfoundland and Labrador with large numbers of birds coming ashore. It has been pointed out that perhaps in the U.S. there are not that many, and the ones that came ashore in Nova Scotia were a result of some unusual winds.
Would you be able to comment on the reasons why not as many birds come ashore in the U.S., Nova Scotia and New Brunswick or on the Pacific coast? The Pacific coast has very few incidences of that. Is it because nobody is dumping anywhere else besides Newfoundland and Labrador, or is it due to currents?
Ms. May: I believe the statistic from the Canadian Wildlife Service, of 62 per cent of birds, refers to Canada's beaches. I am not aware of that statistic being limited to Newfoundland and Labrador.
It is unusual to have oiled birds washed ashore on Nova Scotia's beaches, and one can only speculate as to why. In the specific instance where the 650 dead birds washed ashore, which was about two years ago in March — and it was in a very specific time period — there certainly are occasional oil spills from activities off Nova Scotia's coast. The Canada-Nova Scotia Offshore Petroleum Board often records these incidents as having taken place due to drilling platforms and, sometimes, bilge oil. They have not prosecuted them particularly, but I have been in touch with the Canada-Nova Scotia Offshore Petroleum Board from time to time when they have reported spills. However, we do not have the same number of birds coming ashore.
My hunch is that it had a lot to do with the specific winds, and I know that is the view of the Nova Scotia Bird Society, which also monitored that event a couple of years ago. It was specifically related to the fact that they came ashore because the winds were abnormal.
I do not know whether we have as many similar incidents with bilge oil as occur off Newfoundland and Labrador. We referred a few times to the study that was published and that was the source of the estimate of 300,000 birds. In that study, which was published in 2003 in the Marine Pollution Bulletin, as scientists, the authors make the case that the waters off Newfoundland and Labrador appear to have more oil pollution than almost anywhere else on earth. It is worth putting that in context, and I can just quote from it:
Our results indicate that chronic oil pollution off the coast of Newfoundland is among the highest recorded in the world and has remained high for the last 16 years.
My view, and that of the Sierra Club of Canada, is that the high rates of chronic oil pollution off Newfoundland and Labrador relate to lax Canadian laws and the difficulty of prosecuting in Canadian waters. These are both issues that Bill C-15 addresses.
Senator Christensen: Is there any way, Mr. Chairman, that we could get some information from oceanographers about the different currents on the West Coast and also on the lower part of the East Coast? It could be that oil is in fact being dumped all over the place but it is not recorded as a result of the way the currents carry it.
The Chairman: We have heard opinions that on the West Coast, in particular, it is because the winds are blowing in the wrong direction.
Senator Christensen: It is currents, apparently.
Ms. Edgar: I just wanted to clarify that my understanding is that the surveys of beached birds that began, I believe, in 1984 on the East Coast determined that this situation is real. I believe that those are just beginning now on the West Coast. It will take some time to determine what that situation is, but I agree that the currents do play a role. They are starting the research to determine the extent of that.
The Chairman: We will ask our researchers to find out.
Senator Christensen: It might be interesting.
I asked previous witnesses about the concern that game wardens who perhaps do not have the expertise will be monitoring this, as opposed to pollution prevention officers under the Canadian Shipping Act who are involved with and understand the shipping industry. What are your thoughts on that?
Ms. May: My understanding is that although the term "game warden" is used, these are sophisticated officers who are prosecuting offences under the Migratory Birds Convention Act. There is also the prosecutorial option of whether it is a Canada Shipping Act offence, a Canadian Migratory Birds Convention Act offence or a CEPA offence. We believe Bill C-15 will lead to greater certainty on the part of prosecutors as to which act is appropriate, but the use of game wardens, as they are described, does not worry us at all. We understand them to be trained professionals and have confidence in them.
Senator Christensen: The other concern that was brought to us by members of the shipping industry was that this bill would in fact deter persons in the salvage industry from getting involved with ships in distress because of the onus it would put on to them. What are your thoughts on that?
Ms. May: My understanding of the defence of due diligence is it is very specific to the type of industry. Any court and any prosecutor would take into account that this is a salvage business. Maybe you have already heard all this. I do not want to sound like a law professor, but the degree of diligence depends on the specific circumstance. In this case, you have a salvage industry going out there to prevent pollution. That is a very different context.
On top of which, all they have to do is to establish that they have achieved the general standard of care common to that particular business activity, i.e., salvage operators — the degree of knowledge or skill expected of the person and whether the operation is located in a particularly sensitive or vulnerable environment. That is all the more reason to get out there and try to stop the spread of oil in a sensitive environment.
If they are going out to rescue a boat that is already in distress, the likelihood of harm is beyond their control. The defence of due diligence is on a balance of probability, a very reasonable test. The Supreme Court established it, as you know, in Sault Ste. Marie back in 1978. It has held up to the test of time quite well. If I had listed it in my brief, it would have been as another of their red herrings; it is bogus.
Senator Buchanan: I find it very difficult to disagree with Elizabeth May.
Ms. May: Good. We will stop there.
Senator Buchanan: She is probably the most persuasive person I have run into in my life, other than her mother. Your mother was probably even more persuasive than you.
Ms. May: And she loved you even more than I do.
Senator Buchanan: Of course, you did give a well-researched brief. It must be because you were educated at my alma mater, Dalhousie Law School. That is the important thing. You talked about NAFTA and the free trade agreement, which I signed, I recall, in 1987. I am very proud of that.
Ms. May: Then you will want to see stricter fines in Canada.
Senator Buchanan: It created a level playing field in many areas. Would you be satisfied if there was a level playing field with respect to the U.S. and Canada in shipping?
Ms. May: Let me say, Senator Buchanan, rather than tinker with the bill and ask would I be satisfied with this or that hypothetical situation, pass this bill quickly. Do not make any changes, pass it.
Senator Buchanan: Passing this bill will not put us in sync with the United States.
Ms. May: I believe it will, senator, with all respect. I made the point in my brief, because I had heard it mentioned earlier to Minister Osborne that the U.S. did not prosecute people for negligent spills or accidents, and it does. Those are also offences under —
Senator Buchanan: They prosecute but they do not criminalize it.
Ms. May: I think the word "criminalize" is being thrown around too much here. A regulatory offence is typically not considered criminal at a good school like Dalhousie Law School. We are told that is a regulatory offence, for which you have the defence of due diligence in strict liability offences. This is the pattern that has been chosen for most Canadian environmental law and it is an appropriate standard of proof.
Senator Buchanan: However, it does not put the stigma of a criminal offence on the master or the engineer. Even if he proves due diligence and is acquitted, you know the old saying, if you are charged, many people hear all about the charge, they hear about the trial, but very few people remember you were acquitted. They just say, "Oh, he was charged."
Ms. May: I do not think that any law in Canada or the United States can avoid an imaginary stigma. This is another red herring from the industry. If people are charged and prosecuted by the Canadian authorities, with the limited resources they have, chances are there has been a significant offence that has caused environmental damage. If they are then able to dispel that charge through the defence of due diligence and make their case, I am not sure there is any objective evidence of a stigma attached.
The Chairman: I have to interject into the conversation; there are criminal charges under the U.S. Clean Water Act for negligent discharge.
Ms. May: Yes. I also wanted to mention that it strikes me as interesting that only one of the industries that have spilled oil in our waters is making these charges. That you have on the record a letter from the vice-president of the East Coast operations of Petro-Canada, which has a 34 per cent interest in Terra Nova, supporting this bill suggests we should not refer to industry as a group that is raising these concerns. Obviously, Petro-Canada, with a 34 per cent stake in Terra Nova, is not concerned about these hypothetical stigmas that may attach if they are hypothetically charged, and then find themselves able to dispel the charge.
I honestly think this is a very good, well-thought-out law and should be passed as is. Did I mention "quickly?"
Senator Buchanan: Yes, you did, many times. You also mentioned something that I was pleased to hear; let us do it right away because there will be an election soon.
The Chairman: We can have a bet about that, Senator Buchanan. There is a letter somewhere in your office, senator, in which Petro-Canada's vice-president points out, among other things, that Petro-Canada operates a bird-cleaning facility in conjunction with their Maritime operations.
Senator Cochrane: Ms. May, under current Canadian law, what is the maximum fine that can be assessed against those who illegally discharge waste at sea?
Ms. May: I believe it is a maximum of $1 million. You have heard the average; it can go up and down, but it is quite low.
Senator Cochrane: What is the typical fine?
Ms. May: Between $25,000 and $30,000 is the average. Senator Angus mentioned a $60,000 fine. These are very low, given the averages in industrialized countries around the world.
The Chairman: I will pursue that question for one second. Parliament does not pass laws that directly instruct judges on the issue of fines. There is a law already on the book with a $1 million maximum fine. Here is another one. How will that raise the level of the fines that are levied by the courts?
Ms. May: Our interest here, I must be blunt about this, is get to the fine. The Tecam Sea example is one where even with very good evidence, lots of detail and video proof, the charges were dropped. It was not that they could not get the Coast Guard to agree with Transport to agree with DFO to agree with Environment, the problem that the Department of Justice lawyers had was how do we prove our case?
The Chairman: I am sorry to pursue this, but the laws under which Tecam Sea would have been charged contain strict liability provisions. They do not require mens rea. So explain, please?
Ms. May: I am sorry; my understanding was they could not prove the case with the strict liability as it was included in that act because they could not bring forward a case on the test that they had under previous laws. Bill C-15 addresses getting the prosecution and then it addresses maximum fines.
Senator Cochrane: Do you sincerely believe that the fines included in Bill C-15 will be a more effective deterrent to this illegal dumping of bilge oil than those in existing legislation?
Ms. May: With a more efficient and effective prosecutorial regime and higher fines, yes, they should be. They should result in a deterrent against illegal dumping. We clearly do not have it now.
Senator Cochrane: What is your view of the minimum fine provisions? There has been some suggestion that there should not be minimum fines.
Ms. May: As I said in my presentation, the only argument I have seen against minimum fines was put forward by the shipowners' association, comparing it to the marijuana grow-ops situation. I found that implausible. As Senator Banks just pointed out, Parliament cannot instruct judges on what to find and what to do.
If there is a minimum fine provided for, the courts must impose it if there is a guilty verdict. Courts are directed in specific ways. They must impose a higher fine. Particularly in regulatory offences for pollution, this has made a difference historically.
Senator Buchanan: A few years ago in Nova Scotia a provincial judge decided to make an example of a vessel that had been pumping bilge oil. I believe the fine was well over $100,000, or perhaps over $200,000.
Ms. May: They are allowed to impose a fine of up to $1 million.
When we say the average fine is $25,000 to $30,000, within that there are some very low fines and some higher ones. That is how averages work.
Senator Nancy Ruth: When a ship goes from port to port and is dumping, what is the relationship of the standard fine to the profit margin in making the trip; what percentage of the profit is the fine?
Ms. May: That is a very good question. I cannot give you a detailed answer. I have learned more about the shipping industry from reading testimony before this committee than I ever knew before. When shippers were asked these questions by a number of you, they said the cost of daily operations at sea were in the order of, I believe, $20,000 a day if they have to go into port and lay up the ship to process the bilge oil. If they are fined for dumping at sea, if they are caught and if they are prosecuted, it is, on average, $25,000 to $30,000. They are clearly saving money by dumping the bilge waste at sea, hoping they will not get caught. Even if they are caught, it is a small proportion of what it would cost them to go to shore and do it properly and legally. That is my understanding from the evidence you have heard.
Senator Nancy Ruth: We do not know the profit, we only know the costs; is that correct?
Ms. May: That is right.
The Chairman: We have had a report on that, which we will make a point of sending to you. To give you an idea, we have heard that the daily worth of a ship of any size is no less than $50,000. The cost of tying up for a day when you do not need to tie up otherwise is about $50,000, or more, depending on the size of the ship. The argument is "If we have to tie up for $50,000 to dump this stuff, we will dump it over there and take a chance on getting a $25,000 fine," and they have made $25,000. That is an extreme argument.
Senator Spivak: I wish to return to the strict liability issue. That is a key concern, certainly over there and also for the shipowners. We have a memo here that I want to ask you about. We have an attorney who will be helping us with the legal definitions, but he is from the shipping industry.
The Chairman: He is not from the shipping industry; he is one that we chose. He is an admiralty lawyer who has acted for both the government and the shipping industry.
Senator Spivak: Oh, okay. Apparently, there have been other cases after the Wholesale Travel case. They have found that strict liability is constitutional. In the Wholesale Travel case, as I understand it, it was not a big deal; it was a minor offence. However, here, the penalties are jail time and high fines.
Do you know about cases other than the Wholesale Travel case? The rationale for having strict liability is evidentiary, according to this memo, and as you pointed out in the Tecam case. That would not count if there were constitutional and Charter rights issues, just like cost does not count in that case.
What is your view as to court precedents? What is your view about strict liability being used in so many environmental cases for evidentiary reasons?
Ms. May: It has been so common in regulatory offences ever since the Supreme Court decision in Sault Ste. Marie. The notion that it is somehow novel, potentially unconstitutional or offends the Charter has come up more over Bill C-15 than any other piece of legislation I have seen. I am baffled by it. No one raised this as an issue on the Species at Risk Act. No one raised any concerns about strict liability and the defence of due diligence in any number of other laws going before the House and the Senate that we have been party to in testifying. The Sierra Club of Canada is not primarily an environmental law organization. I know that people from a different organization with a very similar name are appearing before you. They have no connection to us, but I expect they will give you a good analysis of these issues. I had to brush up on Sault Ste. Marie and look at more recent case law. It is the arguments against the use of strict liability and defence of due diligence that are novel, not the use of them by the Department of Justice in the way this bill is drafted. This is routine. It makes sense in the environmental law context and in other regulatory offence provisions passed by the Parliament of Canada. The defence of due diligence is well understood. It is specific to the circumstances. It is not an unfair or overwhelming onus on someone who has transgressed often to say, "I was doing everything I could; I exercised due diligence. I saw that there might be risks in my operations and I had systems in place to deal with those risks. If, in this one instance something went wrong, I have done everything possible as a normal business practice to avoid that."
Certainly, that does not apply, as you have already mentioned, Senator Spivak, in cases where bilge pumps are deliberately being run to avoid taking the legal route that would be more costly, especially given low fines.
I am baffled. There is not much I can offer you in terms of why this is coming up so often as an issue for the shipping industry, particularly since they claim to be a reputable group of folks who seem to want people to work for peanuts and think their labour is substandard. I found their evidence extraordinary. I do not know what to say about their legal analysis.
Senator Spivak: I agree with you that if this bill is to be passed, it should be passed quickly, from what I hear and I am sure what everyone is hearing. If you had your druthers, other than the fines, if you were drafting this bill, would you have kept the jail terms in there?
Ms. May: Absolutely.
Senator Spivak: Remind me; are there jail terms in the act already?
Ms. May: Yes, there are. This use of the law has never been as contentious as it has been before your committee in the evidence of the shipping industry.
Obviously, they put forward a persuasive argument. However, this is routine law in Canada and has never been considered as pushing the envelope on what is constitutional and what is not.
Senator Spivak: Precedents on strict liability have been set in the last five years. Is that correct?
Ms. May: Absolutely. Given this exchange, I can certainly alert witnesses who will appear before the committee on an environmental law perspective to bring more recent cases to your attention, given the number of laws that use strict liability. I am certain your research staff has told you that already.
Senator Spivak: When are they coming?
Ms. May: I do not know.
The Chairman: We will give you a schedule. Ms. Baumgartner and Ms. Edgar, do you have anything to add to the current discussion?
Ms. Baumgartner: We are not lawyers so we cannot speak to the legal elements. Ms. May has done a good job of that.
Ms. May: I am no longer a lawyer technically; it puts me in a better light.
The Chairman: In respect of Senator Spivak's question, allow me to tell you why we are looking at this more closely than we have before perhaps.
In the case of Wholesale Travel, in which the Supreme Court found five to four in favour of the prosecution, seven of the nine judges found that the concept of strict liability as applied in that case in their view clearly contravened the Charter of Rights and Freedoms. Seven of nine judges found that and two did not agree. Three of the seven judges who found that that contravention existed also found that section 1 of the Charter, which allows for speeding tickets —
Ms. May: Reasonable limits.
The Chairman: — was sufficient in that case for them to change their minds and say that notwithstanding a contravention of the Charter, they were voting that way. I am giving further background on the arguments so that you might tell others. That five to four decision in favour of the prosecution was at a kind of mundane level, in that there were no jail terms involved and no fines of $100,000, let alone $1 million. It was a day-to-day case that had to do with wrongful advertising in the travel industry — surprise! That was the nature of the penalties. We are worried that in the case of a prosecution carrying a fine of $500,000 or an 18-month jail sentence, one of those nine judges might change his or her mind, in which case the answer would be different.
Ms. May: Senator Banks, I do not want to put my organization forward as an expert on environmental law because that is not our mandate. Our mandate is protection of the environment and we see this bill as being critical to protecting marine seabirds. However, taking a practical approach to the reading of case law, as I have done over the years, a decision like this one can be made in that there was an advertising violation. It was not a case of the Government of Canada passing a law to be consistent with the laws governing the waters adjacent to the United States that speak to their concern about the creation of a pollution haven and where they have criminal provisions and $25-million fines. We look lax compared to other nations' regimes that apply to this industry. The courts would consider that as well as the fact that the offence is serious and has serious consequences.
As I mentioned, the defence of due diligence very much depends on circumstances. That is the way case law works. That is probably a factor, although I will not hold myself up as an expert on the Wholesale Travel case. The specifics of each case affect the context in which the judiciary examines it. I do not think you would find a five-four decision in a case such as Tecam Sea. If it were prosecuted under Bill C-15 and went to court, I do not think you would find that kind of concern on the part of the court. Lawyers do not like to take bets on what the courts will do.
The Chairman: We hope not, too. We too are concerned with protecting the environment and so we want to ensure that we do it properly.
Senator Adams: I asked some of the witnesses about how the figure of 300,000 dead birds was reached. I have a little difficulty with Bill C-15. The Canadian Wildlife Federation has 300,000 members so there are many people to research this. I asked Environment Canada about one month ago if they were aware of these figures on birds killed each year by oil spills and no one knew about it. Who knows about these birds killed each year? If you are counting that many birds each year, then you need a ship to monitor the situation and pick up the birds from the sea or the shore. How do you count the number of birds killed each year? In the Arctic, we have eiders and other seabirds too, but we have never found one dead duck. How does the system work? Does the ministry need the law to do this?
Ms. May: Senator Adams, a complicated scientific study has allowed us to count the number of birds. The figure is an estimate based on bird surveys. They know how many birds are coming ashore; they calculate environmental conditions; they calculate the currents off Nova Scotia and off Newfoundland and Labrador; and then they calculate the numbers, knowing that a certain number of corpses made it to shore and knowing the populations at sea. They went through a complicated, rigorous, peer-reviewed effort to come up with a figure, which is the best that we have. Most experts would tell you that it is probably because they were cautious in their estimates so as not to create a worst-case scenario. They were conservative in their estimates. The figure of 300,000 dead birds per year off the coast of Newfoundland is likely a low number.
Could anyone prove it? Does anyone go out there and pick up all the corpses? No. Most of them end up moving out to sea.
The Chairman: Ms. Edgar or Ms. Baumgartner, do you have a comment?
Ms. Edgar: Senator Adams, in the Arctic there is not the same volume of shipping traffic and shipping lanes as on the East Coast. As well, because global warming is occurring, the Arctic needs to be considered in this context, given the talk about opening the shipping lanes in the North. The government should seriously consider this before that happens. I do not need to tell you how sensitive that northern environment is.
Senator Adams: We will see the eiders in another couple of months.
Senator Buchanan: What is an eider?
The Chairman: It is a kind of duck from which eiderdown comes.
Senator Adams: A sleeping bag filled with eiderdown costs over $500.
Our only methods of bringing in goods in the Arctic are by air and sea. We do not have highways. If ships are fined every time they spill a litre of oil, our costs will go up.
Those of us in the North are Canadians and we pay taxes. We paid a lot of money for Petro-Canada and now it is private. In 1980, I was a director on the board of Petro-Canada and Panarctic. At that time, it was still owned by government. People could afford to buy it because they got taxpayers' money to do it.
The Chairman: We got that money back, Senator Adams.
Senator Adams: All $5 billion?
The Chairman: We made a significant profit. The Government of Canada was very well reimbursed.
Senator Adams: We have to understand whom we are affecting with the legislation that we pass.
Ms. May: We are aware that many Northern Aboriginal communities depend —
Senator Adams: I am talking about Canadians. Inuit people are business people. You people get your money from the government.
Ms. May: Oh, no, we do not. If you would like to fund us, we would be very happy, but no, we do not.
Senator Adams: I heard that one person got $15 million a year lobbying the government.
Ms. May: Not environmental groups. I can assure you that we are extremely underfunded, not core funded by government and not funded by industry.
Senator Adams: I heard your name cited by a minister in B.C. about a year ago.
Ms. May: Ministers may take my name in vain. However, we are not funded by government. I am not boasting one way or the other. We just happen to be funded by our members and supporters and not by government. We are a public interest organization, not a lobbying organization, and our members are concerned, as all Canadians are, about our seabirds, particularly off the coast of Newfoundland and Labrador. I have been to Cape St. Mary's. The populations of seabirds are astonishing, and they are very vulnerable to oil. Very small amounts of oil can kill a seabird.
Coming back to why we are here, it is because these populations, be they eider ducks, murres or puffins, are all extremely vulnerable to oil pollution at sea. The status quo is not working for seabirds. That has an impact economically. Cape St. Mary's is a major tourist attraction, as are the Atlantic puffins. We need to protect our seabirds.
Senator Buchanan: The biggest disaster in Nova Scotia, as far as killing of seabirds goes, was in 1970 when I was the Minister of Fisheries there and the Arrow went ashore in the Strait of Canso. I will never forget it. Literally hundreds of birds washed ashore. It was not deliberate; it was an accident.
Senator Adams: Does your organization ever get contracts from the government to do studies on mammals such as whales or seals?
Ms. May: We are not organized to do that.
Senator Adams: Are you not interested in doing that?
Ms. May: We do not have enough money to hire the scientists to do those kinds of studies.
Senator Adams: The government would pay you to do the study.
Ms. May: That is an interesting hypothesis, but it does not apply to the Sierra Club of Canada. There may be other organizations that do that.
Ms. Baumgartner: We are not a science-based organization, in that we do not do research. We do education and outreach work. However, we have funded scientists to do their work, particularly where the government has not provided funding for particular species research. We pay someone else to do that work.
Further to your questions earlier about where organizations' funding comes from, our organization does not receive funding from governments. We raise our funds almost exclusively from the 300,000 members and supporters who send us a cheque for $25 here and there. These are average Canadians who care about wildlife and want people to do something about it.
The Chairman: I wish to thank all the witnesses. We very much appreciate your testimony. It will be very useful to us in our deliberations.
Ms. May: Thank you for the opportunity to address you.
The committee continued in camera.