Proceedings of the Standing Senate Committee on
Energy, the Environment and Natural Resources
Issue 14 - Evidence
OTTAWA, Tuesday, May 17, 2005
The Standing Senate Committee on Energy, the Environment and Natural Resources, to which was referred Bill C- 15, to amend the Migratory Birds Convention Act, 1994 and the Canadian Environmental Protection Act, 1999, met this day at 9:05 a.m. to give clause-by-clause consideration to the bill.
Senator Tommy Banks (Chairman) in the chair.
[English]
The Chairman: Honourable senators, I call the meeting to order. We are here to conduct clause-by-clause consideration of Bill C-15, to amend to the Migratory Birds Convention Act.
Senator Milne: Mr. Chairman, I move that we dispense with clause-by-clause consideration and approve this bill unamended.
The Chairman: I would hope that we would not do that, but that motion is in order. Given the amount of time that we have spent considering this bill, I would hope that we would go through it in more detail than that and give members an opportunity to deal with it clause by clause. However, the motion is on the floor and it is in order. The motion is that we dispense with clause-by-clause consideration and that we approve this bill unamended.
All in favour of the motion?
Some Hon. Senators: Agreed.
The Chairman: Opposed?
Senator Angus: It was not even seconded. There was no speaking to it. I have not seen procedure like this.
The Chairman: Motions in committee are not normally seconded.
Senator Angus: What a rookie I am.
Senator Spivak: You should know that.
The Chairman: Opposed?
Some Hon. Senators: Opposed.
The Chairman: The motion is carried.
I must say that I am very disappointed by that. I do not think it is right. However, the motion is carried.
Senator Angus: On a point of order, are we allowed to speak on motions in this kangaroo court? I am trying to understand, chairman.
The Chairman: Of course we are allowed to speak.
Senator Angus: But the motion has been passed, if I understand what happened.
The Chairman: A motion was made.
Senator Angus: There was no debate on it.
The Chairman: I did not hear anyone ask to speak.
Senator Angus: I said that the motion is not seconded and we have not yet had a chance to speak to it.
The Chairman: My understanding is that seconding is not necessary for motions in committee.
Senator Angus: That was made clear, and I confessed to my naiveté and apologized for it. I was asking why we were not able to speak to the motion before the vote. Former “Premier Silver Tongue” would have persuaded all senators present to see that principles of natural justice are at work. I inferred from your comments that even you were quite disappointed by the way things were unfolding.
The Chairman: In making those comments, I thought I had allowed time for me to see senators wishing to speak, and I did not see any senators wishing to speak, for which I apologize. I have expressed my disappointment at the turn of events. Nonetheless, you are right; the motion was made; I commented upon it; I did not see senators wishing to speak; and we voted upon it.
Senator Buchanan: Unfortunately, the vote was called immediately and we had no opportunity to speak.
Senator Angus: Are we on the public record?
The Chairman: Yes, we are. I do not agree that the vote was called immediately. I commented at some length on my view of the motion, and did so quite slowly.
Senator Buchanan: No one is faulting you at all.
The Chairman: I want the record to show that it is my impression that I allowed time in anticipation that members might wish to speak, and I did not see any senators wishing to speak.
Senator Buchanan: I am in no way faulting you, Mr. Chairman, because I understand your position here. I understand that you are not too happy with this result.
The Chairman: I am happy with the result, senator; I am not thrilled with the process. I am happy with the result.
Senator Buchanan: All right, you are not happy with the process. I am speaking now because Senator Angus was commenting on this. When he finished, the vote was called immediately and I did not get a chance to say a word, except to vote no.
I will make a few comments even though the vote has been taken. I think it is important that we each have a chance to comment, for the record.
The Chairman: That was my point, senator.
Senator Spivak: I agree.
Senator Buchanan: First, I think that what we have just done is very wrong. I have been in the Senate for a long time and I have never before seen something like this happen. There is no question that this is a controversial bill. Many witnesses have opposed the bill, although not its principle. No one opposes its principle, but certain sections of it have been clearly opposed. In fact, there has been more opposition to various parts of this bill than there has been agreement with them. Anyone who was present at our meetings would know that is the fact.
This committee has just passed a bill unamended, which, in my opinion, should have been amended. There is no question that this bill will be challenged in the courts. I have no doubt that parts of this bill, particularly sections on the burden of proof, presumption of innocence and transfer of burden, are in violation of section 1 of the Charter of Rights and Freedoms. I know a little bit about the Charter because I signed it in 1982. All evidence from legal experts, excepting one, was to the effect that those sections of the bill are unconstitutional and violate the Charter.
We received opinions from the Department of the Environment to the contrary, but this committee obtained independent legal advice from a very prominent lawyer who told us conclusively that the bill contravenes the Charter of Rights. We were also told that it violates UNCLOS and MARPOL. We were told by the international shipping community, the Canadian shipping community and the seafarers` organization, as well as by the officers, captains and engineers' federation, that this will be challenged in the courts under the Convention on the Law of the Sea.
All of these legal opinions were bolstered by the legal opinion we received last week from Mr. Alan Gold, a very prominent lawyer. He agreed 100 per cent with the opinions expressed by legal counsel for the shipping industry, the unions and our own legal counsel.
I do not understand why we would very quickly pass a bill which, as Mr. Gold said, could be corrected by one simple amendment. Anyone who would challenge Mr. Gold's opinion would be challenging the opinion of a very prominent lawyer. We were given the same opinion by our own legal counsel. He submitted three or four amendments, one very similar to that submitted by Mr. Gold. We could have cleaned this bill up very quickly with one amendment that, although it would not make the bill Charter-proof, would go a long way toward ensuring that it would not be challenged or, if it were, that the courts would find justification for section 11.
Senator Cochrane: I, too, was unaware of what Senator Milne was going to do. However, I thought that we were going to append observations to our report on this bill.
The Chairman: I believe that has always been our intention.
Senator Cochrane: Are we going to do that?
The Chairman: I certainly hope so.
Senator Angus: Don't hold your breath.
The Chairman: I have a draft that I completed yesterday. When it comes time for that, I will pass it around for deliberation. I very much hope that we will attach observations to the bill. I think we have all understood that all along.
Senator Milne: The procedure I followed in moving my motion is completely proper. It has been used in several committees that I have been on, and I have been here for a far shorter time than Senator Buchanan. It has been used quite a few times in different committees.
Senator Spivak: The motion was to pass the bill unamended. I expected that someone here who feels very strongly about this bill would have put forth an amendment. I am surprised that that did not happen. However, since I am not in favour of an amendment, I was going to vote for the motion.
I have worked on many committees, too. Very often amendments are made at report stage and on third reading. This is not a done deal until the Senate gives the bill third reading. If anyone wishes to make an amendment, their democratic right to do so has not been eroded.
I wish to compliment the chair and the vice-chair for the thorough job they have done on this bill. I will comment on that in the house as well.
Mr. Alan Gold is a very prominent lawyer. My daughter, who is the President of the Federation of Law Societies of Canada, knows him well and has a great deal of respect for him. Nevertheless, I believe it is inappropriate for a committee to alter fundamental principles such as reverse onus and due diligence without considering the impact of that on all our other legislation, including the Canada Shipping Act. That is found in the Canada Shipping Act, with the penalty of imprisonment.
One of the functions of the Senate is to watch out for constitutional errors, but I think that we would be unduly hasty to amend something dealing with due diligence and reverse onus that has such a wide-ranging impact. That principle has been followed for 30 years in many countries.
However, the wisdom of the Senate may follow the reasoning of Senator Buchanan and Senator Angus. I have nothing but respect for their knowledge. I happen to differ from their opinion, but they still have a chance. This is not untoward. It has happened many times, on many committees, in many different ways. I hope we would proceed to deal with our observations, which I hope will address many key points.
Finally, with regard to how the judicial system works, there was only one argument with which I was not impressed, and that is that innocent people will be hauled into court holus-bolus. I do not think that will happen. People are very aware of the continuum of penalties, and the courts, the prosecution, the Attorney General, the ministers of justice and the environment, and whoever else is involved, will not step beyond their bounds. At least, that is what we have to hope for, because our system is based on trust.
Senator Angus: Like the chairman, I was somewhat surprised by the turn of events so early in the process this morning.
I want to congratulate you, Mr. Chairman, for the way in which you have conducted these hearings. We have had two or three months of fairly intensive study of this legislation, and it is not easy legislation. It amends more than one statute and brings into our law some far-reaching provisions.
I was pleased with the way in which you conducted the hearings. We retained independent counsel, at some cost. On the other hand, I must empathize with your gut reaction of surprise at this motion made by our colleague this morning. It was all over in three minutes. Some senators, including Senator Adams, were not even here yet. Three senators who voted in favour of the motion have not heard one scintilla of the evidence. They are here for the first time today. Our counsel had not yet arrived. I had even asked you whether he was coming, and you said yes. I found it an inappropriate way to proceed.
Since we are putting things on the record, I agree with Senator Spivak that you, Mr. Chairman, should not be faulted. In response to what Senator Spivak said, the committee is the right place to discuss amendments rather than the chamber, although both are appropriate under Senate procedure. We have heard all the evidence before this committee. We have put a lot of thought into it, and a great deal of money was spent. A number of witnesses came from overseas. Dispensing with it in such a cursory manner offended my sense of propriety.
As to the merits, senators on both sides had planned to move amendments. I have had my amendments prepared in English and in French, as the process requires. I had hoped that the committee would have an opportunity to debate them this morning. To be fair, I had the sense that these amendments would be defeated at committee. I was hoping that, through sweet reason, we could convince all members that these amendments are appropriate for the circumstances and that they flow from the evidence adduced at the committee.
Unfortunately, I have sensed at the last three or four meetings that the committee is being driven by external forces that do not normally control the final conclusions of committees. The current political environment is beyond our control. Therefore, I can understand Senator Milne's motion today.
Senator Milne: On a point of order, Mr. Chairman, I want to make it absolutely clear that this was not politically driven in any way. This committee has had this bill since the beginning of February. We have heard evidence pro and con for three months and I think it is time that we end the process.
Senator Angus: Thank you, Senator Milne.
My point is that at the last session of this committee there was another motion from the same source that I believe might have been unnecessary had the committee not been under a time constraint due to the possible foreshortened duration of this Parliament. In that case, a two- or three-line amendment might not have seemed so bad. It might have been a wonderful solution, and this proposed legislation could have gone on the books Charter-proof without offending all the people who appeared here and said that it was offensive to them.
I have three brief points. First, at the outset officials admitted there was not the customary wide consultation with stakeholders before this proposed legislation was introduced. If that consultation had taken place, we would not be in this situation. That is unfortunate, but so be it.
Second, Senator Spivak suggested that the Canada Shipping Act contains strict penalties, including imprisonment. It is my understanding that those penalties have not been used heretofore because they are considered to possibly fly in the face of Canada's international obligations and perhaps our Constitution. We did not hear specific evidence on that, but that is my sense as someone who has practised that kind of law for 45 years.
Third, in respect of the issue of protecting our birds, yesterday our famous figure of 300,000 oiled birds per year, which got up to 350,000 here in committee the other day, rose to 300,000 per day in the minister's press conference yesterday. I find that kind of hyperbole offensive. All members of this committee are in favour of protecting our environment. As Senator Buchanan said, the principle of the bill, which I accept, is to protect migratory birds from any kind of pollution, particularly ship-source contaminants. However, in doing that we would be inhibiting salvers from working at the scene of major oil spills and inhibiting young people from taking up occupations at sea, an area in which there is already a shortage of manpower.
I was anxious to come to the meeting last week because I was told that the Minister of Justice and the Minister of the Environment were to appear to deal with these issues. I found it rather pathetic that there was no cogent rebuttal of Mr. Gold's opinion by officials from Justice. I read and reread the transcript in frustration over the weekend. I think that Alan Gold's opinion does stand. Although I have not read it, I understand that he has circulated a further document in which he comments on the evidence of the officials. However, we are where we are, and committee members have voted.
Senator Milne, I was not trying to insinuate that you are any more political than I or other members of this committee. Rather, I was suggesting that we have been working on this for a long time. You, I gather, in another incarnation, were here on similar legislation. This study has been very thorough. We have had rancorous moments but, by and large, we have worked well as a committee, which is what we are supposed to do.
I believe that the debate today would have taken only two or three hours. I came here bright-eyed and bushy-tailed this morning with amendments ready to have a good intellectual discussion and to then go home accepting that that is the way the cookie crumbles. However, we would have done our job. This is the place to have had that debate because committee members have the knowledge of the evidence that has been placed before the committee.
Mr. Chairman, I, like Senator Buchanan and you, am disappointed with the way this has happened. I would have proposed that we amend clause 9 on page 13 by replacing lines 12 to 15, and on page 14 by adding some wording to deal with the reverse onus problem and to remove the criminal elements as against individuals, while leaving penalties as onerous as possible for ships, the corporations that own them and the management that runs those ships. However, I did not want to place the seamen in such positions, so I would have moved those amendments.
I will have to consider whether I want to waste my breath in another place later today or tomorrow by moving those amendments. For now, I will simply say that I look forward to discussing the observations, although I do not have a draft. Mr. Sharpe sent a draft to the committee, I believe, through the clerk. It arrived one day attached to his proposed amendments, but it did not seem to me to be the kind of observations or format that we would deal with.
I look forward to discussing that. I hope the committee can develop an enlightened set of observations for senators in the chamber.
Senator Adams: I do not understand what happened this morning. The original schedule for this morning showed that the committee was to meet in room 257 in the East Block. When was that changed?
The Chairman: The notice was sent out last night after the motion was adopted in the house that the committee have permission to sit this morning at nine o'clock. All senators were notified that the meeting was to be in this room.
Senator Adams: I left before the Senate adjourned, and my secretary left at five o'clock. There was no new notice this morning. I went to the East Block, and there was no one there.
Senator Losier-Cool: This was sent last night.
Senator Adams: It did not come to my office via fax or in any other way. I did not tell the whip that I was going to be late and or that I would not be here, and now you have voted. I knew that we were to do clause-by-clause study, but I thought that before that there was to have been a discussion with Mr. Sharpe about Mr. Gold`s evidence of a week ago.
There is something going on here that I do not like. I did not notify the whip that I would not be here, which you are supposed to do according to the rules. Did you change the time because you thought I was going to vote against the bill? What is happening here?
The Chairman: Senator, it is not the case that anyone was excluded from the notice. Everyone got the same notice. I, too, assumed late last night that we would likely meet in our normal place, but when senators asked me last night where the meeting was going to be this morning after the house gave us permission to sit at this time, I told every senator who asked me that I was not sure where the meeting would be, that they should look at their notice in the morning. You could not have received a notice this morning that said that there was a nine o'clock meeting in the East Block, because no such notice was sent.
Senator Adams: Why was there a notice that I was not going to be here? I did not say I was not going to be here. Was Senator Losier-Cool to take my place this morning?
Senator Losier-Cool: To be clear, I did not know you were not to be here, Senator Adams. You did not call the whip's office. I did not know what your position was on the bill, but I arrived here at nine o'clock and you were not here. My job is to ensure that all members are here.
Senator Adams: I did not say I was going to vote against the bill.
Senator Losier-Cool: I did not know your position.
Senator Adams: I know. I am a member of this committee.
Senator Losier-Cool: Yes, you are.
Senator Adams: I am concerned about this bill.
Senator Losier-Cool: As a member of the committee, you received notice to be here at nine o'clock. That is all I can say.
Senator Adams: I was at room 257 at nine o'clock, pursuant to the notice I have here.
The Chairman: You could not have received a notice this morning, senator, saying that this meeting was in room 257. The notice was sent last night at 8:44 p.m.
Senator Adams: Can you tell me at what time the notice was faxed last night?
The Chairman: At 8:44 p.m. last night notice of this meeting at this location was sent to every senator's office and every senator's office was telephoned by my assistant this morning to ensure that they knew the meeting was in this room.
Senator Adams: Can you tell me what Senator Milne's motion was at the beginning of this meeting?
The Chairman: A motion was made at the beginning of the meeting that we dispense with clause-by-clause consideration and report the bill without amendment, and that motion was passed.
Senator Adams: How many members were here? Did you get the names of all the members of the committee?
The Chairman: Of course, of all the members who were here. We had more than a quorum.
Senator Adams: Is Senator Hubley here only for this?
The Chairman: Senator Hubley is the sponsor of the bill and is, therefore, I think, a member of the committee for the duration of this study, if I understand that correctly.
Senator Adams: No, she cannot be.
Senator Losier-Cool: Senator Hubley has been here for the study of this bill because she is the sponsor of the bill and she is —
Senator Adams: You do not automatically become a member even if you are the sponsor the bill.
Senator Losier-Cool: She is completely replacing Senator Finnerty.
Senator Adams: I do not think that, according to the rules, she can be a member of the committee.
Senator Losier-Cool: Yes, it is according to the rules. Senator Finnerty asked to be replaced in the same way as we often replace senators. Senator Rompkey is replacing Senator Lavigne, who called the whip's office yesterday afternoon to say that he will be absent from the meeting. Senator Cowan is replacing Senator Kenny.
Senator Buchanan: Senator Lavigne is here.
Senator Losier-Cool: He just arrived. He was not supposed to be here. He did not vote. Senator Cowan is replacing Senator Kenny. The other members are Senator Christensen, Senator Banks and Senator Adams.
The Chairman: In answer to your question, senator, as of April 14, Senator Hubley was made a member of this committee.
Senator Adams: The sponsor of a bills does not usually automatically become a member of the committee. I have always heard that senators who are interested in a matter can sit in on committees, but they cannot become members. The sponsor of a bill can sit in on the committee. According to the rules, they have to be a member of the committee from the beginning.
The Chairman: My understanding is that there is no such rule. Senator, I have, as the chair of this committee, been the sponsor of a bill the committee was considering. That is not a good idea, but it has happened.
Senator Adams: That is not the way it is supposed to be done. According to the rules, bills are sponsored by the government. Just because I have an interest in a matter, I cannot automatically become a member of a committee.
The Chairman: I do not think there is any such rule, senator.
Senator Adams: Since we started this study last February, we have heard from the shippers that this bill contravenes the Constitution by imposing these penalties on ships. Mr. Gold is a constitutional lawyer, and that is what he told us as well. We spent money to bring witnesses here, and they gave us advice.
Senator Angus was saying that there should be an amendment to the bill. That is what we hired Mr. Sharpe for. Are we going to ignore what we heard from the witnesses, including the constitutional lawyers? I want to ensure that I do my job for the government. We asked the minister to appear last week, and he wrote a letter answering some of our questions, but he could not answer this. Why?
The Chairman: The minister's answers were circulated to all members, and I presume, senator, that you got them as well as I did. When I got those replies, I made sure that they were sent to all members. In fact, I have made sure that every piece of correspondence I received was sent to all members. All of those answers were given to everyone.
In any case, senator, to my knowledge, there is no rule about membership on the committee, on the one hand, and sponsorship of a bill, on the other. I stand to be corrected.
Senator Angus: On a point of order, Senator Losier-Cool indicated who is replacing whom. Could you repeat that? Who is Senator Rompkey replacing, or is he here in his own right?
Senator Losier-Cool: Senator Lavigne.
Senator Angus: Therefore we have got two Lavignes here. Montreal is well represented.
The Chairman: Do we understand correctly that Senator Lavigne had informed your office that he was not going to be here?
Senator Losier-Cool: Not that he did not want to be here, but that he could not be here.
Senator Angus: Senator Cowan is representing Senator Kenny.
Senator Losier-Cool: Yes, and I am representing Senator Adams, who was absent at 9:00. I did not know that he would be absent; I just came here.
Senator Losier-Cool: Mr. Chairman, as to the matter of the sponsor of the bill being a member of the committee, that is not in the rules but it is a practice. It has been a practice for many years. Senator Lapointe was a member of the Legal Affairs Committee when it studied his bill. If we want to change that rule, it is up to senators to go through that process.
[Translation]
Senator Lavigne: I notified the office of the whip that I would not be present on Monday evening. I was at the Shriners Hospital because they are looking to move it away from Montreal and I thought it important that I would be there.
As for today, I never said I would not be here. I said I would be here but I was waiting for the call from my staff to report the Clerk's response as to whether there would be clause-by-clause consideration of the bill on Tuesday morning. I had a meeting this morning with members of the First Nations at the Château Laurier and left Montreal at 4:30 a.m. to be here by 7 a.m.
I thought this meeting was to take place at the East Block, not here. I went there and the meeting room was deserted. I then returned to my office where I was told that the meeting would be at the Victoria Building. The notice was sent out only last evening. Had we been notified sooner, it would have been much easier. I thought I was coming here for clause-by-clause consideration of the bill and that we would discuss and then vote on amendments.
I have not had the opportunity to express my position on this bill. Of course, I am in favour of the environment and the protection of our migratory birds, but let's not forget that we are in a democratic society and that we have been members of this committee, as Senator Adams said, for a very long time.
Mr. Chairman, I believe you have conducted this committee very well and that you do a good job. I do not understand however why a vote has already been taken and that everything is already finished. I have a hard time understanding that we were only given last minute notice yet everything is rushed through. I agree with the other senators who are not pleased with things being done so quickly. Out of respect for all members of the committee, if we have amendments to propose, we should table them so that they can be discussed and voted upon.
Last week you told me that Tuesday, today, we would consider this bill on a clause-by-clause basis. After attending my meeting, I came here early this morning expecting to examine each clause of the bill. I am sure that a clause-by- clause review takes more than five minutes; it takes quite a bit of time and I would have been here in time to do the work. And, even though I went to the wrong place, I arrived only five minutes late. I still could have participated in the clause-by-clause examination and review of the proposed amendments to correct them.
There are some very positive points in this bill but I believe that it is important that we look at certain issues as a committee. It is only normal for us to discuss them so that we can decide together if there are amendments or corrections to be applied.
You are a great chairman; I got to know you and the other members on this Committee. This is very rewarding work and I think this is a good bill that merits proper examination.
I know that I am sometimes absent due to commitments of national concern, but it is still very important to do things properly and Senator Adams and I should be able to have our say on this bill.
[English]
The Chairman: On behalf of the deputy chair and myself, I thank members for their compliments. They are too kind.
With regard to the mechanics, Senator Lavigne, however inconvenient it is, the fact is that under the Rules of the Senate we could not nail down the time of this meeting, which is outside of our ordinary time, until the house had approved the motion. Motions such as this appear as the very last item on the Order Paper, so the last item of business in the house last night was the approval of the motion asking for the instruction of the Senate for the committee to sit this morning at 9:00. It was only at that time, because it would have been improper to do so earlier, that we were able to determine where the meeting would take place. A notice was sent out at 8:44 last night to all senators' offices advising the time and place of the meeting, which meeting had been approved by the Senate at 8:43 p.m.
Senator Lavigne: You told me there was going to be clause-by-clause consideration, and that is not true this morning. It is different.
The Chairman: That is correct. I must say, as I have said earlier, that it was not my intention to ask for instruction to sit this morning at nine o'clock in order to do what we did. However, the motion that was made in this committee is in order; it is proper; and it is not uncommon.
Senator Lavigne: I did not say it is uncommon. You told me last week that there would be clause-by-clause consideration. You asked me if I was ready to come next Tuesday. I said that I would be there. This morning, something else has happened.
I am very upset, Mr. Chairman, that from one day to the next we have changed our process. This is not democratic.
The Chairman: I expressed at the beginning of the meeting that I, as well, was unhappy with the process, but it is in order. It is not uncommon. It was a motion properly made. It was in order, and it was voted upon. I had the impression at the time, and I think the record will show, that I provided an opportunity for a discussion of the motion. It was all properly done according to the Rules of the Senate and according to the instruction that we were given in the chamber last night.
Senator Hubley: Mr. Chairman, I, too, would like to express my appreciation to you and to the deputy as well as to all members of the committee.
Bill C-15 is an extremely interesting bill in that it has two distinct components. We have heard very strong legal representation as well as very strong environmental representation.
Without getting into too many details, I have seen on other committees that dispensing with clause-by-clause consideration, as we did this morning, is not uncommon, although we were somewhat surprised by the motion. We all came prepared to do clause-by-clause study.
My preference was that we present Bill C-15 to the Senate for third reading without amendment, and have it go forward. It is hoped that this bill will address an enormous environmental problem in all Canadian waters, but particularly in the Atlantic region.
There were a few comments made this morning that deserve rebuttal. One was with regard to lack of consultation with stakeholders. Bill C-15 was introduced twice in the other place. Given the very aggressive and forceful argument from the shipping industry, I find it difficult to imagine that they did not understand what was contained in this bill. There are no secrets in making new laws. I find it difficult to believe that an industry of the size and scope of the shipping industry, with the legal representation they put before us, would overlook the fact that Bill C-15 was progressing.
The committee has addressed their concerns to my satisfaction. We heard many excellent legal presentations, and I believe that we can not be faulted in our patience, dedication and sober second we gave to Bill C-15. I originally received the material in January and the committee has been working on the bill since February. I believe that says a lot about the processes we have within the Senate. We are thorough. There is, however, a time when a bill has to move forward, and the time for Bill C-15 is now. It must go forward, and I believe it should go forward without amendment. Therefore, I was delighted to support the motion this morning.
On the issue of consultation, Environment Canada has made presentations to the International Marine Organization, of which shipping is a part. For many years, they have brought forward the issue of oiled birds at sea. That industry did not pick up the challenge from either an environmental standpoint or an industry stewardship standpoint. That was not addressed, so we are still faced, year after year, with oiled birds at sea, although the number of them is arguable. We have to have some faith in our scientific community. There is extensive peer-reviewed research that indicates that 300,000 seabirds are destroyed each year because of the illegal dumping of oily bilge water off our shores.
If Canada is going to sign on to these international conventions, we have to protect our marine environment. Bill C- 15 has been closely scrutinized from a legal point of view, and we have been given assurances that it does not contradict any of our obligations under other laws.
The result this morning is the result that the governments and people of Newfoundland, Nova Scotia, Prince Edward Island, the North and the West Coast have been waiting for. I believe this is good and necessary legislation, and I am delighted we are going to move ahead with it.
The Chairman: I am going to be ruthless with regard to time allotment for the second round because I believe it is important that we get to the observations, during the course of the discussion on which I expect that many of our concerns will be addressed, or at least referred to.
Before we go to the second round, is it agreed that I report this bill at the next sitting of the Senate?
Some Hon. Senators: Agreed.
An Hon. Senator: With objections.
The Chairman: Objections noted.
Is it agreed that we report the bill with observations?
Some Hon. Senators: Agreed.
The Chairman: We are going to report the bill unamended with observations attached to it. That is what I have just asked and what I think I have approval for.
Senator Hubley: Is an observation a matter that came up in our study that raised questions?
The Chairman: I had the temerity to prepare a draft of observations, which I think accurately reflects the concerns we have expressed throughout our deliberations. With the permission of the committee, I will distribute them in a moment for our consideration. They are what they are.
Senator Milne: Perhaps you can distribute them now so that we can look at them during the second round.
The Chairman: Okay.
Senator Hubley: An observation is just our committee's opinion or reflection on the work we have done but would in no way infringe on the implementation of the bill?
The Chairman: We are reporting the bill unamended.
Senator Hubley: Yes.
The Chairman: The observations attached to the report do not in any way mitigate that fact. They are observations that the committee wishes to make to the government.
The observations will be what the committee determines they will be. I am simply distributing now a draft that will give us a point from which to start. I am not proposing that they should be the observations; they are only a point from which to start.
Senator Christensen: Will we approve the observations once we have reviewed them?
The Chairman: I will now go to the second round, because we are now in a public session. When we have determined that the second round is over, we will proceed in camera to discuss the observations, because they will constitute part of a report of the committee to the Senate, which must be determined in camera.
The public part of the meeting will conclude at the conclusion of the remarks of senators on the second round.
The Chairman: Is the procedure clear?
Some Hon. Senators: Yes.
The Chairman: We will go to the second round and then go in camera to discuss the observations, which are now being distributed for your perusal.
Senator Adams: Mr. Chairman, you moved a motion last Thursday that the committee would meet for clause-by- clause consideration at nine o'clock. I do not know why you moved another motion last night. I was not there.
The Chairman: A motion of this kind requires notice. Last Thursday I gave notice of the motion that I would make at the next sitting of the Senate, which was Monday. The motion could not be moved on Thursday. I gave notice of the motion on Thursday. The next sitting of the Senate was Monday — last night — which is when I moved the motion, and that is when the Senate chamber approved the instruction to this committee to sit at nine o'clock this morning.
Senator Adams: Thank you.
Senator Angus: In response to Senator Hubley, it is true that the bill passed through the House of Commons. That is a matter of record. It is also a matter of record from at least four witnesses that they were precluded from being heard, despite their strong efforts to be heard at the committee of the House of Commons.
Mr. Morrison of the Canadian Shipowners Association and the Ship-Owners Alliance tried to be heard and were denied that right. It was only after the bill came to the Senate that these people were able to get a hearing, and I thought we gave them an excellent hearing.
You asked, Mr. Chairman, whether we agree unanimously that this bill be referred back to the Senate with observations today. You did not use the word “unamended,” but I want to make it clear that I am opposed to sending it back unamended. I think that we should propose amendments, have them debated and either accepted or defeated in this forum.
On the time and the place of this meeting, at this stage it is irrelevant, but it is not customary to be in your office at 8:43 p.m., when the venue was changed. Even the deputy chair went to room 257 this morning, and I was on my way there.
I do not know what that amounts to, but I wanted to record my empathy for the positions of Senator Adams and Senator Lavigne, who have been an integral part of our deliberations heretofore, and who were not here this morning when Senator Milne made her motion.
I look forward to discussing the observations.
The Chairman: In order to get around that, we would have to change the Rules of the Senate of Canada, and I do not know that we want to do that.
I did not use the word “unanimous.” The record will show that I did not utter that word. I asked if it was agreed that I report the bill at the next sitting of the Senate. The answer was yes, and it was noted that it was agreed to on division. The minutes will show that.
Senator Angus: We would like our names to show.
The Chairman: We will attach the names of Senator Buchanan and Senator Angus to ensure that it was clear that it was not unanimous, and I did not use that word.
[Translation]
Senator Lavigne: I would like the record to show that I have never said I was against Bill C-15.
On the other hand, I am somewhat frustrated that we did not consider the bill on a clause-by-clause basis since the situation changed last evening. I am not against the bill but I would like to discuss all amendments and anything to do with this very important bill.
[English]
Senator Buchanan: I agree with what Senator Lavigne said. I am not and have never been opposed to this bill. Its principle is a noble objective. There is no question about that. My concern is not with the principle of the bill or what it is trying to achieve. My concern is simply about legality with regard to the Charter of Rights and the international treaties that Canada signed, UNCLOS and MARPOL.
As far as the location of the meeting, I was just catching the bus when my assistant called me on my cell phone to tell me that the meeting was here. I certainly have empathy with Senator Lavigne and Senator Adams, who arrived late, but that is neither here nor there.
I want to respond to something that Senator Hubley said about consultation. It is my understanding the most of the people who appeared before us from the shipping industry, the international shipping groups, the B.C. ferries group, the B.C. shipping group, the maritime coalition of shippers, the unions — including the ones from Halifax — were not given the opportunity to appear before the House of Commons committee. I just checked with Mr. Lederman, who certainly should know. He said that they sent a letter to the House of Commons committee but had never received a reply. As well, the Environment Canada site indicated that there was no consultation with their groups.
I want to make it clear that my objections are the same kind of objections I had in this committee a number of years ago when we passed the MMT bill on division, again on legal grounds. It is important that we remember that bill, because the committee received legal opinion that it would be challenged under the Canada-U.S. Free Trade Agreement. I objected to it on the grounds that it would be strenuously objected to under the Free Trade Agreement. However, that was not listened to. The bill was passed and, lo and behold, it was immediately challenged under the Free Trade Agreement, and Canada lost. That bill was ultra vires because it violated the Free Trade Agreement. It cost Canada millions of dollars to have the matter settled, and the law was rescinded.
I believe that the same thing will happen here. When a captain or engineer is prosecuted under this bill and the Charter of Rights and Freedoms is invoked by the defence, this law will be considered ultra vires and thrown out. When this bill is challenged, as we have been told it will be by the international shipping people, under UNCLOS or MARPOL and Canada loses, it could be very costly for Canada.
If we had made certain amendments to the MMT bill at the time, the bill may have been corrected and stood the test of time in the courts, but we did not do that. The same is true here. With one simple amendment we may have made it Charter-proof, UNCLOS-proof and MARPOL-proof, but we did not do that. In years to come, we will bear the consequences of that.
I want my comments on the record because, although I will not be in the Senate when that happens, I want to be able to read what I said and say, “My God, Buchanan, you were right for a change.”
The Chairman: You have not always been wrong, Senator Buchanan.
Senator Buchanan: I want to congratulate you again, Mr. Chairman, for the way you have handled these deliberations. I understand what your position would have been on this bill, but I am very pleased that you made it known that you would have preferred to have clause-by-clause consideration. However, it was out of your hands.
The Chairman: Thank you.
For the information of the committee, at the second of the three meetings that were held by the Commons committee the Canadian Maritime Law Association and the Canadian Shipping Federation were heard from.
Thank you, senators. That is the end of the second round.
Senator Angus: Were you going to ask Mr. Sharpe to make any observations?
The Chairman: Yes. I now am proposing that we go in camera to consider the observations. Since they are part of our report, they must be dealt with in camera, and our counsel is here to advise us in that respect.
Is there a motion that we go in camera?
Senator Cochrane: I so move.
The Chairman: Is it agreed that we go in camera to discuss observations to be appended to the report.
Hon. Senators: Agreed.
The Chairman: It is agreed. The committee will now proceed in camera.
The committee continued in camera.