Proceedings of the Standing Senate Committee on
Transport and Communications
Issue 2 - Evidence, May 6, 2009
OTTAWA, Wednesday, May 6, 2009
The Standing Senate Committee on Transport and Communications, to which was referred Bill C-9, An Act to amend the Transportation of Dangerous Goods Act, 1992, met this day at 6:42 p.m. to give consideration to the bill.
Senator Lise Bacon (Chair) in the chair.
[English]
The Chair: The Standing Senate Committee on Transport and Communications is meeting. On our agenda is Bill C- 9, An Act to amend the Transportation of Dangerous Goods Act, 1992.
Appearing before us is the Honourable John Baird, Minister of Transport, Infrastructure and Communities, and Brian Jean, Parliamentary Secretary to the Minister of Transport, Infrastructure and Communities. We also have Peter Coyles, Special Advisor to Director General, Operations, Department of Transport Canada.
[Translation]
We also have Ms. Marie-France Dagenais, Director General, Transportation of Dangerous Goods.
[English]
Minister, how long do you have with us?
Hon. John Baird, P.C., M.P., Minister of Transport, Infrastructure and Communities: Senator, I am in your hands. I am always available. I prefer to be as cooperative as I can be.
The Chair: We are pleased to have you with us, Mr. Minister, to appear on this bill. Bill C-9 is an important bill for us and I would like to thank you on behalf of all the members of our committee. It shows respect to the Senate, the senators and the sponsor of the bill and the critic of the bill.
You will be available for our questions after your presentation, and I am sure the senators have many questions to ask you. We will hear from you first about your bill and then we will ask questions.
Mr. Baird: Thank you very much. It is a real pleasure to be here. I have had a chance to appear before a number of the Senate committees and they are always enjoyable, and I have done work with a number of you on various issues and enjoy the opportunity.
I do have a written text speech that I can deliver but, given the lateness of the hour, I am happy to move right into questions if that would be preferable to the committee, Madam Chair.
The Chair: Honourable senators, I am in your hands. Would you rather hear from the minister first to present the bill? Usually we do that. It gives us more information on the bill.
Mr. Baird: I am in your hands. Okay, I will speak.
The Chair: Is it a short or a long presentation?
Mr. Baird: I am a politician, Madam Chair.
I am pleased to be here to present Bill C-9, An Act to amend the Transportation of Dangerous Goods Act, 1992. As Senator Wallace highlighted in the chamber, the bill seeks to improve how dangerous goods are handled and transported in the country. These changes will ensure that Canadians are protected during the transportation of dangerous substances and that if an accident or an incident occurs the appropriate response will be readily available.
Each year millions of shipments of dangerous goods are transported across Canada by railcar, by truck and by plane. These shipments have a direct impact on consumers and are vital to many industrial sectors. As a trading nation, the transportation of dangerous goods plays an important role in Canada's economy and in the lives of Canadians.
The Transportation of Dangerous Goods Act was last updated in 1992. In its current form, it focuses primarily on the prevention of accidents or incidents and has little mention of response should something go awry. As members of this committee know, much has changed since 1992. Incidents such as the terrorist acts on September 11, 2001, and the bombings in Madrid and London have among their many consequences shaped the way we view dangerous goods and their potential to cause harm. The world has changed; new realities exist, and countries around the world must adapt.
Canada needs a transportation of dangerous goods program that will reflect this new normal. The proposed amendments before you would usher in a stronger security program focused on prevention as well as response in the event of a security incident or safety accident.
In terms of prevention, the changes in Bill C-9 include requiring security plans and security training; requiring transportation security clearances for dangerous goods; enabling the use of interim orders and security measures if an incident or accident occurs; and creating regulations requiring companies to report lost or stolen dangerous goods. These regulations would be aligned with international and United Nations recommendations and existing U.S. regulations.
In terms of response, changes in Bill C-9 would provide the government with the necessary authorities to use the existing Emergency Response Assistance Plans to respond to an incident or an accident. These plans guide responders' actions should an accident or incident happen, including, for example, what type of equipment would be used and how many personnel should be dispatched.
These plans are created by industry prior to the transportation of a dangerous good and are approved by Transport Canada. This is an effective way to use existing expertise in order to protect the public good and public safety.
It is important that we move forward with these changes to the 17-year-old Transportation of Dangerous Goods Act. Without these amendments, we will not have the necessary tools in place to protect Canadians against incidents involving dangerous goods. These amendments will allow the government to have the appropriate prevention response program in place for the Vancouver 2010 Winter Olympics and the upcoming G8 conference. Without them, we would leave Canada vulnerable to attacks, not only during these international events but also at other times.
As I told the standing committee on the House of Commons side, as parliamentarians I believe we share an obligation to protect Canadians' safety and security. To that end, I look forward to working with you to strengthen the act and to hearing any concerns and counsel.
[Translation]
The Chair: Generally speaking, Bill C-9 has been well accepted by the transportation industry, especially in terms of the harmonization of interprovincial standards. However, some concerns have been raised about the content of the future regulations.
When do you plan to make public the new regulations that will govern the transportation of dangerous goods? And what timeframe do you have in mind for their implementation?
[English]
Mr. Baird: I will ask Marie-France Dagenais to answer this question.
[Translation]
There are two types of regulations.
Marie-France Dagenais, Director General, Transportation of Dangerous Goods, Transport Canada: In terms of special events such as the Olympic Games in Vancouver and the G8, we will use the interim orders and security measures that are provided for in the existing act. These measures enable us to make short-term regulations.
The process for the development of regulations can take from six months to two years. In the existing act, there is a provision that allows us to consult with the industry before putting into place some regulations. It is a long process that requires an informal consultation, but presently, with the interim orders and security measures provided for in the legislation, we will be able to make regulations rapidly in time for the Vancouver Olympic Games and special events.
Mr. Baird: The department is of the view that it is important to work together with provinces and territories and that it is essential to abide by provincial jurisdictions and, if possible, to harmonize the legislation so that it will be easier for industry to follow the new regulations.
The Chair: A group called the Canadian Association of Retailers has contacted this committee regarding future changes to regulations. What this group seems to be objecting to is the product by product approach in the existing regulation. It seems that this approach is complicating the transportation of inputs in the agricultural industry.
Is the department prepared to work with Agriculture and Agri-Food Canada and Natural Resources Canada in order to rationalize the regulations for the various products that are necessary for agriculture, such as fertilizers or nutrients?
[English]
Brian Jean, M.P., Parliamentary Secretary to the Minister of Transport, Infrastructure and Communities: I had an opportunity to meet with them and I have read their letter. I understand they are also looking for some funding options. I have looked at the comparison between the United States and Canada as far as population base, et cetera, and what would be required for security funding that they are looking at just as a matter of information.
The department would be prepared to work with all stakeholders, as we did in the committee, to develop regulations and do whatever is necessary.
The departmental official could probably answer that question better.
Ms. Dagenais: We meet regularly with the agri-retailers. We have committed to working with other departments in relation to the dangerous goods that they transport or use to ensure that the regulations are streamlined and harmonized among the various departments and agencies.
The Chair: They are the only ones who sent us a written statement, which is why I felt the need to mention them.
Mr. Baird: I am impressed with the amount of collaboration the department has with industry. Our goal is to seek the best and easiest compliance, and all efforts are made on compliance rather than dealing with a web of rules or difficult-to-interpret regulations. That is important, particularly on issues of safety and security. We want to make it as easy as possible for industry to comply.
[Translation]
The Chair: Given that the transportation of goods as an industry is changing constantly, do you consider that the Transportation of Dangerous Goods Act should be subjected to a departmental review every five years?
Mr. Baird: There were changes not only within the industry, but also in the area of security. We all know that ever since the 9/11 events, we are living in a new world.
It would be preferable to review the regulations more often than every seven years. And it would be important for ministers, for members of the Senate and the House of Commons to examine how things are going five years after the implementation of the regulations. I absolutely agree with this proposal.
The Chair: That is a recommendation that we could make.
[English]
Senator Johnson: Welcome, minister. You mentioned the provinces. Are they on track with the federal effort to implement these regulations in time for the Olympics?
Ms. Dagenais: They are on track. The act is criminal law and applies across Canada. The regulations are adopted by each province, and the provinces already apply our regulations. Provincial inspectors enforce the regulations and ensure compliance within the provinces. They are already on board.
Mr. Baird: The relationship on Olympic issues with the Province of British Columbia is extraordinarily positive at both the public service and the political level, which speaks well for our preparations for the Olympics.
Senator Johnson: Everything is coordinated and operable between the province and the federal officials?
Ms. Dagenais: Yes. We also have a provincial and territorial task force with which we meet twice a year. We have been talking about this legislation, and we always talk about amendments to our legislation. They propose changes, depending on what happens in each province.
Senator Johnson: The proposed amendments in clause 14 of the bill call for enhanced measures enabling inspectors to inspect any place in which a means of containment is being manufactured, repaired or tested to ensure greater safety in the transportation of goods. There are 80 inspectors that currently enforce the act and regulations on a full-time basis and another 250 that do so as a secondary function.
Does the department have enough inspectors to assure that safety is not compromised?
Peter Coyles, Special Advisor to the Director General, Operations, Transportation of Dangerous Goods, Transport Canada: The act provides flexibility. It enables us to utilize the resources and expertise that exist. We can use inspectors from Natural Resources Canada, NRCan, to do some of the explosives work. We can use the inspectors at the Canadian Nuclear Safety Commission, CNSC, to work on the nuclear side. We can use the 5,000 provincial inspectors for help in doing road inspections.
The act provides a lot of flexibility. Parliament provides resources; the program works effectively; and we have strong compliance.
Senator Johnson: How many inspectors will be required?
Mr. Jean: The act also authorizes inspectors to authorize qualified persons to enter into a place to do inspections, such as hazardous materials teams or people who can deal with chemicals that have special requirements.
Mr. Baird: There is no doubt that we will require additional resources for the Olympics or G8 meetings. I am comfortable that the requirements will be met.
Senator Johnson: Can you project the number of inspectors that will be required over the next five years?
Mr. Coyles: The program is envisioned to use the resources we currently have as effectively as possible based on risk. We are already looking at prioritization. The program builds on looking at priority sites, the most dangerous ones.
To really understand how the program works you have to back up. The act is built on two fundamental principles. One is classifying the dangerous good properly, and the other is ensuring that it is in the right means of containment. A lot of work is done inside of developing standards for those means of containment.
The compliance notion of the program from a dangerous goods perspective is entry into the transportation chain. The notion is that, as it is offered for sale from the producer, manufacturer, distributor or shipper and it enters the chain, if it is classified correctly, if it has been put in the right means of containment, if it has the right shipping document, and if it complies with everything else in the 800 pages of regulations and the 30,000 pages of standards, it should be in compliance all the way through the chain. There are sundry verifications downstream with provincial colleagues, CNSC and others to verify that something has not happened along the distribution chain.
The intent of the program is to look at the entry point where you are offering it for sale.
Senator Johnson: That is reassuring.
Ms. Dagenais: Industry is very supportive of and compliant with this program because they realize that if they do not put the dangerous goods in the proper containment and there is an incident, the liability is very big, and they do understand the consequences.
Senator Johnson: That is very good. This is a public broadcast, which is great, because people will be very interested in this.
Senator Mercer: Thank you and welcome. We appreciate your time.
I was pleased to hear you say that there will be future reference to the House of Commons committee and to the Senate. When the time is right, I will propos an amendment to add the Senate to the bill as it was added by a review at the house committee. I understand that will not be a major issue.
I did want to talk about future consultation. We were told in the briefings that there would be continued consultation with the public, industry, first responders and provincial and territorial governments. Is there a structure to that, and when would that structure come into place? One group I see missing from the list that we were provided is unions who were involved. There are a couple of unions — one in particular — that would be involved. That is my first question.
Mr. Baird: When we talk about industry, we should be broader than stakeholders; the men and women who work in the sector have a voice and a front-line concern. They would be the first members of the public who would be affected.
Regarding the structure, I will turn to Mr. Jean and Ms. Dagenais. Ms. Dagenais spoke about existing provincial consultations that happen twice a year. Obviously, the development of the regulations will have to be a fairly collaborative process.
Mr. Jean: We have consulted with unions and other stakeholders, including the provinces and territories. As was mentioned previously, there is a group that meets twice a year and discusses specific issues in regard to this and changes that happened. Since 2001, security has dramatically changed. As such, it is a biannual meeting to ensure they are kept up to date and all the relevant stakeholders, including union members, are present and accountable in relation to input.
Senator Mercer: The other issue with respect to the front-line workers who are actually doing the carrying of these dangerous goods is the clearance that is needed for border crossings. I understand one of the objects here is to try to ensure that we are integrated mainly with our major trading partner, the United States.
As a result of this bill, what protection will there be for the privacy of Canadians who subject themselves to this security check, and what effect will that have if perhaps they do not meet the test that may be imposed by either us or the Americans?
Mr. Baird: Major challenges exist in that regard today and they get stronger every day. With the new administration, we have seen some welcome comments and some comments that, perhaps, I would classify as unwelcome. Obviously, we have different values and standards with respect to privacy and that sort of information.
Mr. Jean: Indeed, this was one of the questions brought about by some members of the opposition. I asked for a legal opinion and forwarded that to them yesterday.
Two consents are required to be signed by the applicant in relation to the clearance before that information is shared with other jurisdictions. Primarily, it is as a result of someone who needs to have that clearance not being in Canada for a five-year period or a period as required by the regulations of the act. Then, as administration, we would have to send overseas to where that person was before to ensure the historical information is adequately researched. It would then, indeed, be shared with our partners if a consent is received to do just that. However, for the most part, it is not.
Senator Mercer: For a new Canadian who has not been here for five years, would we need to go back to his country of origin to check his or her credentials?
Mr. Baird: That is no different from someone wanting security clearance to work at an airport, behind the wire. I have learned a lot about those issues from Senator Kenny, for example.
Senator Mercer: You two have become famous together.
Mr. Baird: I have learned a lot from him. Some of my colleagues are more enthusiastic about that new partnership, but I do not mind publicly saying that I think he serves the Senate well and I have learned a lot from him. I do not agree with him on everything, but I have learned a lot.
Ms. Dagenais: I just wanted to add that the security clearance program is bringing back in Canada what I think should be in Canada. Right now, there is a transfer of information between the American and the Canadian governments, but if we keep it in Canada, it gives the new Canadians an appeal process to contest the decision that has been rendered. They do not have that right now. Then they can also go through the judicial system if they are still not happy. It is of benefit to new Canadians to have this process brought back to Canada.
Mr. Baird: Secretary Napolitano has underlined that there is a border and it will not be going away.
Senator Mercer: She just does not know what is happening in the border.
Mr. Baird: Nonetheless, she is in her job.
That is a real challenge for Canada with respect to our trade. I was in Detroit and Windsor this morning. That is a huge challenge for the manufacturing sector, and the heartland of Canada and the United States. It will present huge consequences. It is becoming tougher — not easier — and what we have to do with the Americans is have a real appreciation on their part that a threat to the United States is a threat to Canada and that we take it seriously.
However, at the same time we do have different values that inform public policy and inform our government.
Senator Mercer: There is a requirement for an Emergency Response Assistance Program to be put in place and Emergency Response Assistance Plans. Would you explain to me how quickly this can be put in place, who is responsible and who pays for it?
Ms. Dagenais: The Emergency Response Assistance Plans program is already in place. Approximately 1,000 plans have already been approved. When we consulted with the industry and asked them if they would respond, if there was a terrorist incident, they said, ``If you pay for our costs in responding to this, and the government offers us liability protection, we will definitely be able to answer for the government.''
However, we are using the existing plan. The minute the act has Royal Assent, this can be applicable.
Mr. Baird: There is a great emergency preparedness centre at Transport Canada, particularly relevant to chemicals, where people can call in 24 hours a day, 365 days a year, and they have a capacity to facilitate responses. It is quite impressive.
Mr. Jean: May I interject? It should be noted in relation to your previous question that the Privacy Act dictates that information collected can only be used for the purpose it is collected for by any department. Indeed, nothing can be released from that individual without the written consent of that individual.
Senator Mercer: Nor can it be shared.
Mr. Jean: Nor can it be shared with other jurisdictions or countries. That was one of the major concerns, and I wanted to make sure those listening understood that.
Senator Fox: I apologize if I ask a redundant question. Thank you for the briefing book. It was helpful to go through it.
As our chair indicated, we have only received one letter from one group with concerns on this legislation. It seems there is a perfect storm and there seems to be perfect legislation.
Are we into a situation of perfect legislation where no one except these people has filed any objections to the legislation?
Mr. Baird: I will not say it is a perfect piece of legislation, because that does not exist. I am impressed with the work that the department has done on consultation. They have done their homework. In fairness, that happened long before this minister arrived.
How many times have we tabled this bill in the house?
Ms. Dagenais: This is the second time.
Mr. Baird: A considerable amount of work has been done. I take the blame for the bad things so I should take the credit with the good, but I will give the credit to Ms. Dagenais and her team.
Senator Fox: You gave us everything except the objections, but are you saying there are few objections, because you have worked them out in your interdepartmental and industry meetings?
Ms. Dagenais: As I have indicated before, we worked closely with the industry and have done so for many years. When we started consulting and saying that we need to improve the safety side of the act, some incident happened. Then we started talking about security.
I am still meeting with some stakeholders — the Propane Gas Association of Canada recently. They all say they support the bill. I have not heard any big issues with this bill. They all want to participate in the drafting of the regulations to ensure their rights and their concerns are addressed. That is what we will do down the line.
Senator Fox: You indicated that this is jointly administered by the federal and the provincial governments. Is there a bright line test between what the federal government inspectors do and what the provincial inspectors do?
Ms. Dagenais: The provincial inspectors do roads and highways and we do the other modes, the shippers and the manufacturing facilities. We have agreements with provinces that they will do enforcement on highways.
Senator Fox: Even with the Olympics coming up, your complement of 80 people is sufficient for the task, in your mind?
Ms. Dagenais: We have made a plan and priorities, and we think we can address all of the issues with the inspector base that we have right now.
Senator Fox: I would like you to help me understand something more clearly. I see that one of the objections put forward by the Canadian Association of Agri-Retailers has to do with the burden to implement security upgrades. Is this a user-pay situation? How does that work? Do you pass on the cost of security upgrades to the user?
Ms. Dagenais: We will require in the act that some industries handling specific highly dangerous goods have a security plan and security training. We believe that the bigger part of our venue security plan is handling the response. Most of these stakeholders already have a response because they are already players in our Emergency Response Assistance Plans program. We believe that the security plan and the security training will be a minimal cost compared to if they had to address a response, because maintaining a plan under our programs could cost millions of dollars.
Senator Fox: They were suggesting a government cost-sharing approach with industry. Is that in the works? Is that a possibility?
Ms. Dagenais: We have not worked toward that yet.
Mr. Baird: That is delicate. She could be in politics.
Mr. Jean: I have met with the group on several occasions, and I have done investigations since in relation to what is going on in the United States, which has a different approach but a similar system. I have seen them use a tax credit approach and I was going to make a recommendation based on that and on discussions with them, if it becomes necessary.
Senator Zimmer: It is always nice to see you, minister, and welcome to your comrades.
I want to touch on a question that Senator Mercer raised, but I will ask the last part. He mentioned security clearance and dangerous goods. If an employee working with dangerous goods for the past 15 years fails a security clearance test, what consequences might happen to him or her?
Mr. Baird: Not insignificant.
Mr. Coyles: At the moment, with the security clearance program we are looking at dealing with the issue at the border. There is the SAFETEA-LU legislation in the United States so that a person who is transporting dangerous goods in a certain quantity needs to have a background check that is similar to what is required under the USA Patriot Act and the Safe Accountable Flexible Efficient Transportation Equity Act.
We are looking at focusing the regulations to deal with that particular notion. There has been testimony by colleagues and by the minister to look at bringing back the requirement of that security clearance. Right now, how that problem is solved is through the FAST program, the Free and Secure Trade program, which basically means an individual that transports dangerous goods or wants to transport dangerous goods by truck into the United States needs to come to Canada Border Services Agency, apply for a FAST card, have a security check done in Canada and then be referred to the United States. They do a security check, and then decide whether that individual is acceptable.
We are looking at bringing that requirement back to Canada, so that individuals who apply Canada can appeal in Canada. If they do not like the answer they have received from Transport Canada or the RCMP or CSIS, they have the right of appeal through the courts. That would give that individual an opportunity to try to clarify why, or understand better or bring back more information that might enable a clarification of why that individual has not been received or been granted a security clearance.
That is the intent of where we are headed. You are right that the enabling authority is larger. The notion here is that we want the larger authority because of the rapid change that people have talked about. There could be reasons in the future that we would need to expand that requirement through regulation to look at other workers. If that was the case, we would fully consult with all the players so they understand what it is we are trying to do and who is to be targeted.
Really what we are looking at doing now is if any regulations come forward for security clearances, they will be along the lines of security clearances for the truckers going across the American borders.
As you probably have read in the bill, that is the only provision that does not come into force immediately with the bill. The reason is that a lot of work is being done behind the scenes with our American and Mexican colleagues to ensure that we have an understanding of what that security clearance means in Canada, and what a security clearance means in the United States and in Mexico, so that the individual who receives the Canadian security clearance will then have access to that North American market without being challenged.
Mr. Baird: Your question is not unique to the transportation of dangerous goods or going over the American border. For example, we made two announcements this week with respect to safety at airports. When we do security checks, issues arise regularly. I will tell you, less than 50 per cent, is that a barrier to their being granted a security clearance. There is the capacity to seek redress from an independent body, the federal court.
Thus far, I am told we are batting 100 in terms of being able to justify it. I think that is an important assessment. It is fair that if there are objections and problems they be dealt with. At the same time, that power must be used wisely and cautiously.
Senator Zimmer: Also, the chair raised the issue about the Emergency Response Assistance Plans. In addition to that, can you tell me some of the concerns with those plans and how are they being dealt with in this amendment?
Ms. Dagenais: The industry has not shown any concern about the plans. They are already in place. They are keeping them in place. They have to have these plans in place when they transport dangerous goods, but it is only for a certain type of dangerous goods and for large quantities. These companies have always participated and they keep up their plans. They are fully aware that these are the requirements necessary to transport dangerous goods and they abide by them. We have not heard any concern.
Mr. Jean: We never heard any evidence with respect to this being an issue at all — at least, not to my recollection at any meeting I was at, which was all of them.
Senator Zimmer: The majority of amendments proposed deal with new safety requirements and amendments. Can you tell me what prompted these amendments?
Ms. Dagenais: Yes. Most of these amendments were prompted by a court decision. Transport Canada actually won these cases in the higher courts, but we wanted to ensure there were no problems.
For example, in the application of the act, there is a certain wording in section 3 of the act that could be questioned as to whether the transportation of dangerous goods applies to transport within a province. It is criminal law, and the Federal Court of Appeal has indicated that it is applicable to every transport of dangerous goods; but we wanted to ensure we would not be caught in a legal battle again. These are little imperfections that we are trying to correct to ensure Canadians are kept safe while dangerous goods are being transported.
Senator Zimmer: I want to pass on a bouquet to the minister. I was in Vancouver this weekend and I am raising funds for the Paralympics. I met with Terry Wright, the executive vice-president, whom I first met in 1999 on the Pan American Games. He wanted me to thank you for the support and the cooperation of your department for the Olympic Games. They say they are on time and hopefully on budget, but he wanted to say thank you to you, so I pass that along.
Mr. Baird: Thank you very much, senator.
Senator Wallace: It seems, as you pointed out, that the act has been focused on safety. Unfortunately, now we have to deal with the realities that we see around us, and security is a major issue.
You pointed out in your comments that the bill would introduce two new instruments that would help regulate or deal with security issues; those are security measures and interim orders. Could you or one of the witnesses expand upon that a bit and perhaps tell us why those are necessary and what each of them would involve? What circumstances would they be used in, and how would that be helpful to what we are trying to achieve with this bill?
Mr. Coyles: Basically, if you want to use a security measure or an interim order, you must already have the associated regulatory power as defined by the act. You cannot do a security measure or an interim order for something that you do not already have the authority for.
These two authorities have already been put in legislation under the Public Safety Act. They are basically verbatim of what the Public Safety Act brought forward in 2004, if my recollection is correct. They are exactly identical with one difference: the security measure is kept secret from the public in the notion that if you reveal the measure you were taking to protect the public, you would therefore inform the individual who wants to do you harm of what you are intending to do to counter the intelligence you have on this particular individual's attack; whereas the interim order is something that you want to take for security immediate action, emergency regulation, but it is published and made public through Canada Gazette within the 23-day time period after Governor-in-Council approval.
For example, perhaps during the Olympics the RCMP will wish to have a time-of-day restriction imposed upon the movement of dangerous goods on the Sea-to-Sky Highway. An interim order could be used then to limit the movement of dangerous goods on that day between certain hours. That would be an interim order, and it would be made public.
Perhaps intelligence is led that says a particular rail company has been targeted, and we might wish to take some action to mitigate that motion. We would use a security measure to say tell the company it needs to take these actions at this time, looking for this type of equipment, looking for this type of thing at this particular point of entry. These are preventive measures you do not want the individual trying to perpetrate the crime to know. You do not want him to know that you are already aware of what he is planning to do, or what the organization is planning to do, and you do not want him to know what your mitigating measure is.
Senator Wallace: They are measures that reflect reality. They reflect what could be anticipated, what we all hope will not be necessary but could be anticipated, and it is simply a matter of having a response plan that is theoretical and works on paper. However, in reality it may not be successful when it is actually implemented.
Mr. Coyles: These two measures are preventive in nature. You are trying to use these in advance or you are trying to use them to change following an incident, where we are saying we will change the nature of the movement of dangerous goods.
An example on the air side would be the gels. Everyone remembers back a few years ago the notion of the use of liquids and gels on aircraft coming from Britain. An interim order would have been used that everyone is aware of every time they go through screening at airports now. That is an interim order. You are using that to change past behaviour and influence immediately something that would enhance public safety for others.
The response capability comes through the Emergency Response Assistance Plans and utilizing those to respond to an incident that has happened.
Senator Wallace: I notice, in considering the Emergency Response Assistance Plans, that there seems to be a change in the concept of importer. The act recognizes that there may be a shortcoming in identifying who is actually responsible. It is great to have a proper plan and equipment, but the key issue is who is responsible for responding to an incident.
As I understand it, that change in the concept of importer is to deal with that. Maybe you could tell us more about that.
Mr. Coyles: The concept of importer is to deal with the changing economy. Obviously, the movement of dangerous goods within this country is not an issue, but Canada is moving towards gateways and using Vancouver or Halifax or other gateways as an opportunity to move goods to foreign markets. The Asian market is growing exponentially in dangerous goods. Shipments of dangerous goods are transiting the country. Perhaps they are arriving into the Port of Vancouver or the Port of Halifax or another port and are looking at moving immediately to a destination into the United States. This is good business for Canadians; however, we want to ensure that we can identify the person when that shipment is headed to the United States, and when it is transported in Canada we have a person in Canada who is responsible for that movement.
Likewise, there are movements between the United States and Alaska that transit through Alberta. We want to ensure that we know the person in Canada who is responsible for that movement as it transits through the country. The notion of the change of importer is to capture those individuals.
Mr. Jean: To return to your previous point, senator, I heard from several individuals, as did the committee, regarding the security and the interim orders. This was absolutely necessary for the Olympics or other, similar events to thwart any type of threat or to use CSIS, as they best are providing information on any threat coming in. It was absolutely essential for the Olympics in relation to these orders.
Senator Wallace: It seems obvious from all of the comments that have been made that the timeliness of having these changes brought into law is critical, not only for the Olympics but also for our trade relations with the United States. Is that correct?
Mr. Jean: I would suggest that is exactly the point we continue to hear even from the unions, including the teamsters.
Mr. Baird: Agility and responsiveness to new realities is also tremendously important in both safety and security. In the situation of a plane accident, there is the requirement to take action immediately and not spend an undo amount of time on process. The same thing was the case with 9/11 and the issues with aerosols or gels.
Senator Adams: I will start off with a question on the fines. I remember I worked on the first bill a little over 13 years ago. We travelled to communities across Canada and met with the truckers and the farmers.
Now we see here there is a fine of up to $50,000 or $100,000. Is that per individual or the company?
Mr. Baird: It would be the company.
Senator Adams: Sometimes people travel down south to buy ammunition if the stores in the community run out. As long as you limit it to one bag, maybe 20 pieces of ammunition or so, you are allowed to carry it in your luggage; is that true?
Ms. Dagenais: There are some limited or small quantities exemptions in the regulations that would allow the transportation of certain types of dangerous goods.
Senator Adams: With security sometimes I have to put my luggage through and I am asked if I have any ammunition. I say no because I do not usually bring anything.
Articles relating to engines are sometimes called dangerous goods, as well as Coleman stoves and similar items that are purchased down south. If it uses gas or naphtha, the Department of Transport says it is a dangerous good. One time in Winnipeg I bought an ice auger. It was still in the case. They said it was a dangerous good. I told them it was still sealed and no oil or anything had been applied to it, and they still considered it a dangerous good.
My brother bought a brand new ice auger from a company in Chicago and shipped it up to Rankin Inlet. The person in the department said it was a dangerous good and he had to pay $35 extra for importing a dangerous good.
In construction, with the shipping of materials such as dynamite, acetylene or similar substances, will the Department of Transport be checking these goods when companies are purchasing them? How will that work?
Mr. Coyles: There are many questions there. I will try to remember some of them.
Obviously there are exemptions for the transport of dangerous goods depending on quantity. Those would apply to individuals. Some things you are talking about may not fall inside our domain. Some of them may fall under the Explosives Act, which is under the purview of Natural Resources Canada. You may have to talk to them to get a better explanation than I can provide you.
We deal with the transportation of dangerous goods. We do not deal with all the aspects you are talking about. We deal with importation, handling, offing for transport and transport.
Some people say that adds additional cost, but there are reasons for that. The decisions for regulations are based on risk. There are many examples of small things causing great damage. For example, batteries have brought down ships. Certain liquids and gels that are corrosive have damaged planes and almost caused fires. When we look at isolated cases, we may ask, ``Why me; why this,'' but we must understand what those dangerous goods can do to a plane.
Public safety is what we are ensuring. We want to ensure that you get to your destination safely and on time.
I do not think I have answered all your questions.
Senator Adams: Not all of them. We know that airlines are not allowed to carry batteries or anything with acid on it. I am concerned about someone carrying dynamite to the Arctic for building roads, for example. Do you have anything that deals with shippers travelling to the Arctic?
Mr. Jean: I understand where you are coming from. Transportation of firearms and ammunition is more to the point of your question. Most of that is left up to the airlines in relation to smaller quantities. This would deal primarily with larger quantities. Dangerous items that are transported in Canadian waters would be covered.
Airlines do charge more for ammunition and firearms because there is another process involved with transporting that in their own system. Of course you have to declare it at the airport and make all necessary changes.
Does that answer your question?
Senator Adams: You did not answer my question about dynamite.
Mr. Jean: You have to be licensed to carry these things, but dynamite requires special care and training. It is used a lot in Fort McMurray, and carriers have to be licensed to carry it.
Senator Adams: A ship carrying tonnes of dynamite caught on fire. Fortunately, the fire went out. Imagine what would have happened if the fire had got into the dynamite.
Senator Eyton: Thank you for your presentation. The act clearly serves a good purpose, and it has been very well considered.
I have a number of questions. The first is on the division of responsibility between the federal government, the provinces and the territories, because you went through it quickly. I would have guessed that the federal government has responsibility for the borders, for ports and for intra-provincial shipping, and that the provinces would have responsibility for interprovincial shipping.
You have made an arrangement with them that is different than that. Can you explain it so I can understand it?
Ms. Dagenais: As I explained, the act is criminal law and applies across Canada to all modes. The ministers of each province and territory have signed agreements with the Minister of Transport to share the enforcement and the inspectors. The provincial inspectors do highways and the federal inspectors do the rest, the modes and the shippers and producing facilities.
Senator Eyton: It seems to me the existing act has a more general approach; it would be surveillance and standards, and it would be reactive. This is much more active legislation. There are many new things. The amendments bring about new activity and new responsibility. You may have been doing it in a general way, but this is quite precise.
The summary at the beginning of the bill talks about requirements for security plans and security training. That would be brand new. I see a requirement that prescribed persons must hold transportation security clearances to transport dangerous goods, and the establishment of regulatory authority in relation to appeals and reviews of any decision in respect of those clearances. That is all new, except the last bit, which may be partly in place now.
The use of industry Emergency Response Assistance Plans approved by Transport Canada to respond to an actual or apprehended release of dangerous goods during their transportation would be new.
Next, the establishment of regulatory authority to require that dangerous goods be tracked during transport or reported if lost or stolen would be new.
You have 80 permanent guys and something like 200 non-permanent staff who are trying to administer this act. Your answers are very reassuring. You know the act thoroughly, you understand it, and you know where you want to go. However, I cannot imagine, with those new responsibilities and its broader purview, that the 80 and the 200, or anything like that, would be able to manage this act and its implementation.
Mr. Jean: In addition, there are also approximately 75 full-time persons with the provinces and territories and another 5,000 personnel with secondary functions. It is in cooperation with both provincial and territorial governments. It is a good example of our partnerships with the provinces and territories working together with them.
Senator Eyton: That work force is there for what is here today. Now we have new stuff. Will you just make them work harder? How will you get it done? It must be a greater challenge than you have intimated.
I have a little background with one particular problem. I am involved with a lead mining operation in Australia. The lead in a certain concentrate or strength was not toxic, and then someone reviewed it and enforced it as a toxic substance. As a result, the mine and the mill had to close down for about 18 months. The cost to the company was something like $150 million. We got involved in the regulation, labeling and new containers. Now it is shipped to China in double-sealed bags in sealed containers. It was very complicated.
I worry that the implementation of this bill, particularly since it is new, will impact more severely than all of us think, that it will not be as efficient, timely or quick as you might hope, particularly at borders. There is a hidden cost to all of that.
I know you have talked to many people and I guess you got reassurance. I would take reassurance from the shippers, because they have equipment that has to get in and out, and from the manufacturers on both the exporting and the receiving end. However, I worry about all the other intermediaries, because there is no cost to them. They work extra hours and get double time or something.
You have talked to all of those constituents and they have reassured you that they are ready for this and they believe it can be efficient?
Mr. Baird: There is no doubt there will be costs. There is a cost to safety; there is a cost to security for the market participants in the sector. We cannot pretend otherwise.
There will be challenges. I can sum up what you said in large measure by expression, ``The devil will be in the details,'' and we will have to get the detailed regulations right.
I am comfortable and satisfied that the department has a sufficiently constructive relationship with industry and the provinces. Senator Mercer and others have talked about other stakeholders, like union members, to work in the sector, and other interested parties being involved, and it will not be easy; it will be a challenge. I am comfortable that the officials are up to the challenge.
I have to say that, in everything we do, there is also a cost of not acting. I grew up in Ontario. I look back to that disaster in Mississauga where 230,000 people were forced to evacuate their homes. When I was Minister of the Environment, I visited Burrard Inlet when there was an oil pipeline rupture and saw the huge cost to the municipality and to private landowners. There is a cost to not doing it.
Our challenge is how to make the regulations as easy and straightforward as possible so that people can focus on doing their business safely rather than on regulatory regimes. Government often does not get it right.
Senator Eyton: It is reassuring to hear that the people in the process who are paying the bills support what you are doing.
Ms. Dagenais: When we are talking about the amendments to the act, we are talking about security. The safety program is already in place. One of the most expensive components of the program is the Emergency Response Assistance Plans program, which will be used with the security. When we are talking about responding to security incidents, we are using the plans already in existence. There is no additional cost to the industry.
The new security components are security planning and training. In a security plan, the most expensive or costly part of the plan is the response plan, but it is already there. The act covers the transportation of dangerous goods, so we are limited in our scope. We want to target the most dangerous goods transported in larger quantities, so now we are talking about limited stakeholders, too.
We would develop performance-based regulations. The plan would look a bit like what the United Nations does, so the plan says, ``Do you have a process if your dangerous goods get stolen? Do you have a process if your trucker needs to go get a coffee somewhere?'' If those processes are in place, it will kind of satisfy the regulatory process. It will be limited in scope. Our inspectors will not have double or triple duties pertaining to these requirements.
Mr. Jean: I want to reassure you that the department has technical advisers on duty 24 hours a day, seven days a week, 52 weeks a year in relation to responses or questions that arise as a result of any incidents that might take place. There are resources to take care of that 24-hours-a-day, 365-days-a-year scenario.
Senator Eyton: These are new standards for us. You have looked at them and, of course, the act in a previous form has been around for a while, so we should be getting close to perfect, although the minister says nothing legislative is perfect.
Would these standards be pretty common? For example, would somebody shipping from Dallas, Singapore or the U.K. be familiar with your general approach and be comfortable filling out the forms and proceeding as you have outlined?
Ms. Dagenais: We are the Canadian representative at the UN. There is a dangerous goods committee at the UN. The United States and all countries are following the UN model. That is what we are doing. The shipping names, the placards, et cetera. We are all basically doing the same thing.
Mr. Jean: The department is being humble in relation to its own assessment. After speaking with the department and experts, my understanding is that Canada is actually a world leader in information published, particularly booklets, on this particular subject.
Senator Cochrane: My first question is a supplementary from Senator Zimmer.
Do you have a time frame for the implementation of the program for security clearance personnel?
Ms. Dagenais: Right now, security clearance is in a section that will not come into effect with the act. It is based on what we can agree with the United States and, depending on how we develop a policy, we will put certain things in place. However, we do not have a timeline. It is based on what we can agree on.
Senator Cochrane: How long do you think that will be?
Mr. Coyles: As quickly as we possibly can.
Mr. Baird: It could be 6 to 24 months, at least. We are still feeling out the new administration on these issues.
Senator Cochrane: I realize we need more inspectors for the Vancouver Olympics, but my other concern is with shipping, and not just shipping in Vancouver, Montreal and Halifax, which are the larger ports. There are other ports, as well, that have other ships coming in from all over the world.
Does the department have enough inspectors to ensure that safety is not compromised? Even within the smaller ports, you know things can happen in those ships. Security is important. Do we have enough inspectors, particularly within the small ports?
Mr. Coyles: We have the resources we have. We do that based on risk, and we prioritize the sites that need to be visited. We go out and visit those sites. All I can say is that we stand on our record. When you look at the millions of shipments — over 30 million shipments of dangerous goods happen on a yearly basis in this country — you will not often see on the news there has been an incident involving dangerous goods. The percentage of incidents involving dangerous goods is reflective of the strength of the program.
Mr. Baird: With issues of security, I believe we can always do more, whether it is security at airports, cargo or ports. New technologies, new risk assessments and best practices always need to be updated. It has my attention.
Around the world, you see big differences on the port side. Technology used in Hong Kong is leading edge, but then mandates did not follow that leading edge. Maybe Senator Kenny and I will visit a port to learn about marine safety, but I think it is a work-in-progress. We still have work to do.
We have to continuously use technology, identify best practices and always re-evaluate what the risks are.
Senator Cochrane: I am glad to hear you say that minister. That is great.
Senator Mercer: Just before we finish, I wanted to review the amendment that I am proposing, which is simply amending the bill to add the ``Standing Senate Committee on Transport and Communications may review any regulation made under the act, either on its own initiative,'' et cetera, with the proper legal wording, which is similar to the provision for the house.
I inquired of your office, and officials said this would not be a problem from your perspective.
Mr. Baird: I think it is a reasonable amendment. We would not have a problem with it.
I had long and protracted negotiations with a number of senators with respect to the Federal Accountability Act and they were very positive in the end. I think a reasonable balance was struck. I was able to shake Senator Day's hand and he honoured his word, which I appreciate.
Obviously, any sway you could have with your friends in the other place to agree to expeditious consideration of the amendment would be greatly appreciated.
Senator Mercer: You have my commitment that I will do that. I will speak to my colleagues in the other place.
Mr. Baird: This is an important piece of legislation that we would like to see passed as expeditiously as possible, given that it was introduced in the previous Parliament and with the Olympics coming up. That is just a general comment. However, if there are reasonable amendments that the Senate proposes, expeditious consideration in the other place is always welcome and will probably be a good confidence-builder for the future.
Mr. Jean: In relation to the cooperation during this particular piece of legislation, the part referring to the standing committee in the house was actually brought forward by the teamsters, adopted by us and proposed by the Liberals — just to show you the cooperation of all parties and stakeholders around this legislation.
Mr. Baird: From my experience in the last five or six months, the House of Commons Standing Committee on Transport, Infrastructure and Communities is a working, functioning committee that does good work, with maybe one exception.
The Chair: Same here.
Mr. Baird: I am learning that here today. That does serve Canadians. I would say there is maybe one exception in the house committee, but generally speaking, it is a pretty effective committee and Canadians are well served by that, as they are here.
The Chair: You should read some of our reports.
Thank you very much. We do appreciate your being here tonight. We thank you very much, Mr. Jean, Ms. Dagenais and Mr. Coyles. You have been very helpful.
Is it agreed that the committee proceed to clause-by-clause consideration of Bill C-9, An Act to amend the Transportation of Dangerous Goods Act, 1992?
Hon. Senators: Agreed.
The Chair: Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Would there be leave to group several clauses together for the purpose of clause-by-clause consideration of Bill C-9?
Hon. Senators: Agreed.
The Chair: Shall clauses 1 through 28 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 29 carry?
Senator Mercer: I circulated to all of you an amendment that I proposed that Bill C-9 be amended in clause 29 on page 26 by adding, after line 36, the following:
``(4) The Standing Senate Committee on Transport and Communications or, if there is not a Standing Senate Committee on Transport and Communications, the appropriate committee of the Senate may review any regulations made under this Act, either on its own initiative or on receiving a written complaint regarding a specific safety concern. The Committee may hold public hearings and may table its report on its review in the Senate.''
The Chair: Do you want to debate?
Senator Eyton: I see subsection (3) dealing with the House of Commons. Where is yours?
Senator Mercer: Right at the end of that.
Senator Eyton: You cannot combine the two, right?
Senator Mercer: No, you have to make it subsection (4). The house is (3); this would be (4) that would follow that, which is a normal process when we have these. These things get drafted and people forget to add to it. The House of Commons added this subsection, as Mr. Jean mentioned, and they did not take the opportunity to add the Senate at the same time.
Senator Zimmer: Could we add the House of Commons and the Senate rather than repeating the subsection completely?
The Chair: I guess we have to repeat it.
Senator Wallace: We heard the minister is comfortable with what was proposed. Why not keep it simple and press on?
Senator Mercer: We shared this with them.
The Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment?
Hon. Senators: Agreed.
The Chair: The amendment is carried. Shall clause 29 be adopted, as amended?
Hon. Senators: Agreed.
The Chair: Would there be leave to group again several clauses together for the purpose of clause-by-clause consideration?
Hon. Senators: Agreed.
The Chair: Shall clauses 30 through 37 carry?
Hon. Senators: Agreed.
The Chair: Shall the title carry?
Hon. Senators: Agreed.
The Chair: Does the committee wish to consider appending observations? No, we do not need any observations; I guess the amendment would be enough.
Is it agreed that I report this bill, as amended, to the Senate?
Hon. Senators: Agreed.
The Chair: The committee is adjourned until next Tuesday.
(The committee adjourned.)