Proceedings of the Standing Senate Committee on
Transport and Communications
Issue No. 53 - Evidence - May 8, 2019
OTTAWA, Wednesday, May 8, 2019
The Standing Senate Committee on Transport and Communications, to which was referred Bill C-48, An Act respecting the regulation of vessels that transport crude oil or persistent oil to or from ports or marine installations located along British Columbia’s north coast, met this day at 6:48 p.m. to give consideration to the bill; and, in camera, for the consideration of a draft agenda (future business).
Senator David Tkachuk (Chair) in the chair.
[English]
The Chair: Today we are continuing our study of Bill C-48, An Act respecting the regulation of vessels that transport crude oil or persistent oil to or from ports or marine installations located along British Columbia’s north coast (Oil Tanker Moratorium Act).
For our meeting this evening we are pleased to welcome from the Atlantic Pilotage Authority, Mr. Sean Griffiths, Chief Executive Officer, who got a little practice testifying in front of the House of Commons committee.
As an individual, by video conference, Mr. Ted McDorman, Professor, Faculty of Law, from the University of Victoria. Thank you for participating.
Sean Griffiths, Chief Executive Officer, Atlantic Pilotage Authority: Thank you, chair. Thank you, senators. I appreciate the invitation to be here this evening. I would like to explain who we are and provide some background about tanker movements on the East Coast of Canada.
As an intoduction, the APA employs about 106 employees, which includes about 50 employee pilots that provide services to the busiest pilotage areas. However, APA also has 11 pilots who are entrepreneurs who contract with the authority for pilotage services in areas that have small volumes of traffic.
APA conducts more than 8,300 assignments annually. Our primary shipping interests include: petroleum products, containers, bulk and break-bulk cargoes, general cargoes, roll-on roll-off cargoes, a lot of car carriers come to our East Coast and cruise ships.
We handle crude oil tankers carrying approximately 2.3 million barrels of oil, container ships over 330 metres in length, and cruise ships with nearly 5,000 passengers on them, and that’s climbing. We are the ports of refuge for vessels on the North Atlantic and vessels seeking refuge from severe weather.
Our region’s proximity to the cold Labrador Current and the warm Gulf Stream means we experience some of the most severe weather in Canada and the longest periods of reduced visibility.
Starting with Newfoundland and Labrador, the economy is heavily dependent upon its offshore oil and gas industry, producing over 84 million barrels alone in 2018 and nearly 15,000 indirect jobs for the province. The transshipment terminal and oil refinery in Placentia Bay represent 81 per cent of the tanker traffic in the province.
Over the past five years, the authority’s group of talented pilots moved tankers safely and efficiently in and out of Newfoundland ports more than 6,050 times.
Turning to New Brunswick, the Port of Saint John is home to the largest oil refinery in the country. Opened in 1960, the refinery produces over 320,000 barrels of refined products per day, of which nearly half is exported to the Northeast United States.
Large crude oil carriers import the oil into the refinery through an offshore loading buoy, then refined products such as diesel, gasoline and kerosene are exported from the terminal in smaller product tankers.
There have been over 5,200 tanker movements conducted by highly skilled pilots in and out of the region over the past five years.
In Nova Scotia, Halifax is the authority’s busiest port by far, although most of the activity is driven by containers, general cargo ships and cruise traffic, there is also significant tanker traffic in the port with over 1,700 movements in the past five-year period.
In the Strait of Canso, Point Tupper, Nova Scotia, has the deepest independent ice-free marine terminal in Atlantic North America. The storage facility has a capacity to hold nearly 7.5 million barrels of various types of petroleum products in 37 separate tanks. The cargo is moved in and out of the terminal by experienced APA-licenced pilots all year long and in all types of environmental conditions. There were over 1,500 tanker movements in that port in the past five years as well.
In conclusion, the authority and its pilots play a vital role in the safe and efficient shipping of all cargo, including all types of petroleum products. Being present in the region with strong relationships with our stakeholders are key success factors of the APA that are helping our ports and customers achieve their objectives.
As a final note, over the past 10 years, there have been over 86,000 vessel movements in Atlantic Canada, and 32,000 of them have been tankers, which are moved 99.97 per cent of the time without incident.
Honourable senators, in the handout I have included a snapshot of 10 years of tanker movements in Atlantic Canada, broken down by port and by year. The last page of the handout is the geographical reference of all of the ports and our traffic in those ports.
That’s it for my presentation. I’m open to taking questions, senators, if you wish.
The Chair: Thank you very much, Mr. Griffiths. Mr. McDorman.
Ted McDorman, Professor, Faculty of Law, University of Victoria, as an individual: Good evening from the West Coast. My name is Ted McDorman. I’m a professor at the University of Victoria. I have been in the area of the law of the sea off and on for about 40 years. I write a fair bit of stuff.
I have no strong view on the legislation directly. I was asked by the deputy chair if I would be available for questions, and I am available for questions today from anyone on the committee.
I was also asked to do a little bit of a slight overview. My area of expertise, when it gets down to it, tends to be Canada-U.S. ocean relations. That plays a somewhat important role in the area of the Dixon Entrance to the Hecate Strait. That is in the northern part of the British Columbia area offshore.
I do want to take two minutes to try to explain a little bit about the international law — that’s my expertise — scenario around those waters.
The waters I’m talking about, as I said, are the waters from Haida Gwaii that go towards British Columbia, so that inner waterway of the Hecate Strait-Dixon Entrance and the Queen Charlotte Sound area, which you will all be familiar with.
Those waters are claimed by Canada as being historic internal waters. In international law, that has a very particular meaning.
There is no question that those waters are Canadian waters. That is not really the issue. The issue is how much jurisdiction does Canada have in those waters, particularly as regards navigational traffic, in other words, shipping?
Canada’s historic internal waters claim for those waters is contested, or at least has been contested in the past by the United States. The U.S. view of these waters, while it’s a little vague, is that whatever they are, they are not Canada’s historic internal waters.
You are thinking, what does this mean, perhaps? The idea of internal waters of a country is waters over which you have absolute jurisdiction, and internal waters include, of course, harbours like Victoria Harbour. There is no question that those waters are under the total control of the Government of Canada and the state of Canada in terms of the entry, the exit, et cetera, to do with that waterway.
The Canadian claim is that the waters of the Hecate Strait, Queen Charlotte Sound and Dixon Entrance are of a similar type and nature of internal waters. The U.S. perception, perspective and view is that those waters, particularly Dixon Entrance, are not historic internal waters and, therefore, there is freedom of navigation for U.S. and other vessels through those waters.
The legislation that is before you that I have looked at indicates that its application is primarily to the ports. In other words, what it is prohibiting is the tanker traffic not within the waterway itself but from entering and leaving the ports that are designated in that area. As a matter of international law, it would be completely within the jurisdiction of Canada to do, without complaint by any other country.
Now, it is unusual, but it happens, that ports are closed to traffic. As a matter of commercial reality and good neighbourliness, you usually keep your ports open, but a country does have the capacity, as a matter of international law, to close ports to any and all vessels. As I understand it, that is what this bill would do. It closes the ports. It does not affect traffic in the waterway per se.
With that as an introduction, I would be happy to answer any questions, or if I have been so clear, concise and brilliant, I’ll go back out into the sunshine here in Victoria.
The Chair: Mr. McDorman, would the ports not be the safest place for an oil tanker to be?
Mr. McDorman: Yes, I would assume that. I’m not an oil tanker aficionado. I think that would be better answered by your pilotage person from the East Coast, but yes, if you are in a port, that’s a safer place to be in terms of weather and navigational issues.
In terms of oil spills, probably it’s a little different because the oil is going in and out of the vessel, and there have been and known to be oil spills of that type in-harbour, more to do with loading and unloading.
Mr. Griffiths: It’s not always the case. A ship is not always safest in a port. There are often times in Placentia Bay where the pilots, in conjunction with Transport Canada and the terminal operators, look at a particular forecast and determine the best place for those tankers is not in the port at all, and we agree to send them all out before the weather gets too bad.
Sometimes they are better offshore weathering out the storm instead of being in a port where they are likely to drag anchor and end up on the rocks.
So it depends. In some cases you are right, it is better to be in a port, but we have the absolute opposite of that in Atlantic Canada at times, especially in Placentia Bay.
The Chair: But you get them out of the port when you think that the weather is going to be problematic?
Mr. Griffiths: We look at the forecast, and we have private forecasting as well. We speak to everyone in the local area, and we come up with a decision together. We have a cut-off of time where if you are not going to go past 5 p.m., you are not going to get a pilot past that because of bad weather.
Senator Miville-Dechêne: My question is for Mr. McDorman. I’m the one who asked you to be with us. Thank you for accepting the invitation.
I would like you to tell us a little bit about vessel traffic zones. We have talked about that. Why I’m interested in that is there has been talk on this committee of a corridor in the sense that some have said could it be possible, even though there is a moratorium, to have a corridor where tankers could be concentrated and that would pass through Dixon Entrance?
I would like you to tell us in terms of international law what it means. Can it be done? Are corridors mandatory or are they more respected or not respected? How does it impact on what you are telling us about the fact that the U.S. has some claims on the Dixon Entrance.
Mr. McDorman: Vessel traffic management, again on the practicality of vessel traffic management I would defer to my Atlantic colleague.
On the international law side of vessel traffic management, through the International Maritime Organization there is the opportunity for states to develop vessel traffic management systems, traffic separation schemes. Think of them as a highway with vessels going in on one side and going out on the other side to avoid a collision if at all possible. A good example in Canada-U.S. relations is the Juan de Fuca Strait where there is a vessel traffic management system, traffic separation schemes, that allow vessels to go in. Even vessels going to Vancouver, they come in on the U.S. side and they go out on the Canadian side and vice versa. Vessels from the U.S. come in on the U.S. side and go out the Canadian side.
So there is the opportunity to have international law, if you want to call it that, international law to sanction or create or establish those kinds of vessel traffic management systems that are then notified to all countries and to all ships. There is a very high compliance with this because it is just plain safe and sensible.
The issue in the Dixon Entrance, however, is that there is a dispute between Canada and the United States, not just what the waters are but who owns those waters. There is no question in the Hecate Strait and in Queen Charlotte Sound, in that area there is no dispute that they are Canadian. But when you get into the Dixon Entrance, there is the dispute between Canada and the United States, overlapping claim dispute, whether the area in question of the Dixon Entrance is Canadian or American. The Canadian view is that a large part of the Dixon Entrance is, in fact, Canadian; and the American view is that there is an equidistance line there. So I cannot tell you, I cannot point in the Dixon Entrance as to who owns what. Therefore, if you have an overlapping claim like that, it makes a vessel traffic system somewhat difficult. It’s not to say that you could not get the arrangement with the United States, but it would have to be very carefully worded so that it was not taking into account the boundary.
There is a boundary in the Juan de Fuca Strait between Canada and the United States. So that makes that area fairly reasonable. You know where everybody is. To get a vessel traffic management system for the Dixon Entrance, which I think is quite possible, but you would have to have some good fancy lawyers to sort out who is doing what to whom. Sorry, that’s obscure and not very technical language. You have to be careful of the sensitivity over the maritime boundary. Possible to do, yes. Whether the countries are willing to invest the time and the effort in that — Dixon Entrance does have traffic. There is not a vessel traffic system, but there is a common sense system I would say in that area already.
Now, most of the traffic is not turning south. Most of the traffic is turning north, and you are talking about U.S. naval vessels mostly. I’m not aware of commercial traffic of any size that goes through there, and of course fishing vessels which have an amazing tendency to disregard everything are also in that area. You’re smiling, so I hope that kind of answers the question.
Senator Miville-Dechêne: It does. Thank you.
Mr. Griffiths: The corridor idea doesn’t really exist out East. It’s multiple regulatory traffic separation schemes or voluntary traffic separation schemes, either of which are done by local radio operators and MCTS officers that coordinate and regulate that traffic flow.
Senator Manning: Thank you to our witnesses. Good to see you, Mr. Griffiths. I just want to touch on the tanker traffic in Placentia Bay in Newfoundland and Labrador, which you and I are quite familiar with.
Placentia Bay is the largest bay in Newfoundland, average of 200 days of fog per year, home to the second-largest bird colony in North America, largest number of fishing vessels that operate in the same bay. We have the Marine Atlantic passenger ferry that goes back and forth. We have 365 islands in Placentia Bay that you need to navigate around.
I’m wondering about how the pilotage association works with all these local groups and organizations to ensure safety is number one and the flow of traffic is backboard and without any incidents. Maybe touch on the process of how we do that in relation to the bill, which is kind of saying that we can’t do it on the other side. When you look at the amount of traffic that is on the West Coast in regard to all kinds of traffic versus how much is on the East Coast and the amount of activity.
Mr. Griffiths: Thanks, senator, I appreciate the question. It’s a good one. It’s a good example to be followed. Mr. Gregoire, who commissioned the pilotage traffic review two years ago often spoke about a committee that’s set up in Placentia Bay as sort of a benchmark or a way forward, and it’s based on collaboration, on relationships and open communication. That committee was established between pilots, Transport Canada, the fish harvesters of Newfoundland, the oil terminals, the transshipment terminal, tug operators. Everyone that does business in Placentia Bay, we get together either three or four times a year and discuss things like a voluntary speed reduction which kicks into effect when crab season starts.
It’s not a regulation anywhere, but even Marine Atlantic abides by it, they follow it. The tanker traffic comes in follows it. That’s just one of many examples where that collaboration can pay dividends on an operation that involves everybody. There are tankers coming and going in Placentia Bay and there’s also fishing vessels going, open boats, large fishing vessels coming and going, passenger ferries, tugs, cargo ships. The relationships and the collaboration in that large bay is the key to success, in my opinion. It’s a great example on how having the right people at the table frequently, talking about issues that affect everybody, is the way forward.
Senator Manning: In relation to a question that somebody mentioned earlier, in relation to the ports themselves, so the vessel travels in through all this activity. What measures are in place in the port to ensure the utmost safety in regard to loading and unloading, and what mechanisms are in place in case there was an issue?
Mr. Griffiths: Starting from the outside of the bay coming in, you have got vessel traffic management by MCTS in Placentia Bay. You have got experienced pilots on board these ships that are coming in long before they get into any congested waters. These pilots also have relationships with the local fish harvesters and the tug operators and the terminal operators. There is terminal and refinery procedures for safe operating. There is tug escort procedures for the tankers that are loaded coming in, speed restrictions that I mentioned earlier, weather criteria that has to be followed, and it goes on. There are many things that safeguard the operation of getting a ship from the outer entrance to right alongside the berth.
Senator Manning: In the Brander-Smith report of 1990, Placentia Bay was highlighted as the most possible place in Canada for an oil spill, and just all the measures have been put in place to mitigate it as much as possible. I think it’s a great example for the rest of the country to follow.
[Translation]
Senator Cormier: My question follows on from Senator Manning’s. I’m also from the East Coast, and I’m trying to understand the differences between the navigation challenges that are specific to the East Coast and the West Coast, because often opponents of the bill say that there are indeed great navigation challenges on the East Coast and that there is a good success story with respect to tanker traffic. To your knowledge, what are the differences in the challenges related to navigation between the East and West Coasts, where there is this moratorium? Are the challenges greater on the West Coast? If so, what are they?
[English]
Mr. Griffiths: Thank you for that, senator. We were asked the same question a couple of years ago by a Senate committee on transport regarding Energy East. The question at the time was: should Energy East continue further east instead of stopping in Saint John? Could it go to the Strait of Canso, where there is more access to open water, less congested. The question was asked to me: Is it safer to bring tankers into Chedabucto Bay versus the Bay of Fundy and Saint John?
My answer was that wherever we bring those tankers, it’s going to be safe. However, each area has its own independent, unique characteristics that makes it challenging, from predominant weather conditions, to the same direction of sea heights all winter long, to how it affects different ships coming in. The sediment drift and the currents in New Brunswick are completely different than anywhere else. Every area is unique.
That’s just in Atlantic Canada. I couldn’t even dream to comment on the navigational challenges in Vancouver, the B.C. coast, Prince Rupert or any of those areas, because I don’t have any local knowledge of the area. It’s just to say that we have some challenging areas in Atlantic Canada, so I have no doubt they are just as challenging on the West Coast, as well.
[Translation]
Senator Cormier: For you, the traffic challenge isn’t specifically related to the challenges of navigation, but rather to how navigation is organized?
[English]
Mr. Griffiths: No, it is tied to the challenges of the local area, not how traffic is managed. Traffic management is a risk-mitigation tool, but the predominant winds and seas, and the challenges and navigational hazards in each area differ. They’re all challenging; every one of them is challenging. It’s how we deal with them in each area.
In Placentia Bay, the traffic committee was developed there for those challenges of Placentia Bay. It’s unique to that. The spirit of that committee could work Canada-wide, but that was a response to local needs. That’s the unique thing about pilotage: It’s about local knowledge. It’s the foundation of what builds local knowledge, and it’s regional.
I can’t honestly say the navigation and berthing difficulties in Atlantic Canada would be any different than the West Coast. I couldn’t say that.
Senator Cormier: Thank you.
Senator Simons: My question is for Professor McDorman. I worry a little bit about whether we’re opening a can of worms. Right now, there is a voluntary exclusion zone that the Americans have always observed since it came into force. They take their tanker traffic down the outside of Haida Gwaii.
But from what you’re saying, if the Americans dispute our jurisdiction over the inland waterway, there is nothing legally that prevents them — say, if you had a president who was easily provoked, hypothetically — from taking a tanker along the Hecate Strait or even from docking there now if there was a storm.
Mr. McDorman: Yes.
Senator Simons: So is there any danger we run into by poking this bear? I’m not putting this question very legally, but once we start this kind of regulation, are there political and legal ramifications that we need to consider?
Mr. McDorman: You’ll understand if I defer, deflect or do something else about the political calculations. That’s not something I can comment on.
The bill, as it is, from my understanding, is tied to the ports, and it’s consistent with international law. But I think you do have to take into account the concerns — not that the U.S. would have directly with the wording of the bill, but with the overall posture. The name of the bill itself is quite interesting. The geography, when you draw it on a map or a chart, where the dotted line goes is quite interesting.
Whether that would provoke or interest the United States at any given moment, I could not possibly tell. The U.S. and Canada have had good relations on our oceans, particularly in this area in Dixon Entrance. The last time that the Dixon Entrance issue truly popped up was many years ago to do with fisheries, when it gets right down to it.
The U.S. is watchful of what their neighbours and other countries do, but I can’t predict what the U.S. would do or wouldn’t do.
Senator Simons: If we wanted to protect that inland waterway, would there be a method with — I never get the acronym right —
Mr. McDorman: PSSAs.
Senator Simons: Yes — particularly sensitive sea areas. Is there something else we could do that would be within Canadian jurisdiction and recognized by the UN International Law of the Sea that could give more substantive protection to transiting through there, so that, some day, if the voluntary exclusion zone were to be broken through, we would still have a method of protection?
Mr. McDorman: It would be difficult. Again, you’re talking about Canadian jurisdiction. Canada has its view of what jurisdiction it has, so the answer from a Canadian point of view is “Of course. We already have the jurisdiction. We can close the whole place down.” The U.S. just takes a different view when it comes to that issue.
We’re talking about a navigational right. It’s not a fishing right, a seafloor right — it’s none of that. It’s strictly navigation. The U.S., as you may know, is very sensitive about navigational issues. We witness this in the South China Sea, where they take the navigational issues very, very seriously. With Canada, they have tended to talk about navigational issues but not actually act upon them. I think Canada feels quite comfortable with that.
Getting back to the question, it’s hard to predict what the U.S. would do. You take a calculated risk, so to speak, if you put in an exclusion zone in the area between Haida Gwaii and the mainland that’s attached to tankers. Whether that risk is one around which you would have that discussion with the United States ahead of time — maybe they wouldn’t find it problematic. I don’t know. Would the U.S. counter it? It’s extremely hard to know.
The particularly sensitive sea areas is a concept that comes out of an international treaty. Again, if you negotiate, and the U.S. is willing to negotiate such a thing, they would have to be part of that discussion — or they would insist on being part of that discussion — if Canada were to propose to the International Maritime Organization a particularly sensitive sea area for that area of Hecate Strait, Queen Charlotte Sound and particularly Dixon Entrance.
Does that help at all?
Senator Simons: It does. My daughter is starting UVic law in the fall. I will tell her to take your class.
Mr. McDorman: You’re very kind.
Senator MacDonald: Captain Griffiths, it’s good to see you again.
Mr. Griffiths: You as well, sir.
Senator MacDonald: I suspect the question you referred to was one I asked a few years ago. I’m going to go back to it.
We heard some very interesting testimony out West about the use of ULCCs and VLCCs, and how the use of the ultra-large crew carriers overall reduced our carbon footprint in terms of transporting these goods.
In terms of deepwater ports — and these ultra-large crew carriers are the largest vessels in the world for carrying crew. If you were recommending them to go, what sort of port would you want ships like that to go? Would the Bay of Fundy be able to handle that size of a ship safely? Would the Gulf of St. Lawrence be able to handle it? I suspect not, but I would like to hear your response to that.
Mr. Griffiths: They would only get so far in the gulf where they would just run out of water. The Bay of Fundy can handle quite large tankers; they have in the past. It’s the same with Placentia Bay and the Strait of Canso. The reason they’re not so frequent today is because of where the refineries are buying their feedstock from. Lately, it’s been a lot of West Texas Intermediate that’s been brought up to use for blending, and that’s been transported on smaller ships — more of them, smaller ships. If the refinery were blending Saudi Arabian crude, it makes more sense — economies of scale — to get a VLCC or ULCC. We have received those in the past, just not so much lately.
So several ports in Atlantic Canada can handle those, no problem.
Senator MacDonald: You make the valid point that the smaller the ship, the more you have to transport.
Mr. Griffiths: That’s right.
Senator MacDonald: And the bigger the carbon footprint overall.
Mr. Griffiths: That’s right.
Senator MacDonald: In terms of our spill-response centres in Atlantic Canada, could you give the committee a little overview of their adequacy — if you think they should be improved and how they could be improved, or if you think they’re adequate for the type of traffic flow we have?
Mr. Griffiths: Our response in Atlantic Canada is more than adequate. Eastern Canada Response, ECRC, has locations in the Strait of Canso, Dartmouth, Placentia Bay, St. John’s, Quebec City, Sept-Iles and Montreal. Saint John has their own called Alert. They have a response capability of 10,000 tonnes for 10 days, and the other response areas across Atlantic Canada also have a combined response rate of 10,000 tonnes.
I believe that is just the bare minimum. I am sure these places have quite a bit more than that. That’s not including the petroleum board mandated requirements for offshore installations and the ships providing those installations off Newfoundland and Nova Scotia. So there’s a whole other layer of protection in there that could be used in an emergency. I believe we are well covered for emergency response in Atlantic Canada.
Senator MacDonald: Professor McDorman, thank you for being here, sir. I have a couple of questions.
You’re in the Lower Mainland. I’m from a very busy shipping port and so are you. There are a lot of ships in the Lower Mainland. I’d like to know your opinion of the efficacy of taking traffic, taking pressure out of the Lower Mainland and bleeding some of that pressure off into capable deepwater ports like Prince Rupert and that area, Port Simpson. I’d also like you to reflect on what you think of a law that would ostensibly prohibit Canadians from exporting product through their own ports to world markets, while at the same time it would enable Americans to sail through the same waterways without any restriction.
Mr. McDorman: Senator MacDonald, with the greatest of respect, your colleague wants to send her daughter to the University of Victoria law school. I had better stick to the law issues that I understand well, and I tend to be an international lawyer, not so much a domestic lawyer. With the greatest of respect, I’m going to deflect the questions. Both are either political or they are very opinionated questions.
Senator MacDonald: They are.
Mr. McDorman: And I’m happy with opinion, good Nova Scotia boy; I’ve got an opinion on everything, but I think tonight I’m going to hold my tongue.
[Translation]
Senator Galvez: My question is for Mr. Griffiths. Some of us senators recently visited the East Coast, near your area. We heard testimonies from fishers who told us a story a little different from yours. It seems that there is still some overlap in activities. Not everyone is happy about that. You said there is a lot of oil cargo traffic. We were told that Irving was receiving oil from more than 40 locations. You mentioned Texas and Saudi Arabia.
Do you think all this oil behaves in the same way during a spill? Are all the places you mentioned equipped to respond to emergencies for all types of oil that exist? Are they as effective? What percentage of oil could they collect? Is it a percentage in the order of 100 per cent, 80 per cent or 50 per cent?
[English]
Mr. Griffiths: Very good question. Thank you, senator.
There are two types of oil, of course. There’s persistent and non-persistent, and both behave quite differently when spilled in a waterway. It’s the persistent oil we have a problem with that takes quite a bit more effort and resources to clean up, both on water side and shore side when it does make landfall.
The mandated response organizations in Atlantic Canada are by Transport Canada, that’s set out in regulation of what they’re required to have and to deal with these types of oil. I think that question might be better suited for Transport Canada or the response corporations themselves. As far as I understand, they’re more than equipped to handle all the types of cargo that is shipped into and out of our ports in Atlantic Canada.
Senator Galvez: Thank you.
Senator Patterson: Thank you to the witnesses. Professor McDorman, international law is your specialty. I wondered if you could tell us whether this bill impacts international treaties that Canada is a party to, whether it is consistent with Canada’s obligations under international treaties. Maybe I’ll just mention freedom of passage, which you mentioned, and maybe I’ll also mention persistent oil. Of course, I’d like to know otherwise if the bill impacts Canada’s obligations under international treaties, if there are other things I haven’t thought of, please.
Mr. McDorman: I can answer one or two parts of it, I think. It’s my understanding under the United Nations Convention on the Law of the Sea, to which Canada is a party but the U.S. is not, but that’s neither here nor there, this bill would not create any problem in a breach or non-compliance of that treaty because in the issue of ports as a matter of the law of the sea, those are parts of internal waters. We have complete and total control. The Harbour of Victoria is the same as Waskana Lake in beautiful Regina, so it’s the same thing.
There are a handful of international treaties to which I do not think Canada is a party that actually have open port access. They tend to be quite elderly treaties. I once checked, so I hope I’m still right, that Canada was never a party to any of those treaties.
A good lawyer has one asterisk, and I have three, but I will use one for the moment. There is the World Trade Organization and there is a maritime part of the World Trade Organization. It has very soft wording, I would say. I do not think that the way in which the port legislation has been drafted would run into a problem under the World Trade Organization, but I do reserve my right to change my mind on that one.
I have had reason to look at that issue, not actually in the context of this legislation but in the past about open access of ports. I recall that I found that the World Trade Organization does not require states to have open ports. There’s some reciprocity that’s built into the treaty, so that’s the one where I’d have a slight asterisk.
I don’t know whether my colleagues in Foreign Affairs or Transport looked at that, but I suspect they would have.
Senator Patterson: Is “persistent oils” defined in the Montreal convention?
Mr. McDorman: The Persistent Organic Pollutants Convention?
Senator Patterson: Thank you. I’ve mislabeled it.
Mr. McDorman: No, I think that’s the Stockholm Convention. My recollection of my multilateral environmental agreements is a bit weak. I believe there is an interpretation of persistent organic pollutants in one of the treaties.
I’m afraid I don’t know which one. It is not a direct oceans treaty. It’s more of an environmental agreement. I think it’s the Stockholm agreement and I’d have to go and look at that, and I haven’t looked at it for some time.
Senator Patterson: May I have one more?
The Chair: Do you want to add anything, Mr. Griffiths, or are we good?
Mr. Griffiths: We’re good.
Senator Patterson: May I have one more?
The Chair: Yes.
Senator Patterson: Professor McDorman, everybody thinks this is a bill about stopping tankers in coastal waters —
Mr. McDorman: Yes.
Senator Patterson: And we’ve heard a lot of evidence about fish and whales and things like that. But you’re telling us that the bill is actually about ports. It’s about what you can load and unload in a port.
Mr. McDorman: That’s my reading of the bill, senator.
Senator Patterson: Yes, and I think that’s pretty clear in clause 4 about prohibitng mooring or anchoring of a certain size vessel and unloading.
My question is this: Canada may have wanted to stop tankers carrying certain products of a certain size from being in the waters but instead Canada decided to regulate over ports. Did I understand you correctly that the reason for that is that Canada does not have the authority to regulate tanker traffic or it has an unclear authority to regulate tanker traffic in these waters because international law allows for disputes and there are different claims?
This is kind of a back-door way, it seems to me, of dealing with a problem that has to do with the water by actually legislating with respect to the land and the ports. Is that a fair summary of what’s going on here? Because we call it an anti-tanker ban. It isn’t about that. It’s about what you can load at a port. In that respect is it dealing with one mischief with another — I have already asked the question. Is my analysis correct?
Mr. McDorman: I would probably use some different wording, senator. What the bill does is stops traffic in and out of a port. What they intended, I can’t speak to. That Canada has chosen not to have a tanker exclusion zone, to use that terminology, for that whole area, I can only speculate about. The Government of Canada’s view would be of course we can do that. But they have chosen not to do that. The reason they have chosen not to do that is by speculation only, but my speculation is they have concerns of — legitimacy isn’t the right word but the strength of their claim and perhaps more interestingly and important the issue of what would be the U.S. reaction. I don’t know. I wasn’t part of the team on this issue at all but I would think that was part of it. The title of the bill does seem to give a direction in one way.
Having said that, the only tankers that are going to be going in there — tankers don’t go in this area on a regular basis. I don’t know how the U.S. gets fuel to its military base north of Dixon Entrance, but to my knowledge there is not a lot of tanker traffic that goes through there. I’m an international lawyer. I’m in Victoria. I’m as far away as humanly possible and still be in B.C. from this area, but I don’t think there is very much tanker traffic that does go there now. The only tanker traffic that is probably projected would be tanker traffic from Canadian ports. I’m not sure if that totally answers your question but I had a good crack at it.
Senator Patterson: Thank you.
The Chair: So in other words, it would be to prevent oil from leaving Canadian ports.
Mr. McDorman: Or entering.
[Translation]
Senator Gagné: My question is for Mr. Griffiths. First of all, I would like to thank both of you for your presentations. Mr. Griffiths, as I look through your document, I see that the roadmap is quite impressive in terms of the number of tankers that have not been involved in incidents. You quote a figure of 99.97 per cent, which is quite eloquent.
I had the pleasure of visiting Prince Rupert and Terrace. In the Prince Rupert region, the degree of tolerance of the most affected communities is zero. That is what we have heard. I would like to know more about the incidents that have occurred in recent years. How have these incidents affected communities? What have the consequences been on communities, and also on ecosystems?
[English]
Mr. Griffiths: Thank you, senator. That’s an excellent question. Out of the last 10 years there have been nine incidents involving tankers or ships in our waters. Of those nine incidents there has not been any release of pollutants and absolutely zero harm to any person. What they typically are for us, every year the authority has between four and six incidents throughout Atlantic Canada. In the last 10 years, nine of those have been tankers. They are small, low-impact bumps and scrapes, if you will.
Some of them are attributed to a last-minute gust of wind that came up and we couldn’t control it in time. Some are attributed to a dock design that had a piece of metal sticking out and if you don’t land the right way, it’s going to make a mark on the side of the hull. In one case it punched a little hole way above the waterline. Depending on the way you look at it, they are minor in nature to the overall. But shipping companies don’t appreciate it because they don’t find them minor when they have to repair them.
There has been no impact on any of the communities. There have been no questions raised. These incidents are reported pretty well twice a year to all our stakeholders across Atlantic Canada when we meet them and talk about our year in review, trends that we have seen, what to expect next year. We go over all those things with them and our board of directors as well. We find the root cause, of course, but there is never any community impact to those incidents. I hope that answers your question.
Senator Simons: Sans preamble. When we were in Prince Rupert and Terrace, we met with the Chief of the Nisga’a, who asserts that the Nisga’a have sovereignty over their treaty territories and who would like to explore the possibility of developing a deepwater port for potential shipping of petroleum or other goods. So I know this is more an Indigenous law issue than a Law of the Sea issue, but if the Nisga’a claim sovereignty over their land, can they claim sovereignty over their port?
The Chair: Good question.
Senator Simons: And the waters.
Mr. McDorman: I’m guessing you are asking the lawyer and not the navigator.
Senator Simons: Yes. I do not sail. I have no idea if the Nisga’a have the capacity to build a usable deepwater port. What I want to know is: Under international law if they assert that is their sovereign land, can they assert jurisdiction over the waters leading to their hypothetical port?
Mr. McDorman: I don’t think that is an issue of international law. International law works with states. I think it’s an issue of Canadian law. I’m sorry but I am not an expert in Indigenous law or the claims that they are making so basically I can’t answer the question.
Senator MacDonald: Professor McDorman, I’ll come back to you and hopefully I’ll ask you a question you can respond to.
Mr. McDorman: Sorry, not doing so well tonight.
Senator MacDonald: No problem. You spoke about the ban and you said the ban is unusual but it happens. I wonder if you can tell the committee where it has happened, how it has happened, was it directed towards domestic traffic only? And, if there are other countries that have limited commercial shipping traffic in a specific area for the purpose of protection and conservation, were these measures challenged and what best practices can we draw from these measures?
Mr. McDorman: There are a number of areas in the world where there — I don’t want to say bans, necessarily — but there are restrictions on commercial vessel traffic. Australia is a great example with the Great Barrier Reef. They have a protected sea area there, all within Australian waters. There is no competing country resource; so they have all kinds of controls on vessel traffic in one form or another. Many of those would be familiar to my Atlantic Canadian colleagues. Whether they be traffic separation schemes, areas to be avoided, there are all kinds of these things in international practice that work for ships to make the shipping as safe as possible in particularly sensitive areas like the Great Barrier Reef.
There is an international practice. The question in this area is not the international practice; it’s the issue of whether you need to engage with the United States to get the international community to accept. Because if Canada went to the International Maritime Organization on its own, for this particular area, that could raise the question that the U.S. may look at this, “Well, we have a navigational right here; it’s just not Canadian waters.”
There are opportunities to create management of that waterway. It’s the question of how you go about doing that in an area where the water is somewhat contested.
Senator Manning: I’m going to follow up on a comment by Senator Galvez earlier in relation to the fact when we visited Atlantic Canada — St. John’s, in particular. Not everyone was thrilled about what is going on, and you will always have someone who is going to find a problem with something. But I believe legitimate concerns have been raised by the people I hear from that it was a question more of a seismic testing than necessarily tanker traffic in relation to the fishing grounds and industry.
I know the answer to these questions, but I want to ask them so we have them on the record. In relation to the use of pilots, can you give us detail on the fact that all tankers have to use pilots, at what point are the pilots used, and just the process of the use of pilots in relation to maintaining tanker safety as much as we can?
Mr. Griffiths: All ships over 1,500 tonnes in Canada take a pilot in our waters, and all foreign flagships take a pilot regardless if they are a tanker or not.
The boarding location for a pilot varies from port to port throughout Atlantic Canada. It’s a risk-based approach. In Placentia Bay, for instance, the boarding station is 27 miles from the dock. In Halifax, it’s nine miles from dock. It depends on what the safe approach to the harbour is and where the least amount of risk is to put a pilot on board so he can begin the navigation with the captain in the challenging areas.
It differs from port to port. There is a whole other bag of tools of risk mitigation factors the pilot has with him for each assignment. That risk assessment is done in his head on the way out to the boarding station. He is planning that assignment the whole way in regardless of the ship he is going on. He has plans A, B and C before he crawls up the ladder on these ships. When he gets to the bridge to meet the captain, he has his plan set up, and if that goes sideways, he has another plan; and if that goes sideways, he has another plan.
They have tools at their disposal. They have their own independent personal pilotage unit that has their own independent GPS, apart from the ship’s equipment. They have their own rate of turn, their own high-precision screen. They are using these on all assignments now; so they are not relying solely on a ship’s equipment.
I go back to my comment earlier about the foundation of pilotage’s local knowledge. Everything a pilot has with him on top of that are tools to augment his skills to get his ship in safely.
Senator Patterson: I would like to ask Captain Griffiths about fishing and marine mammals. You talked about committees that had been set up. I believe fishing is a very significant industry in Newfoundland and Labrador. How do you find the balance between the fishery and the traffic, with specific references to the fishery, if you could, because I think you mentioned whales and — or was it crabs?
Mr. Griffiths: Crab fishery.
Senator Patterson: What about fishing and whales?
Mr. Griffiths: Placentia Bay is a good case point to talk about because it has the blend of everything — the most tanker traffic in the province and quite a large fishing area. That committee is set up for that area, and it works well.
You are right. There are not a lot of people who disagree with that. You are not going to please everyone. There is always something we are doing wrong somewhere; we understand that. But it’s a great model to employ elsewhere.
The rest of the fishing grounds in Newfoundland and Labrador don’t have the volume of shipping that Placentia Bay does. The interaction between ships with pilots or tankers in the grounds close to shore isn’t what it is in Placentia Bay. The same in Nova Scotia. There are fishing grounds off Chedabucto Bay as well, which we have quite a bit of tanker traffic and general cargo ships moving in and out. We don’t have a committee set up there. Perhaps we should, but there has been no push-back, complaints or crying foul from communities or fish harvesters.
It’s a balance that you try to meet, and you focus on areas with the most risk — in this case, Placentia Bay. The Bay of Exploits in Newfoundland has some tanker traffic, but not much. The volume is quite a bit lower. Western Newfoundland, the same thing, it has some tanker traffic, but only a handful of assignments compared to what happens in Placentia Bay and St. John’s. The risk isn’t there like it is in Placentia Bay. We try to manage that risk with things like committees, collaboration and stakeholder engagement.
Senator MacDonald: Captain Griffiths, you see a lot of traffic along the East Coast of Canada, but it’s not just tankers; there are big cruise ships, freighters, pleasure craft and fishing vessels. Most of those are single-hulled vessels. All the carriers now have to be double-hulled.
Mr. Griffiths: That’s right.
Senator MacDonald: Speaking from your experience in managing all of these vessels, which one, by its very nature, would be more of a threat to the environment? A single-hulled, large vessel — like a passenger vessel — or a double-hulled crude carrier?
Mr. Griffiths: Good question, Senator MacDonald. As you say, tankers today have double hulls, but there is still fuel carried in those tanks, as well as cargo ships. It’s not uncommon for cargo ships afloat today to have between 3,000 and 5,000 tonnes of heavy fuel and another 1,000 tonnes of light fuel, such as diesel, when they operate closer to shore in emission-exclusion zones.
In terms of risk, it’s a tough question. The conditions and circumstances versus the consequence would weigh what is a more risky or dangerous operation — fuel and cargo tanks or loaded tanker. Both can do the same, in my opinion. Both can have the same amount of bunkers on board for its own propulsion and both can have an incident. It’s hard to comment on which would be the lesser of the two evils.
The Chair: Thank you, Mr. Griffiths and Mr. McDorman, for your time today and participation. Much appreciated.
We will suspend now and go in camera.
(The committee continued in camera.)