THE STANDING SENATE COMMITTEE ON FISHERIES AND OCEANS
EVIDENCE
OTTAWA, Tuesday, May 9, 2023
The Standing Senate Committee on Fisheries and Oceans met with videoconference this day at 6:37 p.m. [ET] to examine the subject matter of those elements contained in Subdivisions A, B and C of Division 21 of Part 4 of Bill C-47, An Act to implement certain provisions of the budget tabled in Parliament on March 28, 2023.
Senator Bev Busson (Deputy Chair) in the chair.
[English]
The Deputy Chair: Good evening. My name is Bev Busson, I’m a senator from British Columbia, and I have the pleasure and the honour of chairing this meeting. Today we are conducting a meeting of the Standing Senate Committee on Fisheries and Oceans.
Should any technical challenges arise, particularly in relation to interpretation, please signal this to the chair or the clerk, and we will work to resolve the issue as quickly as possible.
Before we begin, I would like to take a few moments to allow the members of the committee to introduce themselves.
Senator Francis: Brian Francis, Prince Edward Island.
Senator R. Patterson: Rebecca Patterson, a senator for Ontario.
Senator Quinn: Jim Quinn, New Brunswick.
Senator Ataullahjan: Salma Ataullahjan, Ontario.
Senator Ravalia: Mohamed Ravalia, Newfoundland and Labrador.
Senator Kutcher: Stan Kutcher, from Nova Scotia.
The Deputy Chair: Thank you.
On April 27, 2023, an order of reference to examine the subject matter of those elements contained in Subdivisions A, B and C of Division 21 of Part 4 of Bill C-24, An Act to implement certain provisions of the budget tabled in Parliament on March 28, 2023, was referred to this committee.
Today, under this mandate, the committee will be hearing from the following witnesses from Transport Canada: Fabien Lefebvre, Acting Executive Director, OPP Operations; François Marier, Director, International Marine Policy; Sean Rogers, Executive Director, Legislative, Regulatory and International Affairs; Jeff Johnson, Manager and Senior Policy Advisor, Environmental Policy; and Julie Mah, Manager/Senior Policy Advisor, Oceans Protection Plan; and from the Department of Fisheries and Oceans Canada, Robert Brooks, Director, Marine Environmental and Hazards Response, Canadian Coast Guard.
On behalf of the members of the committee, I thank you all for being here tonight. I understand that Mr. Lefebvre has some opening remarks for us. Following that presentation, members of the committee will be able to ask questions of the witnesses. Thank you very much. Mr. Lefebvre, you have the floor.
Fabien Lefebvre, Acting Executive Director, OPP Operations, Transport Canada: Thank you, senator.
My colleagues and I are pleased to be here to address Division 21 of the Budget Implementation Act related to the Oceans Protection Plan.
Amendments are proposed to three acts: the Canada Shipping Act, 2001, the Marine Liability Act and the Wrecked, Abandoned or Hazardous Vessels Act. The Oceans Protection Plan works to keep Canada’s oceans and coasts safe and healthy, support reconciliation and ensure resilient supply chains. Under this plan, Canada has already taken action to address oil spill prevention and response. These proposed amendments stem from Budget 2022 and 2023 announcements and aim to address additional safety and environmental risks.
[Translation]
Vessel traffic and cargo volumes will continue to increase and diversify. While Canada has a strong marine safety system, incidents can still occur. Canada must be ready and able to respond quickly and effectively to incidents to minimize impacts.
Individuals and communities should be confident that they will have access to adequate compensation. Wrecked and abandoned vessels can have impacts on coastal communities, posing safety and environmental hazards.
[English]
The amendments that we are discussing tonight consider what we have heard through engagement over several years as well as experience from recent marine incidents. They would strengthen marine safety, enhance environmental protection, make regulations more agile, increase accountability and enhance compensation.
Marine incidents can evolve quickly, and there is a limited window to respond. While most of the marine industry is responsible and responds effectively, the proposed amendments would allow faster response and earlier access to ports and emergency services. To achieve this, amendments include enhanced powers to direct vessels and ports in the case of emergency and the ability to regulate emergency service arrangements for vessels.
[Translation]
While work continues to strengthen oil spill prevention and response, we also want to ensure effective response for hazardous and noxious substances (HNS) incidents. HNS include materials used in electronics, manufacturing, and agriculture. However, they can harm the marine environment if released.
Amendments would support establishing a preparedness and response regime for HNS incidents. They would align Canada with international response partners, and facilitate access to international HNS response capacity.
Regulatory processes sometimes cannot keep pace with new developments. We want to be able to rapidly implement enforceable measures and expand community roles in managing local boating issues.
Amendments would allow time-limited ministerial orders to address risks sooner while regulatory solutions are developed. They would also support faster integration of technical standards into Canadian regulations.
[English]
Vessel owners are responsible for compliance, but some may not be directly involved in operations, which can pose response and compliance challenges. Canada also has a large number of wrecked and abandoned vessels that pose safety and environmental risks. Up to now, taxpayers have been bearing the costs to address them.
To strengthen accountability, the proposed amendments would support clearer identification of those directly responsible for vessel operations and compliance; establish a Vessel Remediation Fund, to be financed by vessel owners, to allow the government to more proactively address problem vessels; align fee-setting authorities to ensure a consistent, modern approach; and update and expand the use of some tools to ensure enforcement is commensurate with the offence.
Compensation is an important issue, and through engagement we have heard concerns regarding smaller vessels and long-term impacts. To enhance liability and improve compensation for longer-term damage to fishing and harvesting, the amendments would ensure adequate compensation for oil spills from small and inland vessels; improve compensation for future losses of income, profit, and harvesting; ensure that all types of economic losses related to fishing, hunting and harvesting activities are captured; and recognize communal claims from communities that hold Indigenous harvesting rights.
[Translation]
The amendments are an important part of advancing the Oceans Protection Plan. Many amendments are enabling and, if passed, would lead to more engagement as part of regulatory and program development. We will continue to work with Indigenous peoples, coastal communities, and stakeholders as we implement these proposed amendments and the renewed Oceans Protection Plan to protect people, communities, and waterways into the future.
[English]
Thank you for your attention. We would welcome questions.
The Deputy Chair: Thank you, Mr. Lefebvre. We have a number of people who would like to ask questions.
Senator Quinn: Thank you for being here this evening.
When I went through the material, it struck me that we are largely looking at some technical updating and some referential incorporation. I had three short questions on some of the things that are there. Could I get you to talk about the establishing of a marine technical review board? The chief registrar refused to issue certificates of registry in some cases, and I was wondering what would be some of the cases where they wouldn’t issue a registration. You’ve addressed the establishment of a vessel remediation fund, which I think is a great idea, but how would it work? Vessel owners are going to pay, but I was wondering how the mechanics of it would work. Is it all vessel owners, small and large? Those are three things I’d like you to touch on.
Mr. Lefebvre: Perhaps we could start in reverse order, if that’s okay, with the vessel remediation fund.
Jeff Johnson, Manager and Senior Policy Advisor, Environmental Policy, Transport Canada: Thank you for the question.
The vessel remediation fund is designed to recoup or recover costs from owners in a number of different ways. The amendments would allow for regulatory-making authorities to establish a regulatory charge, which would be like a levy that would be imposed on vessel owners who are either required to licence their pleasure craft or register their vessels, so it’s a very broad scope of vessel owners. In addition, it would also redirect fines and penalties from enforcement actions taken under the Wrecked, Abandoned or Hazardous Vessels Act, or WAHVA, into the fund, as well as costs that are incurred by the government when they’re taking actions on problem vessels. Those costs, when recovered, would also be redirected into the remediation fund and disbursed out based on the priorities identified in the legislation.
Senator Quinn: Who would administer the fund?
Mr. Johnson: The administration would be handled by Transport Canada. It’s a specified purpose account. However, decisions taken on disbursement of the funds are joint between the two ministers, Minister of Fisheries and Oceans, coast guard acting as the operational extension of that, and Transport Canada.
Senator Quinn: And that second point?
Sean Rogers, Executive Director, Legislative, Regulatory and International Affairs, Transport Canada: I’m going to go in reverse order.
The Marine Technical Review Board is a board that exists or is empowered under section 10.1 of the Canada Shipping Act, and its purpose is to review applications for equivalencies to safety requirements or exemptions from non-safety ones. This is comprised of a committee of three individuals that have the ability to essentially grant exemptions under the act and its regulations, often subject to a number of conditions and so long as the level of safety is not compromised. That exemption power applies to Canadian flagged vessels only.
With respect to certificates of registry, there are a number of conditions that must be met in order for a certificate of registry to be entered. This is essentially like title regarding the vessel. Situations where you might not see a certificate issued are those where the owner of the vessel isn’t clear, details around the mortgage, if there is, one on the vessel, are not clear, and if there is any missing information. In most cases, we would work with the owner to ensure that an application is complete. If not, we would seek the information in order to ensure that a certificate can be issued.
Senator Quinn: Thanks for that.
My only other comment is that in reviewing and looking things over, I want to say congratulations in bringing some really progressive things forward. It’s welcome.
The Deputy Chair: Thank you very much.
Senator Ataullahjan: Thank you for appearing before us.
Can you tell me why Bill C-47 proposes to remove all references to the United Nations Convention on the Carriage of Goods by Sea, also known as the Hamburg Rules, from the Marine Liability Act?
François Marier, Director, International Marine Policy, Transport Canada: Yes. Good evening, senator.
The Hamburg Rules were rules that were adopted back in the 1970s and put in the Marine Liability Act but never came into force because, internationally, our major trading partners never adopted those rules. Through the Statutes Repeal Act process back in 2021, the ability to bring that convention into force was removed from the Marine Liability Act. These amendments now propose removing any other references to that convention. They’re more technical amendments.
Senator Ataullahjan: What was it replaced by? What was being used?
Mr. Marier: Currently, the rules in force in Canada are the Hague-Visby Rules. Those rules govern the contractual commercial relationship between the carrier and the shipper. If you were to put your container on board a ship and that ship would then carry that container and your cargo got damaged or lost, those rules set out what happens, so how much compensation you are entitled to from the carrier. That’s what these rules essentially govern. It is more private than public law.
Senator Ataullahjan: Thank you.
Senator Francis: Bill C-47 proposes to establish the Marine Technical Review Board. What will be the purpose of that review board? What responsibilities could be conferred to that review board, and how would they compare with what is currently in place?
Mr. Lefebvre: Thank you, senator.
The Marine Technical Review Board has existed for some time, but this act allows new topics to be considered by the Marine Technical Review Board. The new topics that it allows to be considered are, for example, the parts of the bill that have to do with establishing regimes for hazardous and noxious substances. The review board has existed for some time. With these proposed amendments, we’re allowing the technical review board to consider exemptions in the context of new powers that we’re proposing to give the Minister of Transport.
Senator Francis: Thank you.
Senator Kutcher: Thank you all for being here. I appreciate you taking the time.
Mr. Lefebvre, you identified that there were four items, if I understood correctly, that this was supposed to address: safety, environmental protection, agility and compensation. I want to acknowledge the work that you and your colleagues have done to help move the needle on those areas. These amendments certainly make a lot of sense to me. Congratulations to all of you on your hard work. Being from Nova Scotia, I’ve heard some of these issues from people in my province, and it’s nice to see them here. Thank you.
I have a few specific questions. I don’t understand this, so help me with it: (b) of Subsection B of Division 21 amending the Canada Shipping Act says:
(b) expand the exemption powers of the Minister of Transport and the Minister of Fisheries and Oceans;
What does it mean to “expand the exemption powers”? What are exemption powers, in particular? Does that apply only to Canadian flag vessels?
Mr. Lefebvre: Exemptions are a tool that’s available to the minister, and they’re fairly common in safety oversight and enforcement programs. Usually, as my colleague just mentioned, those are used to — without sounding too tautological — provide exemptions to some of the existing rules so they can sometimes be implemented differently.
In this context, we’re giving the Minister of Transport some new exemption powers, for example, on hazardous and noxious substances. Because we’re giving the Minister of Transport new powers, we also want to give people who are going to be regulated by those new requirements the possibility of seeking exemptions to implement those in a similar way that doesn’t compromise safety.
Senator Kutcher: Okay. All right. Do they apply to all vessels or just Canadian flag vessels and only in Canadian waters? How does this work?
Mr. Lefebvre: Canadian vessels.
Senator Kutcher: Thank you.
I have one other short question. The amendments to the Oil Tanker Moratorium Act provide the Minister of Fisheries and Oceans with certain powers in relation to the detention of vessels. I don’t know what powers the minister has already. Does that expand the scope of the kinds of powers the minister has? If so, in what way?
Mr. Lefebvre: In relation to the powers that the minister has to detain vessels, the clauses that apply to the Oil Tanker Moratorium Act are more related to the order of powers the minister can give a certain vessel. The reference toward the end of the bill that concerns the Canada Shipping Act speaks to the fact that, if the vessel that is directed by the minister to proceed to a given port has to cross through waters covered by the Oil Tanker Moratorium Act, then it is not deemed in contravention of the act because the minister directed that vessel to go through there.
Senator Kutcher: Thank you for that.
It talks about “detention of vessels.” What kind of scenario would be imagined where the minister would detain a vessel?
Mr. Lefebvre: If the owner of the vessel hasn’t paid fees, charges, costs or if he hasn’t contributed to the vessel remediation fund, that is an instance where a vessel can be detained.
Senator Kutcher: Okay.
Just one quick last question: Would that ability to detain vessels also apply to issues related to foreign policy or concerns of conflict with other countries?
Mr. Lefebvre: I do not have an answer to that specific question, senator.
Senator Kutcher: Can you find out and send us a note?
Mr. Lefebvre: Yes, sir.
Senator Kutcher: Thank you so much. I appreciate that.
The Deputy Chair: Thank you very much.
For the witnesses, it’s hard to anticipate every question that our senators will be asking, so please feel free to supply in writing whatever you have to fulfill the answers to certain questions if you don’t have it at your fingertips.
Senator R. Patterson: There are various clauses in the bill that introduce language that clarifies that ship owners would be liable for economic losses suffered by Indigenous communities. One thing you’ve also said is that this applies to Canadian flag ships, but when we’re talking about oil, even off the West Coast, it can be international carriers.
There are three parts to this question. First, how are those economic losses calculated? How are we engaging Indigenous communities to talk about that? Then, how are we going to get compensation from ship owners that may not be Canadian in nature? That is basically an enforcement question. So international flag, Indigenous community involvement, as well as how we’re going to calculate economic losses in partnership with them and how we’re going to get them to actually pay up.
Mr. Marier: Thank you for the question.
Perhaps I can start by saying that these amendments apply to both Canadian flag vessels and foreign flag vessels that come into Canadian waters.
Canada is a party to a number of international conventions that establish liability on ships for oil pollution damage if you’re talking about tankers or about any other kind of ship. These conventions establish a strict liability, so you don’t have to prove fault or negligence. You’re automatically liable if there is an oil spill. These conventions also require the shipowner to have adequate insurance. They have to demonstrate that they have that insurance through a certificate that is produced by the state authority, the administration, the flag state of that ship. We administer that through our port state control when foreign ships come into Canada and they are inspected, or, when they report into Canada, they are required to demonstrate that they have the adequate certificate and insurance.
These amendments would clarify that, when it comes to economic losses that touch upon losses suffered by Indigenous communities, that applies to their constitutional rights for fishing and harvesting of marine resources. It’s a clarification to ensure that it’s clear that, in Canada, that’s what that means. That means that a foreign shipowner would be liable to pay that compensation, or their insurer would be liable. It’s not just insurance. It’s also a financial guarantee that they have to have. Most ships are insured by these protection and indemnity clubs. They are essentially mutual associations of shipowners that pool together and insure each other. They are not like your typical car insurer. They have an interest to ensure that they pay for their liability.
As my colleague Mr. Lefebvre said, most shipowners are responsible and want to live up to their liabilities. There are circumstances where that may not happen because the shipowner may not have adequate resources, and that’s why we have other resources. We have the Ship-source Oil Pollution Fund, which is a compensation fund that would provide additional compensation above and beyond what the shipowner would be on the hook for.
Senator R. Patterson: In the existing act, along with the amendments, do you believe that you have enough mechanisms available to you to protect the livelihood of very vulnerable communities, or do you see you need other things that need to be included?
Mr. Marier: First of all, these amendments only clarify for Indigenous communities that those constitutional rights are protected and are compensable. It is still a claims process. There would have to be a demonstration of a loss and what the economic loss is.
These amendments also provide for future losses to be compensable. Let’s say that you have a large oil spill that can cause damage over a number of years. Typically, most oil spills are cleaned up quickly and the damage is somewhat limited, but let’s say you do have something that can persist over a few years. Those future losses can be calculated now and submitted to the fund, to the Ship-source Oil Pollution Fund, who would then be able to pay compensation on a reasonable estimate of what those losses could be. That’s for fishing, harvesting. It could also be for any kind of economic loss, so loss of profit, income. It could also be for tourism. Let’s say you’re operating a tourism outfit or sport fishing. It could be for any kind of economic loss such as those.
Senator Ravalia: Thank you to all of you.
Why does Bill C-47 propose to apply the Canada Shipping Act, 2001 to pleasure crafts? Practically speaking, how will this addition impact pleasure craft owners?
Mr. Rogers: Thank you for the question.
There are a number of different changes that affect pleasure craft owners. I should first start by saying that the intent of the Canada Shipping Act is to regulate all types of boating and shipping activity in Canada.
Under the Canada Shipping Act, we have a regulation called the Vessel Operation Restriction Regulations that applies to pleasure craft, largely pleasure craft, recreational boating, recreational activities. It provides the authority to restrict those activities by calendar dates, time of day or just allow for an outright prohibition on the activities themselves. This is a regulation that goes through the normal Governor-in-Council process, which takes about two years. It can happen faster than that, but it depends on the situation.
The way the restrictions are developed and managed is local communities and provinces provide their input to Transport Canada. We take that input, and we eventually work it into the regulations. That takes about two years from the time that we receive a request from a local municipality — for instance, for a speed restriction on a body of water, or a lake — until the time that restriction is published.
One of the changes we’re looking at doing is to create the ability of the minister to issue an interim order which allows a restriction to be acted upon more quickly. We’re anticipating something in the neighbourhood of eight months. This will respond to one of the criticisms that we see and hear from local communities and provinces and will allow us to respond to the risks for safe boating much faster.
The second part is that the regulations themselves contain schedules using geographical coordinates and place names where these restrictions occur. If we make an error, or say the local town council or municipality that submits the request to us makes an error, that then needs to be corrected, and we would have to go back to the start of that regulatory process. What we’re seeking is the ability to actually make changes to those schedules through incorporation by reference, which will allow us to simply update a technical document with the description, which we can do rapidly as opposed to going through the whole regulatory process again.
Senator Ravalia: Thank you.
The Deputy Chair: I would like to ask a question that came to me as part of a question that Senator Patterson asked. It comes from your answer around the fact that this bill actually spends time reflecting on remote and Indigenous communities and responses to the issues around how these communities specifically would be remediated if there were a spill or a disaster of some kind. I’m wondering if the government consulted Indigenous communities before making these amendments and applying them to Bill C-47. Could anyone answer that for me, please?
Mr. Marier: Thank you for the question.
Yes, indeed. In fact, these amendments come from a review that was conducted over almost a two-year period, between 2020 and 2021. It follows a recommendation that was made by the Canada Energy Regulator coming out of the Trans Mountain Pipeline Expansion Project. There was a recommendation made that Transport Canada undertake a review to look at the Marine Liability Act and its coverage of certain types of losses. That same recommendation was also made in a Roberts Bank Terminal 2 environmental assessment. In response to those recommendations, Transport Canada did conduct that consultation. We did speak to a number of Indigenous and coastal communities, including in the North. What we heard is exactly reflected in these amendments, which is a concern that their livelihood, the ability to keep food on tables, to continue to do subsistent fishing and harvesting, or, if it cannot because of an oil spill, that there be adequate compensation for those types of losses if they had to replace what they are not able to do. That’s what these amendments do.
The Deputy Chair: Thank you very much.
Given the hour, I want to thank the witnesses for taking the time to appear before us this evening. It truly was informative, and the bill is addressing some very serious concerns. I am from the West Coast and have experienced and seen some of the issues around some of the things that you’re trying to remediate. I thank you, as some of my colleagues already have, for your hard work on this item. Thank you again for these informative and fruitful discussions.
Senators, I now suggest we proceed in camera.
(The committee continued in camera.)