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Proceedings of the Standing Senate Committee on
Energy, the Environment and Natural Resources

Issue 11 - Evidence - March 24, 2005


OTTAWA, Thursday, March 24, 2005

The Standing Senate Committee on Energy, the Environment and Natural Resources, to which was referred Bill C- 15, to amend the Migratory Birds Convention Act, 1994, and the Canadian Environmental Protection Act, 1999, met this day at 8:40 a.m. to give consideration to the bill.

Senator Tommy Banks (Chairman) in the Chair.

[English]

The Chairman: Good morning ladies and gentlemen. Appearing before us today are representatives of Nature Canada, the International Fund for Animal Welfare, and the World Wildlife Fund Canada

Mr. Rob Rainer, Director of Conservation, Nature Canada: Thank you for the opportunity to make this presentation to you on an issue of profound importance and to respond to any questions you may have on the information and perspective we bring forward on this issue.

I will begin with an introduction of the organization I am representing today and then move into an overview of trends in the world's bird species, and Canada's birds in particular. I will then touch on some of the real-life consequences of losing bird species and bird abundance. I will close by highlighting some essential reasons Bill C-15 is, in our view, necessary.

Kim Elmslie, from the International Fund for Animal Welfare, will then address the environmental impact of oily bilge water discharge and the need for minimum fines to help combat this discharge.

Finally, Joshua Laughren of World Wildlife Fund Canada will speak to Bill C-15's consistency with international law and its importance in meeting Canada's international commitments.

Nature Canada and Bird Studies Canada are the Canadian non-government co-partners in BirdLife International. It is under the auspices of BirdLife International that Nature Canada and Bird Studies Canada address you today. General background information on Nature Canada and Bird Studies Canada has been provided to you in writing in the form of our joint written brief sent by email to the clerk of the committee on Monday. Just last week, at the seventieth North American Wildlife and Natural Resources Conference, Bird Studies Canada won a significant award from the American Birding Association and the U.S. Fish and Wildlife Service in recognition of Bird Studies Canada's extensive and highly successful volunteer-based bird monitoring programs across Canada and internationally. Without these kinds of monitoring programs we would not have the kinds of data that help us make the kinds of decision we need to make on the environmental front.

BirdLife International, headquartered in Cambridge, U.K., is a partnership of over 100 national organizations that strive to conserve birds, their habitats and global biodiversity by working with people toward the sustainable use of natural resources. Over 10 million people, which number is growing, support the BirdLife partnership of national non- government conservation organizations and local networks.

As Canadian co-partners in BirdLife International, Nature Canada and Bird Studies Canada work to identify what are known as important bird areas in Canada, areas where significant numbers of birds tend to congregate or where particularly rare or endangered bird species are found. Nearly 600 such areas have been identified to date and Nature Canada, as part of our role in the partnership, is taking the lead to stimulate stewardship action at many of these sites.

While BirdLife has a profound concern, of course, for the fate of the world's roughly 9,800 bird species, it approaches its work with knowledge that birds, as probably the best studied and therefore best known of any group of species, are excellent surrogates for understanding environmental trends, that is, to the extent that the world's birds are in population decline, that strongly reflects the damage being done to land, water and ecosystems from largely human activities.

We encourage this committee, with its interest in the environment and natural resources, to maintain a global view of what is happening to biodiversity and biological abundance and to try to see Bill C-15 partly from that viewpoint.

From prehistory to the present time, humanity has eliminated about one in five, or 20 per cent, of all bird species, which once numbered around 12,000. At least 128 species have vanished in the past 500 years, 103 of them since 1800. Of the remaining 9,800 species, 12 per cent, or almost 1,200 species, face extinction this century, that is to say, within the lifetime of any forthcoming grandchildren some of us in this room might have. On average, this is about one bird species lost per month for the next 100 years. Perhaps the most recent extinction was a small and beautiful song bird in Hawaii, the po'ouli, which, as of late last year, appears to have been lost forever. Eighty per cent of the world's marine bird species are declining in the face of a number of threats, including pollution.

The best scientific estimates are that 25 per cent of some 450 bird species that occur regularly in Canada and 30 per cent of sea bird species found in Canada are in population decline. Many of these species are among those whose breeding ranges are found almost exclusively within Canadian borders. As of November, three bird species once found in Canada are now extinct, two are no longer found in our country, 23 are nationally classified as endangered, 10 as threatened and 22 as special concern.

Such numbers paint a picture of a world of steadily diminishing biological diversity generally and bird diversity and abundance specifically. Our fields and woods are getting quieter by the year, our lakes and seas more lonely looking. Rachel Carson's Silent Spring is turning more and more into a silent and vacant year. The consequence is not to nature alone but to people as an integral part of nature. Birds provide vital services including pollination, seed dispersal, insect control and decomposition.

It stands to reason, then, that with an estimated 20 to 25 per cent reduction in the number of individual birds since 1500, such services are being undermined. Indeed, in a December 2004 paper in the peer reviewed Proceedings of the National Academy of Sciences, the authors suggest that avian populations and dependent services are declining faster than species extinctions would indicate.

Beyond services of importance to the functioning of ecosystems, wild birds are still a source of sustenance in some places, such a in the Canadian Arctic, and can remain so with effective conservation. Within the present context, a species of particular importance is the thick-billed murre, the predominant seabird in winter waters off the south coast of Newfoundland and a source of food for people in the Arctic and Newfoundland.

Birds also simply provide inspiration and joy to billions of people. From totem poles and ceremonial feathers, to Margaret Craven's poignant novel I Heard the Owl Call My Name, to Anne Murray's Snowbird, to the rock group The Eagles, to sports teams such as the Toronto Blue Jays, birds have helped give meaning to the human experience.

We have before us a true crisis, the crisis of steadily diminishing biodiversity to which oily bilge water discharge contributes. This discharge killing seabirds off Canada's coast was first reported from Newfoundland in the late 1950s. The issue has thus been before Canadians and decision makers for more than half a century, reflecting the unfortunate human tendency for sluggish response to emerging environmental crises. Witness the pace of action on the threat of climate change.

Canada needs passage of Bill C-15 for at least the following reasons: First, with ongoing incidents of oiled birds at sea, the latest being yet another spill off the southeast coast of Newfoundland in late February, it is clear that Canada has become a dumping ground for oily bilge water that irresponsible players in the shipping industry have learned to exploit. Bill C-15 is aimed at deliberate and chronic offenders, not good operators.

Second, existing Canadian legislation concerning oily bilge water discharge lacks clarity and clout regarding the pursuit and prosecution of offences and has thus proven ineffective. Witness Canada's prosecution success to date. Bill C-15 will help to clarify and strengthen the enforcement regime.

Third, and related to the above point, because of our relative inability to protect birds from oiling at sea, Canada is lagging in fulfilling our existing international commitments to protect migratory birds pursuant to the Migratory Birds Convention. Bill C-15 will help rectify this deficiency in our environmental performance.

While we know oily bilge water discharge has killed tens of millions of seabirds in Canadian waters up to today, we are left to wonder, in the absence of concrete information, what long-term, lasting effects this pollution has had and continues to have on the marine environment and on economic activity dependent on a healthy marine environment.

The organizations before you today are strongly supportive of Bill C-15. We know that there is wide spread support throughout the rest of the conservation community. We are pleased to see expressions of support for the bill coming in from such diverse interests as tourism operators, Petro-Canada and the Minister of the Environment for the Government of Newfoundland and Labrador.

We are also confident that the vast majority of the Canadian public is behind this bill. My colleagues at the table will now speak to some of the specific concerns and fears that have been raised about Bill C-15.

Before I turn the microphone to Ms. Elmslie, we do wish to offer to honourable senators a copy of BirdLife International's 2004 overview report on the state of the world's birds. It is a summary report with lots of pictures and graphics. It is quite compelling. We will be sure to leave copies of this report with the clerk of the committee at the close of proceedings today. Thank you again for the opportunity to appear before your committee.

Ms. Kim Elmslie, Emergency Relief Representative, International Fund for Animal Welfare: Honourable senators, thank you for the opportunity to appear before you today. In the role of the emergency relief campaigner for IFAW I have engaged in rehabilitating oiled birds impacted by catastrophic spills around the world. It is poignant that I am presenting to you on March 24, the sixteenth anniversary of the Exxon oil spill disaster.

IFAW is working globally on campaigns to protect seabirds from the impact of illegally and deliberately dumped bilge oil. The International Fund for Animal Welfare, like the groups here today and like many environmental and animal protection groups across the country, are fully in support of Bill C-15 as it is currently worded.

IFAW was founded in Canada in 1969 and has offices in 14 countries that seek to promote animal welfare and conservation policies to advance the well-being of both animals and people. There are more than 50,000 supporters in Canada and there are 2 million supporters globally.

I have prepared a short presentation for you today based on the information that was submitted in my brief on Monday. I will provide an overview of the impact of deliberate oil pollution in Canada, present support for the need for minimum fines, address the issue of accidental spills and discuss how Bill C-15 is good for legitimate ship operators.

It is estimated that there is more oil entering the oceans from the illegal and deliberate dumping of bilge oil than from catastrophic oil spills. A 2003 report of the National Academy of Sciences, estimates that vessels discharge more than 25 million gallons of petroleum into North American waters annually. This waste oil that is illegally discharged into our oceans is taking a serious toll on fragile marine life.

Three hundred thousand seabirds are dying every year off the coast of Newfoundland due to the illegal and deliberate dumping of bilge oil. I wish to talk to you specifically about the impact that bilge oil is having on birds in Atlantic Canada.

More than 30 million seabirds reside and migrate through the nutrient rich waters of the Grand Banks off the coast of Newfoundland. This is also one of the busiest shipping areas in the world. It is impossible to estimate the exact number of ships transiting the North Atlantic, as vessels that are not calling on a Canadian port are not required to announce their presence. What is known is that some irresponsible vessel operators are illegally and deliberately dumping their bilge oil into this critically important bird habitat. That is a Canadian problem and one that is not seen in the U.S. The currents in the Atlantic Ocean bring the birds onshore, whereas on the Pacific coast the currents push the birds offshore where the bodies and carcasses often cannot be found.

According to data collected by the Canadian Wildlife Service, between 1984 and 1992, 62 per cent of bird carcasses found on beaches were oiled, whereas along the eastern seaboard of the United States, oiling rates are only found of 2.5 per cent.

Laboratory analysis shows that 90 per cent of the oil found on these birds comes from machinery spaces that can only enter the water through deliberate or negligent acts. The amount of oil discharged by a single vessel may seem small when compared to catastrophic oil spills that make major media headlines such as the Prestige oil spill off the coast of Spain in 2002, or the notorious Exxon Valdez spill in 1989. However, a drop of oil the size of a quarter is enough to kill a sea bird in the cold waters of the North Atlantic.

Research conducted at Memorial University has proven that 300,000 seabirds are dying off the coast of Newfoundland due to illegal bilge oil. This is the same number of birds that died in the Exxon Valdez spill. For all intents and purposes, Canada is facing an environmental crisis just as catastrophic to seabirds as Exxon; the difference is that we are facing it every year. Clearly, Canada has become a dumping ground for unscrupulous shippers.

There is a need for minimum fines in Canada. At the beginning of March this year, the news was filled with reports of eider ducks covered in oil washing up on the beaches of Southeastern Newfoundland. When chemical analysis was performed on oil samples taken from the feathers of the ducks, it was found to be the oily bilge from a vessel passing through the area. In late November 2004, I was in Newfoundland when oiled murres were washing up on the same beaches. A passing vessel had also oiled these birds.

It is important to note that this was at the same time that the Terra Nova oil spill happened. There was already oil in the water. Unscrupulous vessels that were passing through were taking advantage of the oil that was in the water already to illegally dispose of their bilge.

Our enforcement record in Canada has not been good. Unscrupulous ship operators are aware of Canada's poor track record when it comes to prosecuting offending vessels. Of the cases investigated, only a small number actually lead to prosecutions. Between 2000 and 2002, only one case per year was from Newfoundland. In the few cases that are prosecuted, small fines have been imposed. Small fines do not act as a deterrent for polluters, it is merely a part of the cost of doing business. The highest fine to date in Canada is $170,000. On average, fines are approximately $40,000. Although the fines handed out by Canadian courts are increasing, they are substantially lower than similar cases in the United States.

I wish to place on the record some recent examples of fines in Canada: In May 2004, a $170,000 fine; November 2002, a $125,000 fine; April 2002, a $45,000 fine; and in February 2002, another $125,000 fine. These figures are in Canadian dollars.

I also have some recent examples of fines handed out in the United States: In February 2005, there were two different fines, one of U.S. $2 million and one of U.S. $1 million; in June 2004, there was a fine of U.S. $3.5 million; and in July 2003, a fine of U.S. $750,000.

The threat of a fine creates a deterrent not to pollute. By keeping fines low in Canada, we have built an economic environment in which it pays to pollute. By including minimum fines in this bill, Canada would demonstrate its determination to send a strong signal to all ship operators that this country's waters are not a safe haven for polluters. Minimum fines would also ensure that penalties in Canada are comparable with those imposed in other countries.

In the event of an accidental or minor spill, Crown prosecutors would be required to exercise their judgment as to whether to pursue charges under the Migratory Birds Convention Act or the Canadian Environmental Protection Act. Part of their decision would include an assessment of whether or not to do so would be in the public interest or would bring the justice system into disrepute. Prosecutors have the option of not proceeding or of using the Canada Shipping Act that specifies no minimum fines.

It is important to note that Bill C-15 is quite explicit in its proposed section 5.1(3)(a) that an offence has not occurred if a deposit is allowed under the Canada Shipping Act. The Canada Shipping Act picks up all MARPOL rules, including exemptions for accidents.

Bill C-15 will make the polluters pay, and that is good for legitimate ship operators. Bill C-15 targets activities that are already illegal. Irresponsible shipping practices are killing seabirds and unscrupulous ship operators are making the entire shipping industry look bad. High fines will not only deter this practice, but also put those vessels that choose to operate illegally at an economic disadvantage. Legitimate ship operators should not be penalized for the time and money they spend legally disposing of their bilge oil at onshore waste reception facilities. Ultimately, IFAW and the organizations here would like to see the end of all illegal and deliberate bilge oil dumping in Canadian waters. A single bird dying as a result of a deliberate and illegal act of pollution is not acceptable. IFAW strongly encourages the Senate to pass this bill without further amendment. It is legislation that is long overdue and desperately needed.

I would now turn to Joshua Laughren.

Mr. Joshua Laughren, Director, Marine Conservation, World Wildlife Fund Canada: I would to thank the Senate committee for the opportunity to make this presentation to you today.

WWF was established globally in 1961. We have offices and projects in over 100 countries. WWF Canada was established in 1967 by the Honourable Senator Alan Macnaughton. Our offices in Canada are in Toronto, Ottawa, Northwest Territories, Vancouver, Prince Rupert, Montreal and Halifax. We serve more than 60,000 members across Canada. We have been working on the issue of bilge dumping and its effect on seabirds and the environment for over three years.

I will start by stating some points where I will assume we are in some agreement. I will then discuss why WWF believes that Bill C-15 is not only consistent with international law but necessary to live up to our commitments. We are all agreed that illegal bilge dumping is a serious issue in Canada and is causing unacceptable harm to environment and wildlife. Nobody argues that this should or can continue. The majority of shipping companies and individuals in shipping are good environmental performers. We are dealing here with a persistent minority.

The reason it is such a problem in Canada is twofold. One is that we are blessed with globally outstanding seabird populations. That is good. The other is that fines in Canada have been lower than those in other jurisdictions, especially the U.S, leading to an incentive to dump in Canada's waters. The question at hand is whether Bill C-15 will help solve this problem in a fair and equitable manner.

We believe it will. We believe than Canada is consistent with the intent of MARPOL, which is the international convention that regulates oil discharges at sea. One of the objectives of the MARPOL convention is to achieve the complete elimination of intentional pollution of the marine environment by oil and other harmful substances, and the elimination of accidental discharge of such substances.

Clearly, Bill C-15 follows the spirit of that convention. Further, this bill does not change the MARPOL standard of 15 parts per million of how much oil can legally be disposed of or dumped, which is also reflected in the Canada Shipping Act. That remains unchanged. It has been argued before this committee that we should leave such matters as international shipping to the international community and not try to address them in Canadian law. In fact, we already have two international or multinational conventions that clearly spell out our obligations in Canada to stop illegal discharge and protect birdlife in our waters. Both MARPOL and the Migratory Birds Convention Act clearly spell out our obligations here.

I am not sure what clear direction could be provided from the international community. Any international convention to which Canada signs must be legislated at the national level to come into effect. It is our view that Bill C- 15 will do exactly that. Further, one could argue that we are currently in contravention of these agreements that we have already signed because we have consistently, over a number of years, failed to control illegal bilge dumping in our waters.

Canada is not going it alone in cracking down on illegal dumping. The U.S, as we have heard, has stronger laws and has proven to be very aggressive in prosecuting bilge dumping offences in their waters, as evidenced by much higher fines. The EU has designated much of its coastal waters as zero discharge areas, where no parts per million of oil are allowed. That is a higher standard than we have in either Bill C-15 or the Canada Shipping Act. This includes large areas such as the Mediterranean, the Baltic Sea and the North Sea. There is currently an EU directive that appears to be nearing completion that we understand will be stronger than Bill C-15. Canada is not leaping out front here. Canada is just catching up.

It has further been argued that Canadian vessels will be held to a higher standard and that we cannot prosecute foreign vessels, thus putting Canadian shippers at a disadvantage. Under the Law of the Sea and under MARPOL, nations have the right and, indeed, the obligation to set and enforce legislation to protect their waters. However, there are some rules in international law for how we may, for example, board and search foreign vessels and under what conditions. To be clear, that distinction exists already under the Law of the Sea and is not made in this bill. The drafters of Bill C-15 have taken this into account by ensuring that ministerial consent is granted before detaining foreign vessels, so this can be done on a case-by-case basis. The standard to which foreign and Canadian vessels will be held under the law is identical, even if the process is different in each case in accordance with international law.

Concerns have been raised that the bill will have a negative effect on northern and coastal communities. We hope not, obviously, and we think that, since there are no increased standards or regulations under this bill, it is only targeting already illegal activities. We do not believe it will be the case and, as a matter of fact, we would argue that the current situation is adversely affecting coastal communities in the Arctic and in Newfoundland and Labrador. For example, the very birds killed by illegal bilge dumping off the coast of Newfoundland, such as thickbilled murres, breed in Arctic waters in the summer and are important resources for Inuit and northern people. There is also a legal hunt for some species in Newfoundland, such as the eider duck. Every bird killed in oiling is one less bird available for a legal harvest. At 300,000 seabirds off Newfoundland alone, the numbers here are not inconsequential.

As well, tourism is of growing economic importance in both Newfoundland and Labrador and in the Arctic. This tourism is largely based on the pristine nature of the environment and the abundant wildlife, both of which are put in needless jeopardy because of illegal bilge dumping. I believe the committee has correspondence from a Newfoundland- based tourism operator to this effect. By reducing bilge dumping, we would argue that Bill C-15 is helping to maintain these resources and opportunities for coastal communities.

Finally, WWF would be the first to argue that we need greater enforcement, but enforcement needs a supportive legal framework in order to be effective, and we feel that is lacking at present. Without Bill C-15, we worry that a greater investment in surveillance enforcement will lead to Canada detecting more illegal oil spills, for which we often cannot make an arrest, arresting vessels we cannot prosecute and, when we are successful in getting convictions, applying fines that do not act as a deterrent.

Bilge dumping has been a problem in Canada for at least 50 years and probably as long as shipping has gone on. Without Bill C-15, with its existing strong provisions to bring us in step with the rest of the world, we cannot but conclude that Canada will remain a dumping ground for bad actors in the shipping industry in the foreseeable future. Therefore, we support Bill C-15 in its current form.

Senator Spivak: I am glad you gave us some information on what is happening in the United States, because on Tuesday, when I questioned the shipping operators, they did not give us any information on the United States.

My first question involves the issue of who will be doing the enforcement. It was raised by the shipowners that the pollution prevention officers, of which they claim there are 950 across Canada, would be better suited to do the enforcement than the game wardens, because they are trained, they are already there, and there are many more of them. What is your view of that?

Mr. Laughren: There are more enforcement officers under the Canada Shipping Act. One of the good things that has come about through the introduction of this bill is greater cooperation between Environment Canada and Transport Canada. Apparently, a memorandum of understanding is under way. I see no reason why those two cannot work in concert and apply either piece of legislation as fits the case.

Mr. Rainer: The term “game officer” may connote for some people an image of the game officers of the 1950s or 1960s who were trained to deal with specific areas, perhaps related to deer hunting or whatever. Today's modern game officers — and I know one fairly well from the Canadian Wildlife Service in Sackville, where I have worked — are highly trained to do what they do in terms of understanding legal procedures and following those legal procedures. As came out in one of the presentations you have heard, they have linkages to the police networks around the world. I am not sure if the pollution prevention officers have that same network. I think their focus is primarily how to stop pollution from getting in the water, and the legal procedures to follow to pursue a particular case. That is the real strength of today's modern wildlife enforcement officer with the Canadian Wildlife Service.

Senator Spivak: How many are there, and how many will there be? Is that number accurate? Are there 950 or whatever pollution prevention officers? In other words, what in your estimation is the total number who will enforce the act? That is the key. A lot of legislation is more honoured in the breach than in the observance.

Mr. Rainer: One of the positive things I am hearing about this bill is how Transport Canada and Environment Canada are coming together around an MOU and presumably around these kinds of questions. We have 950 pollution prevention officers who have certain training and experience, and we have 55 wildlife game officers who have certain training and experience. It would seem to me logical that, if those two agencies examined those resources, we could have a 1,000 member strong force that could work on this and exchange knowledge.

Senator Spivak: Thank you for that information. In every bill I have dealt with here in the Senate, whenever there is a move towards stronger enforcement, there is a cry that we are criminalizing the innocent and good people. The main point made on Tuesday was the reference to the presumption of innocence and the liability. You did not mention that in your presentation. Would you comment on that aspect? I do not want to be cynical, but because we hear this all the time, it does not mean that there may not be a good, legal reason why this is not a good thing.

Mr. Laughren: We have not spent much time dealing with it. We have read the transcripts and we know that you have asked for opinions on this. It is our view that the strict liability provision is in force in all sorts of Canadian legislation and in legislation throughout the Commonwealth and the United States. This is nothing new. That is how other industries in Canada operate, whether it is forestry, mining or whatever; and whether they are Canadian industries or foreign industries operating in Canada. We think it quite logical that that is the way the shipping industry should operate as well.

The shipping industry is concerned about it because it is a change. One reason that bilge dumping has gone on for so long is that it is seen as, essentially, a traffic violation. It is a small offence. You pay a fine, and you get on with your business. That is one of the reasons it has continued to this date. The arguments against going to strict liability and against larger fines are a signal of that mode of thinking about it. That is why we strongly support this bill. It sends the signal that we need to take something causing this much environmental damage much more seriously.

Senator Spivak: I do not know about the rest of the legislation, and we will be getting legal advice on this, but ship owners have to prove due diligence. They have to prove that it was been an accident or whatever. I am not sure at this point in my mind, although I strongly support the bill, how that procedure differs or is in line with other legislation that has strict liability. How does this fit in with other legislation? Have you taken the time to look at it?

Mr. Rainer: We certainly talked about it in general terms. I believe the Sierra Legal Defence Fund may be presenting to you later on. They have much greater expertise in this area than we have. However, in general, the first point that should be made is that existing legislation that the shipping industry has to adhere to has criminal penalties incorporated in it — the Canada Shipping Act, the Fisheries Act, the Migratory Birds Convention — and those penalties range from six months to five years imprisonment. My understanding is that those kinds of penalties have not been meted out, but they do exist, so they are already under, if you will, that threat of criminalization. Ironically, Bill C-15 would reduce the maximum prison sentence from five years to three years.

In general, there is the existing framework, and there is enough flexibility built into our court system that factors such as a ship's prior performance and the procedures they have put in place to do their due diligence will be taken into account. As long as a company has done its due diligence, it should have nothing to worry about. They can say that they have procedures and training. They can demonstrate that in front of a judge and make a pretty good case.

Senator Milne: If I may, as a point of clarification, I point out that the due diligence defence in this bill is identical to all other strict liability defences.

The Chairman: On the same subject, Mr. Rainer, you mentioned that, under the existing legislation — putting aside now the question of extending the jurisdiction out to the 200 miles — in respect of something that happens now within the 12-mile limit, successful convictions have never or rarely resulted in the imposition of sentences or fines which are near the maximum presently allowable. How will that change under Bill C-15? If the courts do not impose the largest fines available to them, even in the event of successful prosecution, why would we think that would change?

Mr. Laughren: We hope it will. There are two contributing factors. First, the minimum fine clearly shows the intent of Parliament as to the seriousness of the offence. Second, the discussion around the bill and its passage into law shows to the judicial community the seriousness of Parliament and the will of the Canadian people in this regard. We certainly hope that this contributes. I cannot see it doing anything but improving the situation.

Senator Cochrane: Thank you for appearing. I am from Newfoundland, and I am particularly interested in what has been happening to those birds. Since this bill was introduced, we have had another spill in our waters affecting ducks. To me, that is unheard of. I am sure many vessel owners know that this bill is before Parliament. To think that they would continue discharging bilge oil into our waters and killing our birds is devastating.

Let me ask you, have we had other experiences in other Canadian waters to the extent that has happened on the East Coast?

Ms. Elmslie: I like that you highlighted that you were from Newfoundland, because I was out there holding, not the eider ducks, but the murres and the dovekies that were oiled. There is nothing worse than holding a bird that has been oiled due to an illegal activity.

Currently, research is being conducted on the Pacific coast of Canada, but, unfortunately, it is difficult to quantify the significance of the impact out there. We do know that ships come in and out of the Port of Vancouver and travel along the coast. To try to quantify the extent of the problem is difficult because the currents push the birds offshore, whereas in Newfoundland, the currents deposit many of the carcasses on the beach and people find them.

As well, in Newfoundland, when ships come over from the great circle route, they spend a lot of time travelling along the East Coast of Canada, so there is more opportunity to spill. On the West Coast of Canada, ships generally come directly into the Port of Vancouver and back out. The Canadian Wildlife Service is trying to address that problem and quantify it, and it is known that, even though there is no data, there still is a problem on the West Coast as well.

Senator Cochrane: You may be the wrong people to ask this next question, and if you cannot answer, that is fine. I was not here on Tuesday to ask our witnesses this question. What does it cost for a ship to go into a port to discharge bilge oil? I understand there are facilities in ports where ships can empty their bilges. It is rather like changing the oil in a car. You pay for that service. Do you know what that costs?

Ms. Elmslie: The cost depends on the size of the vessel and the amount of oil in the bilge. It costs anywhere from $5,000 to $10,000. However, for many of these vessels which are on very tight time lines, the consideration is the time that it takes to stop in a port and dispose of this oil. If they can do it while they are in transit, they are saving time, and time in shipping is money. There is a real economic incentive, especially if one knows there is limited surveillance. Although the financial cost is small, $5,000 to $10,000, there is also the time that must be spent to do that.

It is just not fair that legitimate ship operators who go into ports and pay those costs have to carry that burden, whereas other ships just dump and get away with it.

The Chairman: We heard on Tuesday that facilities in Canadian ports in particular for the disposal of oily bilge water are insufficient and that some Canadian ports do not have them. Is that correct?

Senator Cochrane: The port of St. John's has them. However, I am not 100 per cent certain about that, but I will find out.

The Chairman: Do any of the witnesses know the answer?

Ms. Elmslie: My understanding is that there is one port section facility in St. John's, but it is lacking. I would agree that more are needed.

The Chairman: I ask the question because the shippers asked us how ships going to Halifax or Saint John are supposed to dispose of this oil it if there are no facilities to handle that. They inferred that there was a shortage of such facilities. We did not ask that specific question, however, we will ask the question of the people whose job it is to know. Do you know that?

Mr. Laughren: I am wary of the argument: “We do not knowingly dump our bilge. Good operators do not do that. It does not happen. However, we did it because there were no facilities.” I am missing the connection there. I do not want to totally negate the problem. If there is a need for more facilities, clearly, that is something that should be addressed, but dumping illegally is not the answer.

Senator Christensen: We were also told that it is now economical for the newer ships to sell that bilge oil to China or wherever, so why would they want to dump it?

Mr. Laughren: The good operators can do that, and your committee is hearing from some of the good operators. The shipping industry is a large, global industry. Not all are good operators, and many ships do not have those facilities, but I am glad to hear that technology is catching up.

Senator Hubley: Again, we may be asking the wrong people, but is there a standard of technology and equipment that has to be on board certain sized vessels in order to address the bilge water problem?

Mr. Laughren: I think there is, but I, frankly, do not know what those standards are.

I was just handed a note on an excellent point that I missed in dealing with port facilities in Canada. Many ships are not stopping in Canadian ports. They are stopping in U.S. ports. It is most of the ship traffic on the great circle route, so addressing the facilities in ports, although important, is clearly not the only issue here.

Ms. Elmslie: In Canada, we have the right of innocent passage, which means that, if a vessel is coming through Canadian waters and not stopping at a Canadian destination, it need not let the authorities know that the vessel is there. Therefore, vessels can come through our waters, dump their bilge oil, and we will not even know that boat was here.

The Chairman: It may be that the people who are concerned with these particular questions do not know, but Canada, with the use of existing technology, does know every ship, including those who are in the course of innocent passage, that is going through our waters. The information may not be shared with the right people, but no ship innocently passes through Canadian waters without some Canadians knowing about it. That is not to say they know what is on it or necessarily where it is going, but its course is known and it can be clearly identified.

Senator Cochrane: Are you aware of that?

Ms. Elmslie: No, I was not aware of that. That is good to know, though.

Senator Cochrane: Is this in a data base, senator?

The Chairman: I hasten to say that I do not know whether people concerned with matters having to do with the disposal of bilge water have access to or make use of that information but, from the security standpoint, there is a global, almost real-time picture of the maritime activity in the waters to which you have referred that is known to the defence establishment and the security establishment. Global positioning and other equipment is used. It is satellite based. I do not know whether the connections have been made, but the information is available.

Senator Cochrane: Evidence suggests that, in the United States, investigations of sea-based pollution events have led to much higher fines than is the case in Canada. It appears that U.S. authorities do not hesitate to charge individuals and corporations if culpable individuals can be identified. Courts have imposed jail sentences as well as personal fines.

Is it plausible that by having a more lenient regime in adjacent Canadian waters, we are creating economic conditions that could effectively increase incidents of illegal bilge water dumping?

Ms. Elmslie: Absolutely. We see this in the number of oiled birds that are showing up on the beaches in the beach bird studies that are done. Although there are more birds in Canadian waters than in U.S. waters — I am talking about the Atlantic coast — when those carcasses are collected off the beach, 62 per cent are oiled. That is a huge number that have come in contact with oil at some point. For some, it is a cause of death. Some may be winter mortality birds that are coming on shore that have touched oil, but it means that there is a lot of oil in the environment. Those birds are coming ashore.

In the United States, a group called SEANET that runs out of Tufts University, is trying to document how many birds are impacted by the very same deliberate oil pollution. They are finding oiling rates of only 2.5 per cent, so there is a very substantial difference.

Senator Cochrane: Many Arctic birds come to Newfoundland to rest until the weather changes.

Senator Adams: They rest there until the ice breaks up in the spring. They will start coming back now.

I come from the Arctic where we know all about the birds that migrate to the far North. This is the first time that I have heard that 300,000 sea birds are killed by oil every year. Some of those bird species migrate to the North. Senator Cochrane just mentioned that some of them go to parts of Newfoundland and then come back to the Arctic. However, most of them stay North. For instance, the eider ducks do not go south. They stay in the North for as long as the sea water is open. The level of cold does not seem to affect them. When I have been on a seal hunt at the floe edge I have often seen eider ducks swimming in the steaming salt water. It can be minus 60 out there. Every few minutes they dip their beaks to be sure that they do not freeze.

How do you monitor the situation to know that 300,000 birds are killed by oil spills every year? Do you have equipment out on the ocean 12 months a year? You say about 62 per cent are killed by oil. What about the remaining 48 per cent? How are they killed?

Do you have equipment to collect the carcasses of the 300,000 birds that are killed every year? Can you also tell us what kinds of mammals are killed by oil in the sea? What types of birds? We have many seabirds in the Arctic, and we have Inuktitut names for them. What areas of the Arctic are affected by this?

The Department of the Environment told us they monitor ships by satellite to detect any oil discharge into the sea, both inside and outside the 200-mile limit.

What percentage of the oil that is discharged finds it was to the sea through the rivers?

Shipping company representatives told us two days ago that they do their best not to pollute the water.

Ms. Elmslie: Senator Adams, you are absolutely right in that seabirds are incredibly adapted to the environment in which they live, and when you look at the temperature difference between the core of a bird versus the water that they are in, it is dramatic that they can survive at all, especially in the temperature you mentioned.

The 300,000 figure that is talked about was a PhD thesis that was peer reviewed and published by a gentleman named Francis Wiese. I would be happy to provide a copy to senators. Although I did not write the thesis, I can take you through some of his work and explain how he extrapolated his findings.

For several years the beaches in Newfoundland, especially along the Avalon Peninsula, have been monitored. That is how we determined the oiling rates. A chemical analysis can be done of the oil on the feathers of the birds. Oil has a fingerprint, and when you examine the type of oil you can tell exactly where it has come from, so you will know if it is a natural seep. That is how they knew with regard to the murres that it did not come from Terra Nova but from spills. Each one is identifiable. If you can get samples from vessels you can fingerprint those samples and know which vessel dumped the oil. That is how it was known that the birds were being oiled by illegal bilge oil as opposed to natural seeps.

In his research, Francis first wanted to know how the currents worked. He went out on boats and used a drift-block study. He used blocks that were weighted and would behave in the same way that a bird carcass would act in the water. He then had measured how many drift blocks ended up on the shore. He had an idea of what percentage were actually making it to the shore.

He also did carcass decomposition studies. In winter in Newfoundland, a carcass of a bird will only last for about three days on shore. The beached bird surveys that were being done were only being done once a month. His studies lasted a winter. He collected birds every single week, every Sunday, throughout the winter. He then knew, from the decomposition, that if he found one bird that that might more likely represent two birds that would have shown up on shore. As well, natural predators will eat these birds.

From that data he was able to extrapolate backwards and came up with the 300,000 figure, which is for one small catchment area off the coast of Newfoundland. As I said, he wrote the PhD thesis. I know it has been published in marine pollution literature and it has been peer reviewed. I can get you copies of that if it would be helpful. You can read through the research and the methodology of how he arrived at that figure. It is a conservative figure, and was accepted by Environment Canada.

Finally, as to the impact on mammals, I know Mr. Rainer touched on that, because in the Grand Banks area we have fish, whales, seals, and porpoises. It is a dynamic environment. At this point we do not know how it will impact other species. Birds are the easiest to find because their carcasses are showing up on shore.

I hope that answers your question.

The Chairman: What kills 48 per cent of the birds? That was part of Senator Adams's question.

Ms. Elmslie: A lot of it is natural mortality with birds coming ashore. That number represents birds that have died. Many birds die in the winter and those bodies come ashore. Those numbers are consistent. When I was at the Prestige oil spill in Spain, there was an intensive effort to collect all of the oiled birds that were coming on shore, and we saw the same levels of winter mortality birds. A lot of mortality happens over the winter.

Senator Adams: What is the distance between monitoring stations? How much monitoring is done? How far is it conducted from our shore of New Brunswick all the way up to the high Arctic? Do you do similar monitoring on the West Coast?

A couple of years ago I went through from Resolute up to Coppermine on the Coast Guard ship. We were testing the temperature of the water. A piece of equipment was dropped into the water to a depth of over a thousand feet and when it was retrieved it would give a reading of the difference in temperature from the surface down to the bottom. Do you have equipment that is similar to that?

Mr. Rainer: I do not think the three of us are in a position to answer that question. I do not believe that there is rigorous monitoring of seabird populations for oil spill damage right along the Canadian coast, on the eastern or on the western coasts. There may well be some monitoring that is under way of which we are not aware. Most of the monitoring, which is done by volunteers, is more for measuring populations and migrations and this kind of thing as opposed to the monitoring of specific environmental situations like oil spills.

Senator Adams: Is 300,000 a realistic number?

Mr. Laughren: It is certainly the best estimate. We might be off by as much as 20,000 or 30,000 birds, which is a high number, but it is small compared to the total. That is all we can do because so many of the birds do not come to shore, they sink before they reach the shore, and they end up in remote spots where there is no monitoring. We can only make a best guess based on what we are counting and what we assume comes after. It seems they have been very thorough and they are peer reviewed. Environment Canada accepts that, and I think it is the best we can do.

The Chairman: It would be helpful if you could give us that information so that we can examine the methodology. I gather, from what you have said, that this is not a case of having found 300,000 birds but rather an extrapolation. Is that that correct?

Mr. Rainer: Yes, that is correct.

It has become a well-established principle in the environmental field that, where there is uncertainty around scientific questions like this, we are encouraged to apply what is called the precautionary principle, that is, to err on the side of caution. The actual number could be well above of 300,000, but when people are doing this kind of research they tend to be conservative with their estimates; they tend to not over-inflate the numbers out of respect for the audience, since we do not have total certainty.

The precautionary principle would be well applied in this case. We do not know for certain the total number of birds that are being impacted. We do not know at all to what extent marine mammals are being impacted. With that uncertainty, the precautionary principle should give us even more reason to pass legislation that favours the protection of the environment.

The Chairman: Ms. Elmslie has undertaken to provide us with a copy of the methodology.

Senator Forrestall: Do we have any concept of the bird population in our part of the world? What does 300,000 relate to? Is the total 30 million or 50 million? Is it a drop in the bucket or is it a significant number? I am not saying that 300,000 is not significant. In fact, it is so significant that I just do not believe it, and I have lived on the shore all of my life. I have seen no decline on the East Coast.

The first satellite that gave us the data on which we have based our scientific activity in this country for the last 50 years was a U.S. instrument designed to provide the United States information it needed to plan and expand in a sustainable way. We had to live with that information, even though it was not precise or, even worse, it was imprecise. We have no technology that I know of that monitors birds. We do know that there is nothing on this earth that moves that is not countable and has not been counted.

Mr. Rainer: There has been a tremendous number of population estimates by the Canadian Wildlife Service, by provincial biologists and increasingly by volunteers, such as those with Bird Studies Canada and other organizations. More and more we are getting a clearer picture of the bird populations of Canada and around the world. As an example of that, in 2004, the North American Land Bird Conservation Plan was published, land birds being songbirds and other birds that inhabit forests and fields. In that report I saw, for the first time, estimated populations for all the birds that report was concerned with. This was based on a tremendous volume of data. It is not precise, but the picture is becoming clearer all the time.

With regard to seabirds, the Canadian Wildlife Service has quite a strong monitoring program out of Sackville and out of St. John's. There are reasonably good estimates for species such as the thick-billed murre. If we take the 300,000 off the coast of Newfoundland, with the knowledge that the thick-billed murre constitutes about 60 per cent of the seabirds off that coast in the wintertime, we can make a reasonable assumption that perhaps 160,000 to 180,000 of those birds would be thick-billed murres. We do have estimates for the total murre population and we can get a sense of the impact. We know that there is concern within the biological community for exactly the issue of how the murres, in particular, are being impacted by oil spills. Hunting pressure, oil discharge and other effects cause concern about the long-term sustainability of that population.

Senator Forrestall: You could not give a number with any precision?

Mr. Rainer: No. The technology does not exist to count individual organisms in the way you are suggesting. It has not been applied in that way. There have been attempts in the ocean to use state-of-the-art surveillance technology to count individuals things swimming in the ocean. I do not know how successful that has been.

Ms. Elmslie: With regard to the thick-billed murre, the loss of 300,000 that Mr. Rainer spoke of in addition to the number of birds that are killed in the legal hunt in Newfoundland, removes the buffer in the population and makes it vulnerable to weather-related events, for example, which may send the population into decline.

These seabirds take six years to mature sexually and generally only lay one to two eggs a year. Therefore, once that population goes into decline, it is difficult for it to recover.

Senator Forrestall: We could lose it altogether.

Ms. Elmslie: We could definitely send it into decline.

Senator Forrestall: That would be a wild suggestion, would it not?

Mr. Rainer: One hundred to 150 years ago, the passenger pigeon was one of the most numerous bird species ever known. From a couple of billion birds, the last surviving pigeon, Martha, died in the Cincinnati zoo in 1914. There is precedent for reducing large numbers of birds fairly quickly, either intentionally, which was somewhat the case with the passenger pigeon, or unintentionally, as with some of our seabird populations.

Senator Buchanan: I am not a statistician, but I have been involved in this business for a long time, and I know that statistics sometimes become paramount. Where does your estimate comes from? I have heard estimates anywhere from 50,000 or 60,000 to 300,000. I have never seen specific evidence about where those numbers come from.

Mr. Rainer, I tend to want to believe just about everything you say because you do work out of Sackville, New Brunswick, and I graduated from Mount Allison University. I know some of the people who work with you.

I have lived all of my life next to the sea in Nova Scotia. I was a minister of fisheries, leader of the opposition, a premier and a senator. I know fishermen. I know them from the tip end of Cape Breton to Sandy Point in Yarmouth. I have visited them over the years, and I still do. I have not seen a major reduction in seabirds in any of those areas. If you go down to the Port of Sambro today, you will see more seabirds than you did last year. Fishermen do not tell me that they see all these dead birds that you talk about washing up on the shore. I have not seen them since a ship went aground in the Strait of Canso. However, no large numbers of birds have been coming in. A lot of seabirds die. A lot of birds die.

I asked a veterinarian friend of mine what happened to all the birds that die because we do not see them around, and she told me that they die in the woods. There are not many woods in the centre of Halifax. They do not die because of pollution in the ocean, they die from natural causes, as most of us do. I saw a study which indicated that less than 10 per cent of the seabirds you are talking about die from so-called pollution in the ocean. The rest die from many other reasons, but not from pollution. I would like to know where your estimates come from.

The Chairman: Ms. Elmslie has volunteered to send us the source of that number and the methodology, so that we can have a look at it. We will also want to look at other sources, such as Senator Buchanan mentioned, that indicate that less than 62 per cent of birds have died from being oiled. Let us look at all of the sources that we can find. You are right, there is the saying: “There are statistics and there are damn lies.”

Senator Buchanan: I agree with that, too. The ones that go against me are the damn lies.

The Chairman: That information is forthcoming. Are you comfortable with that?

Senator Buchanan: I am.

The Chairman: We will be able to look at it and ask questions.

Senator Adams: Just a couple of days ago, we met with people from some of the biggest corporations in the world who told us that they had not heard anything about Bill C-15 until recently. The same is true of the people in my area, the Arctic. Bill C-15 will not only affect birds, its implementation will touch on everything to do with land, sea and lakes. Was your organization consulted by the government when it was drafting Bill C-15?

Mr. Rainer: To my knowledge, Nature Canada was not directly involved in the drafting of the bill.

Senator Adams: I have difficulty with your 300,000 figure. Every Canadian company must understand that it can be criminally charged. Government will often not act until they hear statistics like 300,000 birds being killed every year.

The Chairman: That was a statement, I think, rather than a question, Senator Adams.

Senator Adams: This information has to come from somewhere.

The Chairman: We will have the officials from the department who drafted the bill and the minister back again and we can ask the question about the genesis of the bill at that time. Senator Hubley who is the sponsor of the bill may have some information in that regard.

Senator Milne: Mr. Laughren, I tend to agree with the position you put forward today. I notice in your presentation you said that every bird killed by oiling is one less bird available for a sustainable hunt. You were speaking about Newfoundland. You are not arguing here today against hunting. However, I am always nervous when I see statements like that, particularly given IFAW's stance against the Canadian seal hunt and the way they use that every year as an annual fundraiser. Do you intend to use this approach as a first step in an argument against bird hunting or hunting for birds in Newfoundland?

Mr. Laughren: That is a fair question, and I am happy to say no. WWF is a sustainable-use organization. We are on record in any number of areas as not being opposed to hunting. Monty Hummel, our now president emeritus, proudly wears the fact that he is a duck hunter on his sleeve, and says that whenever he can, so he would be happy that I am saying it. That is absolutely not part of any explicit or hidden agenda to limit the hunt. We have no issues with sustainable use and sustainable harvest of populations.

Senator Milne: I am glad to hear that answer.

Ms. Elmslie, as a fellow graduate of Guelph, what will your organization do in the future about hunting for birds?

Ms. Elmslie: I came to be involved with this specific issue because I do rehabilitation of oiled birds. We can respond to oil spills all that we want, but we wanted to address the chronic, deliberate dumping of oil. At this point, our organization has no plan to work on hunting issues within Canada. IFAW Canada has a policy statement supporting indigenous and subsistence hunting. This is not an issue that we intend to take up.

Senator Milne: Except for the seal hunt.

Ms. Elmslie: Except for the seal hunt.

Senator Buchanan: Why except the seal hunt?

The Chairman: Out of order. We are not going there. Bill C-15 does not refer to seals.

Senator Buchanan: Your organization has attacked Nova Scotia fishermen and the government over the years. Yes, if it is seals; no, if it is the other birds: I would like to know what the difference is.

The Chairman: We are not talking about seals today.

Senator Milne: The chair has just ruled me out of order for my next question. I subside. There are severe concerns. I agree with you on the birds; on the seals, no.

Ms. Elmslie: We do have a diversity, obviously, of opinions on that. Senator Milne, if I may be so bold, if you or other senators would like to follow up on the seal hunt issue, I would like to come to your office with our country director and we can talk about that issue specifically.

The Chairman: I suspect we will be talking about seals at some point in some context, but not today.

Senator Oliver: I have a brief supplementary question to both of you who responded to hunting birds. Do you have any opinion on the type of ammunition used to hunt birds?

Mr. Laughren: At the risk of being out of order in taking a self-agenda, I believe the WWF position is that we should phase out lead shot as one of the serious toxins in the environment.

Senator Oliver: Is it not a firm policy yet?

Mr. Laughren: We will get that to you. I am not sure.

Ms. Elmslie: We have no statement or policies on the hunting of birds.

Senator Christensen: Do you have any idea whether those ships that are dumping offshore are mostly Canadian or foreign? It would seem they would be mostly foreign ships that are transferring through our waters, as opposed to coming in.

Mr. Laughren: It is fair to say that we do not know the numbers, but in terms of global shipping, Canada is an important but relatively small player in the entire scheme of things so I will hazard that it is a safe point, especially since many of the ships are not actually stopping in Canada, that the majority of ships just by sheer numbers are not Canadian.

Senator Christensen: Bill C-15 is important as we have global warming, and our Arctic waters are opening up more and more. The Arctic will probably take over from the Panama Canal as a major shipping route.

Senator Adams: That will be in the next 10 years.

Senator Christensen: Ten or 20 years is not a long time. The Arctic does not get the same surveillance as the part of the east coast where Senator Buchanan comes from, or the west coast. There are possibilities for environmental disasters up there, accidental or otherwise. They affect not only birds but polar bears. A polar bear with oil on its fur is in serious trouble. The birds are canaries in the coal mine, shall we say. So much else is affected. There is the floor of the ocean, the shellfish, fish themselves, seals, sea otters, and all the way down the food chain. We are part of that food chain. We end up eating it one way or another.

What was brought forward again and again in our last presentation was the unfairness to those that are accidentally polluting, and the fear that a whole shipload of seamen will be charged because of some accidental pollution. Could you comment on that? Someone may accidentally throw the wrong switch and some oil gets into the waters. There may be a transfer of fuels where some oil gets in the water. You pick up the radiophone and you say, “We have just had an accident. Somebody come out here and give us a hand. We will help clean it up; we will put out booms; and we will do all those good things.” It is an accident. Nobody will charge you for it because you have identified it and admitted to it.

However, someone may be trotting along through the ocean with a bilge full of oil and water that they want to get rid of. They do not want to come into port and take the time and pay the cost of dumping it. They just open it up and let it go. They are not going to tell anybody about it. That is not an accident. There is a clear distinction there, in my opinion.

I guess that is a statement as opposed to a question.

We have heard that the United Nations Convention on the Law of the Sea, UNCLOS, differs from Bill C-15 specifically with respect to accidental pollution. Can you delve into that at all?

Mr. Laughren: I am afraid, not well. We can suggest to our legal department that they look at it.

Senator Christensen: We will get legal opinions. Perhaps that is where we should get the information.

The Chairman: Just to confirm, we would like to hear from you in that respect and your opinions, the reason being that Canada ratified UNCLOS just a year ago, if I have that right.

Mr. Laughren: That is right.

The Chairman: A provision of UNCLOS is quite specific in that penalties for foreign ships for the discharge of unallowed waste, if I can put it that way, which cannot be proven to have been intentional, are limited to fines and not jail terms. There is, on the face of it, a claimed conflict as between Canada's obligations under UNCLOS on the one hand and those proposed under Bill C-15 on the other. They are not new in Bill C-15. I think what Senator Christensen wants from you, as well as from the Sierra Legal Defence Fund, SLDF, is a comment on that specific conflict. There appears, on the face of it, to be a conflict between one international obligation, to which we are a signatory, and proposals that exist perhaps under present law but also referred to in Bill C-15.

Mr. Laughren: This is clearly a relevant question for our fisheries enforcement off Newfoundland, which is of some interest these days as well.

UNCLOS is a difficult document for a lay person to get hold of, I speak of that personally, but certainly the intent in UNCLOS is to set the framework for how we treat each other within our waters and outside our waters. There are differences in what we can and cannot do in our territorial sea and in our exclusive economic zone of 200 miles. Much of that is quite untested. It sets a clear obligation for nations to cooperate, and to set and enforce laws to protect the marine life in their waters.

There are a number of layers that are tough to tease apart. Clearly, we cannot act as cowboys out in the water and arrest whomever we will and detain them forever, but I will defer to SLDF on where the line is drawn, and what we can and cannot do to foreign vessels depending on the situation. To my knowledge, it is really quite complicated.

Senator Christensen: Is Bill C-15 tougher than some of the international agreements we have dealing with this issue, or are we really just playing catch-up?

Mr. Laughren: Certainly, on the issue of cracking down on bilge dumping, we are just paying catch-up. Other countries, including the EU and the U.S, have arrested, fined and charged mariners for offences at sea. It is not as clear-cut as that we cannot charge foreign vessels or foreign people. There are provisions for when we can and cannot, and what obligations we have to get permission from the flag state of that ship before we do so. Where that line is, I will defer to the legal opinions you gather yourself, but the idea of enforcing laws within our own jurisdiction including out to the Exclusive Economic Zone, EEZ, and including criminal provisions is not new to this legislation.

Senator Christensen: In developing this particular piece of legislation, do you think there has been adequate public, industry and stakeholder consultation by the government?

Mr. Laughren: I can probably speak for all of us on this. We are not aware of what consultation was done. It is a really tough question to answer.

Senator Christensen: Do you feel that you were adequately consulted on this particular piece of legislation?

Mr. Rainer: Speaking for Nature Canada, we had an opportunity to make presentations around Bill C-34, the predecessor, as well as opportunity to make presentations to the House on Bill C-15 and, again, thank you for this presentation today. Some of those kinds of concerns, if you will, are probably concerns of parliamentary procedure. You folks or others who work within the parliamentary system may be able to determine best whether or not those processes have been followed, or what your guidelines are there.

Senator Christensen: I know Senator Forrestall was saying he still sees lots of birds, as does Senator Buchanan. With global warming, populations can go very quickly. I am certainly not a biologist. I have a bird feeding station for redpolls, and each year, for the last 25 years, I have bought 200 pounds of shelled sunflower seeds, and I use that 200 pounds every single year. This year, I filled it up in October, and there has not been a bird there. That is the first time in 25 years. The population is just not there any more. There has not been one bird.

Senator Oliver: You do not live on the ocean, do you?

Senator Christensen: No, but they are little birds affected by global warming, and that is caused by pollution.

The Chairman: Were any of your organizations consulted in the drafting or the preparation of Bill C-15 before it went to Parliament?

Mr. Laughren: No.

Senator Buchanan: You mentioned the United States. Are you aware of the fact that, in the United States, most of the liability in matters like this is civil rather than criminal?

Mr. Laughren: I am certainly not an expert on U.S. law, but they have pursued civil cases and criminal cases, both, in bilge dumping. I am not aware of specifics.

Senator Buchanan: Has there been, to your knowledge, as in this bill, a transfer of the onus of the presumption of innocence to a presumption of guilt, which is a violation of the United Nations declaration of human rights? This bill does it. Have they done that in the United States, to your knowledge?

Mr. Laughren: There are a number of laws in the United States, such as the Oil Pollution Act and the False Claims Act, under which they charge for bilge dumping and pollution offences. I am not familiar with all of them.

Senator Buchanan: I am asking if there has been a reverse onus in the United States, to your knowledge.

Mr. Laughren: Yes. I certainly know that, in the United States, the strict liability is common.

Senator Buchanan: No. I asked if the reverse onus has occurred in the United States where you are presumed to be guilty and must prove your innocence?

Mr. Laughren: I am not aware of that being done in the U.S., nor, as I understand it, is that what is happening in this bill.

Senator Buchanan: In this bill, that is what is happening. Are you aware of that?

Mr. Rainer: My understanding is that it is not so much you are presumed guilty, it is that the offence occurs by demonstration of the evidence. In other words, if the discharge has reached the water, an offence has occurred. In a strict liability case, you have the option to demonstrate you did due diligence, and that is more or less what you will be obliged to do.

Senator Buchanan: However, you will still be charged. The officer, the owner, the engineer, under this bill, will be charged if there has been, as the senator said, an accidental spilling of a cup of oil. A game officer could go out and say, “I am charging you,” and they will be charged.

The Chairman: May be charged.

Senator Buchanan: Well, may be charged, all right. I will go that far. However, as soon as they are charged, the officer, the engineer, and other crew members involved, et cetera, must then prove their innocence. That contradicts the Canadian Charter of Rights and Freedoms. It certainly contradicts the United Nations Universal Declaration of Human Rights.

Mr. Rainer: If I may, senator, I believe the Supreme Court of Canada has already ruled on this question and found in favour. Strict liability does apply —

Senator Buchanan: What case is that?

Mr. Rainer: It is called R. v. Wholesale Travel Group Inc. I am not sure exactly what that was. It was in 1991, and it looked at the whole issue of strict liability.

Senator Buchanan: That case is not relevant to what we are talking about here.

Mr. Rainer: I could quote directly from the court's ruling on that, if you like, or I could give that information further on, but it does indicate that, for issues such as environmental protection, within the purview of helping society deal with these issues, strict liability is an appropriate mechanism.

Senator Buchanan: That judge has agreed that there should be a reverse onus. Is that what you are saying?

Mr. Rainer: I do not know if it is a reverse onus, but there are different gradients. There is absolute liability, there is strict liability, and there is mens rea. They are saying that this kind of an issue places it squarely in the middle, trying to balance the public interest and the private responsibility.

Senator Buchanan: You have just used the right terminology, mens rea, because what is happening in this bill is there has been a reverse of the onus.

Mr. Rainer: Yes, but it is consistent with recent environmental legislation.

Senator Buchanan: You are saying that, but I do not think that is correct.

The Chairman: We have information on that in the documentation we have been given, Senator Buchanan. I refer to this document that we received on Tuesday from our legal researcher which cites the answer to the question. We will have our own independent advice about this, senators, but we must be careful in the use of the term “reverse onus.” There is a distinction between a reverse onus in the sense that it simply turns things around, which strict liability does not, if I understand it correctly. In the case of the strict liability application, which has been found, as our witness has said, by the Supreme Court to be appropriately applicable in respect of environmental law, the onus on the Crown to prove beyond a reasonable doubt that an event happened is one thing, but then the capacity to show on the balance of probability that due diligence was taken and that negligence was not there is a different level of onus, so it is not a precise reversal of the onus.

Senator Buchanan: If what you just said is the case, if it is at present the environmental law of Canada, then why is this section in this bill? If it is the present law, why do we have it in this bill?

The Chairman: Because this is a bill which amends a present bill, and it has to be referred to, as it is in the Species at Risk Act, et cetera, et cetera.

Senator Buchanan: Then what you are saying?

The Chairman: The bill does not create the application of strict liability in respect of the Migratory Birds Convention Act. The strict liability already exists in the Migratory Bird Convention Act, as it has since that act was enacted.

Senator Buchanan: If that is the case, why are there sections in this bill?

The Chairman: They are modifying or amending the nature of the jurisdiction in which they will apply, and they are amending the level of fines and the nature of the sentences that can be given, upon conviction. However, the concept of strict liability is not new, and it is not being introduced in the present bill.

Senator Buchanan: We could get into a great argument over this.

The Chairman: And we will, because we will have our own counsel as well.

Senator Spivak: Could I just point out that strict liability is not a new concept.

Senator Buchanan: I know that.

Senator Spivak: It has been around a long time. I get a summons from the court because my alarm has gone off. They just presume I have been guilty of something, and the fine is there: either that, or I have to go to court.

Senator Buchanan: They have to prove it. The prosecution has to prove it.

Senator Spivak: No, they do not have to prove it. I have to go to court to say I am innocent.

The Chairman: Order. We will have this discussion at great length, and we will have it after we know even more than we know now about these things. I promise you we will have that discussion.

Senator Hubley: One of the concerns that the shipping industry made very clear to us was the consultation issue, the size of the problem and how it affects our country. When you do your studies and develop reports and publications, do you make an attempt to engage the shipping industry in the problem as you see it?

Mr. Laughren: WWF is certainly an organization that has a long history of working with industry, and we pride ourselves on that. On the shipping side, we came to it quite new. It is not an industry we have long-term relationships with, but we did take up this issue with the Canadian Shipowners Association and the Shipping Federation of Canada before the legislation was introduced. I believe there are several different associations, and we did meet with them. We met with companies such as Canada Steamship Lines, CSL, to try to find ways to address this. We certainly sent to the shipping association our report that helped solidify the case of the problem. We have been in contact with the shipping industry around this issue.

Senator Hubley: Has the shipping industry come back and put its side of the case to you?

Mr. Laughren: I will take the liberty of quoting the conversation we had with the then head of the Canadian shipping association, Mr. Richard LeHir, an ex-parliamentarian. When we came up with the number of 300,000, his answer was that no, only ten birds were killed, because of a discontinued line of reasoning. In the personal communication to us on the phone, he said they did not believe it is that big a problem, and that it was not what the evidence shows. We certainly did not find much interest from him in pursuing the issue with us. That was one person in one conversation, however.

Since this bill was introduced, I have had a couple of calls from the shipping industry wanting to start talking to see what we can do about it.

Senator Hubley: That is good. I got the impression that perhaps they were not even aware there was a difficulty, namely, that an environmental catastrophe was taking place. I am pleased that they have been engaged by your groups.

The other question that I would like to cover is the cost to Canadians. What are the other costs? Who does the clean-up? Are volunteers one of our main groups that help through this, or how does it work when you have to do a clean-up?

Ms. Elmslie: Right now, there are two different levels of spills. If you have a large catastrophic spill close to you on shore, that is paid for by the person who has spilled the oil. Then you have mystery spills. Unfortunately, in most of these cases, by the time the birds make it to shore, they are not in a condition that they can be cleaned.

Regarding the case in December with the murres that had been oiled by a passing ship and were showing up on shore, Petro-Canada has a centre that it built in St. John's, Newfoundland. It was in response to oiled birds that they were finding climbing up on their offshore rigs, and the people who worked on the rigs wanted the issue addressed. They have a cleaning facility in St. John's. The animals are then taken to the Newfoundland and Labrador Environmental Industry Association after they are cleaned for release, so that is all privately funded.

Even though those birds had been oiled by a ship that had been passing through, it was Petro-Canada that paid for all the clean-up costs of those birds.

We do have something in Canada called the Ship-source Oil Pollution Fund, and, generally, if there is a mystery spill, you would make a claim to that fund to get the money back, so it is not coming out of the taxpayers' dollars. When there is a known polluter, then that person is eligible for the clean-up costs.

Senator Hubley: I understand there is an international marine council, and Environment Canada has been bringing forth the issue of oil at sea and oiled birds to that body for many years, and it is an education of the shipping industry. It was an attempt to bring this issue forward to the shipping community, so I find it difficult to understand why they did not know it was happening and the extent to which it was happening. Do you have any comment on that?

Mr. Rainer: I can venture here that the incidents that have been reported the most have come from Newfoundland, and probably have been picked up largely by eastern media. I do not know to what extent they have been picked up with the more western media. From the shipping companies we heard from the other night, it seemed that most of them were based in the Vancouver area, and it may be simply that information is not travelling as much as it should back to them.

Nonetheless, it struck us as a bit odd that in the case of one of the presidents of the company, he admitted he did not know about the 300,000 birds. It just struck us that perhaps their associations should be a bit more proactive in looking at some of these environmental issues, and feeding that information to their members. It is probably fair to say now that this issue is much more on their radar screen, as it should be, and, hopefully, they will be more proactive in the future in helping us solve the problem.

Mr. Laughren: If I may add to that, I think I should be fair to the shippers if I can. In the conversations we have had with the individual companies, they all say, “We are good performers and we have done our homework. Our policies are in place. We do not want our folks dumping bilge oil, so we are not the issue.” I have some sympathy for that. I think we do have a relatively sophisticated shipping industry in Canada, but I can understand their frustration at their inability to police the shipping industry as a whole from an individual company perspective.

Senator Oliver: I would like to do a follow-up on two of the questions asked by Senator Hubley, who is the sponsor of the bill, about the Shipping Federation of Canada. It is a legal question.

The Shipping Federation of Canada is concerned that this bill contravenes some international bills and laws. Does Bill C-15 contravene any existing international agreement, such as the United Nations Convention on the Law of the Sea, to your knowledge?

Mr. Laughren: Not to my knowledge. I will quote someone else who, I believe, appeared before the committee, who said it is really hard to prove something in the absence. I have not seen anything, including from the shipping industry — I may have missed it and they may have provided it — about what clause is in contravention of what clause. That may be there. I am not familiar with any direct contravention or conflict.

Senator Oliver: Neither you nor Ms. Elmslie?

Mr. Rainer: No.

Senator Oliver: Has anyone raised it with you that it does contravene, and it is a major concern of the federation?

Mr. Rainer: No one has raised that with Nature Canada directly, but we understand in the drafting of Bill C-34 and Bill C-15, there was a fairly extensive team of lawyers involved with that. Most assuredly one of the things they first looked at is, what does international law say and what are our obligations to international law?

Senator Oliver: That is an assumption, but you do not know that.

Mr. Rainer: I do not know, but I would be very surprised if they did not take that kind of major consideration into account. If there is a serious conflict, that would be a stopper, but I do not think that is the case.

Ms. Elmslie: I am not aware of that either. To make the same point as Mr. Laughren, I would like to have it explained to me. I have heard the message from the shippers, but I would like to have it precisely laid out as to how it is in contravention.

Senator Buchanan: I believe you were correct when you mentioned, that Canadian vessels are not the real problem here. We heard that the other night from the unions, from the ship owners and from the port operators, that Canadian vessels, for the most part, do a very good job.

However, most of the problems with them are accidental spills. The big problem — and they admitted this the other night — not only admitted it but specifically said it, the big problem is foreign vessels and they are out to get those unscrupulous foreign vessels themselves. We were all here and that is exactly what they said.

One thing of concern to them is that in this bill a game officer can arrest a Canadian vessel if the officer believes that they spilled a gallon of oil. The game officer can arrest that vessel and charge all of these people. However, the game officer cannot arrest a foreign vessel, which is really the big polluter. He has to get the consent and permission of the Attorney General of Canada to do that.

Similarly, we had a bill years ago on snowmobiles. Before you could cross a highway, you had to get the consent of the Minister of Highways. Someone got up in the legislature and said, “On Sunday afternoon, I am out on my snowmobile and suddenly I have to pick up the phone, call Harry Howe at home on Sunday and say, Harry, I am down here on Highway 101. Can I cross the highway this afternoon?” That is a bit ridiculous, but this is really what they are saying here. A game officer can arrest a Canadian vessel, which may have accidentally dropped a little oil, but a big polluter that is a foreign vessel, he cannot do it, and he must get the consent of the Attorney General of Canada. Is that fair?

Mr. Laughren: I think so, to some extent. I will retreat to my area of expertise, which is really fishing. We have the same issue on fishing where we have different processes to follow on arresting foreign ships overfishing than we do Canadian fishermen. The first rule, including under international law, is take care of your own business first. We have some bad operators out there fishing beyond the 200-mile zone and occasionally they come into our zone. Also, we have limits in international law on when and how we can arrest them, but we do. We board them, we find them and we detain them in a way that is consistent were international law. Canada has actually pushed the boundaries on that and helped create the case law around that case. I do not know that it is consistent to use that argument to then say, we should relax standards on our Canadian fishermen.

The same thing goes with shipping. The standard is the same. It is illegal to dump in our waters and there is a penalty for doing so. We will use every avenue — I would suggest this is the spirit — under international law we can to arrest, fine, detain and stop foreign vessels from dumping in our waters. This helps do that, but we cannot rewrite the international law here and now. There are certain policies we have to follow in order to do so. However, the game officers you speak of, as Mr. Rainer said, are extremely well-trained officers of the law, not wildlife experts or something. These are pretty well-trained folks, including in maritime issues.

Senator Buchanan: How many are there?

Mr. Laughren: We have heard numbers such as 55, but I cannot speak to that.

Senator Buchanan: Of which 10 are over here in Gatineau and Hull, so there are 45 to look after the West Coast, the East Coast and the Great Lakes.

Mr. Laughren: It is my understanding though, that the officers under the Canadian Shipping Act can also lay charges under this legislation as well, as it should be.

Mr. Rainer: I will speculate here because I am not a lawyer, but I wonder if the provision to notify the Attorney General is because the process is that the individual has to notify a counterpart, if it is a foreign ship, relative to that foreign country. Perhaps this is a standard that has already been agreed to on international conventions; that is the process to be followed.

Senator Buchanan: If it is the standard then why is it in this bill? That is what someone asked the other night.

Mr. Rainer: Just to make it explicit.

Senator Buchanan: There are many things in this bill about which they say, we are just making it explicit.

Mr. Rainer: If it is international law, it still needs to be put in place in Canadian law, so we want to be sure we are consistent with international law on how we do these procedures.

Senator Adams: Mr. Chairman, I have a supplementary question. Under international law there is such a thing as open season when, for example, in the Arctic, hunters can hunt Canada geese and snow geese. There is no open season for seabirds. I believe, under an international agreement between the United States and Canada there are different open seasons for hunting snow geese, Canada geese and ducks. As far as I know, no consideration of those 300,000 birds being killed every year by oil spills has been taken into consideration in the agreement reached between the United States and Canada on the hunting of birds.

Under the provisions of this proposed legislation, game wardens will be able to arrest a captain of a ship that empties a 45-gallon oil drum in the sea. After the bill has been passed, will we have more game wardens on more ships that will be operated by the Canadian Coast Guard?

Mr. Laughren: The way it is now is the way it will be after Bill C-15 is passed. Bill C-15 does not address the number of game wardens or how they will act. This bill deals only with different levels of fines and enforcement.

Ms. Elmslie: There is the memo of understanding, MOU, where the departments will work together. My understanding is that the departments will work together better.

Senator Adams: A few years ago we were not allowed to hunt in the springtime, so we explained to the government that it is open season in our communities. Now we have an overpopulation of certain birds. These birds eat roots. In the springtime when I go out on the land I see birds pulling roots out. They eat the bottoms of the roots and they destroy the plants so that the next year that area is barren. Now, finally the government, through the game wardens, are finding out about the overpopulation, so now the hunters can take as many birds as they want. That is a policy change. I do not know what will happen after the passage of Bill C-15 because the bill deals specifically with migratory birds and that includes the Canada geese and the snow geese that migrate to the Arctic every year. Will those birds be covered by this act?

Mr. Laughren: That may be a question for Environment Canada, but to our knowledge those will not be affected by the passage of this bill.

The Chairman: We heard from the shippers on Tuesday and I would like your comments on this: Accept it as a given that there are bad guys in the shipping and that the newer ships that have separators on board do not do this, but take that a step further. They said that the shipping industry, that is, freighters, tankers and the like, are responsible for 12 to 15 per cent of the oil that goes into the water, and the rest comes from the myriad of small boats that do not have separators — fishing boats by the hundreds, recreational boats by the thousands, personal watercraft and all kinds of other things that are not included in “the shipping industry.”

We will, of course, examine those numbers, but those witnesses said that, although lots of oil goes into the water, they, even including “the bad guys,” are responsible for a very small fraction of it.

Did you read that testimony?

Mr. Laughren: I did not, but I am familiar with that number. It is quite true that more oil gets into the environment from land-based sources than from bilge dumping. The difference is that those other sources tend to be very small and do not form slicks on the surface.

The Chairman: We have heard that a piece the size of a quarter is just as bad as a big slick.

Mr. Laughren: That is true, but it has to be a slick on the surface in order to affect a bird, whether it is the size of a quarter or a hundred-mile slick that tends to flow behind the larger vessels. The determining factor is whether the oil is concentrated enough to form a slick. If it is, small amounts are sufficient. Oil from many of those other sources is diffuse enough that it does not form slicks on the surface.

Mr. Rainer: The fact remains that they are discharging. I sat in on your hearings on Tuesday night and was disappointed that I did not see from the witnesses a real acceptant of leadership to deal with the problems that are pertinent to their industry. Yes, there are these other problems and, yes, they need to be tackled however possible. Some of them are a bit more difficult because the amounts are so small and there are so many small boats. The fact that it is such a diffuse problem makes it a challenge to tackle. That does need to be addressed, but it is a separate issue.

I would liken it to a mining company saying that they are going to cut down some trees and build a mine, which they know will cause some damage, but the forest industry cuts down most of the trees so you ought not to be concerned about their operation. In the environmental community, we have been pleased to see within the forest industry, the mining industry and others a real acceptance of leadership on these challenges rather than a ducking of responsibility. Although I am not saying that all the shippers are ducking the responsibility, Nature Canada has a very good working relationship with the Forest Products Association of Canada and the Mining Association of Canada, and we have seen real leadership coming from these sectors. They admit that there are problems that they can do something about, and that is all we are asking for here.

Senator Cochrane: How many ships are caught each year illegally dumping waste in Canadian waters, and how does this compare to the number of ships believed to be actually dumping waste in the same waters? In other words, what percentage of offenders get away with it?

Ms. Elmslie: It is very hard to know how many offenders are getting away with it. We currently have a surveillance system called RADARSAT which can take pictures of the surface of the ocean. When oil hits the surface, it creates a flat spot and in a RADARSAT photograph, it appears as an anomaly on the surface of the ocean. The Terra Nova spill was used to calibrate photos in order to get a good indication of how many spots of oil there are on the water.

I do not have those numbers, but the department may be able to provide you with that information. Previous to RADARSAT, surveillance planes were the only means of finding oil spills on the ocean. However, with the weather off the coast of Newfoundland in the winter, with fog and high seas, it was often difficult for a plane to get out there, so a vessel could be days away before a spill was even known. I do know that there is only one surveillance plane in Atlantic Canada and one surveillance plane in western Canada.

Senator Cochrane: I know that. It is awful.

The Chairman: As with every panel of witnesses on this bill, we could continue for a long time, but we may not. It remains only for me to thank you very much for being with us this morning. We may have more questions for you and, if so, we will send them in writing. If you have anything further that you would like to say to us, please do so in writing to the clerk.

Thank you very much for being with us this morning.

The committee continued in camera.