Friday, December 7, 2018

The Standing Senate Committee on Transport and Communications has the honour to present its

FIFTEENTH REPORT

Your committee, to which was referred Bill C-64, An Act respecting wrecks, abandoned, dilapidated or hazardous vessels and salvage operations, has, in obedience to the order of reference of October 18, 2018, examined the said bill and now reports the same with the following amendments:

1.Clause 5, page 3:

(a)Replace lines 7 and 8 with the following:

“5 (1) Except as otherwise provided by regulations made under paragraph 130(1)(c) or subsection 131(1) and despite subsection (3), this Act does not apply in respect of”;

(b)replace line 13 with the following:

“(2) Except as otherwise provided by regulations made under subsection 131(1), this Act, other than Parts 3 and 4, does not apply in”; and

(c)replace line 23 with the following:

“(3) Except as otherwise provided by regulations made under subsection 131(1), this Act, other than Parts 3 and 4,”.

2.Clause 131, pages 64 and 65:

(a)On page 64,

(i)replace line 23 with the following:

“heritage value, including ocean war graves;”,

(ii)replace line 26 with the following:

“including ocean war graves, and providing for the issuance of permits to access”, and

(iii)replace line 42 with the following:

“heritage value, including ocean war graves, from the application of any provision of”; and

(b)on page 65,

(i)delete line 3, and

(ii)replace line 7 with the following:

“made under this subsection;

(i) extending the application of paragraph 110(1)(f), subsections 110(5) and (7), section 111, paragraph 113(d), subsection 119(1) and section 120 to wrecks or classes of wrecks that are specified in regulations made under paragraph (b);

(j) extending to wrecks or classes of wrecks that are specified in regulations made under paragraph (b) the application of paragraph 110(1)(b), in respect of a contravention of subsection 58(1) or (3) or section 60, and of paragraph 110(1)(d), in respect of a contravention of a direction given under paragraph 58(4)(b); and

(k) extending the application of any provision of the regulations made under this subsection to wrecked vessels or aircraft — or classes of wrecked vessels or aircraft — that are referred to in subsection 5(1) and paragraphs 5(2)(a) and (b) and that are specified in regulations made under paragraph (b).”.

Your committee has also made certain observations, which are appended to this report.

Respectfully submitted,

Observations

Mr. Robert Clarke from the Harbour Authority Association of British Columbia and Mr. Brad Caldwell from the Canadian Maritime Law Association indicated that they had reservations with respect to the powers of the Minister of Transport and the Minister of Fisheries and Oceans to direct third parties to take measures concerning wrecked, abandoned or hazardous vessels. Both witnesses expressed concern that this provision could be used to delegate tasks on unwilling third parties, such as harbour authorities, with the threat of significant fines and possible imprisonment for failing to follow such a direction. The minimum penalty for the offence of failing to follow a direction is $100,000 for vessels and corporations. The maximum penalty is $ 6 million.

Mr. Clarke stated the following:

What we fear is that in the real world there is a wreck out there or a dilapidated vessel that the Coast Guard gets a hold of it and they tow it into a local dock, generally a local harbour authority. We worry that they may then leave that vessel there and require a small, completely volunteer-run harbour authority to deal with that who just won’t have the manpower or the financial ability. We understand there is a compensation fund after the fact, but we are concerned how that compensation fund will be dispersed.

Conversely, representatives from Transport Canada told the committee that such direction powers already exist within the Canada Shipping Act, 2001 and would only be used in exceptional or urgent circumstances.

The committee observes that the scenarios under which a direction may be given by the Minister of Transport and the Minister of Fisheries and Oceans remain very broad and that the available punishments for failing to observe a direction are significant. Therefore, the committee encourages the government to ensure that the urgent and exceptional circumstances under which they would propose to make use of such powers are contained within an appropriate regulation or guideline.