Proceedings of the Standing Senate Committee on
Energy, the Environment and Natural Resources
Issue 19 - Evidence of September 18, 2003
OTTAWA, Thursday, September 18, 2003
The Standing Senate Committee on Energy, the Environment and Natural Resources, to which was referred Bill S- 10, concerning personal watercraft in navigable waters; and Bill C-42, respecting the protection of the Antarctic Environment, met this day at 9 a.m. to give consideration to the bills.
Senator Tommy Banks (Chairman) in the Chair.
[English]
The Chairman: Welcome. The first order of business will be clause-by-clause consideration of Senator Spivak's Bill S-10, about which we have heard a great deal from witnesses across the spectrum.
Is it agreed, honourable senators, that we move to clause-by-clause consideration of Bill S-10?
Some Hon. Senators: Agreed.
The Chairman: Carried. Shall the title stand postponed?
Hon. Senators: Agreed.
The Chairman: Shall the preamble stand postponed?
Hon. Senators: Agreed.
The Chairman: Shall the short title stand postponed?
Senator Milne: Agreed.
The Chairman: Shall clause 2 carry?
Senator Milne: Mr. Chair, I would move that clauses 2 to 11 carry.
The Chairman: We have a motion that clauses 2 to 11 carry. It is all of the substance, save those items that we have agreed to defer.
All in favour of the motion?
Hon. Senators: Agreed.
The Chairman: Clauses 2 to 11 are carried. Shall clause 1 carry?
Senator Spivak: Agreed.
The Chairman: Shall the preamble carry?
Senator Milne: Agreed.
The Chairman: Shall the title carry?
Hon. Senators: Agreed.
The Chairman: Is it agreed that this bill be adopted without amendment?
Hon. Senators: Agreed.
The Chairman: Is it agreed that the chair shall report this bill at the next sitting of the Senate?
Hon. Senators: Agreed.
The Chairman: Thank you. Congratulations, Senator Spivak.
Senator Spivak: Thank you. I have numerous letters and messages. Could those be tabled with the rest in case anyone should want to read them at another time?
The Chairman: Would we not be obliged then to table letters from all sides of the deliberations? Are those letters from all sides?
Senator Spivak: They are tabled, I thought.
The Chairman: I suppose that they are tabled as matter of course because they are on the matter that we considered.
Senator Spivak: That is fine.
The Chairman: This morning I received, as I am sure all senators received, more letters about this bill on both sides of the question. I have no doubt that we will continue to receive letters.
Senator Spivak: Yes.
The Chairman: I assume that once we report, all of our deliberations and letters that we have received will become part of the report and will be finished. I think that is taken care of. In any case, we will keep all of them.
Senator Spivak: Thank you.
The Chairman: Congratulations, senator.
We will now move to the second item on our agenda, Bill C-42, respecting the protection of the Antarctic environment, about which we heard speeches in the Senate yesterday and the day before.
We have with us this morning Mr. George Enei, Director of the Conservation Priorities Branch at the Department of the Environment, under whose auspices this bill has been presented to Parliament.
Good morning, Mr. Enei.
Mr. George Enei, Director, Conservation Priorities Branch, Department of the Environment: I have a brief, prepared statement to provide an overview of Bill C-42 and some of the high points associated with the treaty and the protocol.
Thank you, Mr. Chair, and members of the committee. It is my pleasure to speak with you today.
As you may know, the Antarctic is home to the largest and most pristine wilderness on the planet. The continent is nearly 14 million square kilometres in area, or one and one-half times the size of Canada.
The environmental importance of the Antarctic cannot be underestimated. As in the Arctic, the effects of climate change are already evident in the Antarctic. Both poles are serving as indicators of the impacts likely to be faced around the world as a result of climate change.
[Translation]
Antarctica plays an important role in global ocean systems. It provides essential nutrients and supports ecosystems in extremely remote regions. Eighty per cent of the planet's freshwater is found in Antarctica. This region is also home to a wide range of unique species and ecosystems, notably to over 50 species of birds and 120 species of fish. This relatively unspoiled ecosystem provides unparalleled opportunities for scientific research.
[English]
However, the Antarctic ecosystem does face some serious threats from human activity. On average, approximately 15,000 people set foot on the continent and even more are exploring the surrounding oceans. They travel to the region by plane, cruise ships, smaller vessels such as Zodiacs, snowmobiles and other vehicles, to explore the continent.
The Chairman: Is that 15,000 people per year?
Mr. Enei: Yes. In addition to the field camps that are set up on a regular basis, dozens of stations or scientific laboratories have been permanently established in the Antarctic.
There are three key environmental challenges associated with the growing level of activity: marine and land pollution, direct harm to native flora and damage to the direct ecosystem. The aim of the Protocol on Environmental Protection to the Antarctic Treaty, commonly called the Madrid Protocol, for the city in which it was signed, is to protect the Antarctic environment from the direct impacts of human activity. Although many nations have made claims to the Antarctic continent, the claims were put in abeyance when the treaty was signed in 1959.
[Translation]
The Antarctic Treaty dedicates the region south of latitude 60 to science and peace. It prohibits any military activity, nuclear tests and disposal of radioactive waste. Canada is one of the signatories to the Antarctic Treaty. In 1991, countries such as Canada that play an active role in the Antarctic signed the Madrid Protocol, or Protocol on Environmental Protection to the Antarctic Treaty. It came into force in 1998 and was ratified by 30 nations.
[English]
We are here today because Canada wants to do its part to protect the Antarctic environment by ratifying the protocol and because implementation of the protocol requires Canadian legislation. It has always been Canada's intent to ratify the protocol. We have every reason to believe that Canadians are already acting in compliance with the conditions of the protocol. Canadian activities fall into three general categories: tourism, science and logistical support. Approximately 400 Canadians travel as tourists to the Antarctic every year. There are two Canadian tour companies that lead eco-tours to the Antarctic, and roughly 40 Canadian scientists are involved in Antarctic research. Most of this research is carried out in collaboration with other nations and much of it is carried out in Canada.
Canadians active in the Antarctic have long been calling for the ratification of the protocol. The intent of ratification is clearly not to rectify a problem, but to make Canada formally a part of a global effort to protect the Antarctic, and to provide clarity on Canada's role to other countries and Canadians active in the Antarctic.
The protocol requires Canada to oversee the activities of Canadians in the Antarctic, as well as the activities of people of other nations who are on Canadian-led expeditions. Canadian expeditions are those that are organized or depart to the Antarctic from Canada. The protocol calls for parties to ban certain activities, such as mining or taking wildlife for non-scientific purposes, and it establishes safeguards for specially protected areas and historic sites.
Ratifying the protocol requires new legislation in order for the Government of Canada to grant permits for activities in the Antarctic.
At this point, I would like to provide a general overview of Bill C-42.
The bill is consistent with the approach taken by other nations in implementing the protocol and with existing federal legislation in Canada. Under the bill, permits are required for all Canadians, Canadian vessels and anyone who is on a Canadian-led expedition. Applications for these permits must be accompanied by environmental assessments, emergency plans and waste management plans.
[Translation]
Canadians who wish to carry out certain activities that are prohibited in the bill are also required to obtain a permit. For example, permits are required to enter a protected area of the Antarctic or to carry out research involving contact with indigenous species.
According to projections, there will be no more than a dozen permits issued per year. Reciprocity is one of the key components of the Canadian approach to implementing the Madrid Protocol. Some activities are already permitted by legislation covered in another section of the protocol and will be permitted under Bill C-42. In such instances, a permit will not be required.
However, the bill provides for an absolute ban on certain activities such as the introduction of substances harmful to the marine environment, the damaging of historic sites and the open burning of waste.
[English]
Bill C-42 provides exceptions to prohibitions in the case of emergencies. Enforcement of the bill would be carried out by enforcement officers and inspectors designated under the bill. The offences and permits under the bill are consistent with those authorized under the Canadian Environmental Protection Act of 1999.
Mr. Chairman and members of the committee, Bill C-42 provides Canada with the tools that we need to set up our contribution to a global effort to protect a vulnerable Antarctic environment. As a polar nation and an international environmental leader, Canada has an important role to play in this special ecosystem. The approach taken by this bill has the support of Canadians active in the Antarctic.
At this time, I would be pleased to take any questions you may have associated with the bill.
Senator Spivak: My question concerns the reason for exempting the Canadian Forces and also commercial fishing, because it strikes me that that is sort of contrary to the spirit of the bill. Why should the military vessels and fishing vessels not be subject to the same rules?
Mr. Enei: With respect to fishing, it is not included in the protocol because fishing is covered under existing UN agreements and conventions under MARPOL. There are legislative or convention frameworks to deal with the fishing aspects. The protocol signed at Madrid covers land as well as the water, and fishing is clearly covered under the convention, hence the other conventions of the UN, hence the exemption.
On the military, we have to take a step back and look at the fundamental covenants associated with the treaty and the protocol itself. The treaty and the protocol together designate the Antarctic as a natural reserve for peace and for scientific purposes. The military traditionally is used as logistical support to provide supplies and/or goods to some of the activities that do take place in the Antarctic, such as the scientific research, and military-type equipment is used given the extreme weather conditions that do occur in the Antarctic.
Exemption for the military is not outside of the norm in pieces of federal legislation, but the key message I would give is the foundation upon which the treaty and the protocol is based, and that is peace and scientific research.
Senator Spivak: Could you perhaps point us to the United Nations conventions that cover fishing and how they are enforced?
Also, I want to point out that Canadian pilots just recently, very bravely — I do not know what the latest story is, whether or not they were able to get there —
Senator Cochrane: They were delayed yesterday.
Senator Spivak: It seems to me it was not the army, but these Canadian pilots with that experience that went in to help. We should note that because that is quite an achievement.
In any case, could you point us to that and the method of enforcement? How are those conventions enforced?
Mr. Enei: I would have to consult with my legal counsel in terms of enforcement of UN conventions. Perhaps Anne Daniel can provide some comments on that in a few minutes.
In terms of access, to my knowledge, there are no Canadian military activities in the Antarctic at the moment. There was an opportunity for a Canadian enterprise to provide logistical support to, as I understand it, remove an individual who had fallen ill. That is not uncommon; it has happened before.
Senator Spivak: Yes, I know that.
The Chairman: While you are waiting for your colleague, and supplementary to Senator Spivak's question, do all of the other signatories to the respective protocols and conventions that are being affected here in one way or another also exempt military activity from whatever laws they have in place in order to give effect to these agreements?
Mr. Enei: Each signatory to the treaty has its own legislative instrument or vehicle for ratification. In some cases, that could involve legislation, that could involve regulation or a statement in their respective legislatures. I cannot speak to each and every one, but all the parties to the treaty itself must adhere to the fundamental covenants.
If you would allow me, I would like to quote from the treaty itself, article 1, where it clearly states that the Antarctic shall be used for peaceful purposes only.
Article 2 states that the present treaty shall not prevent the use of military personnel or equipment for scientific research or for any other peaceful purpose.
We must all adhere to those fundamental covenants in any legislation or ratification tool that we put forward. It underpins Canadian activities, as well as the activities of all other parties within the treaty system.
The Chairman: However, it is theoretically possible that Chile, for example, in whatever legislation they require in order to give effect to these agreements, might not have an exemption for military activity?
Mr. Enei: It is possible. I am not familiar with the Chilean law.
The Chairman: We do not expect you to be able to tell us about Chilean law.
Ms. Anne Daniel, General Counsel, Legal Services, Environment Canada: With respect to the issue of fishing, when I went through the bill, my first question was about fishing being excluded. The reason is that another Antarctic treaty called CCAMLR covers the issue of fishing in the Antarctic specifically. Canada acceded to that in 1988. Therefore, it was not specifically covered under the Madrid Protocol because it was covered elsewhere within the treaty regime.
Senator Spivak: How is it enforced? Fishing all around the world is covered by these conventions. Yet look at what is happening.
Ms. Daniel: I do not have specific details on the enforcement within the CCAMLR regime, but typically, when countries implement treaties they are required to implement provisions in their domestic law. They enforce their domestic law against their registered-flag ships in the Antarctic area. That would be the normal system.
Within a treaty regime, if you are not following through, other parties to that treaty system will let you know. We have become active in the Madrid Protocol, in part, because other countries said that Canadians are active in the Antarctic and other parties will draw things to our attention. In a place like Antarctica, where there is so little human presence, we have to rely on other countries to bring incidents to our attention.
I would hope that once we are an active party to this treaty that if there were any difficulty in enforcing the Madrid Protocol, other countries would bring incidents to our attention. We could take the opportunity at meetings of the parties to also draw the attention of other parties to particular incidents.
Enforcement at the international level is always tricky because we cannot put states in jail.
Senator Spivak: However, at this time, have you any information as to the practice of other countries, as well as Canada, in terms of the fishing? Is there a problem in that area? I read somewhere that there is a problem with the maintenance of the species around the Antarctic.
Mr. Enei: To our knowledge, Canada has no harvesting or research activities taking place around the Antarctic vis- à-vis fishing. We are aware of a specific situation regarding Patagonian tooth fish, which I believe is sold as Chilean sea bass in Canada. We are moving forward through the Department of Fisheries and Oceans to implement a catch documentation scheme to identify the import of such fish as part of the CCAMLR process, which is fundamentally a convention for the responsible protection of marine resources.
The Chairman: The part that applies to fishing is called the Madrid Protocol. I presume that the Portuguese are signatories to I?
Mr. Enei: Perhaps I could give an overview of the treaty system itself. There is the actual Antarctic Treaty and under that treaty we have two conventions and a protocol. Canada has signed and acceded to the treaty and the two conventions. We have signed the protocol but have not ratified or acceded to it.
The two conventions specifically deal with marine resources in and around the Antarctic. Those two conventions complement the existing legislative framework under UN agreements.
The Chairman: The Madrid agreement is which, protocol or convention?
Mr. Enei: Madrid is a protocol.
The Chairman: Could you give us a quick lesson on ``treaty, protocol and convention'' as well as ``acceding and signing''? I have asked this question previously.
I was told once that there was a person who knew this well and could explain it, but he died about 20 years ago. Would you give us that in five minutes so that we really understand ``signing'' and ``acceding''? Second, what is the force and effect of a treaty, convention and protocol?
Ms. Daniel: I would be happy to do so. Lawyers who do not practice international law do not know the answers to those questions either.
The Chairman: You are correct.
Ms. Daniel: Do not be afraid to ask, because you must know.
In many multilateral treaties there is a provision for signature, usually within a certain time period. After that period of time closes, you cannot sign it, but if you want to become a party, you can accede to it.
When you have signed within the signature period to become bound by the treaty, the next step would be ratification. In the case of the Madrid Protocol, because we have signed, our next step to be bound in international law is to ratify. If we had not signed by the time the signature period closed, there would have been the one-step process of accession. That would also bind us in international law. We have acceded to another environmental treaty recently — the Rotterdam Convention on the international trade of chemicals. We did not sign within the signature period, but we did become bound last summer by accession.
The Chairman: Acceding obviates ratification?
Ms. Daniel: It is a different step with the same legal effect. You are bound by international law.
The Chairman: Talk about treaties, conventions and protocols, please.
Ms. Daniel: The Vienna Convention on the Law of Treaties defines a treaty. Essentially, it is any agreement in writing where the parties intend to create international relations among themselves.
Senator Spivak: Like a contract?
Ms. Daniel: Essentially. Some treaties do call the parties ``contracting parties.'' It is really a contract of states.
The term ``treaty'' is a generic term that means this kind of contract between states that is legally binding in international law. In some circumstances, parties or countries, when they are negotiating, will choose a convention. That is the same thing. It is a legally binding, written instrument intending to create legal relations in international law.
A protocol is the same thing in terms of practice in international law. Let us say that there is a convention like the Antarctic Treaty. When another treaty is spawned under it, then that is called a protocol. Sometimes protocols are completely separate legal instruments, but sometimes they are tied back into the main treaty and there are some links between the two. When you have a protocol, you must look carefully at the main treaty to ensure that you have understood all of those linkages.
The Chairman: Therefore, convention and treaty are, for all intents and purposes, interchangeable terms?
Ms. Daniel: Yes.
The Chairman: A protocol would ordinarily exist under the umbrella of either a convention or treaty?
Ms. Daniel: Yes, that is true.
The Chairman: A protocol would deal with specific implementation as opposed to the overall umbrella intent. Is that true?
Ms. Daniel: It depends. Some conventions are very detailed and highly regulatory in nature. Protocols to them can get even more detailed.
The Chairman: I am familiar with the International Convention on Copyrights.
They are many layered, as you describe.
Ms. Daniel: Yes. In the environmental field, this has been the practice. For example, the Framework Convention on Climate Change was very general and the Kyoto Protocol introduces more detailed targets. Also, there are the Vienna Convention on Ozone Depletion and the Montreal Protocol, which is much more detailed and continues to ``tighten up.''
Senator Christensen: Could you have more than one protocol under a treaty?
Ms. Daniel: Yes, you could have. A good example right now is the Convention on Biological Diversity, which is the main convention, and pursuant to that, a bio-safety protocol on GMOs was recently negotiated. At the world summit, they began discussions on an international regime on access to genetic resources. That could come in the form of a protocol.
Senator Milne: I am also concerned about this proposed section on the application being binding on Her Majesty in right of Canada and a province, but not applying to the Canadian military. I have no knowledge of the Canadian military's reputation, but I do know the American military's reputation for not taking their litter with them when they leave; they are notorious for that. They have littered our Arctic areas in ways that will take Canada millions of dollars to clean up. I am very concerned about this exemption.
Our inspectors have all kinds of things that they can do within Canada, but outside Canada, on a fast reading of this, it seems that all they can really do is inspect. What kind of leverage do they have apart from their inspections? Once they are actually on-site and see what is happening, or has happened, what can they do besides inspect the area?
Mr. Enei: From an inspection perspective, we can look at it as a multi-layered concept, if you will. The treaty system provides for ``observers,'' whereby parties to the treaty can appoint observers with the powers of inspection. Those observers inspect activities of individuals under the Antarctic Treaty. We also have a complementary system of self- policing, given that the community in the Antarctic is fairly close-knit. Most of the scientists are familiar with one another. Many of the scientific pursuits take place under the leadership of certain countries in conjunction with other nations contributing and participating. From a science perspective, it has not been identified as an issue.
In respect of the other main activity, ecotourism, there is a strong association, called the International Association of Antarctic Tour Operators, IAATO. The members are strong in their self-policing efforts and they represent virtually 99 per cent of the ecotourism that takes place in the Antarctic. I was in Madrid two months ago and the member nations were extremely supportive of the good work that IAATO had been doing, and continues to do, in self-policing and being responsible about their activities.
Fundamentally, an ecotour will take you to the Antarctic to observe a unique situation. It would be incumbent on the ecotour companies to self-police. No one wants to go to the Antarctic to look at, no disrespect to Coca-Cola intended, a pop-can-littered shoreline.
In addition to the observers under the treaty and the self-policing of the main interests, both scientists and ecotourism, we have the ability to inspect under our proposed legislation. Those inspection powers, if you will, complement the treaty system. That being said, enforcement is principally done on domestic soil.
Senator Milne: In other words, the inspectors may find evidence that prohibited activities or littering had been going on and then they could charge the company back on Canadian soil.
Mr. Enei: Correct. One must appreciate that when a permit is issued, there are many conditions and restrictions. We literally control every activity that is proposed to take place in the Antarctic. I do not want to use the words ``conventions'' or ``protocols,'' but there are practices in place such as: You cannot approach a certain species of penguin any closer than 15 feet; you cannot go near nesting areas; you cannot make noise; and you can only travel during certain times. The conditions are clear and are well understood by participants in any activity.
Senator Milne: I am sure they are. However, I want to focus in on the enforcement aspect to ensure that they actually would be charged when they return to Canada if they had gone too close to a penguin or ignored any of the other restrictions.
Could you put something in the regulations to the effect that if a company or if the military were to fly in containers of supplies for use while there, the debris must be removed when they leave so that they do not litter the landscape with oil drums?
Mr. Enei: There is an expectation under the protocol wherein we have no net impact on the environment. We take as much back as we impose when we are down there.
Senator Milne: Will that be a part of the regulations?
Senator Christensen: It is part of the permit system, is it not?
Mr. Enei: Those kinds of conditions would be imposed on the activities that would take place.
The Chairman: I do not want to be cynical, and this is not a criticism of CP Hotels, but it is in their interest to maintain pristine conditions at Lake Louise. If it were not, no one would go to look at it. However, they have tripled the size of the hotel at Lake Louise since I was a kid. There are pressures, and there are permits that could be issued in response to those pressures that would, in some respects at least, militate against the lovely intent of the National Parks Act, this proposed act and other regulations that fall thereunder. The question is: Is there a hammer and will somebody actually use it?
Mr. Enei: Under the proposed legislation, clause 24 provides for a requirement for waste management plans and emergency plans. The minister does have the option to issue a permit to authorize an expedition if he is satisfied that the waste management plan and the emergency plan for the expedition have been prepared in accordance with the regulations. It is our intent to ensure that the Antarctic is protected and that is why we are a part of the treaty and of the convention system and currently proposing to move forward with implementation of our obligations under the protocol.
Senator Spivak: We could, of course, ask that we examine the regulations. We could ask that those be brought back to the committee.
The Chairman: Do we anticipate that the regulations would be promulgated in fairly short order? Are they in a forward state of preparation now?
Mr. Enei: We are developing them. We need to conduct some further consultations with the key stakeholders, but they are moving forward.
The Chairman: Would you make a note that this committee would like to have a copy of the first draft of those regulations — even before they are placed in the Gazette — just so that we can send comments and ask questions, if any?
I would be grateful if you would do that, and I think that it is in order.
Mr. Enei: We will commit to that.
Senator Cochrane: Honourable senators, my question is, does the minister take the final decision to grant the permit? Is he the person that says, yes, it can go ahead or no, it cannot?
Mr. Enei: The minister as an individual, yes.
Senator Cochrane: He can say yes or no?
Mr. Enei: Yes.
Senator Cochrane: In regards to enforcement, you say that 30 nations have already ratified this Madrid Protocol. I am still concerned about enforcement. Do they have enforcement rules already in place, and if they are not following up on this enforcement, is there anything that can be done? It is okay to say one nation is enforcing the law, but it is something else to say 30 nations are not enforcing the regulations.
Ms. Daniel: As I mentioned earlier, you typically implement international treaties through your domestic law to give it legal effect in your own jurisdiction. When this legislation was developed, people were mindful of ensuring that the different legislation in different jurisdictions would be, roughly, in compliance. We think this is in compliance, but we wanted to double-check.
A number of these other countries that are parties to the treaty have different legal traditions. Some are common- law — Canada has common-law and civil law — some are civil law jurisdictions. Some have parliamentary systems; some do not. Whether it is through legislation, regulations or they simply ratify and it becomes the law of the land, there are a number of combinations and variations of how they have chosen to implement this. That is the first step — putting a law on the books or having something in each jurisdiction that is the law of the land.
The second step, as many have noted, is that you need those individual countries to enforce that domestic law. In the Antarctic, because it is not part of your own territory, you have the challenge of getting information about violations. As Mr. Enei indicated, there is an observer system within the Antarctic Treaty, so that other countries will notify each other about things that are going on. Hopefully, this will generate enough information about incidents. It is a vast territory. We do know about ecotourism activities that are going into certain areas; and any scientific research that is actually taking place on land is well known. The sites are well known. Therefore, there is a way to start to develop an intelligent enforcement strategy down there.
At the meetings of the parties to the Madrid Protocol, it is important that they talk to each other and share information about what they have been seeing and finding. Frankly, we should not be afraid if countries are telling us that they have noticed something that a Canadian ship or a Canadian tour operator is doing down there. In fact, that is partly why the government is going through with this initiative. There have been Canadian activities down there — we know they go on — so other countries were asking us to take that first step toward enforcement, which is putting in the domestic law, ratifying the treaty once that is in place, and then becoming part of the partnership to manage Antarctica safely.
The step that you are talking about is another level, which is, we are a party to the treaty, we are talking to other countries, we have our legislation in place, as do they. How do we work together to make sure that we become aware of incidents in the Antarctic? That is probably the biggest challenge.
The way the system is set up, the minister is issuing permits; and when you look at the regulations, you will see that this will be extremely detailed. The requirements on environmental assessment in the annexes to the Madrid Protocol are very detailed: how you deal with flora and fauna, waste management, discharges into the marine environment, et cetera. These will be made part of the regulations or the permits that are issued. Any violation of any one of those conditions of the permit, the regulations or the act itself, will be subject to prosecution in Canada.
We will have our own enforcement initiatives, but given the geographic location and the sparse number of people out there able to identify situations, we will very much rely on other countries, and perhaps even other tour operators and different non-government people, to keep us abreast of the situation. I think the key is we will have the tools in the proposed legislation to prosecute any violations of a Canadian permit when we are made aware of them.
Senator Cochrane: My concern comes from first-hand knowledge, because in the 1940s, the Americans came in and operated these SAC bases. They left, particularly in my area, a lot of so-called PCBs. They dumped them into various land sites and things of that nature, and now there is a worry that some of it has leaked into the water system. It so happens that the province has to clean it up. We have to make sure that everything is covered here, and I am not just worried about Canada. I am worried about other countries, other nations.
Let me ask you about the permits. The permit requirements include environmental assessment, but the Canadian Environmental Assessment Act does not apply. Can you tell me why this is done that way?
Mr. Enei: Under the protocol itself, there is a very detailed environmental assessment process that parallels the Canadian Environmental Assessment Act. There was no need to duplicate that process and apply CEAA on top of a necessary obligation under the protocol itself. It would be a duplicative initiative if we superimposed it.
Senator Cochrane: Therefore you decided the protocol's EA approach applied, to avoid duplication.
Mr. Enei: Yes, and it is compatible with the Canadian Environmental Assessment Act. It is equal, if you will.
Senator Cochrane: There is nothing else? Everything is covered?
Mr. Enei: Yes.
Senator Cochrane: Can you give me some idea of what activities would not be granted a permit? I know you said mining is one of them. What sorts of other activities would not be granted a permit?
Mr. Enei: Thinking out loud —
Senator Cochrane: Yes, go ahead.
Mr. Enei: An activity that would cause irreparable harm to a nesting area; an activity that would leave a permanent imprint on the land; any transitory activity that would have an impact on nesting birds at certain times of the year; permanent intrusions into the land that could not be justified — say, scientific research that involves boring of some sort or collecting of samples, things of that nature.
Senator Milne: You cannot go down there and build a ski resort.
Mr. Enei: You cannot; I think that is pretty safe to say.
Senator Merchant: On the practical side, there is always a cost to implementing these treaties. Has that been costed? Will there be a time when the government may not be able to adhere to all the commitments they have made because the costs may be prohibitive? Are there some guidelines you could give us as to what commitments have been made on that side of the ledger?
Mr. Enei: I do not have any specific costs associated with implementation. Given the current level of activity in the Antarctic, and that in the foreseeable future, we anticipate potential requests for up to 12 permits a year, which is not considered to be an undue burden on our existing systems.
The permitting process will complement the existing systems already in place in Canada. We would treat it as a project application, as we would any other application under an existing piece of domestic legislation. The proponent must put forward, in this case, specific information associated with environmental assessments, waste management plans and emergency plans. We would use the existing models and mechanisms that we have in Canada, that is, referral of information internally to conduct a due diligence exercise on the information provided by the proponent. At that point, the minister would have to make a decision on whether to proceed and any restrictions, conditions and mitigating circumstances that need to be considered.
It really complements the current practice within Canada.
Senator Merchant: Having to prosecute people in court is a very expensive procedure and takes a long time. My concern is on the enforcement side.
Mr. Enei: Yes, and again, we are using existing domestic models. We are using the penalty clauses and the offence clause under the Canadian Environmental Protection Act. Again, we expect up to 12 permits per year.
One must consider that the scientific community is very close-knit. The ecotourism operations — the two that are operating in Canada — have been complying and continue to comply, to our knowledge, with the principle, spirit and intent of the protocol. We considered that in the development of the proposed legislation.
At the same time, we tried to project what could happen in the future. The proposed legislation was developed with a current focus as well as a forward-looking focus on what may come up.
Senator Merchant: You said that there were about 400 Canadians going there on these ecotours? What is happening with the other countries? Have our numbers been going up?
I know that there are only two companies that have a licence. However, are they restricted as to how many trips they can take each year and the number of people?
The number of people could increase. It depends how many times they go. It might be only two companies, but tourism being what it is, more and more people always want to go to these exotic places.
A few years ago, I went on a trip to the Galapagos Islands. There were many tourists there. There were ships docking on the islands and people everywhere.
There might be only two companies that are licensed, but they could eventually take more than 400 people. It is not the number of people, but the number of companies that this act is controlling?
Mr. Enei: Logistically speaking, the number of vessels that are going down is probably the limiting factor in terms of the number of individuals. It is not easy to organize a tour in the Antarctic. It takes quite a time if you are going down by vessel. Physically speaking, there is no infrastructure in the Antarctic to accommodate many people. If you were going down on a 10-day tour, you would probably only spend a few hours on the continent itself, because would you have to travel back and forth from the vessel to the land on small Zodiacs. Logistics are very much a controlling factor on an increase in activity over time.
We do have some historical statistics. Perhaps I could be corrected, but there is a slight increase over time.
Senator Milne: It is up to 15,000 per year.
Mr. Enei: Yes.
Senator Merchant: How far is it from South America? I believe that that is the closest point of land.
Mr. Enei: It is 1,000 kilometres from the southern tip of South America to the most outward point of the peninsula, as I recall.
Senator Merchant: How long would it take by plane? I understand that it would take nine hours. How long would it take by sea? It would take longer.
Mr. Enei: Yes. One must also consider the extreme weather conditions.
Senator Milne: Mr. Chair, you talked about what sort of hammer they would have for enforcement. The hammer comes in proposed section 25, where it states:
The Minister may require an applicant for a permit to provide and maintain security with the Minister, in an amount specified in, or determined in accordance with, the regulations and in a form prescribed by the regulations or a form satisfactory to the Minister.
In other words, they may have to make a down payment before they go. That could be made an escalating scale in the regulations. If they have a clean record, they would put down nothing. If they have been transgressors, then the amount would increase until it became unprofitable for them to continue?
Mr. Enei: Yes.
Senator Milne: I would make that a very strong suggestion for the regulations.
The Chairman: Thank you, senator. One should always read the bill.
You mentioned, Mr. Enei, that having undertaken these respective agreements, the nations who previously had sovereignty claims in Antarctica, which included, to my recollection, Argentina, Britain and Chile, among others, have placed those claims in abeyance. I am presuming that that does not mean that those claims have been extinguished, or does it?
In other words, do these treaties, conventions and protocols erase claims? Have the nations involved in them agreed that it does erase their claims to sovereignty in the Antarctic?
Am I correct that these agreements apply not only to Antarctica, but also to the water and land south of the 60th parallel?
Ms. Daniel: On the first question, you are correct. These sovereign claims that different countries have placed over the Antarctic are in abeyance, but they are not extinguished. In a sense, they are just parked. This occurred under the Antarctic Treaty. You are correct in that. They are just frozen there for the moment.
The Chairman: It is a contingent problem with respect to all of these matters about which we have talked. It is sort of a Damocles' sword. They are not constrained, other than by goodwill, from reinstituting those claims of sovereignty?
Mr. Enei: Yes. There is a 40-year track record of goodwill thus far.
The Chairman: Good. I think that you already answered this, but I would like to have it again so that even I can understand it.
Canadians learned, famously, that we did not need an act of Parliament to ratify, for example, the Kyoto Protocol. Governments are empowered, by definition, to ratify treaties. We did not need any legislation to ratify the two conventions. Precisely why do we need an act of Parliament to ratify the Madrid Protocol?
Mr. Enei: In order to control the activities extraterritorially of Canadian nationals, specifically the types of activities that we are talking about in the Antarctic; we need a permitting system. You need a legislative instrument to regulate and control that.
Ms. Daniel: I will add to that and go into the broader question. In some cases, we have implementing legislation and other cases we do not. Certain treaties are results oriented, such as the Kyoto Protocol, and how you reach the targets is up to the country that ratifies. Canada could achieve that target through many different means, through the provinces and all Canadians. The means to achieve the results are not dictated in the treaty. The difference is that the Madrid Protocol establishes clear, highly regulatory means to be in compliance. In other words, one of the annexes to the treaty sets out a detailed environmental assessment regime that had been the subject of a question earlier. To ensure that that is reflected in Canadian law, we must pass a new law. We have our legislation that is applicable domestically.
When you ratify a treaty, you become bound in international law. Technically speaking, you do not need implementing legislation, but you have it to remain in compliance with the international treaty. You become bound to comply. In this case, unlike the Kyoto Protocol, there are clear process requirements for permits and a specific regime for waste management, et cetera. For us to apply that to Canadians, we need to enact that into Canadian law. If it is an emissions reduction commitment, we could get that through all kinds of measures, such as voluntary emissions regulations. There are many choices when you have to implement an obligation, which is simply a result that you have to achieve.
The Chairman: I think that you would agree that there is a unique situation here, in that we are making law that will apply extraterritorially to Canadians and to other nationals. Therefore, a Latvian who wishes to be in a Canadian station in Antarctica, over which no one claims sovereignty, requires a Canadian permit issued by the minister to be in place. That is an observation, not a question. I presume that that does not exist in any other country in the world.
Ms. Daniel: I would say that the international community is extremely cautious about the extraterritorial application of their law. It is done in certain cases, such as war crimes, terrorism and the like. Yes, countries are careful about that because you could have international chaos if countries were to enforce every law all over the world. You could just imagine how that would be.
The Chairman: Canada objects to that when it happens with others. Out of curiosity, what would happen if there were a Canadian base established in Antarctica and a Latvian went onto that territory without a permit from the minister? This proposed legislation says that he may not do that. What is the means of enforcing that, if we do not have sovereignty in that area? Do we have a kind of sovereignty by means of a Canadian base in the Antarctic?
Mr. Enei: First, we do not have a Canadian station in the Antarctic. Theoretically speaking, if we were to have a base, the activities on the Canadian base would be covered under our permitting system. There would be conditions and restrictions imposed on the activities and events that take place. They would all have to adhere to the principles of the protocol and the treaty.
The Chairman: What if the Latvian says, ``I am Latvian and I can go where I like.'' What would we do in that case?
Mr. Enei: Under the treaty system, it becomes a broader issue. We have treaty observers that document events and notify the other participants of the treaty, as well as provide notification of obviously non-treaty, or non-party, activities that take place.
At this time, it would be an inspections issue and a notification issue back to, in this case, Latvia.
The Chairman: They are not signatories to this treaty.
Mr. Enei: That is correct.
Senator Cochrane: What would happen if they were to not comply?
Mr. Enei: Under the treaty system, as I mentioned, there are observers who have certain powers in certain situations to restrict activities if the activities were to impose an immediate and pressing danger.
Senator Cochrane: The inspectors have the power to enforce a kind of law against a nation should it not comply. Is that correct?
The Chairman: By ``nation,'' Senator Cochrane means another nation.
Senator Cochrane: — Latvia, for this example.
Mr. Enei: — a rogue state that is not party to the treaty.
The Chairman: We are not suggesting that Latvia is a rogue state.
Senator Cochrane: No, I am talking about any one of the 30 nations that you mentioned that are not party to the treaty.
Mr. Enei: The protocol sets up a specific notification requirement back to, let us say, Latvia. Again, the observers who have been appointed under the treaty system have the ability to act if they perceive, see or anticipate an immediate threat. In terms of enforcement on the spot, those kinds of activities are identified under the treaty system.
The Chairman: Thank you, Mr. Enei and Ms. Daniel. Do you have anything to add?
Mr. Enei: I want to highlight the fact that we are outlining a clear position for Canada in terms of how it wishes to articulate its vision under the protocol in real and concrete terms to other countries and to Canadians who propose to have activities in the Antarctic. We are part of a global community to protect what is, for all intents and purposes, a global-protected-area system. We are trying to do it using existing mechanisms and domestic laws in an extraterritorial context. This is truly a made-in-Canada proposal for a global effort.
The Chairman: I think we all agree, senators, that the intent of Bill C-42 is admirable.
Honourable senators, do you agree that we move to clause-by-clause consideration of Bill C-42, respecting the protection of the Antarctic environment?
Senator Cochrane: I was not aware that it was to be clause-by-clause study.
Senator Merchant: I have to be at a meeting of the Standing Senate Committee on Transport and Communications. How quickly would this happen?
The Chairman: Shall we move to clause-by-clause consideration of Bill C-42?
Hon. Senators: Agreed.
Senator Cochrane: Are there no additional witnesses to appear before the committee?
The Chairman: I think that we have learned all that we would learn.
Senator Cochrane: My concern is the regulations, the enforcement.
The Chairman: We have asked that we be advised of them in draft form even before they are promulgated.
Senator Cochrane: I know little more than what we have been given this morning. I guess we will go ahead.
Senator Milne: I move, Mr. Chairman, that we dispense with clause-by-clause consideration and pass this bill without amendment.
The Chairman: It is moved that we dispense with clause-by-clause consideration and pass the bill without observations and without amendments. May I add to your motion, Senator Milne, that we report that to the Senate today?
Senator Milne: However you wish to word it, Mr. Chair.
The Chairman: Is it agreed?
Hon. Senators: Agreed.
The Chairman: Thank you very much.
The committee adjourned.