Bill C-3 (Historical)

Safeguarding Canada's Seas and Skies Act

An Act to enact the Aviation Industry Indemnity Act, to amend the Aeronautics Act, the Canada Marine Act, the Marine Liability Act and the Canada Shipping Act, 2001 and to make consequential amendments to other Acts

Part 1 enacts the Aviation Industry Indemnity Act, which authorizes the Minister of Transport to undertake to indemnify certain aviation industry participants for loss, damage or liability caused by events that are commonly referred to in the insurance industry as “war risks”. The Minister may undertake to indemnify all aviation industry participants, or may specify that an undertaking applies only to specific participants or classes of participant or applies only in specific circumstances. The Act also requires that the Minister, at least once every two years, assess whether it is feasible for aviation industry participants to obtain insurance coverage for events or other similar coverage, and that the Minister report regularly to Parliament on his or her activities under the Act. Part 1 also makes consequential amendments to other Acts.
Part 2 amends the Aeronautics Act to provide certain persons with powers to investigate aviation accidents or incidents involving civilians and aircraft or aeronautical installations operated by or on behalf of the Department of National Defence, the Canadian Forces or a visiting force. It also establishes privilege in respect of on-board recordings, communication records and certain statements, and permits, among other things, access to an on-board recording if certain criteria are met. Finally, it makes consequential amendments to other Acts.
Part 3 amends the Canada Marine Act in relation to the effective day of the appointment of a director of a port authority.
Part 4 amends the Marine Liability Act to implement the International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea, 2010. Among other things, it gives force of law to many provisions of the Convention, clarifies the liability of the Ship-source Oil Pollution Fund with respect to the Convention and confers powers, duties and functions on the Fund’s Administrator.
Part 5 amends the Canada Shipping Act, 2001 to introduce new requirements for operators of oil handling facilities, including the requirement to notify the Minister of their operations and to submit plans to the Minister. It extends civil and criminal immunity to the agents or mandataries of response organizations engaged in response operations. It also introduces new enforcement measures for Part 8 of the Act, including by applying the administrative monetary penalties regime contained in Part 11 of that Act to Part 8.

[John O'Connor, President, Canadian Maritime Law Association]

Mr. Chairman, thank you for the invitation.

My name is John O'Connor and I'm the president of the Canadian Maritime Law Association, and I'm here to speak on behalf of the association. I'm accompanied by Dr. Sarah Forté, who is an environmental specialist, and who from time to time advises the association on the technical aspects of some of these issues that we don't necessarily understand as clearly as we should.

The Canadian Maritime Law Association, by the way, is part of a much wider network of maritime associations. The head outfit is called the CMI, or the Comité Maritime International, which was founded in the 1800s. Each country that is a participant has a national maritime law association. In Canada we have the Canadian Maritime Law Association, of which I'm the president this year. We have a committee that looks at environmental issues. The environmental issues include oil and HNS, hazardous and noxious substances.

Our committee has looked at Bill C-3, and we don't have a lot of comments. We would first like to say that we are only speaking to the marine aspects of the bill. There is an aviation aspect which the Canadian Maritime Law Association does not deal with, so we have no comments on that part.

We would also like to say that the convention that we call the 2010 HNS convention, the hazardous and noxious substances convention, is something our association has worked hard to promote. We were involved in different stages of the convention first adopted in 1996, and then amended by a protocol in 2010 to become the convention which is in the bill. Our association strongly supports the adoption of this convention by Canada. We hope the convention will be in force in the near future, and we hope Canada will be a party thereto.

We support the convention. We're certainly available to answer any questions anyone may have about any aspect of the HNS convention, but we basically recommend it be adopted, so we're happy to see it in the bill.

The bill, on the marine side other than the convention, amends the Marine Liability Act and the Canada Shipping Act for certain adjustments in both of these pieces of legislation. We have looked through the bill, and although we're willing to answer questions, we have no comments on the Canada Shipping Act portion of it. But we do have our main comment on the Marine Liability Act side.

That comment concerns liability, of course. As you will have appreciated, this bill is a bill about liability for mishaps with hazardous and noxious substances. It is not a bill about preparedness. In other words, it's not a bill that addresses how we are going to get ready to respond to a spill of some of these products. It's really a bill about liability; who is liable to pay for the cleanup or the removal, or any damages caused by a spill of these products.

We believe the sections of the Marine Liability Act this committee should look at very carefully are those sections of which there are six concerning the ship-source oil pollution fund, SOPF.

In Canada, unlike every other country in the world almost, we have a fund called the ship-source oil pollution fund which is an additional layer of protection for Canadians if ever there is a spill by oil. What the bill does is it expands the SOPF's role into the HNS convention, but only as it concerns oil. It does not expand the SOPF into the HNS world beyond oil. We certainly support the fact the SOPF would be available for oil spills under the HNS convention as it is right now, under the CLC, civil liability convention, but we have a suggestion to make.

The suggestion is we believe the ship-source oil pollution fund should be involved in HNS at large and not be limited just to oil. Why do we believe that? The SOPF is an additional layer of protection. It's not unlimited liability, but it's an additional amount of funding that is available should there be a mishap. It's already available for oil, and it will be available for the oil portion of the HNS convention, but in the act they have used terminology such as “as regards oil” or “concerning oil”.

In other words, they're limiting the SOPF's role to just oil under the HNS convention. We believe that those words should be removed. We believe that the SOPF should become Canada's additional protection, not only when oil is involved, but when any HNS cargo is involved. We believe that six sections of the act should be tweaked to that effect.

In case anyone is taking notes, those sections are 102(1), 103(1), 109(1), 117(1.1), 117(2.1), 117(2.2). These are actual section numbers, not clauses. I'm not going to read these sections to you, but I will say that in each of these sections there is wording such as “in relation to oil”, or “in respect of oil”. We would be willing to submit in writing a list of the exact wording, if you so desire.

All of those statements are made to allow the SOPF to get into HNS, but only with relation to oil. Our recommended change would be to remove that wording and to make the SOPF available for any HNS event, just as it's available for oil events already.

I had the pleasure last week of appearing before the expert panel on tanker safety. It's the second time I've appeared before them. They're doing a study with regard to oil, first, and now they're doing HNS. After the oil presentation, we had a good discussion with the committee. They brought out their first report. They recommend unlimited liability for oil on the SOPF, instead of limited, as it is now.

Frankly, in our association we're not big believers in unlimited liability. Although it looks attractive, it's virtually impossible to guarantee unlimited liability, for reasons which I can explain if anyone has questions. We feel that unlimited liability for the SOPF is probably not workable. To increase the limit of the SOPF, if that's the desire of Parliament, would be fine, but not unlimited.

At the second phase of the tanker safety expert panel, we made the same presentation as we're making now, that is, that we believe the SOPF should move into HNS at large. We had a debate about it. Mostly the debate was on how that will fit in with the preparedness that we're going to set up for HNS cargoes.

I believe we have a representative today from Western Canada Marine Response Corporation who may be able to give us some advice on this. Our view is simply that the SOPF should not be limited to oil. It should go across the board on all HNS cargoes.

With regard to preparedness, we believe that Canada has already adopted the oil preparedness and response convention. It will probably adopt the 2000 HNS protocol thereto and eventually come back to Parliament with another bill, this time about preparedness, about response organizations, such as that of the Western Canada Marine Response Corporation and what they can do to prepare for an HNS spill.

Our final point is that we believe a list of products that are shipped in or out of Canada in bulk should be made, and that list should be looked at with the response organizations. We're not talking about hundreds of products here; we're talking about a relatively short list of common products shipped in or out of Canada in bulk. We believe that the response organizations should tell us which ones they would be able to respond to.

Those are our comments, and thank you for the opportunity to present them.

[Jeff Watson, Conservative, Essex, ON]

If I'm understanding the witnesses today, you're asking the committee, in its consideration of Bill C-3, not to necessarily anticipate or try to prejudge the outcome of consultations around the HNS dialogue that's occurring with the world tanker safety panel. Structural changes to Bill C-3 right now, in anticipation of that, would not be the source of consultation.

Is that a fair assessment, and that structural changes to this bill should be the substance of consultation?

[Jeff Watson, Conservative, Essex, ON]

Right. I guess the thrust of the question is that the elements of Bill C-3 have the foundation of consultation with stakeholders already.

[Anne Legars]

Yes, actually you know you have different levels of HNS and the liability regime is really the tail of the dog. Marine safety comes first. You want to avoid accidents and incidents, all of that.

Number two is preparedness and response. There is a lot of work that is being done, currently, about developing a preparedness and response regime for HNS, so that's another pillar of a regime.

Bill C-3 addresses the third pillar which is the liability one. There were many consultations under liability things, but there is also consultation, currently, under preparedness and response regime.

[Jeff Watson, Conservative, Essex, ON]

Thank you, Chair.

The requirements for an HNS regime have been the substance of consultations with various stakeholder groups and Bill C-3, therefore, captures the substance of those consultations. Is that fair enough to say?

[Capt Stephen Brown]

I think Bill C-3 as it stands is good.

I had a long discussion yesterday with the HNS panel, Captain Houston's panel, and it focused very much on a couple of concerns. One was that, as I mentioned earlier, a lot of the substances are carried on container vessels and we need to ensure we have the capability to deal with an incident in a Canadian port, should one occur.

The second part of that is ensuring that we, as Canada, set a leading example for providing ports of refuge for vessels that might be involved in this type of an incident.

[David McGuinty, Liberal, Ottawa South, ON]

Thank you.

Captain Brown, how is Bill C-3 capable of being improved? What can be added to Bill C-3 so we can do right and better by Canadians?

[David McGuinty, Liberal, Ottawa South, ON]

Thank you, Mr. Chair.

Mr. Chair, I want to quote the testimony at our last meeting from one of the government officials, Mr. Marier, who is with us here today in the audience. I just want to remind members of the quote:

The convention applies to 6,500 substances, including oils. Those include persistent oil in so far as we're talking about loss of life and personal injury claims. It also applies to non-persistent oils, which are usually refined fuels, like jet fuel and gasoline.

So if any members, Mr. Chair, have any concerns talking about oil under BillC-3, they should perhaps read the testimony and understand that it includes variations on oil and oil in terms of its application to loss of life and personal injury claims.

May I ask all three witnesses a general question? Maybe they could respond for 30 seconds each, starting with Ms. Legars.

What's not in Bill C-3 that should be here?

[Mike Sullivan, NDP, York South—Weston, ON]

Thank you, Mr. Chair.

I want to come back to the notion of the limits on liability that are a part of Bill C-3. Essentially it raises the limit of liability, but anything that goes above that limit would fall to other players, principally the government. The Lac-Mégantic debacle has shown us what happens when somebody doesn't have enough insurance; it's governments that pick up the cost. The tanker safety panel has actually not finished its report on hazardous and noxious substances, so we seem to be putting the cart before the horse in a way. We're amending the act before we have the tanker safety panel's recommendations.

But they have made recommendations on ship-source oil pollution. Without getting into oil—I know Mr. Watson will be offended if I talk about oil, because it's not really here—I want to talk about the concept they've put forward that polluters should pay, that taxpayers should never be on the hook for exposure to oil spills on our coasts, or to hazardous and noxious substances on our coasts. So recommendation 23 in their report suggests that if the government were to bankroll the additional...but then go back after the fund—whether it's the hazardous and noxious substance fund or the ship-source oil pollution fund, it doesn't really matter. The government would bankroll anything over and above the current limits or the limits as being proposed in the act, and that would then fall upon itself to back over the funds. But we would require some legislative change to this act to do that.

Are you suggesting or would you agree that we should amend this bill to provide that taxpayers won't be on the hook for exceedances of what the limits of liability are in these funds? I invite all three of you to respond.

Perhaps Ms. Legars first, because you're so far away.

[Capt Stephen Brown]

Well administrative monetary penalties have become a mainstay of legislation enforcement here in Canada across all agencies, so we were not surprised that for the sake of consistency, Bill C-3 is a continuation of same.

[Capt Stephen Brown]

Yes, it's an integral part of Bill C-3, the extension of certification to the oil handling facilities.

[Jeff Watson, Conservative, Essex, ON]

The other remedy here is with respect to oil handling facilities when unloading or loading a vessel. Is that correct? That's being addressed by Bill C-3 as well.

[Jeff Watson, Conservative, Essex, ON]

So amendments in BillC-3 will automatically extend the same liability that certified response organizations have to other agents that they would be calling in to help them.

Is that a fair assessment?

[Hoang Mai, NDP, Brossard—La Prairie, QC]

From where I stand, there is nothing in Bill C-3 that talks about....There is no talk about levy, and that's why you're saying we need to have a conversation about it—

[Hoang Mai, NDP, Brossard—La Prairie, QC]

How would the government get back...? We understand that if it exceeds that amount....

Just for clarification, Mr. Watson, it was November 5, 2013, legislative summary on Bill C-3. I'm referring to page 4, 1.4.2.2, just for your information.

You're saying that the government will pay for it and then we'll recover that amount. How?