Bill C-48 (Historical)

Oil Tanker Moratorium Act

An Act respecting the regulation of vessels that transport crude oil or persistent oil to or from ports or marine installations located along British Columbia's north coast

This enactment enacts the Oil Tanker Moratorium Act, which prohibits oil tankers that are carrying more than 12 500 metric tons of crude oil or persistent oil as cargo from stopping, or unloading crude oil or persistent oil, at ports or marine installations located along British Columbia’s north coast from the northern tip of Vancouver Island to the Alaska border. The Act prohibits loading if it would result in the oil tanker carrying more than 12 500 metric tons of those oils as cargo.
The Act also prohibits vessels and persons from transporting crude oil or persistent oil between oil tankers and those ports or marine installations for the purpose of aiding the oil tanker to circumvent the prohibitions on oil tankers.
Finally, the Act establishes an administration and enforcement regime that includes requirements to provide information and to follow directions and that provides for penalties of up to a maximum of five million dollars.

[Michael Chong, Conservative, Wellington—Halton Hills, ON]

Thank you, Madam Chair.

This testimony today is pretty explosive. I was not aware that there was such a lack of consultation and accommodation on the part of the Government of Canada and the crown in advance of the introduction of Bill C-48. The testimony today that we've heard from this panel and the previous one is very important and valuable to members of this committee, and hopefully to the House of Commons as a whole.

My understanding on the duty to consult and accommodate is that there's a three-part test that the crown goes through to determine whether there's a duty. The first is whether the government knows that there's a right that exists. It's clear that there are treaty rights that exist here. The Nisga'a Nation has a right over its territory, clearly defined in a negotiated settlement and in legislation that was passed some 15 years ago by the Parliament of Canada. The second test is whether the government's decision has an impact on the traditional territory of the band, which includes traditional hunting, fishing, and trapping territories, but also includes directly held reserve lands. The third is whether the government's decision has a potential to impact on the treaty rights and constitutional rights of the aboriginal peoples in the area.

It seems to me that, clearly, Bill C-48 does have that impact because it prevents the Nisga'a Nation and other first nations in the area from developing those economic projects on their own directly held reserve territories in the way that they had planned to. It also seems to me that the scope of the government's duty to consult and accommodate with respect to Bill C-48 is huge. We're not talking here about building a minor road. We're talking about billions of dollars in economic development that could accrue to aboriginal bands along the route and aboriginal bands on the coast.

I don't think this is a small matter. This is a huge issue. One of the questions that's rattling around in my head as I hear this explosive testimony is whether there's going to be court action here because of the government's failure to consult and accommodate in advance of the introduction of this Bill C-48.

[Gary Alexcee]

Thank you, Madam Chair, and thank you, Calvin.

I come here today to support Lax Kw'alaams in the Tsimshian first nation against having this tanker ban.

I'll give you a few dates of why we're so against this tanker ban. In 1763 a royal proclamation was signed by King George III that gave recognition of the first nations lands and their right to plan what should be there. In 1960 the right to vote for first nations was very joyous among all the first nations. In 1968 we had the Davis plan, which completely changed the fishing industry of that day as we knew of it.

Today, without the meaningful consultation that has not been carried out with the first nations and with the B.C. Council of First Nations and Alberta, this is totally against what we want. There is no scientific reason for stopping the north coast projects. If there is, we haven't seen it. Therefore, we say that the Vancouver project of Kinder Morgan must be stopped also if you're going to force this Bill C-48 upon us.

With no consultation, the B.C. first nations groups have been cut off economically with no opportunity to even sit down with the government to further negotiate Bill C-48. If that's going to be passed, then I would say we might as well throw up our hands and let the government come and put blankets on us that are infected with smallpox so we can go away. That's what this bill means to us.

I further support the Tsimshian Lax Kw'alaams community to have this bill taken away so they, too, among the other 120 first nations in British Columbia, can sit down and have a way of life where they can at least govern themselves and be responsible for what they have in their lives.

Today, the way it sits, we have nothing but handouts that are not even enough to have the future growth of first nations in our communities of British Columbia.

Thank you.

[Eva Clayton]

Thank you, Madam Chair.

First of all, before I begin, I would like to acknowledge the traditional territories of the Algonquin first nations.

We appreciate the committee inviting us to speak with you today about the Nisga'a Nation's position on Bill C-48. You've heard my team's introductions.

As you are all no doubt aware, the Nisga'a treaty was the first treaty with indigenous peoples in Canada, and perhaps in the world, to fully set out and constitutionally protect our right to self-government and the authority to make laws. Our treaty area covers 26,000 square kilometres of our traditional territory, the Nass area in northwestern British Columbia and we own approximately 2,000 square kilometres of land in fee simple, known as Nisga'a Lands, shown in purple on the Nass area map that you have before you.

When our treaty came into force on May 11, 2000, after more than 113 years of struggle, the Indian Act ceased to apply to us, and for the first time our nation had the recognized legal and constitutional authority to conduct our own affairs. Our treaty includes detailed environmental assessment and protection provisions applying to the entire Nass area, which has opened the door for the joint economic initiatives in the development of our natural resources. It is in the context of seeking respect for our modern treaty that we come before you today to express our concern about Bill C-48.

The details of the proposed moratorium were announced late last November after what can only be described as a general overview of various options for the geographic content, geographic extent of a potential ban on oil tanker traffic, the type of product and vessel that may be covered by the ban, and potential opportunities for enhanced ocean protection initiatives.

In the weeks that preceded the introduction of Bill C-48, we urged that the moratorium not be enforced before further consultation took place and that the moratorium should not cover our treaty area.

Much to our surprise, Bill C-48 was introduced before we had been offered an opportunity to review the detailed approach that the government decided to take, nor were we able to comment on the implications of the proposed legislation on the terms and shared objectives of our treaty even though the area subject to the moratorium includes all of Nisga'a Lands, all of the Nass area, and all coastal areas of our treaty. This lack of engagement with us and the failure to assess the implications of our treaty is contrary to the expectations of the assessment of modern treaty implications, a process set out in the 2015 cabinet directive on the federal approach to modern treaty implementation.

Clearly, engagement on this issue fell well short of what would be expected between treaty partners. The Nisga'a Nation does not support the imposition of a moratorium that would apply to areas subject to our treaty, because Bill C-48 flies in the face of the principles of self-determination and environmental management that lie at the heart of the Nisga'a treaty.

We aspire to become a prosperous and self-sustaining nation that can provide meaningful economic opportunities for our people. This aspiration is reflected in our treaty, which sets out the parties' shared commitment to reduce the Nisga'a Nation's reliance on federal transfers over time. The Nisga'a Nation takes this goal very seriously. However, it stands to be undermined by Bill C-48.

Our future prosperity and the ability of our people to enjoy a better quality of life requires the creation of an economic base in the Nass area that meets the requirement of our treaty. This is the first priority of our government.

In the 17 years since our treaty came into effect, we have successfully negotiated many environmentally sound agreements in the mining, hydroelectric, and liquefied natural gas sectors. We were the first indigenous nation to conclude an agreement with TransCanada to run a natural gas pipeline over 200 kilometres of treaty lands.

[Michael Chong, Conservative, Wellington—Halton Hills, ON]

Madam Chair, this is a pretty significant issue that has been brought to our committee's attention. This northern gateway project was a $7.9-billion project. As I understand it, the Aboriginal Equity Partners were at minimum offered a 10% equity stake. They were offered the commitment to recruit aboriginal Canadians into senior management positions on this project. They were offered economic opportunities and jobs in the construction itself. That was at minimum. My understanding is that this equity stake may very well have instead found its culmination in a partnership that would have seen aboriginal peoples, Enbridge, and oil suppliers each owning one-third of this project, and seeing for the first time in the north a significant aboriginal ownership and investment of this pipeline.

Could you speak to the lost opportunities that your communities are facing as a result of decisions taken by the government not only in respect of the northern gateway project but also in respect of Bill C-48?

[Michael Chong, Conservative, Wellington—Halton Hills, ON]

Thank you, Madam Chair.

Thank you to the witnesses for appearing in front of us today to talk to us about your concerns around the duty to consult and accommodate. I think it's important to have your views on the record.

The government has a clear, constitutionally defined responsibility as outlined in section 35 and also outlined in court decisions from the Supreme Court in recent years about a very specific duty to not only consult but to accommodate. It seems to me that didn't happen, Madam Chair, in this instance on Bill C-48.

The duty to consult and accommodate doesn't simply mean having a meeting with aboriginal peoples whose treaty rights are affected by this project. It goes far deeper and is far more specific than that. For example, the government cannot act unilaterally in any regard. It needs to consult on what studies need to be done to assess the negative impacts on aboriginal peoples along the route, and it needs to consult with aboriginal peoples before information is taken. There are many other very specific requirements that the court has outlined in various decisions.

Other than the meetings that you've mentioned, it doesn't seem to me that a lot of those proper consultations and accommodations were made ahead of the introduction of Bill C-48. For example, did the government ask you what studies it needed to undertake to assess the negative impacts on your communities if Bill C-48 were to proceed?

[Fin Donnelly, NDP, Port Moody—Coquitlam, BC]

Thank you, Madam Chair, and thank you to our guests for being here and providing testimony.

I want to speak about ministerial discretion, so I'll direct my first question to Mr. Swampy. Subclause 6(1) of Bill C-48 allows the minister, by order, to exempt identified oil tankers from the ban on any terms and for any period of time.

Subclause 6(2) says that the Statutory Instruments Act does not apply to such exemption orders, which removes requirements that such exemption orders be published and made easily available for public inspection.

Do you have any concerns about this broad ministerial power?

[Elmer Ghostkeeper]

Therefore, I'll end by saying that we strongly recommend that this parliamentary committee ensure that Transport Canada uphold the crown's constitutional obligations and the government's own stated principles and undertake deep consultation with our communities before implementing Bill C-48. We believe that, by working in partnership, we can enhance protection for the beautiful B.C. north coast area, while also allowing a viable aboriginal-led oil transport project that will benefit all Canadians.

Thank you.

[The Chair (Hon. Judy A. Sgro (Humber River—Black Creek, Lib.)), Liberal, Judy Sgro]

I call the meeting to order of the Standing Committee on Transport, Infrastructure and Communities.

Pursuant to the order of reference of Wednesday, October 4, 2017, we are studying Bill C-48, an act respecting the regulation of vessels that transport crude oil or persistent oil to or from ports or marine installations located along British Columbia's north coast.

Welcome to our committee, members and witnesses. We would like to start off with the Aboriginal Equity Partners, Mr. Dale Swampy, coordinator, and Mr. Elmer Ghostkeeper, steward. We also have from the Lax Kw'alaams Band, John Helin, the mayor.

Whoever would like to start off, you have five minutes. I'll try raising my hand when you're getting close to that time. If you can get your comments in within that time, we'd appreciate it so that the members can ask their questions.

[Michael Chong, Conservative, Wellington—Halton Hills, ON]

Thank you, Madam Chair, and thank you to all our witnesses for appearing today and giving us your testimony.

I first want to ask Mr. Hage a couple of questions about the territorial issues around the area in question in Bill C-48.

My understanding is that the United States is not a member of the Convention on the Law of the Sea and so does not recognize our sovereignty—or any nation's sovereignty—beyond the 12-mile limit. We, however, are a party to that UN accord and we have a different position on that. Could you talk a bit about that issue in that area of Canada's coastal waters?

[Misty MacDuffee, Biologist and Program Director, Wild Salmon Program, Raincoast Conservation Foundation]

Thank you, Madam Chair.

I'm going to be about five minutes and 30 seconds, but I might talk a little faster because I'm nervous.

Thank you, again, for this opportunity to speak in favour of the oil tanker moratorium act.

As you know, or may even have experienced, British Columbia's north and central coast, along with Haida Gwaii, comprise a unique environment that is increasingly uncommon not just in Canada but in the world. It is an archipelago where lush forests and granite buttresses greet the sea, where grizzlies dig for clams in sight of the open Pacific, where wolves swim to distant islands in pursuit of seals, where the ethereal calls of killer whales are used to pursue salmon migrating thousands of kilometres to freshwater rivers of a forest, and where the summer sun sets on the blows of feeding humpback whales that are surrounded by thousands of shearwaters, auklets, and gulls, all in pursuit of tiny fish that spawn on a sandy shore or on the giant kelps that buffer the fragile coast shoreline.

All this is to say that this assembly of iconic animals makes the B.C. coast qualitatively different from most other exceptional places in the world. Distinctively, these animals are tied to the sea within a food web that knows no boundary between terrestrial and marine. Raincoast's two decades of published science studying coastal species confirms the knowledge that first nations have held for millennia. The coastal environment is an indivisible blend of land and ocean. What befalls the ocean, befalls the species of the land. It is no place for oil tankers.

Three recent academic papers by Raincoast are directly pertinent to the bill before you. First is a paper derived from our 10,000 nautical miles of surveys through the waters that Bill C-48 addresses, a region we refer to as the Queen Charlotte Basin. The paper, “Quantifying marine mammal hotspots” is a response to the overwhelming evidence that humans are contributing to rapid declines in marine species, particularly in coastal areas. This reality dictates the urgent need to identify important places for marine species, places where ocean processes and high species abundance interact to create hotspots.

We found that southeastern Haida Gwaii, outer Queen Charlotte Sound, the Scott Islands, Caamaño Sound, Calvert Island, Aristazabal Island, Chatham Sound, and Dixon Entrance are all places of exceptionally high marine mammal abundance. These areas all lie within the waters identified in Bill C-48.

A second paper on spills and marine mammals evaluates the consequences of potential oil exposure on 21 species of B.C. marine mammals. All marine mammals are inherently vulnerable to oil spills because they live their lives at the air-water interface where oil contact, inhalation, or ingestion can all occur.

We found that British Columbia's killer whales, Steller's sea lions, and sea otters ranked very high in terms of vulnerability to oil spills. Their elevated risk above other marine mammals is due to their small populations, their slow reproductive rates, their specialized diets, and the tendency for large percentages of the population to group together in space and time.

Our third paper on marine birds and chronic oil pollution, along with the book, At Sea with Marine Birds, by Dr. Caroline Fox, identifies marine bird species considered to be at elevated risk of extinction and those with a pronounced vulnerability to oil spills. Marine birds in this region are vulnerable to oil spills in any volume, large or small. Bill C-48 reduces the threat of catastrophic oil spills to at-risk marine birds and their habitats.

Lastly, Bill C-48 addresses the rising problem of underwater shipping noise disrupting the communication and feeding of cetaceans, and the growing threat of ship strikes. As on the east coast, Pacific shipping is a growing concern for large baleen whales like fin, sei, humpback, and the handful of critically endangered North Pacific right whales that inhabit these waters.

Over the last decade, Raincoast has tried to express what this maritime commons means to the people of British Columbia. Simply, it is a coastal archipelago that is priceless and irreplaceable, immeasurable in monetary terms.

We've also articulated the unequivocal evidence of decadal-scale biological changes that marine systems and species are undergoing, the ecological debt, and the perils of hidden consequences. But we held hope that the proposed industrialization of British Columbia's Queen Charlotte Basin was a step too far. My presence here is proof that it was.

As we codify a moratorium on oil tanker traffic into law, whales hunted to near collapse a century ago are returning to their historic feeding grounds. Bill C-48 honours the ecological legacy of this coast and the first nations people who existed with this landscape since time before memory. We will continue our work to ensure that this priceless and irreplaceable coast continues its evolutionary journey, and we will mark Bill C-48 as an essential step in determining that future.

Thank you.

[Robert Lewis-Manning, President, Chamber of Shipping]

Good afternoon, Madam Chair and members of the committee. I appreciate the opportunity to offer a few observations and a recommendation on this important legislation.

My comments are provided from the perspective of commercial shipping, marine transportation and, more generally, international trade. The Chamber of Shipping represents interests of shipowners, their agents, and service providers responsible for over 60% of Canadian international trade by ship. Some of our members also move bulk liquids and products of all types, including petroleum and chemical products, on both the east and west coasts.

Marine transportation includes everything from people in ferries and cruise ships to bulk commodities such as grain that is exported to Asia, to larger container ships moving goods that Canadian companies sell globally, and manufacturing goods that Canadians use in their day-to-day lives. Needless to say, marine transportation and its many spinoffs benefit and touch Canadians in their day-to-day lives.

I've been involved personally with marine conservation initiatives on all three of Canada's coasts and on the Great Lakes, and I am a member of the national Species at Risk advisory committee. As a former senior officer in the Royal Canadian Navy, I was also responsible for monitoring and coordinating surveillance in support of coastal protection. The Great Bear Sea on the north coast of British Columbia is indeed one of the richest marine ecosystems in the world and has enormous cultural significance to the people who live there, and it contains important resources for British Columbia's economy. Protecting it should be a priority, and in that respect, I doubt that anyone would question that goal.

Protection of our coastal environment goes hand in hand with being able to build trust with both Canadians and our international shipping customers. Furthermore, the ability to protect our coastal environment responsibly will also ensure the continued competitiveness of our trading gateways at a time when competitive pressures, especially from the United States, are increasing. This region is also an important trading gateway for Canada. It includes the country's fastest growing port, the Port of Prince Rupert, in addition to a number of smaller ports that afford future opportunities.

Within this context, there are three aspects of the proposed legislation that I would suggest are worthy of consideration by the committee. The first is the process and study that supported the identification and the list of scheduled commodities. The schedule was somewhat of a surprise when it was announced in May of this year, and until only recently the study that supported the decision to limit the scheduled commodities was also unavailable.

The study appears to have lacked some consultation with shipowners and operators, who currently move some of the products included on the proposed schedule. If the dialogue would have happened, those leading the study would have learned that most shipowners do not ship small quantities of a single product in a single sailing but frequently have cargo left on board that is destined for other ports. In this manner, a shipowner leverages efficiencies through multiple orders of a single or similar product. Limiting the quantity of scheduled commodities to 12.5 metric tonnes could result in unintended consequences, such as increased freight charges or a complete disruption in the supply chain.

Secondly, careful consideration should be given to whether the legislation is inconsistent with Canada's commitment to the United Nations Convention on the Law of the Sea, or UNCLOS. The intent of article 9 of this convention is to ensure that all ships, unless operating in a manner prejudicial to peace, good order, and security of another country, shall be provided innocent passage.

Article 24 reinforces this requirement on a coastal state, demanding that it shall not impose requirements on foreign ships which have the practical effect of denying or impairing the right of innocent passage. Furthermore, articles 194 and 211 also empower a nation to protect its marine environment and to harmonize, as much as possible, such laws and regulations with neighbouring states and international regulations more generally.

Thirdly and perhaps most importantly, this legislation establishes a precedent in Canada for managing our national supply chain and is another layer of complexity in the already multi-faceted supply chain, thereby making Canada a more complex country in which to operate. While the bill intends to embody the precautionary principle, it has not provided and is not providing a constructive framework for properly reviewing the maritime transportation supply chain of B.C.'s north coast.

I would like to make one simple recommendation. The proposed amendments to another piece of government legislation, namely Bill C-55, an act to amend the Oceans Act and the Canada Petroleum Resources Act, also embodies the precautionary principle. In the way that Bill C-55 takes a precautionary approach and then demands analysis and an evidence base to support a longer-term management plan, we heartedly recommend that the oil moratorium act also contain language that would require a risk assessment to be conducted at minimum every five years, such that it could inform the regulatory process of scheduled products.

In this manner Bill C-48 would take a similar approach to that of Bill C-55, a harmonized approach. It would be grounded in an evidence-based analysis that would engage affected stakeholders collaboratively and would also provide a responsible legislative framework that could be sustained over the long term.

Thank you, again, for this opportunity, and I welcome any of your questions.

[Robert Hage, Fellow, Canadian Global Affairs Institute, As an Individual]

Thank you very much, Madam Chair.

I should say that I've timed my remarks. They're five minutes and 30 seconds, so perhaps you would grant me the other 30 seconds.

During my 38 years in the Canadian Foreign Service, I have had the opportunity to work in the department's legal bureau, including a period as director general for legal affairs. I was also a representative for Canada at the UN Conference on the Law of the Sea.

I have written two articles relevant to the committee's work for the Macdonald-Laurier Institute. The first is the “Legal Aspects of an Oil Tanker Ban: Bill C-211”, which I wrote in 2012; and “Risk, Prevention, and Opportunity: Northern Gateway and the Marine Environment”, which I wrote in 2015.

Bill C-211 was the last of five Liberal or NDP private members' bills between 2007 and 2011 to legislate an oil tanker ban on B.C.'s west coast in an area north of Vancouver Island. I wrote that this “opens a Pandora's box of issues involving the United States, including Canada's historic claims to these waters, the Alaska Panhandle boundary, the passage of nuclear submarines, innocent passage, and fishing rights.”

All five bills ban tanker traffic in the Dixon Entrance, Hecate Strait, and Queen Charlotte Sound, an area under Canadian legislation known as fishing zone 3. The key issue is the nature of the Alaska boundary, called the A-B line, adjacent to Dixon Entrance. Canada claims that the 1903 British-American arbitration, which delimited this boundary, created both a land and maritime boundary. The U.S. position is that the A-B line is a land boundary only and does not demarcate an ocean boundary. It has claimed a territorial sea south of the line, thereby creating a disputed maritime area where each nation has arrested the fishing vessels of the other.

Since the 1890s, Canada has maintained that Dixon Entrance is part of the historic internal waters of Canada. Canada has made similar claims for Hecate Strait and Queen Charlotte Sound. While the previous bills banned tankers sailing within the defined waters of fishing zone 3, Bill C-48 prohibits tankers carrying crude oil from entering or leaving ports in the same area.

In focusing on the use of Canadian ports, the government has avoided a confrontation with the United States over the status of these waters. A May 12, 2017, media report quotes Minister Garneau's response to reporters' questions about why Bill C-48 does not ban tankers simply passing through Dixon Entrance, Hecate Strait, or Queen Charlotte Sound. Minister Garneau replied that “such passage is allowed by international law, but it is effectively stopped under a voluntary tanker exclusion zone that the U.S. and Canada agreed some 30 years ago.”

However, for years, Canada has claimed these waters to be internal waters of Canada, where passage is governed by Canadian law and not international law. The U.S. maintains that its rights indeed are governed by international law and has sent numerous diplomatic notes in that regard.

The rather odd result under the bill is that tankers carrying crude oil can still ply these waters as long as they do not enter or leave from a Canadian port. The legislation also does not apply to tankers transporting refined oil. It does not apply to B.C.'s southern waters, including the Strait of Juan de Fuca or the Port of Vancouver-Burnaby, the site of the Kinder Morgan tanker terminal.

Enbridge's Northern Gateway project was cancelled by the government, and the government always has the right to deny any future proposal for a terminal. This raises the question of why such legislation is required at all. The only pipeline and terminal project that the moratorium act affects is the proposed Eagle Spirit Energy corridor, which initially would build an oil pipeline across first nations traditional lands from Fort McMurray to a terminal on Lax Kw’alaams coastal lands, north of Prince Rupert.

In the 2015 article, I looked at Alaska's experience involving its native people and petroleum development. The United States government created 12 regional profit-making native corporations designed to give indigenous peoples the means to ensure their financial independence through their corporate ownership of large tracts of land and the opportunity to develop that land. The results have been very positive. One corporation on the north slope is the state's largest Alaskan-owned corporation, with over 10,000 employees. Another, on the Gulf of Alaska, designed, built, and operates the Trans-Alaska Pipeline, along with one of the world's largest spill preparedness and response organizations.

While Canada has not created similar native corporations, I believe the proposed Eagle Spirit Energy corridor on traditional first nations territory mirrors this partnership approach, with indigenous peoples very much in the driver's seat. It is paradoxical that this tanker legislation puts an end to a first nations project, which they see as an important move towards reconciliation.

I thank you for your attention, and I'm pleased to respond to any questions.

[Angelo Iacono, Liberal, Alfred-Pellan, QC]

Now I have a question for the West Coast Environmental Law Association representative.

In an open letter, your organization expressed support for Bill C-48. You also, however, questioned the 12,500-tonne threshold.

Could you comment on that and provide any recommendations you have?

[Caitlyn Vernon]

I can speak to that again.

The Great Bear Rainforest is the world's largest intact coastal temperate rainforest. The agreements that have been formed between first nations, industry, government, and environmental groups have been recognized globally. We don't need industrial sacrifices to support our economy; we can find ways for communities to thrive and prosper within ecological limits. All of these agreements that have been recognized, that have been signed, depend on a healthy marine environment. The salmon literally provides food for the trees. The bears depend on the salmon. The edge between land and sea is permeated; it's not a firm boundary. Everything depends on everything else, and so the integrity of the ecosystems of the Great Bear Rainforest, which is truly a global treasure, depend on a healthy ocean and depend on bills such as Bill C-48, and I would argue even more strongly, on prohibiting refined oils and articulated tug barges like the Nathan E. Stewart which also have an impact on the rainforest.

I don't know if either of you wants to say something else.

[Gavin Smith, Staff Counsel, West Coast Environmental Law Association]

Thank you, Madam Chair. Thank you for the opportunity to speak before the committee.

The West Coast Environmental Law Association also strongly supports Bill C-48, the oil tanker moratorium act. We've prepared a written brief, which I understand has yet to be translated. In that brief, we make a number of points, but I'm going to focus particularly on one of those right now, which is the clause 6 exemption provision that allows the minister to exempt oil tankers from the bill's prohibitions.

However, I will note that in our written brief we also address issues such as a recommendation to create a regulation-making power for appropriate public disclosure of monitoring enforcement information under the bill, as well as a recommendation about seeking further information from Transport Canada on the 12,500-tonne threshold when the oil supply study that Ms. Vernon mentioned indicated that supplies to communities are currently in the amount of approximately 3,200 tonnes.

I'm happy to answer questions on those, but I will focus on clause 6 and in particular recommend three amendments to clause 6, which we say would preserve its sensible purpose of allowing for the provision of necessary oil supplies during dire emergencies while adding three crucial safeguards to protect the purpose of the bill and the public's access to information, each of which I'll address in turn.

First, we recommend that clause 6 explicitly limit the use of the exemption provision to circumstances that, in the opinion of the minister, constitute an emergency. Currently under clause 6, the minister may issue oil tanker exemptions for any reason that the minister believes to be in the public interest or essential for community and industry resupply. The exemption provision is not limited to emergencies, and it could be used to grant oil tanker exemptions for other purposes, including those potentially contrary to the purpose of the bill.

Minister Garneau has been very clear before this committee and in the House that the purpose of the exemption provision is solely and exclusively to respond to dire emergencies. We say that the clause 6 exemption provisions should reflect that in order to ensure that the provision is not used for other purposes.

Second, we recommend imposing an expiry period for oil tanker exemption orders under clause 6 with ministerial authority to order extensions as necessary. We propose an expiry period of one year for oil tanker exemption orders and orders to extend them, although we note there's no magic in that number provided there is an expiry period of a relatively short term.

Currently under clause 6, the minister may order oil tanker exemptions for any period of time without restriction, including potentially long-term or even indefinite exemptions. We say that setting a default term for oil tanker exemption orders would greatly curtail potential use of the exemption provision for long-term objectives that are incompatible with the bill's purpose, and also reflect the reality that, in general, emergencies are not likely to require long-term oil tanker exemptions. At the same time, the ability to order extensions of those orders would provide flexibility to maintain exemptions for longer periods where required.

Third, we recommend adding a simple requirement that oil tanker exemption orders be published in the Canada Gazette. Currently, legal requirements for public notice of access to exemption orders are explicitly removed by subclause 6(2) of Bill C-48. That is because the Statutory Instruments Act and its regulations generally require publication of statutory instruments in the Canada Gazette and provide for public access to and the right to copy statutory instruments.

However, those provisions would not apply to an oil tanker exemption order under the bill, because subclause 6(2) says the Statutory Instruments Act does not apply. The apparent rationale is to ensure that exemption orders can enter into effect quickly with a minimum of procedural requirements during an emergency. We don't propose disturbing that approach. Rather, we simply recommend adding a requirement to publish the orders in the Canada Gazette to ensure that the public has proper notice of such exemptions.

In summary, the clause 6 exemption provision could, if used to its full extent as currently drafted, allow wide-ranging and long-term exemptions from the bill's oil tanker prohibitions to be ordered behind closed doors without appropriate public review, potentially gutting the very purpose of the oil tanker moratorium act. We fully understand that this is not the minister's intention. He has been very clear on that point. However, given that, as the minister stated to this committee, the purpose of the bill is to preserve the pristine north coast for posterity, we say, then, that the bill's provisions must stand the test of time. This requires firm prohibitions that cannot be easily circumvented in future through the use of a broad exemption power.

The three amendments that we propose to section 6 would achieve this goal, providing ample flexibility for oil tanker exemptions when necessary, during emergencies, while eliminating uncertainty about whether the exemption provision could, in future, be used for purposes other than that, and potentially those contrary to the spirit of the bill.

Thank you.