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.

[Peter Lantin]

Yes, I think we said generally speaking we support Bill C-48. Getting into the details for us is the concern around the definition of “refined oil”. There has been a lot of discussion in this area around, never mind crude oil, let's talk about refined oil. For the Haida Nation, those two things we look at in the same light. As they transit into our territory, if it's refined oil or crude oil, either-or is going to be devastating to Haida Gwaii. In our opinion, we support the moratorium generally, but we believe that it could go further and include refined oil, large quantities of refined oil.

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

Okay.

I think one of the witnesses told us, Madam Chair, they were in support of Bill C-48, but I thought I heard there were some concerns you had with it, or some conditions on that support.

[Peter Lantin]

No. Like I said, he came to Haida Gwaii also in the summer of 2016, and then we had another video conference with the minister I think a few months ago. Again, it was all in generalities, it was never in regard to Bill C-48 specifically.

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

Thank you, Mr. Lantin.

Was that the only meeting you held with the federal government, the minister, before the introduction of Bill C-48? Was that January 2016 meeting the only meeting that you had with the government before the government introduced that bill in the House of Commons?

[Peter Lantin]

Not specifically to the actual bill itself. Back in January 2016, Minister Garneau convened a meeting in Prince Rupert of all of the coastal nations. Right after the Liberal government was elected he fulfilled that promise to come to the north and engage us on shipping in general, but the moratorium was conceptually alive at that time. There have been a few more visits from Minister Garneau into Haida Gwaii, where everything I've laid out in terms of our position was also articulated to the minister as well. In general, yes, there's been consultation, but not specifically in regard to Bill C-48, although we have had quite a bit of discussion with the minister.

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

Thank you. I appreciate that answer.

For the Haida Nation, I'm wondering if there were consultations or meetings between the federal government and the Haida Nation with respect to Bill C-48 before it was introduced by a minister of the crown in the House of Commons.

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

I understand that. Thank you.

So there were no meetings or consultations on Bill C-48 before its introduction in the House of Commons earlier this year. Is that correct?

[Chief Marilyn Slett]

We're not aware of consultations specifically with the Heiltsuk on Bill C-48, but we do want to express that we have supported the moratorium.

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

Thank you, Madam Chair.

I'd like to ask questions of both the Haida Nation and the Heiltsuk Nation regarding the consultations that led to the introduction by the government, by the minister of the crown, of Bill C-48 in the House of Commons.

Maybe I'll focus first on the Heiltsuk Nation.

I'd like to know if the government consulted you, had meetings with you, before Bill C-48's introduction in the House of Commons.

[Peter Lantin, President, Council of the Haida Nation]

Good afternoon to everybody back east, and greetings from Haida Gwaii. My name is kil tlaats ‘gaa Peter Lantin. I am the president and official spokesperson for the Haida Nation.

Generally, the Haida Nation supports Bill C-48, but we propose changes to strengthen the bill to protect Haida interests and rights. I'll begin by providing some context to our submissions.

In the Haida language, Haida Gwaii means “the islands of the people”. Haida oral traditions tell the origins of these islands and our origin from the oceans of Haida Gwaii.

Our territory includes the islands and the surrounding waters, which include the entire Dixon Entrance; half of Hecate Strait, north and south; Queen Charlotte Sound halfway to Vancouver Island; and westward into the abyssal ocean depths, including the 200-nautical mile limit of the exclusive economic zone.

The Haida Nation has worked with Canada and the Province of B.C. to protect sensitive areas within the Haida territory. This includes the Gwaii Haanas marine area, which has been called and “one of the world's great ecological and cultural treasures.” Other protected areas include Sgaan Kinghlas - Bowie Seamount marine protected area, jointly designated with the Government of Canada. As well, we manage marine areas with the Province of B.C. under both the Haida Gwaii marine plan and land use plans.

The Haida protected areas protect a diversity of habitats and numerous species, including marine mammals, seabirds, fish, invertebrates, and microalgae. These areas are essential for the health and well-being of Haida citizens and Haida culture and are vulnerable to shipping, underwater noise, and the introduction of aquatic invasive species and oil spills. The Haida territory and Haida protected areas are well-known to the Government of Canada.

For those reasons, the Haida Nation joined other indigenous nations and environmental organizations to oppose the Enbridge northern gateway pipeline project that would have seen the transport of crude oil through Haida territorial waters. Together we overturned the federal approval of the project.

The proposed moratorium is an important first step towards achieving long-term protection from the risks of oil tankers and oil spills. We propose the following changes that could help strengthen the proposed bill. I will provide some proposed amendments from the Haida perspective.

First, there are plans to construct oil refineries and to transport refined oil products on the north coast. In the event of a spill, these projects carry great risk to ecosystems, communities, and the economy. The moratorium must be expanded to also ban the transport of large quantities of refined oils, such as gasoline, jet fuel, and diesel oil.

Second, further measures are required to keep large vessels at a safe and sufficient distance offshore from the west coast of Haida Gwaii. At a minimum, the area of the moratorium must apply to the current voluntary tanker exclusion zone.

The risk of harm to Haida Gwaii is largely driven by the absence of emergency towing vessels. A dedicated tug located in Haida Gwaii to provide emergency towing to vessel traffic transiting Haida territorial waters is therefore our third proposal.

Fourth, we urge the federal government to pursue international marine organization sensitive area designations to apply to all shipping to complement regulatory measures.

Fifth, the Haida Nation and Transport Canada must prioritize and complete our work of updating the Pacific places of refuge contingency plan.

Sixth, we have negotiated with Canada and B.C. collaborative management agreements covering the entire terrestrial and portions of the marine areas of Haida Gwaii. These agreements, upheld by the Federal Court of Canada, provide the federal government the unique and powerful opportunity to implement the United Nations Declaration on the Rights of Indigenous Peoples in a way that genuinely respects and implements reconciliation.

Seventh, a broad power to set limits or conditions on tankers, coupled with timely and sufficient access to information, will allow the management bodies under the Haida agreements to regulate the transport of essential oil products for communities through Haida territorial waters. The Heiltsuk Nation will speak further about this amendment.

We support West Coast Environmental Law in requesting an amendment to limit ministerial exemptions to the moratorium in case of emergencies. We also support the submissions of the Sierra Club of B.C. regarding expanding the moratorium to include decreased tonnage thresholds and to ban the transport of oil products, not just the loading and unloading.

In conclusion, the Haida Nation understood that the federal government had committed to ban crude oil tankers transiting and transporting oil products through the north coast. As drafted, the bill does not go nearly far enough to protect the Haida and other communities of the north coast from the devastating impacts of an oil spill. Our proposed amendments will help strengthen the moratorium to provide real protection to Haida Gwaii and the north coast.

Hawaa.

Thank you.

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

I call to order this meeting of the Standing Committee on Transport, Infrastructure and Communities. Pursuant to the order of reference of Wednesday, October 4, 2017, we are examining 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.

Good afternoon. Welcome, invited guests. I would like to begin by acknowledging that the land on which we gather is the traditional unceded territory of the Algonquin Anishinabe people.

For witnesses on this panel, we have from the Council of the Haida Nation, Peter Lantin. From the Heiltsuk Nation, we have Marilyn Slett and Reg Moody-Humchitt. We have two by teleconference. We will start with Mr. Lantin.

Go ahead, sir.

[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?