Bill C-64 (Historical)

Wrecked, Abandoned or Hazardous Vessels Act

An Act respecting wrecks, abandoned, dilapidated or hazardous vessels and salvage operations

This enactment enacts the Wrecked, Abandoned or Hazardous Vessels Act, which promotes the protection of the public, of the environment, including coastlines and shorelines, and of infrastructure by regulating abandoned or hazardous vessels and wrecks in Canadian waters and, in certain cases, Canada’s exclusive economic zone, and by recognizing the responsibility and liability of owners for their vessels.
The Act, among other things,
(a) implements the Nairobi International Convention on the Removal of Wrecks, 2007;
(b) requires owners of vessels of 300 gross tonnage and above, and unregistered vessels being towed, to maintain wreck removal insurance or other financial security;
(c) prohibits vessel abandonment unless it is authorized under an Act of Parliament or of the legislature of a province or it is due to a maritime emergency;
(d) prohibits the leaving of a dilapidated vessel in the same place for more than 60 days without authorization;
(e) authorizes the Minister of Transport or the Minister of Fisheries and Oceans to order the removal of a dilapidated vessel left on any federal property;
(f) authorizes the Minister of Fisheries and Oceans to take measures to prevent, mitigate or eliminate hazards posed by vessels or wrecks and to hold the owner liable;
(g) authorizes the Minister of Transport to take measures with respect to abandoned or dilapidated vessels and to hold the owner liable;
(h) establishes an administration and enforcement scheme, including administrative monetary penalties; and
(i) authorizes the Governor in Council to make regulations respecting such matters as excluding certain vessels from the application of the Act, setting fees and establishing requirements for salvage operations, the towing of vessels and the dismantlement or destruction of vessels.
The enactment also re-enacts and revises provisions related to the International Convention on Salvage, 1989 and to the receiver of wreck. The enactment strengthens the protection of owners of certain wrecks in cases where the owner is unknown or cannot be located and maintains regulatory powers related to the protection and preservation of wrecks having heritage value.
Finally, it makes related and consequential amendments to other Acts.

[Ellen Burack]

If I could add to that, it's one of the reasons that certain parts of Bill C-64 don't apply to wrecks considered to have heritage value: to take away that potential conflict with some of those pieces of provincial and territorial legislation.

[Ellen Burack]

I think it's important to also remember that the Minister of Fisheries, Oceans, and the Canadian Coast Guard has a role at the start of this process.

Bill C-64 and the activities around it clarify that the first point of contact when a wreck is identified is the Canadian Coast Guard. The Coast Guard would then be in touch with Parks Canada, which leads on heritage wrecks. If there is military involvement, then it is with DND, and certainly with Transport Canada.

It is important to note also that in the definition of “receiver of wreck”, wrecked aircraft in water are included, so the regulations that Parks Canada is talking about to deal with heritage wrecks and war graves would potentially include aircraft in the water.

[Kelly Block, Conservative, Carlton Trail—Eagle Creek, SK]

Thank you very much, Madam Chair, for your kind words welcoming me back. I recognize that I was not here for the completion of our study on Bill C-64, but I want to thank you for considering the amendments that were put forward by the Conservative of the committee. Also, thank you very much for your response to those amendments and for agreeing to hold this study on this very important issue. I am very glad to be back to be able to take part in it.

I also want to note that as part of this study, I've been made aware—I'm learning as we go—that there are a number of acts that could relate to this study. As has been mentioned, there is some work being contemplated between a number of ministries.

I think you referenced the question that was in my mind before you gave your opening statement, but I am wondering if you could expand on what kind of legislative framework would make the most sense in providing protections to these ocean war graves.

Do you see it taking place in regulation, as I think I heard? Would you see amendments being made to the acts that might provide oversight to this issue, or would you see, perhaps, the creation of a new act toward this end?

[Ellen Bertrand, Director, Cultural Heritage Strategies, Parks Canada Agency]

Thank you.

Madam Chair, members of the committee, it's a privilege to be here with you today to discuss the role of Parks Canada in the protection and management of heritage wrecks in the context of the study of ocean war graves.

Parks Canada protects and presents nationally significant examples of natural and cultural heritage, and we administer 47 national parks, four national marine conservation areas, and 171 national historic sites. The Parks Canada Agency Act established Parks Canada as the federal lead for federal archaeology and built heritage. Over the past 50 years Parks Canada has built an international reputation as a leader in the field of underwater archaeology through work on projects such as the excavation of a 16th-century Basque whaling ship in Red Bay, Labrador.

The agency is currently the only government entity that has the operational capacity for evaluating and managing heritage wrecks. This is expertise is led by a team that my colleague Marc-André heads up at Parks Canada. A high-profile example of this expertise is the work we did discovering, excavating, and documenting the wrecks of Sir John Franklin's ships, HMS Erebus and HMS Terror, in Nunavut.

Under the Canada Shipping Act, which is still in force, the Minister of Transport and the Minister responsible for Parks Canada Agency have joint authority for making regulations to protect and preserve wrecks with heritage value. These authorities came into force in 2007, but no such regulations have yet been introduced. Bill C-64 would transfer these authorities to section 131 of the new act.

Regulations, whether developed under the existing act or a new piece of legislation, would establish a definition of heritage wrecks that would be exempt from certain salvage provisions, for example, entitlement to a salvage award, which could include the wreck itself. These regulatory authorities would allow for the creation of an inventory of heritage wrecks and, importantly, a requirement to report new discoveries. They would also define activities directed at heritage wrecks that would require a permit. This might include searching for a wreck, excavating a wreck, and removal of artifacts.

Of the thousands of historic shipwrecks in Canada, a small but significant portion is military wrecks. In addition to the wrecks of vessels and airplanes belonging to the Canadian Forces, we estimate that at least 50 military wrecks belonging to foreign governments have been located in Canadian waters. We estimate that perhaps another 100 remain undiscovered. Approximately 90% of these foreign military wrecks in Canadian waters are the property of the governments of the U.K., France, and the United States of America.

In some cases, a foreign government has identified Parks Canada to act on its behalf to ensure the appropriate management of the wrecks. The management of the wrecks of HMS Erebus and HMS Terror is a good example. We have a memorandum of understanding with the Government of the U.K., but under future heritage wreck regulations, Canada would be able to protect these foreign military wrecks from unauthorized disturbance.

Wrecks are often the final resting place of those who perished on board. Almost all Royal Canadian Navy vessels that sank in Canadian waters have had at least one loss of life. However, human remains are found on other wrecks as well.

A poignant example is the wreck of RMS Empress of Ireland, an ocean liner that sank in the estuary of the St. Lawrence in 1914. Over 1,000 passengers and crew perished, making it the worst peacetime maritime disaster in Canadian history.

While the Province of Quebec put into place specific legal measures to protect this particular shipwreck in response to years of looting at the site, the proposed heritage wreck regulations would provide automatic protection of such underwater grave sites from unauthorized disturbances.

Heritage wreck regulations would also support Parks Canada's ratification of international agreements that would help to protect wreck sites at the international level, including sites that contain human remains.

In 2001, Canada and 85 other countries voted to support the language of the UNESCO Convention on the Protection of the Underwater Cultural Heritage. Member states agree to cooperate and work towards the protection of underwater cultural heritage within their jurisdiction and the high seas. To date, there are 58 state parties to the convention. Before ratifying the convention, Canada would need to demonstrate that adequate measures are in place to protect underwater cultural heritage, including heritage wrecks.

Similarly, Canada worked with the U.S.A, the U.K., and France on a draft agreement to protect the wreck of RMS Titanic, which rests at the edge of our continental shelf, beyond the exclusive economic zone.

Over 1,500 lives were lost, and after it was discovered in 1985, explorers penetrated the hull and removed over 5,900 artifacts. They removed them largely for commercial purpose and profit.

While the agreement is not yet in force, it does promote in situ preservation of the wreck as a memorial and a historic site. The proposed heritage wreck regulations could be extended extraterritorially to such an area to provide legal tools to regulate activities of Canadian nationals and Canadian vessels directed at the Titanic.

It is the view of the Government of Canada that the introduction of regulations would provide an effective solution to protect all heritage wrecks in Canadian waters under Canadian jurisdiction, including those that may be considered ocean war graves. To that end, Parks Canada has recently begun reviewing past work in this area and has had preliminary discussions with Transport Canada, the Department of National Defence, and Veterans Affairs to look at options to develop a regulatory regime for the protection of heritage wrecks under the existing joint regulatory authority in view of the new piece of legislation.

We would like to sum up by saying that if there is a clear framework and a management regime through regulations, the Government of Canada will be able to protect these important cultural sites.

Transport, Infrastructure and Communities

[Bernadette Jordan, Liberal, South Shore—St. Margarets, NS]

Mr. Speaker, I have the honour to present, in both official languages, the 22nd report of the Standing Committee on Transport, Infrastructure and Communities, in relation to Bill C-64, an act respecting wrecks, abandoned, dilapidated or hazardous vessels and salvage operations. The committee has studied the bill and has decided to report the bill back to the House with amendments.

This bill was built on my Motion No. 40 and will address environmental and economic concerns that have plagued our coastal communities for years. I look forward to the final vote on this bill in the House, and hopefully the full support of all members.

[Robert Lamirande, Director General, Indigenous Affairs and Reconciliation, Department of Fisheries and Oceans]

I would also like to acknowledge our presence on the unceded territory of the Algonquin peoples.

I would like to thank the chair, vice-chairs, and committee members for the invitation to speak to you today to support your study of Bill C-262 and for the opportunity to elaborate on the suite of programs, policies, and legislative initiatives under the purview of the Minister of Fisheries, Oceans and the Canadian Coast Guard that have made and will continue to make advances toward reconciliation with the indigenous peoples of Canada.

I am Robert Lamirande, the director of indigenous affairs and reconciliation directorate at Fisheries and Oceans Canada. I would like to introduce my colleague, Marc Sanderson, acting director general, national strategies of the Canadian Coast Guard.

My directorate is responsible for providing policy advice on indigenous fishing and other matters toward advancing reconciliation with indigenous peoples; negotiating and implementing program, treaty, and other constructive agreements on Fisheries and Oceans management; promoting fisheries related economic opportunities through programming to support indigenous capacity to fish safely and effectively; and building relationships and partnerships with indigenous communities through effective engagements, which we do hand in hand with the national strategies directorate of the Canadian Coast Guard.

We do this work because the sustainable use of the fishery resource, the protection of fish and fish habitat, the conservation and management of our oceans, and the safety of those on the water are a priority for the department—a priority held in common with indigenous communities.

And because Fisheries and Oceans Canada and the Canadian Coast Guard have presence in many coastal and rural communities across Canada, we have worked hard with indigenous communities and groups to collaborate and partner on all aspects of our operations. These relationships are comprehensive, complex and dynamic. They are adaptive to the capacity of each indigenous community or group to participate in economic opportunities and in co-management.

We are now on a clearer path to a renewed, nation-to-nation, crown-Inuit, and government-to-government relationship, one that builds on the relationships and partnerships developed over the past decades. These relationships with indigenous communities are the touchpoints through which we will collaborate to articulate what reconciliation means in the context of Minister LeBlanc's portfolio.

This includes those changes to programs, policies, and laws necessary to demonstrate that we are moving to reconciliation with indigenous peoples. This commitment to reconciliation is guided by the principles respecting the Government of Canada's relationship with indigenous peoples. These principles, as you know, are themselves guided by the United Nations Declaration on the Rights of Indigenous peoples.

I want to highlight for you how Fisheries and Oceans Canada has worked in collaboration and in partnership with many indigenous communities. Through the innovative and successful Atlantic and Pacific integrated commercial fisheries initiatives, Fisheries and Oceans Canada provides commercial fisheries access, business management capacity, and training needed to build self-sustaining, indigenous-owned and operated commercial fishing enterprises.

Through the aboriginal fisheries strategy and the aboriginal aquatic resource and oceans management programs, Fisheries and Oceans Canada helps indigenous groups acquire the scientific and technical capacity, means, and training to meaningfully participate in fisheries, oceans, and habitat collaborative management, including employing aboriginal fisheries guardians.

Budget 2017, a year ago, has taken these programs a major step forward, investing over $250 million over five years and $62 million ongoing annually. This includes ongoing funding for the Atlantic and Pacific integrated fisheries initiatives and northern expansion through a new northern integrated commercial fisheries initiative.

As we embark on the renewal of these programs, we are also undertaking a review to see where and how these programs can be strengthened in collaboration with the National Indigenous Fisheries Institute, a technical organization established in May 2017 whose board is made up of experts from national and regional indigenous organizations. The institute is enabling the co-development, co-design, and co-delivery of our indigenous programs.

However, working collaboratively and in partnership with indigenous communities is not focused solely on fisheries.

The Oceans Protection Plan, for example, is enabling indigenous communities and groups to meaningfully participate and partner in Canada's marine safety system, from waterways management to emergency preparedness and response.

We are working with indigenous communities and partners to create a new indigenous chapter of the Coast Guard Auxiliary in British Columbia. And discussions with other indigenous communities are exploring opportunities to establish additional auxiliary units in the Arctic and in British Columbia to bolster responses to emergencies and pollution incidents.

A national strategy on abandoned and wrecked vessels will build an inventory of the problem vessels, and a risk assessment methodology. Indigenous communities will be invited to participate in these assessments and to help prioritize interventions.

Through engagement with indigenous communities in British Columbia, the Canadian Coast Guard has launched an environmental response officer recruitment program. We are also nearing completion of a process to recruit Inuit students for a new rescue boat station in Rankin Inlet, Nunavut.

Ongoing training programs across the country will provide participants with the knowledge, skills, and hands-on experience to enable them to play a greater role in marine safety in their communities in a safe and effective manner.

As you know, reconciliation also means self-determination of indigenous communities often but not exclusively through negotiation and implementation of treaties. Fisheries and Oceans Canada is participating in over 40 active rights reconciliation self-government negotiations with indigenous communities on fisheries and oceans matters.

Fisheries and Oceans Canada is also making systemic changes to better enable collaborative partnerships with indigenous peoples, and we have done so through important proposed legislative changes: Bill C-55, An act to amend the Oceans Act ; Bill C-64, An act respecting wrecks, abandoned, dilapidated or hazardous vessels; and Bill C-68, An act to amend the Fisheries Act. Proposed amendments to the Oceans Act will strengthen, among other things, the ability to designate marine protected areas on an interim basis and, as with all marine protected area designations, partnering with indigenous communities is the foundation for the successful protection of these unique aquatic ecosystems.

The proposed Wrecked, abandoned or hazardous vessels act, under the Minister of Transport, with the Minister of Fisheries and Oceans and the Canadian Coast Guard, would enable, among other things, agreements with a government, council, or other entity authorized to act on behalf of an indigenous group to exercise the powers and perform certain duties or functions of the minister.

The proposed amendments to the Fisheries Act and the programs enabled by these changes include certain amendments specifically aimed at advancing reconciliation, including new tools to enhance opportunities for partnering with indigenous peoples in the conservation and protection of fish, fish habitats, and shorelines; and amended provisions to enable agreements with indigenous governing bodies and any body, including a co-management body, established under a land claims agreement, to further the purpose of the act. Such agreements could enable the declaration of the law of an indigenous governing body, including a bylaw, to be equivalent in effect to a regulation under the Fisheries Act.

Fisheries and Oceans Canada and the Canadian Coast Guard have advanced and will continue to advance reconciliation through concrete changes to programs, operational practices, and legislative frameworks that give voice to the United Nations Declaration on the Rights of Indigenous Peoples. As we move forward we will seize on the relationships and partnerships we have with indigenous communities to articulate renewed nation-to-nation relationships with indigenous peoples within the mandates of Fisheries and Oceans Canada and the Canadian Coast Guard.

Thank you.

[Sheila Malcolmson, NDP, Nanaimo—Ladysmith, BC]

This proposal is reflecting on a great number of witnesses who described the vessel registry as being full of errors, not current, and not accurate, and the licensing database as being out of date and of very little use in tracking down owners, in many cases. Everybody is agreeing that polluter pays is a good principle, understanding that the intention of the minister's legislation here, Bill C-64, is to send fines and penalties to those who abandon their vessels, but without being able to actually find the owner, there's no way to send them a bill.

This amendment is intended to fix that vessel registration, to ask the Canadian registrar of vessels to have a reporting function, which has never been done. We weren't able to find any evidence of it. Although that person is in that position, he's never actually issued a public report. It's not only vessel registration but also pleasure craft licensing. At a minimum, it's to report on the number of vessels that are registered. If we don't get this kind of reporting to Parliament and this kind of transparency, I'm not sure we will really have a good handle on the backlog of abandoned vessels and the current legitimate and responsible owners who are out there doing the right thing with their vessels. Without this, we may not get a sense of whether we're really tackling the problem.

[Sheila Malcolmson, NDP, Nanaimo—Ladysmith, BC]

The previous one was about trying to keep the asset in good shape so that the worst-case scenario doesn't then happen, around disposal of crown assets. I did partly speak to this when I was introducing amendment NDP-10. The intention is that we don't have irresponsible owners take on crown assets that then deteriorate some of our highest-profile abandoned vessels in this country, which were originally government assets.

My question to the witnesses is, given that Treasury Board is already able to put limits on the sale, what's the remedy? How will we, as representatives of this government, not continue to be embarrassed by seeing Coast Guard and navy vessels, or as in the case of the Farley Mowat, a vessel that had been in the possession of government that they then sold to a third party that did not take care of it, and it became ruinously expensive for the taxpayer to address? Bill C-64 does not regulate or cover government vessels. How can we prevent this major source of high-profile abandonment?

[Ellen Burack]

Elsewhere in Bill C-64 is a requirement for a five-year review by one or more parliamentary committees. That would of course include all political parties in the review. The view is that this would be redundant as a result to have another five-year review, five years after the legislation is in place. Certainly, the act can be reviewed when that's necessary over its lifetime.

[Sheila Malcolmson, NDP, Nanaimo—Ladysmith, BC]

This is a piece imported from my private member's bill, Bill C-352, which was stopped in the House back in the fall. It would require the minister, every five years, to review the operation of this bill, Bill C-64, and report to the House about the efficacy of the act, and the resulting review that had happened.

We had a number of witnesses talk about the serious backlog. Andrew Kendrick, from Vard Marine, for example, talked about “starting from a bad place.” We need to address the backlog of abandoned vessels. They are a growing number. Having some transparency and accountability, and reporting to Parliament on how well this legislation worked, would certainly help with future amendments or regulatory changes as we modify.

There's very good precedent for this. The Aeronautics Act has a requirement “within two years after the day on which this subsection comes into force and every five years thereafter, commence a comprehensive review of the provisions and operation of this section”. The Canadian Environmental Protection Act has an “every five year” review, and then several acts in this Parliament require periodic re-evaluations. That includes the Employment Equity Act, the Agricultural Marketing Programs Act, the Lobbying Act, the Canada Small Business Financing Act, the Business Development Bank of Canada Act, the Export Development Act, and the Canada Infrastructure Bank Act. Washington state again has a very good legislative model, and we heard directly from.... Their legislation has been in place for 15 years and they use this period review.

I urge my fellow committee members, for the sake of transparency and accountability, to vote yes to requiring a five-year reporting and review.

[Randy Hoback, Conservative, Prince Albert, SK]

In discussion, there seemed to be some confusion on whether or not this topic would fit in with Bill C-64, or if it would actually be better as a stand-alone piece of legislation because of the different areas it actually implicates. That's why we thought if we could do a separate study on it, that might give us a chance to really focus and shine a light on this particular issue in such a way as to give it the appropriate attention it properly deserves. Hopefully it will be tabled in the House, I understand, and from that tabling we will see some legislation come forward, either from the government or through a private member's bill that would take up this cause.

[Sheila Malcolmson, NDP, Nanaimo—Ladysmith, BC]

I'm going to encourage the committee members if you're not there already. This is on page 30 of C-64. This is extremely limited to really urgent situations if you read the wording. I'm proposing the Minister of Fisheries and Oceans “must”, but all the other wording continues as it is. The vessel or wreck has to pose a grave and imminent hazard. That's one. And that's if the minister has reasonable grounds to believe that it...so great discretion is already built in to the legislation as it is. Then on the declaration of the minister about the emergency zone, he or she gets to make up their own determination about the size that is reasonable with regard to the seriousness of the situation. So there's total discretion in here. And then it indicates a number of remedies, many of which could still include passage of fishing vessels, for example, through that area but just under certain circumstances.

With all of that, all that discretion built in and having this remedy aimed directly at a grave and imminent hazard, I urge my fellow members to recall that we had a government in Ottawa for 10 years that despite legislation and rules available to them, chose not to act and enforce them. Those of us who represent the coast remember that this government with good intentions on abandoned vessels will not always be in power, and if we say that there must be a declaration around an emergency zone, then that gives all of us as potential opposition MPs in the future to hold the minister accountable to uphold this part of the bill.

[Ellen Burack]

I guess I'd say a few things. Two years was selected in part because in the Navigation Protection Act, there was a two-year presumption as well. The very important difference in this case is that never before Bill C-64 would there have been an actual prohibition on abandonment. That was more of a process question, to be able to act on the vessel, whereas now there's the prohibition associated with it.

The 90 days was considered to be not long enough given that it's quite normal for vessel owners to leave their vessel unattended but not abandoned for at least a season. The length of a boating season varies across the country, so the choice was made to stick with the two years. Of course, there's the possibility over time to adjust that, if evidence suggests that's too long.

It doesn't change the fact that if there's evidence of abandonment, you don't have to wait two years. When there's evidence that a vessel has been abandoned, that can be dealt with immediately. It's also important to remember that the prohibition on abandonment is only one of the ways in which this legislation enables action. There's also the prohibition on a dilapidated vessel being in the same location for more than 60 days without the approval of the owner or operator of the site, or on a vessel being adrift for more than 48 hours. There are other things that allow you to act quickly in specific circumstances and, more generally, if there's evidence of abandonment, it can happen at any time. The two years was chosen as the starting point for the presumption of abandonment.

[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 of the 42nd Parliament, pursuant to the order of reference of Tuesday, December 5, 2017, Bill C-64, an act respecting wrecks, abandoned, dilapidated or hazardous vessels, and salvage operations.

From the Department of Fisheries and Oceans, we have Froozan Housany, senior policy analyst; Kathy Nghiem, acting director, preparedness and response; Marc Sanderson, acting director general, national strategies; and Yvette-Marie Kieran, legal counsel, legal services.

From the Department of Justice, we have Jaime Bishop, legal counsel.

From the Department of Transport, we have Marc-Yves Bertin, director general, marine policy; Ellen Burack, director general, environmental policy; Jeffrey Johnson, manager, clean water policy; and Michelle Sanders, director, clean water policy.

You are all here to answer questions from the committee, to comment on the various amendments, and to provide the committee with that information. Thank you all for being here.

We will move right into the bill.

Pursuant to Standing Order 75(1), consideration of clause 1, the short title is postponed.

The chair calls clause 2.

If I have the support of the committee, when there are no amendments, I would like to group the clauses so that we can move along swiftly. Otherwise, we could be here until eight o'clock, and we do have a vote.

Do I have unanimous consent to group them when there are no amendments?

[Joël Godin, Conservative, Portneuf—Jacques-Cartier, QC]

You are telling me that a funding program would be part of the solution.

It would indeed be a step in the right direction, but that alone would not be enough. We also have to take certain measures and make rules in order to actually prevent the problem. We are cleaning up our waterways which are essentially contaminated by wrecks, but we also have to find a way of preventing these situations.

I think we need more than money. We need to take measures, enact legislation and give certain powers to the municipal authorities, provinces or the federal government. I am therefore of the opinion that bill C-64 does not go far enough. I am no expert, but I wish to do my duty as a member of Parliament. I would like the people who are directly confronted with the problem to propose some solutions.