Thank you very much, Mr. Chairman.
I am a maritime lawyer. I am the west coast vice-president of the Canadian Maritime Law Association. The Canadian Maritime Law Association was established in 1951. We are an organization composed of both individual and constituent members. Most of our individual members are maritime lawyers who practise across the country. Our constituent members come from all facets of the Canadian marine industry.
The CMLA is Canada's representative to the Comité Maritime International, an organization that was established in 1897 and that is primarily concerned with international maritime law and the uniformity of maritime laws, not just through conventions but through various national associations such as the Canadian Maritime Law Association.
The primarily objective and interest of the Canadian Maritime Law Association is the establishment of effective and modern maritime laws and, in an international context, uniformity of those maritime laws, which we have come to know is absolutely essential when you're dealing with ships that move from place to place.
One of the things we are not is a lobby group for any particular maritime interest at all. We represent all maritime interests, and most of our lawyers have acted for all interests on both sides of the fence, as we say, both for and against ships. So we're not a lobby group; we're a broad-based group that's primarily interested in effective and modern law.
We have submitted a submission that I presume you all will have had. There are a few provisions of Bill C-16 that concern us, and those are the main points, the highlights, proposed paragraph 291(1 )(k) of CEPA and 16(1)(d) of the Migratory Birds Convention Act. These are the provisions that empower a court to order an offender to pay any person for the cost of cleanup, etc., following a pollution incident.
And in proposed section 274 of CEPA and proposed section 13.07 of the Migratory Birds Convention Act, there's a provision that provides for compensation for a new phrase, “non-use value”. We're particularly concerned about what that is.
The other provisions we're concerned about are proposed section 13.15 of the Migratory Birds Convention Act and proposed section 9 of the new Environmental Violations Administrative Monetary Penalties Act, establishing various levels of criminal liability for the master and the chief. Some of the my friends here today have expounded upon some of those concerns.
Our primary concern with respect to these various provisions is that they tend to violate or are inconsistent with current international conventions and current Canadian legislation in relation to marine pollution. The more important conventions are, first of all, UNCLOS, which was mentioned earlier. That's the United Nations Convention on the Law of the Sea. Article 230 of that convention--I'm not going to read the complete article to you--starts out: “Monetary penalties only may be imposed with respect to violations of national laws”. And this is in relation to pollution, monetary penalties only. It seems pretty clear that imprisonment should not be an option when you're dealing with something that comes under UNCLOS. It also provides in sub-article (3) of article 230:
In the conduct of proceedings in respect of such violations committed by a foreign vessel which may result in the imposition of penalties, recognized rights of the accused shall be observed.
Of course, recognized rights aren't defined there, but certainly in common law jurisdictions and also in civil law jurisdictions there are some basic rights afforded to any accused, one of which is the presumption of innocence, which I know the international shipowners have spoken on today, and they provided a number of briefs to you on that precise point. However, it is also arguably in violation of UNCLOS.
The CLC convention, which is an international convention related to oil pollution incidents and oil pollution damage, provides in article III:
4. No claim for compensation for pollution damage shall be made against the owner otherwise than in accordance with this Convention.
That specifically says that claims against the owner must be made in accordance with the convention. The next sentence says that the servants or agents of the owners, or members of the crew, are immune from any such claim. Keeping in mind that Bill C-16 empowers awards to be made against the owner and against the crew in sentencing, it's arguably in violation of the CLC.
Similarly, section 51 of the Marine Liability Act, which basically imports the CLC-type concepts into Canadian national law, provides that a shipowner shall be liable for the costs of the reasonable measures of cleanup actually undertaken. “Actually undertaken or to be undertaken” is the wording in the statute, which again would not provide for a non-use value type of award, which the new act is allowing for. That's not actually undertaken. That's something that's pulled out of the air.
Both the CLC convention and the Marine Liability Act provide for limitations of liabilities to shipowners and servants and agents in respect of oil pollution damage claims. In fact, Canada has a very sophisticated regime for compensating for pollution claims. It has multiple layers. Within Canada there is the ship-source oil pollution fund. Then there are the various fund conventions and the supplementary fund, which, in Bill C-7, we're just about to implement in Canada.
The current Bill C-16 doesn't take into account limitation of liability at all, and clearly it needs to. Essentially the problem is that in Bill C-16 we're disguising civil liability and civil compensation in quasi-criminal provisions, which is not fair and is not the right way to go. We're trying to do indirectly what we can't do directly.
Finally, I will say that we endorse the concerns that have been expressed about reverse onus, the test of the balance of probabilities, and the presumption of innocence. We have made a recommendation in our brief about at least one clause that can be put into the various pieces of legislation to ensure that international conventions that Canada has signed will have precedence whenever there is any conflict with any of these pieces of legislation.
Thank you very much.