Thank you, Mr. Chair.
I am speaking to you from Quebec City. I was not able to be with you in Ottawa today.
I would like to thank the committee for allowing me to participate in this session by teleconference.
My name is John O'Connor, and I am the chair of the environmental committee of the Canadian Maritime Law Association.
Unlike some of our colleagues here, the Canadian Maritime Law Association has been around for many years, long before the federal Department of the Environment was commenced. In the marine field, as a matter of fact, one of the more important years was 1967. That was the year of the huge pollution, the very large oil pollution, in Europe that led to an international convention that is enforced today in Canada. This very important convention, which we call the civil liability convention, is enforced in this country. Canada is a member to this convention.
That was in 1967, and we, the Canadian Maritime Law Association, commenced our environmental committee immediately after that accident. We participated with the Government of Canada in the adoption of that convention, or at least in having input into the adoption of that convention, in 1969.
Canada did not join the convention, by the way, until 1989, but we did eventually become a member.
In the meantime, in 1973, Canada put together what was then part XX of the Canada Shipping Act, which was the very first piece of federal legislation in the marine field that had anything to do with civil liability and oil pollution.
Our committee has been around for a long time. I personally have chaired it for many years, and we have spoken to many bills. I must say that today is a fun experience for me. I'm always somehow in the group of the industry people who are usually speaking negatively about bills. Today, to hear all these committees speak positively about it, it's heartening. We too support much of the bill.
Our view is that many of the frustrations and problems that other areas of the environment have encountered are less present than in the marine field. In the marine field, when there is an unfortunate accident, or pollution, it's often very high-profile. The government does not sit back and do nothing. On the contrary, our experience is that not only is the Department of Transport very active but also even the Department of the Environment itself has taken a great interest in marine activities over the years.
Just as reference, you may think of Bill C-15 in 2005 and Bill C-16 in 2009. I was flattered to be asked to speak to those bills in both the House and the Senate, by the way.
I think what I would like to do, in the time I have, is simply underline that our association is in favour of anything that will assist in reducing pollution or improving the environment. The bill, then, certainly is not something we're against. However, there are three points I'd like to raise, because I think there are three flaws in the bill and I just want to bring them to your attention. Perhaps this committee will be able to address some of these problems.
First, you have to understand how the bill is divided. Clause 16 creates the environmental protection action. Clause 19 talks about remedies. Clause 22 talks about a true judicial review under the Federal Courts Act in section 18.1. Finally, clause 23 creates a new civil action.
It's a bit complex, the way they've done it, but I've heard people today talking about “patchwork” application. To my mind, patchwork application means that in different parts of the country there are--or there are not--different pieces of legislation available for use in environmental matters. But patchwork doesn't just mean horizontal. It can also be vertical. The problem we have in Canada is that with all the good faith we have in trying to settle these problems, we have built overlapping levels of legislation. This is a problem that the CMLA has spoken to before.
In other words, we adopted these international conventions, which are very strict and very clear. We tried to create clear and obvious remedies for when environmental problems involve vessels. Then we'd go and adopt Bill C-15 and Bill C-16, which give almost overlapping remedies without any clarity as to whether the convention should overrule or be overridden by the legislation.
I'm sure you know that Parliament is sovereign enough that if it enacts a piece of legislation, the fact that it may have adopted an international convention does not mean that the convention overrules. It's the contrary: Parliament is so sovereign that it can decide not to respect its international obligations, if it wishes.
Our view is that we should have some clarity on how the conventions and the legislation fit together. To do so, we have addressed three points.
The first is in clause 19 of the bill. Where we're talking about the remedies under clause 16, there seems to be something that I personally do not understand. Subclause 19(2) says, “If the Federal Court finds that the plaintiff is entitled to judgment”, it may “(a) suspend or cancel a permit or authorization” of the defendant.
Yet clause 16 clearly states there's only one defendant; ìt's called “the Government of Canada”. The Government of Canada does not hold permits, so I'm wondering how subclause 19(2) fits into the scheme. I think it may be a bit of an oversight, unless I'm misunderstanding something.
My second point has to do with clause 23. Clause 23 creates a civil action. The Canadian Maritime Law Association feels that the civil action that is created in the marine field is not necessary, for the simple reason that we already have civil actions under our CLC, the civil liability convention. Then they added civil actions under the environmental legislation that was amended under Bill C-16 and Bill C-15, notably the Canadian Environmental Protection Act, 1999, and the Migratory Birds Convention Act, 1994, both of which allow a civil action that seems to overlap the CLC action, which is enacted under the Marine Liability Act. Now we're adding a new civil action.
We do not speak out for any environmental section except marine: we don't believe it's necessary to have a new additional civil action in clause 23 for the marine world. But again, we're not speaking about other sectors of the environment.
We noted that subclause 23(3) clearly states that it “is not a defence to a civil action” that the activity was authorized by an act of Parliament or a regulation. This is in contradiction to the Ontario legislation and frankly seems a bit surprising. If there is federal legislation on the table saying you are supposed to or you are enabled to do something, and it somehow comes into a pollution question, at least in the marine field, it's difficult to understand how this would work. You would say that you're going to have someone taking a civil action and that you cannot set up a defence that it's permitted by legislation.
You will also notice that paragraph 23(3)(b) goes on to say “there is no reasonable or prudent alternative”. Unlike other sectors, you can think of certain pollution in the marine field that is unfortunately absolutely necessary. For example, a vessel is unable to have a propeller that's turning unless there is some lubrication of the propeller shaft.
It's provided for in federal legislation that this small amount of pollution is legal. It has to be. Otherwise, the ship would not be able to function Therefore, it's baffling as to how this would work. You would have someone saying you're polluting because of your propeller shaft. We would be saying that it's provided for under the legislation and under the international conventions and someone would say that's not a defence.
With regard to clause 23, we would suggest that it be limited to fields other than the marine field. At the very least, it would seem that subclause 23(3) goes one step too far.
I would like to conclude by talking about international conventions. We've heard people speaking about international conventions this afternoon, and in our submission to Parliament we have added a suggested clause, which is on page 3 of our submission. It's in English and in French. Simply, why not add a clause to this act stating that it is intended to complement our international convention obligations and rights, not to over-ride them? That way we would at least know that Parliament intends to have the international conventions it has adhered have priority over this act.
As a final point, I would like to say--and this is my own error, as I put this together in great speed and haste to try to get it to the committee in time--that on page 2, I refer to sections 54, 55, and 57 of the Marine Liability Act because I was looking at my own handwritten copy. But in fact that was changed with Bill C-7 in 2009 and should read sections 48 and 78. I apologize for that error; it is entirely my own.
The other thoughts I've expressed are those of my committee.
Once again, thank you for the opportunity.