Good morning, Mr. Chair and members of the committee.
Thanks again for the return invitation.
Of course, my comments will be from the perspective of marine transportation and trade, both internationally and domestically in Canada, and how that interacts within both the world of marine protected areas and, potentially, this legislation.
My organization represents the interests of shipowners, agents, and service providers responsible for approximately 60% of Canadian international trade by ship. It can also include some coastal domestic trade within Canadian waters. This includes everything from people in ferries and cruise ships to much larger bulk ships and container ships exporting grain to places like Asia. Our members' vessels can include the largest of vessels, but also some smaller vessels like tugs and barges, and there is an incredible amount of diversity in that fleet.
Needless to say, marine transportation and its many spinoff benefits affect everybody's life in Canada. I've been involved with marine conservation initiatives on all three coasts and the Great Lakes for many years. Just like Susanna, I'm also supporting the national species at risk advisory committee and advising the Government of Canada.
As one would assume, our sector is very involved in and supportive of Canada's efforts to protect our pristine coasts in a variety of ways, including through the Oceans Act, but also through legislation and programming that is coordinated by Transport Canada, Environment and Climate Change Canada, and Parks Canada. The oceans protection plan is a positive step in coordinating this effort amongst the three key federal departments and with external stakeholders. We are pleased that Canada is on a progressive path to reaching the Aichi target of protecting 10% of coastal waters by 2020. This is no small accomplishment, and I applaud the efforts of the departmental teams in Fisheries and Oceans and the Canadian Coast Guard and in Environment and Climate Change Canada. It's taken a lot to get to the interim protection levels, and it will continue to be a lot of work to get to the 10%.
In fact, it's clear to see how Bill C-55 will support achieving these targets. Nonetheless, the proposed legislation must be considered in the context of coastal protection beyond 2020 and the 2020 targets, and how to best implement coastal protection and management. In doing so, some critical elements emerge.
When I last appeared before the committee in May, I highlighted a number of existing weaknesses in the process of establishing marine protected areas. I'm not going to repeat them, but some of these could actually be exacerbated by Bill C-55 in its current version. In this regard, I'm going to address three aspects of the bill: the proposed powers of the minister, the definition of an ongoing activity, and the proposed offences and punishment section.
Proposed subsection 35.1(2) provides the minister with the authority to establish an interim marine protected area and then define the classes of activities permitted and prohibited in the interim MPA. Clearly, there is a need to accelerate the development of meaningful management plans that have a positive influence on the areas they're designed to protect. While establishing an interim MPA might be viewed as a progressive approach to achieving this, we actually consider proposed subsection 35.3(1) as the truly transformational piece in this legislation, as it demands that the minister make a recommendation for a regulation to designate a permanent marine protected area within five years of designating an interim MPA.
The potential risk to the marine transportation sector is likely up front in this process, in the initial establishment of an interim MPA. Without the appropriate checks and balances, there's a real risk of the minister making a less-than-informed decision about the activities that should or should not be included in an interim MPA.
Ships, both large and small, operate in a diverse and frequently demanding environment. You all know that very well. Their capacity to operate safely is influenced by a number of external and on-board factors that include, but are not limited to, things like weather, hydrography, cargo loading, and human elements such as fatigue. The spatial constraints or limitations that might arise from legislative framework built around Bill C-55 could limit a vessel's ability to mitigate the impacts of these factors and to therefore be able to transit safely. Certain flexibility must be built into the legislation and related regulations that takes this need for nimbleness and practicality into account.
With respect to ongoing activities, the bill proposes that the minister will list activities that are permissible in a specific interim MPA and define such activities as those that were lawfully conducted or authorized in the previous year. Proposed subsection 35.1(1) continues to lack sufficient definition, in our opinion, to provide a reasonable level of predictability for commercial marine transportation in all of its forms. This level of legislative vagueness leaves considerable latitude for the minister to define ongoing activities. Does this include consideration for Canada's commitments to the United Nations Convention on the Law of the Sea? Will classes of activities be applied with a broad brush, or will they be divided into further subcategories that are applicable to the intent of an interim MPA?
How will this be managed when this impact could have binational implications? All of this remains exceedingly vague at the moment.
My last observation pertains to proposed section 39.6, offences and punishment. This aspect of the proposal is not associated only with the establishment of interim MPAs, but also with the entire act.
A robust monitoring and enforcement regime is certainly a key aspect of a strong legislative framework. Notwithstanding, some of the provisions in the proposed legislation are inconsistent with those found in the Canada Shipping Act today and do not reflect a coherent, integrated approach among the relevant departments. On the face of it, the scale of punishments for some infractions appear extreme, which is especially the case for small vessel operations, and could result in undue harm to coastal businesses and many of the communities they serve.
Although we have a good idea of how MPAs will probably evolve in the next three years, I think this concern is very valid beyond that. In an effort to improve the proposed legislation, we hope that you will consider the following recommendations.
The first is to include a provision in the legislation that requires the minister to publish his or her intent to establish an MPA in advance within a reasonable period. By doing so, it would not only provide awareness and focus within federal and provincial governments, but would also provide visibility to external stakeholders and coastal communities most directly impacted by a new MPA.
The second is to include a provision in the bill that requires the minister to consult with other key ministers as well as relevant regulated industries prior to establishing an interim MPA. In doing so, this would avoid unintended consequences or incongruence between different pieces of legislation. Don't think for a second that this process should be lengthy because it should not be. That is certainly not the intent of my recommendation.
The third is the definition of an “ongoing activity”. Restricting it to a lawful activity that occurred in the past year does not necessarily reflect the realities of commercial marine transportation and it places unnecessary constraints on initiatives that may be progressing more quickly than the five-year restriction found in proposed subsection 35.3(1). Just because an activity has not happened in a proposed area previously does not necessarily mean that this activity would be harmful to the area or inconsistent with the protection objectives of an interim MPA.
The fourth is a formal association with Transport Canada in the legislation to implement a monitoring and enforcement regime. This could include additional harmonization in approach.
Overall, we are absolutely supportive of the intent of this legislation but we caution that some significant change is associated with it that demands both engagement and consultation with stakeholders and also engagement of other levels of government across the country. MPAs need to deliver results driven by tangible benefit. While the proposed legislation may demand a schedule for completion, it does not replace the need for positive stakeholder engagement and input.
Thanks very much, and I look forward to your questions.