Transport Committee on March 31st, 2009

[The Chair, Conservative, Merv Tweed]

I know that there are documents to be circulated, but in order to move forward I just want to remind the committee that if you have amendments on this bill, I would really appreciate it if you could have them submitted to the clerk by noon tomorrow. We are still hoping on the last hour of Thursday to do clause-by-clause...just one clause.

Anyway, joining us for the second hour, from the Department of Foreign Affairs and International Trade, we have Alan Kessel, Caterina Ventura, and John Burnett.

Welcome. I know you have a brief presentation, and I'm sure the committee members have some questions for you.

Mr. Kessel, I would ask you to start.

[Alan H. Kessel, Legal Adviser, Department of Foreign Affairs and International Trade]

Thank you, Mr. Chair.

Mr. Chair, members of the Standing Committee on Transport, Infrastructure and Communities, thank you for inviting me to appear before you today to talk about Bill C-3, which proposes to amend the Arctic Waters Pollution Prevention Act.

My name is Alan Kessel , and I am a legal adviser with the Department of Foreign Affairs and International Trade. I am also pleased to introduce my colleagues from the legal branch of Foreign Affairs: Caterina Ventura, deputy director of the Oceans and Environmental Law Division, and John Burnett of the same division.

Mr. Chairman, by way of introduction, DFAIT assists the Minister of Foreign Affairs in fulfilling his statutory duty to foster the development of international law and its application in Canada's external relations. Within DFAIT, the legal branch is the principal source of legal service and advice to the Government of Canada on an increasingly wide and complex range of public international law issues, including the establishment of Canadian maritime zones and their boundaries in conformity with international law.

For this reason, I am appearing before this committee today to discuss the important sovereignty aspects of Bill C-3. In particular, I will address the extension of the Arctic Waters Pollution Prevention Act, fondly known, as you may know, as the AWPPA, from the current 100 nautical miles from shore to the full 200 nautical miles permitted by the United Nations Convention on the Law of the Sea and how this will further demonstrate Canada's sovereignty over the full extent of its Arctic waters.

I will briefly address the origins of the AWPPA, in part as a demonstration of Canadian sovereignty over its Arctic waters. I will then discuss the consistency of the proposed amendments with international law. Finally, I will briefly address additional international aspects of the proposed legislation.

The AWPPA, as you know, was enacted in 1970 following the 1969 voyage of the ice-strengthened U.S. oil tanker SS Manhattan through the Northwest Passage. The Manhattan represented the first commercial attempt to navigate the Northwest Passage and marked the arrival of technological advances that permitted the construction of ice-reinforced oil supertankers. At that time, commercial interests were assessing the feasibility of year-round transport of oil by sea from fields in Alaska to facilities on the northeast U.S. coast. The Manhattan's voyage was primarily viewed as a trial run to see if transport of oil through the Northwest Passage was a feasible alternative to constructing a pipeline or transporting oil by sea to facilities on the U.S. west coast.

The voyage of the Manhattan occurred with the concurrence of Canada and with the assistance of Canadian icebreakers and demonstrated that ice conditions, even at their annual minimum extent in September, still posed significant challenges to vessels navigating these Canadian waters. Nevertheless the Manhattan demonstrated the potential for growth of commercial transportation through the Northwest Passage due to technological developments and focused attention on the growing risk and potential consequences of a major oil spill occurring in ice-covered waters.

As one response to the Manhattan voyage, Parliament passed the AWPPA to stress Canada's commitment to protecting the Arctic environment and to demonstrate Canada's resolve to exercise its sovereignty over Canadian Arctic waters.

At the time of enactment in 1970 the AWPPA was an important development in international law. It signified Canada's commitment as a coastal state to protecting the sensitive Arctic environment by creating a unique environmental protection zone out to 100 nautical miles from Canadian land. As part of this innovative action, Canada announced a reservation for compulsory jurisdiction of the International Court of Justice in The Hague with respect to this legislation, thereby preventing other states from challenging Canada's position at international law.

Prior to the conclusion of the third United Nations Convention on the Law of the Sea, or UNCLOS, in 1982, international law did not recognize the concept of a 200-nautical-mile exclusive economic zone, as it does now. Today the exclusive economic zone provides coastal states such as Canada with the legal authority to exercise sovereign rights and jurisdiction over living and non-living resources up to 200 nautical miles from shore, including important rights with respect to the prevention of marine pollution.

UNCLOS also included an additional provision further recognizing the legality of the AWPPA under international law.

Canadian negotiators were successful in including article 234 within UNCLOS, permitting additional rights for Arctic coastal states such as Canada within ice-covered waters. Article 234 is commonly referred to as the “Arctic exception”, and was the product of negotiations between Canada, the United States, and the then Soviet Union.

To briefly summarize, article 234 provides coastal states with the authority “to adopt and enforce non-discriminatory laws and regulations for the prevention, reduction and control of marine pollution from vessels in ice-covered areas within the limits of the exclusive economic zone”. The inclusion of article 234 in UNCLOS validated the then-current 100-nautical-mile application of the AWPPA under international law, but it would also permit its extension to the full 200-nautical-mile limit of the exclusive economic zone.

Canada's confidence in its strengthened legal position with respect to the AWPPA following the conclusion of UNCLOS resulted in our withdrawing the previous reservation with the International Court of Justice in 1985. Finally, Canada's ratification of UNCLOS in 2003 provided an additional international legal basis for the proposed amendment in Bill C-3.

I will now briefly discuss some additional international legal considerations of the proposed amendment.

Some states have differing interpretations with respect to the international legal status of the various waterways known as the Northwest Passage. However, these disagreements are well managed. For example, in 1988 Canada and the United States concluded a bilateral international cooperation treaty concerning the transit of U.S. government icebreakers through the Northwest Passage.

This agreement, resulting from an initiative of President Reagan and Prime Minister Mulroney, allows Canada and the United States to continue to maintain differences in interpretation over the international legal status of the Northwest Passage by in essence agreeing to disagree, while on a practical basis allowing movement of icebreakers through the Northwest Passage on a basis of its being within the best interests of both states. The legislation under consideration would not affect provisions of this agreement.

Mr. Chair, before concluding my opening remarks, I would like to point out that Bill C-3 is another way for Canada to exercise its sovereignty over its Arctic waters. By applying the Arctic Waters Pollution Prevention Act for 200 nautical miles from shore rather than 100 nautical miles as before, Canada will fully assert its sovereign rights, as permitted by the United Nations Convention on the Law of the Sea. Those rights were obtained in large measure by Canadian negotiators, and the fact that they are included in UNCLOS is proof that the international community recognizes the validity of Canada's domestic law regarding its Arctic waters, the AWPPA.

Now, I would be happy to answer any questions you may have.

Thank you, Mr. Chair.

[The Chair, Conservative, Merv Tweed]

Thank you very much.

Mr. Jean, on a point of order.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

I just wanted to advise the members of the opposition that we have no questions for the witnesses, so if they want to take our time as well and distribute it among themselves, that's fine.

[The Chair, Conservative, Merv Tweed]

Thank you very much.

Go ahead, Mr. Bagnell.

[Larry Bagnell, Liberal, Yukon, YT]

Mr. Jean, I appreciate that. It's very helpful.

I have just two questions. One is from the previous minutes. The reason we have you here is that the transport department officials said that you had consulted with other countries or had informed them of this legislation. I'd like to know what response we had, either as a result of that consultation or just independently, as input from other countries to your department or to any part of the Canadian government.

[Alan H. Kessel]

Part of our outreach and diplomacy, especially with respect to Arctic matters, is to consult with our neighbours, our friends, and others who are like-minded in other countries in general. In connection with our extension of the additional 100 miles, we did speak to a number of our counterparts abroad, and generally found very warm receptivity, certainly among the eight Arctic nations, and among others as well, particularly for the environmental aspect of it. In fact, as I'm sure many have told you, and I'll repeat it again, the AWPPA was far-reaching in 1970. It was visionary in its scope, and it was prescient in terms of its content. No one else had done that before, and few of them had really done it since, until very recently. In fact, since we have brought our extension to the notice of some of our Arctic partners as well, they are now looking at having the very same legislation at home, and they've asked us for copies of our legislation in order to proceed with this.

Mention has been made of our Russian colleagues, and clearly there's a precedent here that Canada created--we have broken the ground, or broken the ice, so to speak--in terms of moving this particular thing forward. Generally, we've received high marks from our Arctic friends. Clearly there are some who for geo-strategic reasons may question some of these things. They did back in 1970, and they continue to do so today.

[Larry Bagnell, Liberal, Yukon, YT]

Within the last six months, have you heard any concerns from our Arctic neighbours on this particular bill?

[Alan H. Kessel]

From our Arctic neighbours, no one has specifically said anything about the bill as such. We got some response when the Prime Minister announced this extension in August. Our American friends did want some more information on this. They are aware, clearly, of the 100-nautical-mile zone. We are in touch with our American friends. We will certainly remain in touch with them with the new administration. We've also received overtures to continue to work on this area and others with them under the new Obama administration already.

[Larry Bagnell, Liberal, Yukon, YT]

As you mentioned, the Russians in the last couple of weeks have announced policy papers. That's been in the press, so I assume you're aware of that. I understand they're basically using our article 234 and putting conditions and fees, etc., on ships going through their region. In fact, I think they have a policy on foreign warships, if I'm correct.

[Alan H. Kessel]

The Russians in fact are playing catch-up. We were there ahead of everybody. Article 234 was a visionary article that we saw as necessary to protecting our interests. Others who weren't as active did not use it at that time. Clearly, the Russians have determined that their Northeast Passage is a much more viable commercial route than our Northwest Passage, and it's quite clear that they intend to maximize their interests commercially in that passage. They have done very similar things to what we have done. They have put baselines around their archipelago. As you know, there are 12 million Russians living in their Arctic, and we have about 130,000 people in ours, so the Russians are quite keen to create a viable industry and income in that area.

Now, it's not our article 234; it's the world's article 234. We were merely the midwife.

[Larry Bagnell, Liberal, Yukon, YT]

I have one other quick question.

I understand that we could challenge and stop and seize and everything a commercial boat or a private boat from Canada or another country that was polluting in these waters. I'm not sure of the legal regime in respect of military boats, defence boats, especially from non-NATO countries, if we catch them polluting in these particular waters.

[Alan H. Kessel]

Clearly, you may do that once, but you'd never do it again if you're a military vessel. There is a provision for exclusion of military vessels in an exemption in the act. I don't think we've ever had a problem with any kind of pollution with any military vessels in the life of the current AWPPA.

[Larry Bagnell, Liberal, Yukon, YT]

Is that my time?

[The Chair, Conservative, Merv Tweed]

That's your time.

Monsieur Laframboise.

[Mario Laframboise, Bloc, Argenteuil—Papineau—Mirabel, QC]

I agree about the bill, which is designed to prevent pollution. But I wonder whether we will be able to enforce it. You say you have advised our Arctic neighbours. Is that correct?

[Alan H. Kessel]

Certainly this has been public knowledge. You haven't passed this act yet, but it certainly has been announced by the Prime Minister, and the minute you do pass this, then it will be the law of Canada and then it will be up to us to make it much clearer.

[Mario Laframboise, Bloc, Argenteuil—Papineau—Mirabel, QC]

That means that you have not discussed it with our neighbours. You are going to wait until the bill is passed before telling them about it.

[Alan H. Kessel]

We have had discussions with neighbours.

[Mario Laframboise, Bloc, Argenteuil—Papineau—Mirabel, QC]

Professor Pelletier said it would be a good idea to have a protocol to protect the environment. There is a treaty for the Antarctic, and it would be good to have one for the Arctic. I agree with him, but we are not there yet. Canada is not discussing environmental protection in the Arctic, but trying to mark its territory.

[Alan H. Kessel]

Well, you've raised about a seminar's worth of questions here, and I'll try to reduce it to bite-size chunks.

First of all, there's a mythology out there that somehow because there's snow and ice in the Arctic—the Canadian and all the other Arctics—it's similar to the Antarctic. The Antarctic and the Arctic are polar opposites, if one could use the phrase. First of all, the Antarctic is a land mass covered by ice. It was terra nullius, and it has been fought over in terms of its territory by a number of countries. They've staked it out, and they've come to an accommodation, through a number of international instruments, to govern it.

That's not the case with the Arctic. There is no question as to who owns the land in the Arctic and there's no question as to who owns the sea in the Arctic. Not only that, but we have an international regime, the Law of the Sea Convention, which governs the functioning of all of us throughout the world, including the Arctic.

So to compare the Arctic with the Antarctic is really a bit misleading. The sovereign territories in the Arctic—which is clearly around the Arctic Ocean—Canada, the U.S., Russia, Norway, and Denmark, have domestic legislation to govern their territories. Not only that, but we have a 200-mile EEZ. We have authority to extend our continental shelf, and we will be doing that. This is not a claim; this is what we have. There is no such thing as a claim to what we are entitled to, and we're doing that. So this is very different from Antarctica.

The other thing we have, of course, is the Arctic Council, which is a combination of the eight Arctic states. The reason the other three, which are Finland, Sweden, and Iceland, are not included in the five Arctic Ocean states is that they do not have the legal right to delineate their continental shelves in the Arctic Ocean. They don't have a continental shelf in the Arctic Ocean. But except for that, we work very closely with them, together with Inuit and other NGOs and non-state actors.

So we do have a regime. To say there isn't one I think would be misleading. To say they aren't dealing with environmental, social, and economic issues would be misleading. I think we're doing pretty well.

[Mario Laframboise, Bloc, Argenteuil—Papineau—Mirabel, QC]

In the event a pollutant such as oil were spilled, Canada would be most affected. Am I wrong?

[Alan H. Kessel]

If the oil spill happens in Canada, in the Canadian Arctic, surely. But if the oil spill happens in the Russian Arctic, it may be confined there.

It will be in our interest, as states around the Arctic Ocean, to cooperate together to develop the methods to contain oil. In fact, this is part of the discussion that's going on, not only within the Arctic Council but in other organizations, such as the International Maritime Organization.

For instance, you may be interested to know that the private sector is well ahead of governments, except of course ours, in terms of developing interest in the protection of the Arctic. We started in 1970 with determining that vessels had to be double-hulled and have certain protections. That's 1970. Only recently are we seeing, for instance, the shipping companies of the world taking a look seriously at how to develop vessels that would resemble the very provisions that we've put in place for the past close to 40 years.

I was at a recent conference in Montreal run by Lloyd's insurance. This is very key, because the insurance companies will be the ones who determine which vessels actually go there. Don't make any mistake, a vessel's not going to go anywhere without adequate insurance, and insurance is not going to be given unless those vessels are adequate, and those vessels aren't adequate unless they conform to Canadian specifications.

We have been working very closely and with a very keen eye to making sure that our Arctic is protected. Clearly, what we do have to continue to do.... We're not keeping vessels out. We want trade. We want transit. And we want it done on our conditions, meaning that we want to work with other states in the area to ensure that things like pollution protection, search and rescue, and assistance to vessels in distress are coordinated. And we are working on that, too.

[Mario Laframboise, Bloc, Argenteuil—Papineau—Mirabel, QC]

What you are saying is fine, but once the bill is passed, will you be able to stop ships within the 200-nautical-mile limit to check whether they have the necessary insurance, or have you not yet finished negotiating?

[Alan H. Kessel]

No. The AWPPA has been a law of Canada since 1970. So by definition, that has been in place. But if my colleagues from the Department of Transport haven't done it, I will run through this for you.

For instance, for domestic vessels, enforcement largely consists of annual inspections for compliance with the AWPPA, and the issuance of a safety certificate is mandatory. That may include the voluntary Arctic Waters Pollution Prevention Act certificate, as well. Classification societies are authorized to inspect foreign ships for compliance with the AWPPA provisions when those vessels are outside of Canadian waters and also issue the AWPPA certificate prior to those vessels entering into our waters.

Under the port state control inspection program, Transport Canada inspectors frequently board and inspect foreign ships calling in northern ports such as Churchill. A portion of the voyage to Churchill is in Arctic waters, and certainly the Churchill-Murmansk issue is something that maybe you have discussed here as a potential future expansion of trade with Russia. Transport Canada inspectors and other officers can be given authority as designated pollution prevention officers, entitling them to direct or divert traffic, board vessels, and provide other authorities. These pollution protection officers may be aboard aerial surveillance aircraft, as well; and maybe some of our Transport Canada colleagues have indicated that we do have patrols up our coast, including military patrols, and aircraft and satellites are used to monitor vessel traffic. This is experience that we have gained over the close to 40 years of the AWPPA. We'll simply use that extra 100 miles to benefit ourselves in the future. So we're confident that we have certainly this capacity.

Clearly, the Department of Foreign Affairs and International Trade is not the department involved with this, but I'm glad to have been able to clarify that. Certainly if you wish further questions, you may direct them to Transport Canada and the military.