Evidence of meeting #12 for Transport, Infrastructure and Communities in the 40th Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was international.
A recording is available from Parliament.
Associate Assistant Deputy Minister, Policy, Department of Transport
Yes. According to the definition in the current legislation, it is unclear whether a sail trainee is a passenger or not. The bill would clarify the definition of the term "passenger" and exclude from that category a sail trainee.
Bloc
Mario Laframboise Bloc Argenteuil—Papineau—Mirabel, QC
But would there not be a new provision requiring people to sign a waiver beforehand?
Associate Assistant Deputy Minister, Policy, Department of Transport
I'll leave that to Jerry, but I don't think so. The law will be the law, if adopted.
Jerry, you can clarify that.
Executive Director, International Marine Policy and Liability, Department of Transport
No, they will not be required to sign any waivers.
Bloc
Mario Laframboise Bloc Argenteuil—Papineau—Mirabel, QC
You say that this raises legal issues. You appear to be saying that this would bring us back to how things were before, that is before the act was amended. You have touched on the legal comments, but I would like to know what the key legal criticisms are.
Executive Director, International Marine Policy and Liability, Department of Transport
We are now talking, of course, about adventure tourism, not sail trainees, because of the adventure tourism we're bringing back. The sail trainees issue has a different history.
I think the legal aspect, or the concern of the legal community, with respect to this change, is that they feel the protection--I understand that's the way they see if--of the public, or those who engage in adventure tourism activities, is taking on a different quality. Now, after the law is enacted, they will be subject to one common limit, which they will have to divide among themselves in case of an incident. At the moment, they all have protection per person. That, I think, is the issue here.
They also will be invited or asked by operators to sign a waiver. Remember, we are in adventure tourism. It is a common practice. Today, the waiver is illegal. We are now permitting the waiver. That's the legal issue—restoring certain rights of the operators and owners involved in adventure tourism, which they do not have at the moment.
Those are the concerns, but there is no other way to do it. We either consider them transportation or we don't consider them transportation, and the prevailing argument is that they are not transportation.
NDP
Dennis Bevington NDP Western Arctic, NT
Thank you, Mr. Chair.
Thank you, witnesses, for coming forward and casting some clarity on this Marine Liability Act, which has been a difficult one to analyze. Certainly the discussion paper in 2005 helped considerably with a lot of the details.
You say you've consulted with stakeholders from all sectors of the marine industry. Can you give me a description of the consultation process and whom you talked to?
Executive Director, International Marine Policy and Liability, Department of Transport
Yes. We have a very long list of associations involved in maritime transport—more than 20 of them.
If I look at the five key points of the bill, on oil pollution, we would consult the ship owners, we would consult oil companies that are potentially involved in the legislation, the legal community, and both domestic and international insurers.
On adventure tourism, of course, it was adventure tourism operators who raised the issue with us consistently over the last seven years. Domestic insurers, the legal community, and tourism associations were particularly involved, and they acted on behalf of adventure tourism.
On maritime lien, we consulted with ship suppliers and shipowners as well, who are basically the other party here in terms of the ship suppliers problem. They recognize that some ships cause this problem.
It was a very wide-ranging consultation. We consulted academics as well, of course.
NDP
Dennis Bevington NDP Western Arctic, NT
The Dalhousie marine and environmental law certificate program?
Executive Director, International Marine Policy and Liability, Department of Transport
I'm not sure if we had any direct input from Dalhousie, specifically, but I'm sure we always send them copies of our discussion papers.
Executive Director, International Marine Policy and Liability, Department of Transport
The guild and the merchant guild, yes, we worked with them.
NDP
Dennis Bevington NDP Western Arctic, NT
Thank you.
One thing that struck me when I looked at the 2005 discussion papers is that these conventions came forward many years ago, in some cases. They've been international conventions for upward of 25 years, some for 35 years, and Canadian law has taken pieces out of these conventions over that time but has never ratified them and never taken on the conventions. What would be the reason why, over this period of history, we didn't take on these conventions at an earlier time and ratify them?
Executive Director, International Marine Policy and Liability, Department of Transport
In terms of the oil pollution conventions, which are already in our law, as I said, Canada became a party in 1989. In fact, Canada has ratified these two conventions.
On the convention dealing with limitation of liability, where I talked about the provision dealing with wrecks and wreck removal, I think you have a point. We ratified it only last year, 2008, although the convention was last amended in 1996, so that's a fair amount of time.
I think the development of a convention and the ratification process, the discussion, the various steps that are needed, are things that cannot be done overnight. In a certain way, if you look at the history of development of this particular act, it's always a collection of legislation from time to time, because it's very difficult to move with a particular legislation that is fairly small in nature and triggers legislative process because of it. Sometimes it is a sweeping effect, if I can use that expression. We bring them all together. That's why you see four international conventions, effectively, involved in this bill.
NDP
Dennis Bevington NDP Western Arctic, NT
Basically, this is simply the coming together of all these different things. There are no particular parts of the convention that were more difficult to deal with in Canada. You were in agreement with these conventions from day one, you were adding them into Canadian law as you saw fit, and there was never a hardship with any of the--
Executive Director, International Marine Policy and Liability, Department of Transport
There was never any hardship, but perhaps as a supplement to your question about the timing, international conventions that are contributory in nature, that involve money and payments of claim are a matter, of course, of entering or joining the convention at the right time. I think it is the case that it serves very little purpose to be the first party to ratify a convention if the rest of the world hasn't done it yet. This also plays into the timing issue. I think, certainly in terms of the oil pollution conventions, yes, it is high time that Canada ratifies that.
NDP
Dennis Bevington NDP Western Arctic, NT
The law talks a lot about the collection of these funds. Could you give me a little more of a description of how that works?
Executive Director, International Marine Policy and Liability, Department of Transport
If you would be good enough to look at slide 9, it makes it easier. The current convention to which we are a party is the pink layer. This is the international fund that is established under a convention. It's located in London, U.K., and Canada contributes to the fund whenever the fund needs money to pay oil pollution claims around the world.
The way we manage our contributions to the fund is by using the domestic fund, the Ship-Source Oil Pollution Fund, which is at the top of this graph, and using the resources of that fund to pay our international contributions. Now, where does the Ship-Source Oil Pollution Fund get its money? At the moment it gets its money through accrued interest, which is earned on the balance of the fund, and that accrued interest is credited to it from the Consolidated Revenue Fund. That's a provision in our law in recognition of the fact that the seed money for the domestic fund came from the oil industry in the 1970s, when the fund was first established. The funds were first collected from oil companies. Then there was a point where there was no need to collect any more because there were no claims. The collection was stopped in 1976, and ever since then the domestic fund has grown by accrued interest, and it is using the accrued interest to pay our obligations to the international funds. That's how the financial part operates.
Conservative
Colin Mayes Conservative Okanagan—Shuswap, BC
Mr. Chair, I will be sharing my time with Madam Gallant.
My first question is to Mr. Rysanek.
To be clear, marine law is associated with coastal waters or salt waters, but this also applies to inland waters and freshwater, is that correct?
Executive Director, International Marine Policy and Liability, Department of Transport
Yes.
Conservative
Colin Mayes Conservative Okanagan—Shuswap, BC
Okay. I wanted to be clear on that.
As a member of Parliament from British Columbia living in the mountains, I'm happy to see that the adventure tourism industry is going to see these amendments to the whitewater adventure providers, which have been challenged by liability insurance since 2001, when this act first came in. I know that my colleague will speak more to that.
I want to talk a little bit about this fund and how it's administered. You've explained where the money comes from, but who receives that fund and makes the decisions to allocate funds, or to spill them, and assess where that money goes?
Executive Director, International Marine Policy and Liability, Department of Transport
The fund is agency-administered by the administrator of the fund, who reports to Parliament through the Minister of Transport and annually submits a report to Parliament. Broadly speaking, the administrator of the fund is responsible for handling claims that are filed with the fund, claims for all pollution. He is responsible under the law for considering these claims, investigating them, and deciding on payment. He also pays all handlers' claims.
We deal with pollution from a specific ship as well as mystery spills. This feature is not available internationally, but we have it in the domestic fund. As long as the claimant proves to the administrator that the pollution was caused by a ship—even though he might not know the identity of the ship—the domestic fund pays. That's the duty of the administrator, and he's responsible for authorizing payments.
In respect of the payments—and those are sometimes fairly large payments that he makes to the international fund—the process is somewhat different. Canada, as a member state of the international fund, participates in discussions on the international fund and helps to determine how much money the fund needs at any given time. Once Canada agrees to a requirement at the international level, the invoice is sent to the administrator and he has to pay it. It's the decision of the international fund, and under the law, it is clear that he has the authority and responsibility to pay. Up till now, he wasn't able to do it through accrued interest, without diminishing the outstanding balance in the fund.
Conservative
Colin Mayes Conservative Okanagan—Shuswap, BC
This fund is liability insurance for the ship itself. Is that correct? I need to have an understanding of that.
