Transport Committee on Nov. 8th, 2018

[The Chair (Hon. Judy A. Sgro (Humber River—Black Creek, Lib.)), Liberal, Judy Sgro]

I call to order this meeting of the Standing Committee on Transport, Infrastructure and Communities. Pursuant to Standing Order 108(2), we are studying the subject matter of clauses 688 to 747, divisions 22 and 23, of Bill C-86.

I want to thank our witnesses for being here so early in the morning.

To our folks in British Columbia especially, we recognize that it's five o'clock in the morning. We really appreciate the fact you're up and are going to share some thoughts with us.

Before we go to our witnesses, Mr. Jeneroux has a point he wanted to raise.

[Matt Jeneroux, Edmonton Riverbend, CPC]

Sorry, Madam Chair. I'll be quick about this.

This is pertaining to the agenda. In the first bit, we're hearing witnesses on the BIA. Then we're moving on to discuss the overall recommendations and report phase.

This is with regard to the 9 to 9:45 a.m. period, which is just before the PBO comes to the committee. I would like to ask if we could hold that part of the meeting in public instead of in camera.

[The Chair, Liberal, Judy Sgro]

I would have to ask what the committee's thoughts are.

Normally, committee business and this kind of thing would be done in camera, as the clerk has indicated here. Mr. Jeneroux has suggested that he'd like to do that in an open session.

Mr. Aubin.

[Robert Aubin, NDP, Trois-Rivières, QC]

I simply wanted to say that I support the suggestion. Discussions about such an important matter as the one we are debating, in such a short timeframe, are definitely in the public interest.

[The Chair, Liberal, Judy Sgro]

Thank you.

Mr. Jeneroux.

[Matt Jeneroux]

Just as one point of clarification, it's technically clause-by-clause, not committee business. But that's neither here nor there. I'm just hoping that we can do this in public for the length of the report.

[The Chair, Liberal, Judy Sgro]

We won't be doing clause-by-clause. That will be done at the finance committee when they do clause-by-clause on the issue.

Mr. Jeneroux has asked that we make public our 9 to 9:45 a.m. discussion on Bill C-86.

All those in favour? Opposed?

[Some hon. members]

No.

[The Chair, Liberal, Judy Sgro]

We'll be in camera.

[Matt Jeneroux]

I'm sorry, but I just think it's such a big report. We're trying to be open and transparent as much as possible. We've said this at the committee time and time again, on both sides of this. To go in camera I think is really....

I'll be moving the motion again, prior to our going in camera. I hope in that spirit we're able to keep this transparent. I think we as parliamentarians owe a service to this act. As significant as it is, and with the amount of stakeholders we've heard from, I think this certainly is something where we as a committee can work in a non-partisan fashion to keep this in a fashion that's open as opposed to in camera.

[The Chair, Liberal, Judy Sgro]

Thank you, Mr. Jeneroux.

We will move on to our witnesses, and I will suggest that we first go to Ms. Venton from Ecojustice Canada.

Please take no longer than five minutes so that the committee has time to ask you some important questions.

If you can hear me, Ms. Venton, please hold on. We have a bit of a technical issue at this end. We have no sound.

While we correct that, maybe we can go on to you, Mr. Burrows.

[Bruce Burrows, President, Chamber of Marine Commerce]

Sure, I'd be pleased to.

Thank you.

Good morning, ladies and gentlemen.

Thank you, Madam Chair, clerk and members of this committee for the invitation to speak today.

I'm pleased to see so many of you a short while after our Marine Day on the Hill event on the 16th, during which I hope many of you learned more about the marine mode and what my members are doing for Canada.

I had not anticipated a meeting under today's circumstances. For those who may not know, I am Bruce Burrows, president of the Chamber of Marine Commerce or the CMC. I am joined today by Sarah Douglas, the CMC's senior director of government and stakeholder relations.

Further to my reference to the circumstances behind and purpose of today's discussion, I understand that divisions 22 and 23 of Bill C-86, before you today, seek to amend the Canada Shipping Act and the Marine Liability Act. However, it wasn't until mid-August that Transport Canada was in position to begin a more substantive consultation on these two issues, which are part of the oceans protection plan, and it was a broad discussion at that.

With that consultation closing on October 26, CMC provided specific constructive feedback on improving the CSA and MLA, and I hope you are able to read our submission in detail. You can then understand how concerned we are, in the interest of effective consultation, about there being such a rapid turnaround between the end of the consultation period and the sudden tabling of legislation.

I preface my next point by saying that the CMC has a good relationship with Transport Canada, but then note that the government in its wisdom more broadly has elected to veil important pieces of transport legislation under the cover of an omnibus bill. There's now an accelerated time frame under which these legislative proposals are proceeding. This is inappropriate in our view.

Before turning to my colleague, I'd like to make clear that the marine mode in Canada is the safest and most environmentally friendly means of transportation. Every year more than 230 million metric tonnes of cargo is transported through the Great Lakes-St. Lawrence River waterway. Moving this cargo safely is the top priority for the marine transportation industry, which works to maximize protection of people, property and the environment. Comprehensive regulatory oversight, investments in advanced navigation technology and sound safety practices have produced significant safety achievements, and more investments are being made by industry.

[Sarah E. Douglas, Senior Director, Government and Stakeholder Relations, Chamber of Marine Commerce]

In our experience, we believe that a collaborative approach is required to identify priorities of concern to Canadians when it comes to making new regulations, policies or introducing legislation. At the end of the day, the marine industry operates in a number of geographic areas that are particularly sensitive environments, but the people living there still need marine services.

In the proposed amendments to the CSA, we see three major areas that would change how the marine mode is governed. One, the introduction of interim orders; two, the expanded regulatory powers for marine environmental protection; and three, the ability to amend certain regulations by order or variation orders, as they've been called at committee before. We look to each of these sections with concern, as they increase the scope of powers available to the government.

We recognize the intent for powers to issue interim orders, however it's important that interim orders are only used in urgent or unforeseen circumstances, as intended, and that a commitment is made to consult to the fullest extent possible under the circumstances. The process must be governed by robust policies and procedures to ensure interim orders are not used to circumvent the regulatory process or evidence-based decision-making, and do not sidestep the ongoing collaboration the government has with the marine sector.

We have specific recommendations for you in this regard, and are happy to take questions on it at that point.

We believe that rapid intervention measures could have significant impacts and unintended consequences for voyage planning, safety, shipping schedules, contractual commitments, fleet planning and competitiveness, all of which impact communities, businesses and jobs that depend on marine shipping to grow. Notwithstanding the short-term nature of such an order, we believe there's a need for ensuring adequate consultation with the marine industry and other affected industries. The marine industry has much to offer in identifying concrete measures, weighing alternatives and assessing industry impacts to inform decision-making.

[Bruce Burrows]

In terms of regulation-making powers for marine environmental protection, we can't stress enough that science and evidence are essential to the development of any new regulatory measure to ensure that they are effective, and we would also note that industry already has a great record of voluntary measures to protect the environment. In fact, these voluntary measures and guidelines, such as those promoted and implemented through the green marine program, have proven to be successful in the past in many areas of ship operations. When supported by evidence and developed in consultation with industry, voluntary measures are an effective tool and provide more flexibility over regulation.

In sum, we are very cautious about the proposed changes, as it is critical that these kinds of expanded powers be limited with proper safeguards. We also want to ensure that such powers are used in collaboration with industry to improve safety and protect the environment.

On the remaining question of amendments to the Marine Liability Act, some of the changes are quite extensive and given that there is a very complex regime in place here, we need more time to consider and provide reasoned comment.

We're happy to take any questions you may have.

Thank you.

[The Chair, Liberal, Judy Sgro]

Thank you, Mr. Burrows.

We'll go on to Ms. Venton.

Please go ahead for five minutes.

[Margot Venton, Director, Nature Program, Ecojustice Canada]

Thank you, Madam Chair.

I thank the committee for inviting me to speak today regarding the amendments to the Canada Shipping Act and the Marine Liability Act proposed in Bill C-86. I'm a lawyer with Ecojustice Canada.

Ecojustice is Canada's largest environmental law organization, supported by approximately 20,000 individual donors throughout the country. With offices on both the Pacific and the Atlantic coasts, Ecojustice is dedicated to ensuring legal protection of Canada's oceans. Through my practice, I largely focus on marine conservation issues. I'll make my short submission on the proposed changes to the Shipping Act.

The proposed amendments reflect our expanding understanding of the environmental impact associated with shipping, including ship-source pollution, physical disturbance and noise pollution.

Significant expansion of already busy port facilities on the west coast is proposed or already under way. Our Shipping Act must be able to respond to increasing threats that will accompany this expansion. Current gaps in the regulatory system must be filled before further expansion occurs.

The Salish Sea, for example, is a nationally significant marine ecosystem, home to a diversity of plant, fish and marine mammal species relied on traditionally by indigenous peoples and more recently by settler communities, and it is also home to Canada's busiest port. The Salish Sea has been degraded and many marine species in the Salish Sea are struggling, including the endangered southern resident killer whale whose population has declined over the summer to just 74 animals. Pollution and disturbance from marine vessels, along with reduced prey availability, are identified as key causes of decline and as barriers to recovery for these whales. Shipping also affects beluga whales in the St. Lawrence and the North Atlantic right whale on the Atlantic coast, each in a slightly different way.

To survive, killer whales need an acoustic environment that allows them to hear the subtle clicks of echolocation and the distinct calls of family members, and ship noise interferes with both of these things. Despite knowing for nearly 20 years that physical and acoustic disturbance from vessels threaten killer whales, little action has been taken to address the threat. This is in part because the Shipping Act does not explicitly allow for the regulation of ocean noise, nor does it clearly enable Transport Canada or DFO to order the kinds of mitigation required to address ocean noise such as speed reductions, route changes and most importantly, noise caps, vessel design and retrofitting. These were the kinds of tools only used to address marine safety issues and not protection of the marine environment. As a result of the legislative gap, limited action has been taken to address physical and acoustic disturbance from vessels and that limited action has been through voluntary initiatives. Unfortunately, this voluntary approach has failed to limit the whales' decline.

Clear and enforced rules work to regulate conduct. As a result of mandatory, enforced vessel slowdowns for marine safety purposes put in place under the Shipping Act on the Atlantic coast to protect endangered North Atlantic right whales, no whales were killed this year by vessel strikes, and we need similarly strong, legally binding rules to protect southern residents and other marine features from ships and ship noise.

The proposed amendments to the Shipping Act fill a gap, providing clear rule-making power for protection of the marine environment and additionally propose interim order provisions that provide a useful tool that allows for nimble response to new and emerging issues, such as shipping noise and other emerging issues and emergencies. It can take years to develop regulation; an interim order allows for quick, targeted action to address a problem while creating space for the development of a more comprehensive and permanent regulation.

Our recommendation would be to extend the period of the interim order to reflect what we understand to be a realistic time to develop regulation, which would be closer to two or three years from the existing one year. Experience shows that progress was made in pollution reduction for both airplane noise and tailpipe emissions for vehicles following the imposition of regulation, and we need to take this same successful approach with the environmental impacts of shipping.

Thank you.

[The Chair, Liberal, Judy Sgro]

Thank you very much.

By teleconference we'll move on to Mr. Lowry, manager of communications.

[Michael Lowry, Manager, Communications, Western Canada Marine Response Corporation]

Thank you, Madam Chair, and thank you to the committee.

I would like to provide the committee with an overview of how Western Canada Marine Response operates within the current regime, and then provide our input on the proposed amendments.

Western Canada Marine Response, or WCMRC, is the only Transport Canada-certified marine response organization on Canada's west coast. On average, we respond to 20—typically small—spills each year. We have successfully responded to oil spills for more than 40 years, starting in 1976 as Burrard Clean. We became Canada's first certified response organization under the amended Canada Shipping Act in 1995.

Our mandate under that act is to ensure that there is a state of preparedness in place when a marine spill occurs, and to mitigate its impacts on B.C.'s coast. This includes the protection of wildlife, economic and environmental sensitivities, and the safety of both responders and the public. Our mandate covers 27,000 kilometres of B.C. coastline out to 200 nautical miles from shore, meaning our work is often extremely remote.

WCMRC is certified by Transport Canada as a response organization under Canada's marine oil spill preparedness and response regime. Transport Canada sets the response planning standards, and WCMRC must demonstrate that we meet those standards to maintain our certification. WCMRC has been exceeding the Transport Canada-recommended response standards over the last 10 years, with an average response time of approximately 60 minutes in the Lower Mainland.

Canada has a polluter-pay model for spill response, and WCMRC is an industry-funded organization with more than 2,300 members. Membership is mandatory for vessels of a certain size calling on Canadian ports, as well as for oil-handling facilities receiving or shipping oil across their docks. Members are required to pay an annual preparedness fee to ensure that they receive WCMRC's response services, including equipment and supplies, in the event that they pollute.

WCMRC's fees cover our annual operating costs. They do not cover the costs WCMRC incurs when responding to a spill, which as per Canada's Marine Liability Act must be paid by the polluter. Profits earned by WCMRC from a spill are either reinvested in the organization or used to offset future operating costs and lower fees.

With regard to our planning, and to help plan and prepare for spills on Canada's west coast, WCMRC has developed a coastal mapping program that gathers existing data to identify coastal sensitivities, including ecological, cultural and economic resources. Our field teams then ground-truth that data and develop protection strategies for these at-risk resources.

These strategies, called geographic response strategies, are entered into the mapping application, which catalogues the logistical, environmental and operational data for each GRS. In the early hours of an incident, this tool is used by our response teams to geolocate GRSs and gather the data required to implement them. This allows for the most efficient deployment of response resources, maximizing coastal protection, reducing response times and minimizing risk.

The coastal mapping program was founded on a partnership with coastal communities. Coastal and first nations communities can get involved in the spill response planning through a number of avenues, including providing data and hosting equipment packages.

WCMRC has developed more than 400 of these GRSs for the Salish Sea.

We support the federal government's oceans protection plan, and we share the government's commitment to improving marine safety, engaging in responsible shipping and protecting Canada's marine environment. We understand the importance of doing this in partnership with indigenous communities.

The proposed changes to the Canada Shipping Act further clarify the powers and authority of the Canadian Coast Guard to protect Canada's coast from environmental damage. We support these changes and believe strong coast guard leadership during an incident is essential.

The proposed changes to the Marine Liability Act are in line with changes first proposed by the tanker safety expert panel in 2013. By removing per-incident limits and improving the Coast Guard's ability to access funds, the proposed amendments help to modernize how the fund operates.

Thank you.

[The Chair, Liberal, Judy Sgro]

Thank you very much, Mr. Lowry.

To both of our witnesses from British Columbia, a special thank you again for being up and giving your testimony early on.

Mr. Jeneroux for six minutes.

[Matt Jeneroux]

Thank you, Madam Chair.

I'll try to be prudent with my comments, because I took a bit of time at the beginning of the committee.

Thank you all for being here today.

I note that, despite our asking previously that Transport Canada remain here to listen to a number of the witnesses after their testimony, they aren't here again, just as they weren't at the second panel we had. This is frustrating, because I know there are a lot of stakeholders out there who are very concerned about this being an omnibus bill, as Mr. Burrows indicated.

Mr. Burrows, you made some comments at the beginning about how important it is to have effective consultation. This being an omnibus bill, it appears to us in the official opposition that this has been done very fast in terms of having any sort of consultation.

I'd just like to give you an opportunity to expand on some of that and express your opinions a little further before we get into some of the questions.

Thanks.

[Bruce Burrows]

Sure. We'd be pleased to do that.

To be clear, we share the goal of rapid response during a marine pollution instance. I don't think there's any debate about that. Therefore, in our opinion, they should only be triggered by urgent circumstances.

With the way this language is written, it is not clear that it reflects that need. We have to make sure that we protect against abuse and using the interim order system to circumvent a good, evidence-based regulatory process. I think that's one of our fundamental concerns.

We do have a couple of suggestions in that regard, and maybe Sarah could go through those three or four points.

[Sarah E. Douglas]

Yes, absolutely.

When we're looking at making interim orders in the transportation sector, one of the things we looked at in preparing our submission was the Aeronautics Act. We note that under part 1, section 6.41 of the Aeronautics Act, it provides for a very robust system for interim orders.

We note that the proposed changes to the CSA discuss that the minister can act when immediate action is required, where there's indirect or direct risk to marine safety or marine environment. However, there are three things in the Aeronautics Act that we see and really like, which we don't see as part of this legislation.

One of the parts of the Aeronautics Act stipulates the following:

Before making an interim order, the Minister...must consult with any person or organization that the Minister or deputy considers appropriate in the circumstances.

I think that consultation with all those affected parties, by an interim order, is absolutely fundamental before an interim order is made. I don't think that interrupts how quickly you might need to act in that kind of situation.

Another part that we would really like to see is the duration of the interim order.

In the Aeronautics Act, it stipulates that an interim order shall last for no more than 14 days, unless there is an extension granted by the Governor in Council for up to one year. I think that up to one year is crucial, because that ensures, and puts in the safeguards, that the regular regulatory process isn't circumvented.

We note that in the proposed changes to the CSA, that extension can be extended for up to two years, effectively creating a three-year-long interim order as part of the CSA.

[Matt Jeneroux]

Great.

On Tuesday, when we had our previous testimony—and you folks were ready to go as well then—Mr. Lewis-Manning, in his remarks, identified an issue with the ship-source oil pollution fund. He specifically highlighted a concern with clause 721 of this bill regarding the liability of the ship-source oil pollution fund. He feared that the proposed changes had the potential to open up the fund to unsubstantiated claims of pure economic loss and increase the exposure of the fund.

Do you share these concerns also?

[Bruce Burrows]

I'm not sure if I'm quite as concerned.

I think that certainly is a possibility, and for clarity it would be appropriate to perhaps tighten the wording up there as well, just in case.

[Matt Jeneroux]

In your remarks, you also expressed concern with some of the proposed amendments to the Canada Shipping Act.

Do those concerns lead you to call for amendments to Bill C-86 in these areas? Specifically, do you think the provision of interim orders might be amended to provide the parameters that you think are necessary?