Transport Committee on Nov. 28th, 2017

[The Chair, Liberal, Judy Sgro]

Mr. Cullen.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

If I can respond briefly, these are the exact conversations I had with folks who live in those communities and run the power stations. They signed off on this proposal, so there isn't a notion even at 3,200 or 2,000 metric tons that it would require ships to go and come from port to service the mid-coast and north-coast communities. We checked that. The people who deal with these ships, and who have dealt with these ships for many years, were very comfortable with the amendments that we're moving. I'm talking about the Gitga'at in Hartley Bay, the Kitasoo, and the Haida. They all supported the amendments we put forward. I rely on the people who deal with these products. They would never seek to put their communities in any increased harm's way. They are supportive of the broad legislation. They just want to see it tightened up a bit because the loopholes are still too big.

(Amendment negatived [See Minutes of Proceedings])

[The Chair, Liberal, Judy Sgro]

On amendment PV-2, Ms. May, would you like to speak to that?

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Yes, I would.

I apologize to colleagues around the table. I'll be in and out due to the debates on Bill C-63.

I'll just say that the purpose of this amendment is to extend this moratorium to the whole coast of British Columbia, not just to the north coast. I'm expecting this to be ruled as being beyond the scope of the bill, but it was strongly recommended by the Union of British Columbia Indian Chiefs that this extend to all sensitive marine areas of our coastline. Therefore, in principle, I wanted to bring it forward and will accept the chair's ruling when it inevitably will come.

[The Chair, Liberal, Judy Sgro]

Thank you very much, Ms. May. It's always a pleasure to have you here with us.

It is inadmissible, and I'll read out the rationale, as you've just said. Bill C-48 formalizes a crude oil tanker moratorium on the north coast of British Columbia. The amendment seeks to extend the application of the bill to the entire coast of British Columbia. It is my opinion, as chair, that the scope of the bill as agreed at second reading is limited to British Columbia's north coast. Therefore, the amendment is out of order. Consequential amendment PV-6 is also inadmissible.

(Clause 4 agreed to)

(Clause 5 agreed to)

(On clause 6)

We have amendment NDP-5. Mr. Cullen.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

One of the concerns we raised with the minister and others is the notion of exemptions. In response to questions, it doesn't feel that there's a clear and public way in which exemptions for a moratorium not to apply have been described. The ministerial prerogative for this is very strong, and I would argue too strong, and the broad powers in the bill could be used in future.

Whenever governments design legislation, there's a tendency or a temptation to imagine that only the government that's designing the legislation will be applying the legislation, but of course, as we know when we write laws, various governments will apply them or not. The concern is not so much to try to discredit our good transport minister, who's doing a fine job, but to have this thing airtight. If we intend to have a moratorium, then have the moratorium, and do not allow for exemptions.

The one notion that was brought forward is about any sort of emergency such that we would want to exempt an oil tanker of some large scale beyond 12,500 metric tons. I can imagine no such emergency in which a community would suddenly cry out for a supertanker to come in the middle of the night and save them from anything. It's just not imaginable. It would actually be the opposite that we would worry about.

We want to limit those powers, not just of this minister, of course, but in the way the bill will apply in future.

[The Chair, Liberal, Judy Sgro]

Department officials, would you like to comment?

[Natasha Rascanin]

I will simply say that exemption powers are commonly used across various legislation, and I'm certainly not aware of any abuses of them. We've tried to look at that. They are narrowly constrained. One of the examples we thought of—and I'll just give it back as a possibility—is that if there were an earthquake in Vancouver, at the port of Vancouver, and tankers trying to land there couldn't land, there could be an option to send a tanker to Prince Rupert, perhaps, if the scale of an earthquake were such that both Seattle and Vancouver were affected. That is a possible emergency example that one could conceive of.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

I understand the challenge in scenario-making. In that scenario there would be nowhere for the oil to go when it got to Prince Rupert, because there isn't a pipeline to take it anywhere.

It would be safe harbour—

[Natasha Rascanin]

Exactly.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

—transport, that type of thing. Alaska and San Francisco and Los Angeles would obviously be much better suited than would a port that can't handle a supertanker.

Just so committee members are aware, there are provisions in the act already that allow for national defence exemptions and other emergency exemptions. What we're concerned about is that the way the exemptions are written right now, there isn't public disclosure of those exemptions. They're not cited or gazetted.

I can give you a scenario in which a tanker is exempted and the reasons aren't made public or justified or don't need to be justified. The minister can simply, as the act is written right now, get notification that a tanker would like to land and can exempt it. That's it.

That to me runs contrary to the spirit of what a north coast moratorium on supertankers would look like. Why use it if there are other aspects of the act that allow for national defence and emergency to override the moratorium in some sort of imagined crisis in which earthquakes and tsunamis have hit the west coast?

[The Chair, Liberal, Judy Sgro]

Mr. Fraser, and then Mr. Hardie.

[Sean Fraser, Liberal, Central Nova, NS]

Thank you very much.

Just in response, I think you raised two separate issues in that last intervention, Nathan. The first deals with the appropriateness of an exemption at all. The second is about the lack of protections against misuse, and the possibility that it would be used in secret.

On the first one, I do accept that there are some possible circumstances in which a public interest exemption would be well placed. I appreciate that you likely disagree or consider that it's dealt with elsewhere in the legislation. I do have an issue with the current draft, and I do intend to move an amendment subsequently that hopefully will help quell the second concern.

I really do have some issues around the use of a public interest exemption with no transparency, and no release to the public on why you're doing it or the fact that you're doing it. I hope the amendment I propose will achieve this. In the general sense, I appreciate a public interest flexibility in a number of different pieces of legislation, so long as the public is aware that it is being exercised.

[The Chair, Liberal, Judy Sgro]

Mr. Hardie.

[Ken Hardie, Liberal, Fleetwood—Port Kells, BC]

In sidebar conversations, I too have expressed some reservations over this. Department staff, you mentioned that there's kind of a granularity in how the exemptions would be applied, but I don't see it here. I don't see it in the bill.

I understand it's a per ship exemption. Where is that? How can we, in the interest of transparency, really understand the metrics around the exemptions as they might be applied?

[Natasha Rascanin]

Right in clause 6 it's very clear that the minister “may, by order, exempt an identified oil tanker”. It is very clear in legal terms—and we have our lawyer here as well—that that's per vessel, so by individual vessel. The intent is that typically exemptions have to be documented, and if there ever were a legal challenge, the intent is that a particular vessel would meet the exemption test, which would be within the spirit of the legislation and would need to withstand court scrutiny. The exemptions are designed that way and are used legally that way.

[Ken Hardie, Liberal, Fleetwood—Port Kells, BC]

Would there be complementary requirements for a ship that is given an exemption to be, I don't know, registered with the Coast Guard for passage or registered in, say, the port of Prince Rupert as a ship in port? Are there other things that would add to the level of transparency?

[Natasha Rascanin]

It is meant to be an exemption for unforeseen circumstances that need to be dealt with in the best interests of Canadians in a fairly quick manner, and so the clause as written specifies that the terms would be determined as appropriate based on the context. This is what that exemption power provides.

So the answer to your question is yes, but it would be context specific.

(Amendment negatived [See Minutes of Proceedings])

[The Chair, Liberal, Judy Sgro]

Amendment PV-3 is deemed moved by Ms. May.

Would anyone like to speak to amendment PV-3 on behalf of Ms. May?

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

I truly would never endeavour to speak on behalf of Ms. May, other than to say that I think this falls into the same reference of conversation we just had.

[The Chair, Liberal, Judy Sgro]

Yes. Thank you.

(Amendment negatived [See Minutes of Proceedings])

Next is amendment NDP-6. Mr. Cullen.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

This intends to shore up, if I can use that term, the government's assurances as to an exemption. We can imagine a scenario in which an exemption is made and a supertanker has been allowed through. This amendment would put a time limit on the exemption, so that there couldn't be a rolling.... Yes, it is shipped by ship, but if it's done in private, in secret, you can just start exempting ships. Again, this is not to cause discomfort for the current government, but one could imagine a moratorium that you could poke a hole through just by exempting a bunch of ships.

It would also, following the exemption, require a public review of the exemption, so that there would be a review of why it was done and if it met the test, rather than having to go through any legal proceeding where the concern often is that advice to a minister can be deemed non-admissible in court. If someone comes forward and gives advice to a transport minister in future and says, “We're exempting the following ships”, we no longer have access to information over that advice that was given. It is very difficult, as has been proven many times, as the chair would know, to pull any of that evidence forward in a court of law because it is deemed a privilege of Parliament.

[The Chair, Liberal, Judy Sgro]

Would the department like to comment?

[Natasha Rascanin]

I would add, consistent with the comments I just made, that the period for the application of the exemption would be specified—again, context specific.

[The Chair, Liberal, Judy Sgro]

Mr. Fraser.