Transport Committee on Feb. 26th, 2018

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

This is a question for staff. Would there be any situation in which this wouldn't take place, in which there wouldn't be some kind of safety or security zone around a vessel?

[Marc Sanderson]

This amendment would obligate the minister to declare an emergency zone in all cases, without consideration for what's going on in that immediate area. There may be remote areas with no population or in which marine navigation is at risk. This would require the immediate establishment of an emergency zone and the necessary resources—in many cases specialized enforcement—and other requirements to establish and enforce that zone, which would lead to significant costs for taxpayers. The “may” in this, as drafted, gives the minister discretion to make that determination and assess each situation on its merits and risks.

[The Chair, Liberal, Judy Sgro]

Mrs. Jordan.

[Bernadette Jordan, Liberal, South Shore—St. Margarets, NS]

If this amendment were to pass, could it restrict activities such as navigation and fishing in a specific area? To your point, there may be cases in which there is no threat and that's why the emergency zones are not there. My concern would be the impact it would have on fishers or navigation if this were to pass.

[Marc Sanderson]

Thank you for the clarification. Yes, indeed, part of the careful consideration that the minister and his officials would need to take into account is the specifics of the situation and the impacts on navigation, fishers, indigenous rights, and other activities in that area. The obligation to immediately establish an emergency zone would require the deployment of resources and enforcement, and it wouldn't give the minister the discretion to assess on a case-by-case basis what the resolution of the situation needed to be.

[The Chair, Liberal, Judy Sgro]

Mr. Badawey.

[Vance Badawey, Liberal, Niagara Centre, ON]

I'm just going to dig a bit deeper into this issue, because I do respect the intent of the amendment.

With that, I would ask staff to explain further what an emergency zone actually is. Who establishes, or how do you establish, an emergency zone?

I'm asking these questions because of the implications. I think for the most part, we all recognize that there are vulnerable areas that can be impacted when an emergency zone is declared. The impacts are on navigation and fishing, of course. There can be water intakes in the area, and therefore there's a vulnerability attached to the area based on the water intake going into a community, if it happens to be environmentally sensitive. Lastly, there are the impacts on the rights of the indigenous communities.

With that, can you explain to us a bit deeper what an emergency zone would actually be, and how the minister or appropriate authorities would establish an emergency zone?

[Marc Sanderson]

In addition to the considerations the member has outlined, the minister also has a number of tools at his or her disposal, including issuing notices to shipping to alert mariners of a hazard and establishing an emergency zone, as defined, that could extend to directing vessels to leave, not enter, or remain in the zone, and that could extend to establishing speed limits or pilotage requirements. There are a number of things. All of those tools remain at the disposal of the minister in considering and weighing the facts of a particular situation, and they may be used in certain combinations, but not necessarily all at once, to declare an emergency zone as this amendment may obligate. The minister continues to have those tools at his or her disposal, and it's important to remember that the establishment of an emergency zone would likely be undertaken if there were a real impediment to navigation safety and/or if there were an immediate environmental danger.

[Vance Badawey, Liberal, Niagara Centre, ON]

With that all stated, obviously protocols have to be put in place to not only establish an emergency zone but also to further ensure that the emergency zone is dealt with and that the implications of doing that are dealt with.

Would it be safe to say that other organizations and/or levels of government, especially when it comes to the provinces and their ministries of environment, and others would be brought into the process?

[Marc Sanderson]

That's absolutely the case in the situation and in the geography of the incident. Local communities, provincial and territorial governments, indigenous governments, and others may all be consulted in the development of the decision-making around whether to establish emergencies or what other measures are necessary in this case. I mentioned the potential tools that the minister has at his discretion. It's important that this discretion remains, that all factors can be taken into consideration.

[Angelo Iacono, Liberal, Alfred-Pellan, QC]

Mr. Chair, my colleague asked the same question I was going to ask.

In your remarks, you didn't say who clears the emergency zone. Would it also be the minister?

[Marc Sanderson]

If an emergency zone were established, yes, the minister would establish it in concert with other authorities that may be applicable in the specific circumstance.

The previous member also asked a question about enforcement. That's another matter that would need to be taken into consideration: how that's undertaken, what other organizations may be required to enforce such a zone, all at significant cost.

[The Chair, Liberal, Judy Sgro]

Ms. Malcolmson.

[Sheila Malcolmson, NDP, Nanaimo—Ladysmith, BC]

I'm going to encourage the committee members if you're not there already. This is on page 30 of C-64. This is extremely limited to really urgent situations if you read the wording. I'm proposing the Minister of Fisheries and Oceans “must”, but all the other wording continues as it is. The vessel or wreck has to pose a grave and imminent hazard. That's one. And that's if the minister has reasonable grounds to believe that it...so great discretion is already built in to the legislation as it is. Then on the declaration of the minister about the emergency zone, he or she gets to make up their own determination about the size that is reasonable with regard to the seriousness of the situation. So there's total discretion in here. And then it indicates a number of remedies, many of which could still include passage of fishing vessels, for example, through that area but just under certain circumstances.

With all of that, all that discretion built in and having this remedy aimed directly at a grave and imminent hazard, I urge my fellow members to recall that we had a government in Ottawa for 10 years that despite legislation and rules available to them, chose not to act and enforce them. Those of us who represent the coast remember that this government with good intentions on abandoned vessels will not always be in power, and if we say that there must be a declaration around an emergency zone, then that gives all of us as potential opposition MPs in the future to hold the minister accountable to uphold this part of the bill.

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

If the minister assessed that a vessel is creating a grave and imminent hazard, why would he not declare an emergency zone around it?

[Marc Sanderson]

I would clarify that emergency zone is not a measure of response, but it's necessary really only when the presence of ships or persons might impede the intervention. There may be a very grave and imminent danger, but it may be in a remote area, a place where non-navigation or other traffic is present, and an emergency zone wouldn't need to be declared automatically to address the situation and intervene.

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

I am still puzzled though. I still don't understand how you could have a situation where something is grave and imminent and you wouldn't take this measure. Grave and imminent may be, for instance, if there's an oil spill. Okay, there's a particular type of response you do to that. You put booms around and you try to clean it up. This seems to refer more to a navigation hazard. That's the impression I get. If somebody says that's a grave and imminent danger to navigation, they wouldn't say that if the vessel were isolated and there are not other ships around, you wouldn't think. You wouldn't find it grave and imminent. There does seem to be a bit of a disconnect here.

[Marc Sanderson]

I would just offer the clarification again that the seriousness of the situation might cause risk to other persons, vessels or traffic, or other dangers to the environment. If that is not the case, then in the case-by-case consideration of which tools to deploy to intervene, an emergency zone may not always be required even if the threat is grave or imminent. Intervention may proceed without the declaration of a zone, in other words.

[The Chair, Liberal, Judy Sgro]

All right. We will now call a vote on amendment NDP-6.

I assume you would like a recorded vote.

[Sheila Malcolmson, NDP, Nanaimo—Ladysmith, BC]

Yes.

(Amendment negatived: nays 8; yeas 1 [See Minutes of Proceedings])

(Clauses 67 to 73 inclusive agreed to)

(On clause 74)

[The Chair, Liberal, Judy Sgro]

On amendment NDP-7, go ahead, Ms. Malcolmson.

[Sheila Malcolmson, NDP, Nanaimo—Ladysmith, BC]

Once again I'm hoping that using the word “must” will increase accountability and transparency, and I echo the minister's testimony at this committee on February 5, in which he talked about the bill having teeth. The particular section we're looking at here is subclause 74(4), which would say that if an enforcement officer has reasonable grounds to believe that an offence under this act has been committed, they must direct a vessel that is about to enter or is within Canadian waters or in the exclusive economic zone of Canada to stop, to proceed through the waters in a way that the enforcement officer may specify, to proceed out of the waters, or to remain outside the waters. Again, saying “must” instead of “might” gives it much more teeth.

We heard evidence—for example, the case of the Farley Mowat making its way into Shelburne harbour—about how, under the cover of darkness and without permission, vessels will push their way into our waters. Good intentions from this government do not mean that future governments will themselves be held in the same way. I encourage the committee to vote yes to including the word “must” in this direction to the minister.

[The Chair, Liberal, Judy Sgro]

Mr. Fraser.

[Sean Fraser, Liberal, Central Nova, NS]

To my colleague, one thing I'm fairly consistent on, when we're dealing with decisions being made with regard to changing facts on the ground, is to always be cautious to say that there can't be any sort of discretionary remedy or discretion in the decision-making process.

I'm wondering if the department officials have a suggestion as to the kinds of circumstances in which the local Coast Guard official on the ground would not want to order these things. Are there instances in which, perhaps, the violation at issue or offence at issue is so minor that you wouldn't want to give one of these orders? If so, if you could maybe provide an example that would be helpful.

[Ellen Burack]

I'll provide a general response, and then maybe see if any colleagues have a specific example to point to.

It's important that, in this subclause, the use of the word “may” connotes an illustrative list, so here's a list of things that the situation may require, and one of these things would be done, whereas the use of the word “must” suggests this is a definitive list, so they would be using this list and not their awareness of the situation and other options that may be out there. My understanding is that this list is intended to be illustrative, not definitive or exhaustive. That's the overarching point.

I don't know if any of my colleagues have an example to point to.