Michael J Bird and M Clete Purcell, Bull, Housser & Tupper LLP
In May 1996, Transport Canada set up the Canada Shipping Act Reform Project (CSA Reform). The objectives of CSA Reform included modernising the somewhat archaic language, simplifying the statutory framework, making the CSA consistent with federal regulatory policy, including the ability to use regulatory standards such as compliance agreements, international standards and industry codes and to contribute to the economic performance of the shipping industry. It would also allow Transport Canada to implement policy and international conventions without statutory amendments with a view, subject to Canadian government policy, to achieving uniformity of maritime law.
Track 1 pertained to ministerial authority and amendments to the CSA, primarily regarding nationality, ownership and registration of vessels. It resulted in Bill C-15, which received royal assent in 1998. The amendments were brought into force as regulations were adopted. All amendments made by Bill C-15 were in force by February 2000. Certain provisions of the CSA, which pertained to civil liability, including personal injury, liability for carriage of goods, pollution and limitation of liability, were moved to the Marine Liability Act.
Track 2 dealt with the remainder of the CSA including certification of seamen, safety, pollution prevention and response, navigation, enforcement and penalties. Input was sought from stakeholders across Canada. The CSA 2001 received royal assent in 2001 and may be found, along with the regulations that recently came into force, on the Transport Canada website at // tc.gc.ca/acts-regulations/general/c/csa2001/ menu.htm. These have been referred to as phase 1 regulations, some of which were to reform existing regulations so they harmonised with the CSA 2001 and others that were new. They were also to include regulations that had a substantial impact on safety and the environment. Phase 2, to be carried out after the CSA 2001 came into effect, will update existing regulations that are in alignment with the CSA 2001 and introduce new regulations.
This article is restricted to addressing the more important changes to the CSA made by parts 8 and 9 of the CSA 2001, which pertain to ship-source pollution, the pollution regulations that are now in force, and issues of enforcement. It should not, however, be considered a comprehensive review.
The pollution provisions of the CSA found in part XV are replaced by parts 8 (Pollution Prevention and Response) and 9 (Pollution Prevention) of the CSA 2001, which, as with part XV, generally apply in respect of Canadian and foreign vessels in Canadian waters or in the economic zone of Canada and to oil handling facilities, but contain exceptions for vessels engaged in oil and gas exploration in the Northwest Territories, Nunavut and Sable Island, submarine areas, and in the Arctic, where the Arctic Waters Pollution Prevention Act applies.
Part XV of the CSA provided for a fine not exceeding CAD$200,000 on summary conviction for failing to comply with a direction of a pollution prevention officer. Part 8 of the CSA 2001 increases the fine on summary conviction for a person or vessel to not more than CAD$1,000,000 or imprisonment for not more than 18 months, or both. The increase also applies to numerous other offences, including the vessel failing to have an arrangement with a response organization where required. Lesser offences under section 184 are subject to a fine of not more than CAD$100,000. Part 8 also applies to operators of oil handling facilities as did part XV.
Part XV of the CSA provided for a fine not exceeding CAD$250,000 on summary conviction for a person or ship discharging a pollutant in contravention of the regulations, and, in the case of an individual, imprisonment for a term not exceeding six months, or both. If the proceeding went by way of indictment, the CSA provided for a fine not to exceed CAD$1,000,000 and, in the case of an individual, imprisonment for a term not exceeding three years, or both. Part 9 of the CSA 2001 provides for fines on summary conviction to a person or vessel of not more than CAD$1,000,000 or imprisonment for not more than 18 months, or both, for discharging a prescribed pollutant. If the discharge of a pollutant continues on more than one day, the person committing the offence may be convicted for a separate offence for each day on which the pollutant is discharged.
The same fine applies to failing to take reasonable measures to implement a shipboard oil pollution emergency plan in respect of an oil spill, failing to comply with a direction of the minister to proceed to a place and unload a pollutant or remain there for such reasonable period as the minister may specify, or contravening a provision of the regulations made under part 9. The increase in fines puts the CSA 2001 in line with the fines provided for under the Migratory Birds Convention Act 1994 (MBCA) where there is a deposit of any substance harmful to migratory birds in waters or an area frequented by migratory birds, and the Fisheries Act in the event of a deposit of a deleterious substance in water frequented by fish. Maximum fines under both the MBCA and the Fisheries Act range from CAD$100,000 to CAD$1,000,000. Under the MBCA, for offences committed by a vessel in excess of 5,000 tonnes deadweight there is a minimum fine of CAD$100,000 for a summary conviction offence and CAD$500,000 for an indictable offence. Offences under the Canadian Environmental Protection Act 1999 (CEPA) relating to disposal or incineration of waste or other matter at sea without a permit on summary conviction (section 272) may result on summary conviction in a fine of not more than CAD$300,000 or imprisonment for not more than six months, or both, and, on conviction on indictment, to a fine of not more than CAD$1,000,000 or imprisonment for term of not more than three years, or both.
Regulations primarily related to environmental matters under the CSA 2001 that are presently in force include the Regulations for the Prevention of Pollution from Ships and for Dangerous Chemicals (in force under the CSA, 16 May 2007), the Ballast Water Control and Management Regulations (in force under the CSA, 8 June 2006) and the Response Organizations and Oil Handling Facilities Regulations (in force under the CSA since 1995), which are to be replaced at a later date by the Environmental Response Regulations.
Regulations for the Prevention of Pollution from Ships and for Dangerous Chemicals
The Regulations for the Prevention of Pollution from Ships and for Dangerous Chemicals came into force on 16 May 2007, following publication in part II of the Canada Gazette. They replace previous pollution prevention regulations made under the CSA, contain new provisions to enable Canada to complete accession to annex IV (sewage), V (garbage) and VI (air) of the International Convention for the Prevention of Pollution from Ships (the Pollution Convention) and have provisions to enable accession to the International Convention on the Control of Harmful Anti-Fouling Systems Convention (the AFS Convention).
Divisions 1 and 2 of part 2 of the regulations replace the former Dangerous Chemicals and Noxious Liquid Substances Regulations and the Oil Pollution Prevention Regulations. Division 3 deals with pollutant substances and replaces the Pollution Substances Prevention Regulations. The changes from the old regulations are relatively minor and incorporate amendments to annexes I and II of the Pollution Convention, which came into force on 1 January 2007.
Divisions 4, 5,and 6 consolidate and add new provisions to the old sewage, garbage and air pollution regulations, with a view to having a national regulatory scheme consistent with the Pollution Convention, but go beyond the requirements of the Pollution Convention.
Ballast Water Control and Management Regulations
The present regulations came into force under the CSA on 8 June 2006 and apply to every ship in waters under Canadian jurisdiction designed to carry ballast water unless it operates exclusively in waters under Canadian jurisdiction, the US waters of the Great Lakes Basin or the French waters of the islands of St. Pierre and Miquelon when operating in waters outside Canadian jurisdiction. With the objective of controlling harmful aquatic organisms and pathogens entering the Canadian ecosystem through ballast water, the regulations prescribe the manner by which ships traveling to Canadian ports are to manage ballast water.
Ballast water, subject to certain exceptions, can be exchanged, treated, discharged to a reception facility or retained on board ship. Shipowners are now also required to ensure that a ship carries on board and implements a ballast water management plan.
In exceptional circumstances such as equipment failure or where the stability or safety of the ship would be compromised, for example, by ballast exchange, the ship is required to notify Transport Canada at least 96 hours before entry into Canada’s territorial sea, or, if it is unable to do so, as soon as it becomes possible. The ship is then required to implement measures prescribed by Transport Canada that, without compromising the safety of the ship or persons on board, reduce as much as practicable the likelihood of introduction of harmful aquatic organisms or pathogens into waters under Canadian jurisdiction.
The Transport Canada website at // tc.gc.ca/marinesafety/oep/environment/ ballastwater/menu.htm addresses ballast water management, ship-related introduction of invasive species from ballast water, hull fouling, cargo and commercial fishing and recreational boating and has useful links to other sites pertaining to ballast water treatment technology.
Changes to the regulations are expected now that the CSA 2001 is in force.
Environmental Response Regulations
The Environmental Response Regulations will replace the present Response Organizations and Oil Handling Facilities Regulations. They will include the provisions for oil-handling facilities. At the meeting of the CMAC Standing Committee on the Environment held on 1 May 2007, it was noted that they are expected to be ready for publication in part I of the Canada Gazette by February or March of 2008.
As a result of the substantial increase in penalties under the CSA 2001 for offences, in particular those pertaining to pollution, and the increased involvement of Environment Canada in matters pertaining to ship-source pollution, it is expected that enforcement will be stepped up and considerably greater fines will be sought in the courts than in the past.
Following the amendment of the MBCA and CEPA in 2005, concern was expressed by shipping organisations regarding the amendments and a request was made to Transport Canada and Environment Canada that they coordinate enforcement of pollution protection and wildlife protection legislation. A Memorandum of Understanding (MOU) was concluded in August 2006 between Transport Canada and Environment Canada pertaining to enforcement of pollution prevention and wildlife legislation with respect to ship inspection and investigation of ship-source pollution in the marine environment.
Under the MOU, Transport Canada has primary responsibility for ship inspection to verify that ships are compliant with the CSA 2001 and is responsible for Port State Control inspection of foreign ships to verify compliance with various international conventions, including the International Convention for the Prevention of Pollution from Ships (MARPOL 73/78). Environment Canada has the responsibility for ship inspections to verify ships are compliant with part 7, division 3 of the CEPA regarding disposal and incineration of wastes and other matter at sea and numerous provisions of the Fisheries Act, including deposits or leaks of deleterious substances, the MBCA and the Species at Risk Act. Either party may request the other to carry out inspections on its behalf.
Both Transport Canada and Environment Canada have investigative powers for shipsource pollution. While Transport Canada has primary responsibility for investigations of ship-source pollution under the CSA 2001, Environment Canada has primary responsibility in investigation of ship-source oil pollution in relation to wildlife, including fish, which would encompass charges under the Fisheries Act or MBCA and investigations regarding offences related to disposal and incineration of waste under the CEPA.
Where the lead responsibility is not clear, investigators from Transport Canada and Environment Canada are to jointly decide which department will have the lead. If they cannot agree, the matter is referred to the regional designated representatives for resolution and, if necessary, to the Deputy Ministers.
All joint investigations are to be coordinated and carried out as a single enforcement action.
There have to date been no convictions for pollution offences for ship-source oil pollution under the MBCA following its amendment in 2005. However, given the increased role of Environment Canada in the area of marine pollution and the increasing concern of the public with pollution, it is not unlikely that we will see an increase in the amount of the fines given for pollution offences by shipowners, particularly where there is evidence of negligence.
One matter of concern is that Environment Canada investigators involved with ship-source pollution may not have sufficient training or expertise when dealing with ships, as might occur where wildlife officers are investigating offences under the MBCA. It is to be hoped that the MOU between Transport Canada and Environment Canada will achieve its goal of greater co-operation between the two departments and simplification of the enforcement process, resulting in consistent and even-handed decisions and directions by governmental authorities in enforcing the federal pollution legislation, including not only the CSA 2001 but also the CEPA, the Fisheries Act, and the MBCA.