Great Lakes
Environmental Protection Act, 1999, Bill 15, Mr
Ouellette / Loi de 1999 sur la protection
environnementale des Grands Lacs, projet de loi 15,
M. Ouellette
Transport Canada,
Marine Safety Division
Mr Bud Streeter
Chamber of Maritime
Commerce
Mr Jim Campbell
Mr Georges Robichon
Committee
business
STANDING COMMITTEE ON
GENERAL GOVERNMENT
Chair /
Président
Mr Steve Gilchrist (Scarborough East / -Est PC)
Vice-Chair / Vice-Présidente
Mrs Julia Munro (York North / -Nord PC)
Mr Toby Barrett (Norfolk PC)
Mrs Marie Bountrogianni (Hamilton Mountain L)
Mr Ted Chudleigh (Halton PC)
Mr Garfield Dunlop (Simcoe North / -Nord PC)
Mr Steve Gilchrist (Scarborough East / -Est PC)
Mr Dave Levac (Brant L)
Mr Rosario Marchese (Trinity-Spadina ND)
Mrs Julia Munro (York North / -Nord PC)
Substitutions / Membres remplaçants
Mr Gilles Bisson (Timmins-James Bay / Timmins-Baie James
ND)
Mr Jerry J. Ouellette (Oshawa PC)
Also taking part / Autres participants et
participantes
Ms Shelley Martel (Nickel Belt ND)
Clerk / Greffier
Mr Viktor Kaczkowski
Staff /Personnel
Mr Jerry Richmond, research officer, Legislative Research
Service
Mr James Flagal, legislative counsel
The committee met at
1542 in committee room 1.
SUBCOMMITTEE REPORT
The Chair (Mr Steve
Gilchrist): Good afternoon. I call the committee to
order for the purpose of dealing with Bill 15, An Act to regulate
the discharge of ballast water in the Great Lakes.
First off, I wonder if Mr
Levac would read into the record the report of the
subcommittee.
Mr Dave Levac
(Brant): I would be glad to do so. This report is from
your subcommittee.
"Your subcommittee met on
Wednesday, June 7, 2000, to consider the method of proceeding on
Bill 15, An Act to regulate the discharge of ballast water in the
Great Lakes, and has agreed to recommend:
"1. That the committee meet
in Toronto to consider Bill 15 at its regularly scheduled meeting
time on Monday, June 19, 2000.
"2. That notice of the
hearing be placed on the Ontario parliamentary channel and on the
committee's Internet Web page.
"3. That the deadline for the
receipt of requests for those wishing to make an oral
presentation be 3 pm on Friday, June 16, 2000.
"4. That the deadline for the
receipt of written submissions be 3 pm on Friday, June 16,
2000.
"5. That time allocated to
those making oral presentations be set at 20 minutes.
"6. That the Chair and the
clerk of the committee be authorized to schedule witnesses and to
make whatever logistical arrangements are necessary to facilitate
the committee's proceedings."
So moved, Mr Chairman.
The Chair:
Mr Levac has moved adoption of the subcommittee report. Is it the
favour of the committee that the subcommittee report carry?
Carried.
GREAT LAKES ENVIRONMENTAL PROTECTION ACT, 1999 / LOI
DE 1999 SUR LA PROTECTION ENVIRONNEMENTALE DES GRANDS LACS
Consideration of Bill 15, An
Act to regulate the discharge of ballast water in the Great Lakes
/ Projet de loi 15, Loi réglementant le déchargement de
l'eau de lest dans les Grands Lacs.
The Chair:
Our next order of business will be the actual introduction of the
bill. Mr Ouellette.
Mr Jerry J. Ouellette
(Oshawa): First off I'd like to read just a small
excerpt from the presentation I made to the US Senate committee
on a similar bill that's being passed in the States, where I was
asked to present, because of the similar piece of legislation
here.
"I would like to thank the
committee for the opportunity to speak today.
"I must commend Senator
Sikkema for the introduction of his bill `Natural Resources and
Environmental Protection Act.' The quote `The promises of US
federal laws passed in 1990 and 1996 to control the spread and
introduction of non-native species have been unfulfilled. It is
time that we in Michigan take control of our destiny as the Great
Lakes state and put a stop to this damage.'" It is one of the
reasons that we're discussing this bill of similar actions here
in Ontario.
As I explained, "We have
passed two readings of a similar piece of legislation in the
province of Ontario, the Great Lakes Environmental Protection
Act. My bill calls for deep water exchange of ballast tanks. With
75% of 140 exotic species having been introduced by ballast
water, the deep water exchange shows an effectiveness of 86% in
stopping further introductions ... I believe both bills"-Senator
Sikkema's as well as my own-"attempt to resolve the problem with
the removal of the possibility of further problems relating to
the accidental introduction of any new and unwanted
organisms.
"The initial cost of these
invading species for Ontario Hydro is estimated at $20 million
putting zebra mussel controls in place and an annual cost of $1
million ongoing operating costs.
"I believe that the shipping
industry itself should applaud having the ability to say there is
zero opportunity for introduction of any new species as cleanup
costs could be directed to the industry responsible for the
accidental introductions.
"The Hushak study indicated a
total cost of US$102.4 million. We certainly see the financial
impact currently in industries let alone the possible legal
implications on the industry responsible. The introduction of the
comb jellyfish into the Black Sea saw a reduction of the fish
harvest of 90%. An accidental introduction such as this in the
Great Lakes would have a similar detrimental impact, as locally in my region of the
province, a small 50-mile stretch of shoreline on Lake Ontario,
fishing represents an annual expenditure of $75 million.
"Locally after the
introduction of my bill we have seen a flurry of activity from
the federal government"-becoming heavily involved with the
legislation, as well as the shipping industry, which is here
today, I'm happy to say-"asking for a coordinated effort with all
affected jurisdictions found on the Great Lakes. I believe that
first and foremost, our federal governments are not taking care
of the interests of our constituents, and we have to. I believe
that the recommended timeframe of my federal counterpart is too
undefined to ensure the completion of the necessary
legislation.
"I believe that we as a
jurisdiction directly connecting to the Great Lakes should
establish the common ground necessary to draft legislation that
will allow industry compliance while fulfilling the expectations
of all pertaining jurisdictions. I am here secondly today in hope
that Senator Sikkema's quote, `It is up to Michigan and our
neighbouring states to pass the regulations needed to protect our
Great Lakes waters,' is an invitation"-for all jurisdictions-"to
work together for a common legislation.
"I'm committed to work with
Senator Sikkema in modifying our legislation so that we are able
to jointly agree on common areas. The Senator's sediment section
can be adopted along with the sterilization treatment definition.
Knowing industry as we do, we must ensure that treatment methods
do not contain toxins which may be discharged into our Great
Lakes waters.
"I have contacted each
jurisdiction abutting the Great Lakes and received an about-time
response," from all abutting jurisdictions.
"The Canadian government who
now appears to be lobbied into doing something has asked for my
assistance in the drafting of federal Canadian legislation where
compliance will be necessary in all inland waterways.
"I will assure you here today
that only a coordinated effort will work to bring forward all our
governments' legislation that complies with the needs of all
jurisdictions."
Essentially, this legislation
is designed whereby deepwater discharges from Great Lakes ships
coming in-it reduces the opportunity for invading species as
there are a very minimal number of aquatic species in seawater.
As well, the high saline content does not allow for freshwater
species to live in ballast water, and this is an attempt to
reduce the possible introduction or further introduction of new
species. I think some of the members here know of some of them:
the zebra mussel, which has been mentioned in the speech I made
to the US Senate, as well as the spiny waterflea, the round goby,
to list but a few of the number of unwanted introductions that
Ontario has seen.
The overall cost is undefined
as no jurisdiction or agency has taken it upon themselves to find
out what the actual cost of all these invading species is.
Hopefully, this is an attempt to reduce the possibility of new
species coming into the province.
TRANSPORT CANADA, MARINE SAFETY DIVISION
The Chair:
We have two groups that have expressed an interest in speaking to
the bill. The clerk informs me that they are both in attendance
here today. Our first group is Transport Canada, Marine Safety
Division. I wonder if their representative or representatives
could join us at the witness table, please.
Mr Gilles Bisson
(Timmins-James Bay): Chair, do you think we could find
enough money to fix that poor man's nameplate?
The Chair:
I'm sure the clerk will take that under advisement.
Good afternoon and welcome to
the committee. We have 20 minutes for your presentation. If you
choose, you can leave time for a question-and-answer period or
use the whole 20 minutes for your presentation.
Mr Bud
Streeter: I think the challenge of my presence here has
been laid out quite clearly by Mr Ouellette. I would like to
simply elucidate on some of the things that we have been doing. I
do have a written brief that I could leave with you as well. I
intend to use about seven minutes and then perhaps respond to
questions and provide some clarification.
1550
My name is Bud Streeter. I
am, as introduced, the director general of Marine Safety in
Transport Canada. Marine Safety's mandate encompasses the full
spectrum of responsibilities related to ship safety and
environmental protection-excluding pleasure craft-including
administration in national-international laws designed to ensure
safe operation, navigation, design and maintenance of ships,
protection of life and property and the prevention of ship-source
pollution. The prevention of further introductions of exotic
species through shipping is therefore something that does fall
within our mandate.
This is not the first time
we've been in front of the Legislative Assembly of Ontario on the
ballast water issue. We were here in 1991 in front of the
standing committee on resources development during discussions
concerning zebra mussels and purple loosestrife in those days. As
not everyone may be familiar with things that have happened since
then, and some before then, I'd like to briefly explain some of
the background.
Transport Canada first
introduced voluntary guidelines for mid-ocean ballast water
exchange in 1989 for ships destined for the Great Lakes. It was
done at that time in response to concerns expressed by the Great
Lakes Fishery Commission due to the recent introduction of
several nuisance species, which we've already talked about. As
clearly pointed out by Mr Ouellette, many of them are attributed
to the discharges of ships' ballast water.
We consulted with the United
States Coast Guard, our Department of Fisheries and Oceans, the
marine industry, the
province of Ontario, the province of Quebec and many others. We
revised the guidelines in 1990-91 and again in 1993 for the
shipping seasons and they now apply to all ships destined for the
St Lawrence River or the Great Lakes that pass a line which runs
through Anticosti Island in the Gulf of St Lawrence.
From the onset, there has
been, and we admit, a strong sentiment to legislate to reduce or
eliminate the risk. Unfortunately, until October 31, 1998, the
Canada Shipping Act did not permit the federal government to
undertake mandatory legislation in that area. However, given that
legislative authority relating to matters dealing with shipping
was assigned to the federal government under section 91 of the
Constitution, the main piece of legislation was the Canada
Shipping Act, which, until we started the modification process,
was almost as old as the Constitution, unfortunately. We
presently have in Parliament first reading of the Canada Shipping
Act, 2000, which expands the regulation-making authority, from
ballast water management to prevention and reduction of release
of all types of aquatic organisms and pathogens.
We also had, and continue to
have, serious concerns about the safety of vessels that exchange
ballast water at sea. Many research projects have been
undertaken, not just by Transport Canada but by the International
Association of Classification Societies and other jurisdictions,
including the United States Coast Guard, that indicate that there
are some concerns in respect of fatigue and stress of ships that
may undertake ballast water exchange on the high seas. As a
result of that, we introduced a closer ballast water exchange
area in the Gulf of St Lawrence where we believe the water is
still cold enough to deal with most of the organisms that may be
found.
The United States Coast Guard
introduced mandatory exchange requirements for the Great Lakes in
1993. What they do is carry out water salinity tests on ballast
water for all vessels that are voyaging through US waters. As a
result of having to pass though US waters to get to Ontario
ports, these tests are carried out when we do joint boardings in
the pool in Montreal. As Mr Ouellette explained, they test the
salinity, the feeling being that if the salinity is high enough
the organisms have been in fact taken care of.
Although we did receive
authority to implement legislation in 1998, we did not at this
point, pending the results of research and also our desire to
push the international community to do something, because we felt
that the United States' testing was, for Canada, and specifically
for ports in the Great Lakes, an effective control mechanism as
well.
We are pushing the
International Maritime Organization to develop mandatory
guidelines for ballast water control. One of the difficulties
always with international organizations is that you move as fast
as the lowest common denominator. As a result of that, it has
been fairly protracted. However, when the regulations, the
guidelines, were written at the IMO, we implemented them
immediately in Canada, and several other countries did. We have
developed draft guidelines for all parts of Canada and we will be
implementing those in Canada on September 1. They are of course
guidelines. There is no legislative authority for us to mandate
punishment if people do not follow; that comes as a second
stage.
The Michigan bill, Bill 955,
has been alluded to by Mr Ouellette. It was introduced in the
state of Michigan. In its initial form, it proposed that ballast
could only be discharged in Michigan waters if a permit was
issued and if the ballast water was sterilized. It has generated
both support and criticism.
The governor of Michigan and
the Michigan Department of Environmental Quality are now working
on a regional approach through the Council of Great Lakes
Governors. They have in effect given industry and regulators on
both sides of the border-Transport Canada and the US Coast
Guard-12 months to review and work on various initiatives,
including the use of biocides testing, the use of ultraviolet
sterilization and effective programs of exchange.
The working group has been
organized by the Michigan Department of Environmental Quality,
which consists of marine industry representatives from both sides
of the border, the United States Coast Guard, Transport Canada
and the Department of Fisheries and Oceans here in Canada which
is responsible for environmental issues. They are expected to
report to the council within 12 months.
From our viewpoint, an
operational viewpoint, we are concerned that several aspects of
the bill you are dealing with today may give rise to legal
challenge. There are a number of cases in Canada-the Queen v.
Kupchanko, for example, in BC; La Rochelle v. Austin, a
municipality in the province of Quebec-that suggest that
constitutional challenges can be mounted in issues like this
where we are perhaps not observing the federal-provincial
division of powers. We've found that these cases are expensive
and time-consuming, I respectfully suggest, for both levels of
government.
We certainly believe in
finding the correct balance to produce a regime that is
practical, effective, environmentally responsible and
enforceable, and in our case, of course, we're also worried about
safety. It has unfortunately been ongoing for many years and
there still remains a lot of work to be done. Having said that,
we're moving ahead. We see the implementation of proposed
national ballast water management guidelines as a necessary first
step. We'll be monitoring the compliance of that and if we have
to take unilateral legislative or regulatory action, we will do
that. It is not something that Canada is noted for, of course, in
terms of international conventions, but we will do that if we
have to. We have been focusing our efforts on that front and we
have been working since 1991 with many and all partners to try to
address this issue.
I appreciate the opportunity
to appear today and I would, as I said, answer any and all
questions that I am able to. Although I was unable to meet with
Mr Ouellette, members of my management team did and we did thank
him for his participation and encourage him to continue. He's been invited to
attend several of our fora to help us address this. We certainly
would encourage your active support in the federal initiative. At
that, I'll leave it, say thank you and answer any questions you
may have.
The Chair:
Thank you, Mr Streeter. That leaves us about three minutes per
caucus. We'll start the rotation as always with the Liberal
Party.
Mr Levac: I
do have a couple of quick questions. You indicated that you've
identified the lowest common denominator of speed at which we're
working with this and you can only go as fast as the slowest are
operating. Can you identify some of the slow partners in this
particular discussion?
Mr Streeter:
I think the slowest partners in any discussion at the IMO are
those countries that are known as open registries, that may not
live up to all of their flag state obligations. Having said that,
the IMO have recognized that and have created a new subcommittee
to deal with those issues to try to make sure we pull them
along.
1600
Mr Levac:
OK. Second to that, a couple of the written reports that I've
received have indicated a general idea that what's being proposed
is not a bad idea except, and then they go into reasons why they
can't support the bill in its entirety at this moment, some
because they believe it's a federal jurisdiction and some believe
that they're Ontario ports we're talking about and it's not going
to affect the rest of the partners. Just a general comment from
your perspective. If indeed we are able to pass this legislation,
is there anything preventing the continuation which Mr Ouellette
referred to of the very important discussions that have to take
place with all of the partners?
Mr Streeter:
If you choose to pass this legislation, no. We would not stop an
initiative because we believe that someone may have passed
legislation that they should not have. That would not be
productive at all.
Mr Levac:
How would you respond to the critics who might say we're going to
pass the legislation even though you're not doing anything?
Mr Streeter:
I would respond, as I have responded, by saying we are doing many
things. The difficulty always in our case is, of course,
achieving consensus with various partners, and at the same time
maintaining the safety and the protection of the environment.
Mr Levac:
Finally-do I have time, Mr Chairman?
The Chair:
Sure.
Mr Levac:
Have you done or are you aware of any organization that has done
a proactive study of the species or plants or anything that can
invade our shores ahead of time? Because it seems to me,
historically, what we're doing is finding after the fact these
things that are getting dumped on to us. Has anyone done an
inventory of those dangerous species out there, that if they get
mixed with us, we're going to be in trouble?
Mr Streeter:
Not a full one that I'm aware of, sir, no.
M. Bisson :
Bonjour. Comment ça va ?
M. Streeter
: Très bien, merci.
M. Bisson :
Je pensais que vous parliez français.
M. Streeter
: Je peux parler seulement le franglais.
M. Bisson :
Je voudrais savoir, y a-t-il d'autres juridictions qui ont fait
quelque chose du côté législatif sur ce
point-là ?
M.
Streeter : Pour nous c'est deux choses : c'est
la juridiction et aussi peut-être, si la loi passe, qu'elle
va nous donner des problèmes avec quelques partis qui ne
veulent pas suivre les recommandations au moment.
M. Bisson :
Ça m'amène à ma deuxième question : si
la province de l'Ontario ou la province de Québec ou une des
provinces maritimes décidait de faire quelque chose
elle-même, est-ce qu'on entre un peu dans le problème
que les lois vont être différentes dans
différentes juridictions ? Comment peut faire la
police ?
M.
Streeter : La chose que nous avons dit dans notre
mémoire est d'essayer de travailler ensemble pour une
solution régionale avec les États sur les Grands Lacs
avec l'Ontario, et avec le Québec et aussi avec, comme vous
avez dit, les provinces atlantiques parce que c'est vraiment
l'entrée du Canada.
M. Bisson :
C'est ça un petit peu mon problème. Je n'ai pas de
problème avec le principe de la loi ; je pense que
ça a du bon sens. Mais comme représentant provincial
qui a besoin d'avoir une approche nationale dans le sens que le
gouvernement du Canada fait des ententes avec les États-Unis
en même temps parce qu'on a tous les deux les mêmes
sources d'eau, et deuxièmement, avec les autres provinces,
avoir plutôt une loi fédérale pour être
capable de traiter toutes ces questions-là autrement qu'une
loi provinciale, je me demande si c'est mieux.
M.
Streeter : Oui, mais il est possible d'avoir un
cadre national avec quelques variantes régionales
là-dedans. C'est ça qui en réalité sera la
solution pour nous ici. L'environnement sur les Grands Lacs est
différent de celui sur les trois côtes du Canada.
Mr Bisson:
Just one last really quick question, in regard to what you were
talking about the fatigue given to a ship when you empty bilge
water at sea-
Mr Streeter:
Ballast water.
Mr Bisson:
Ballast water. How much water are we talking about? A big ship
like one of the big lakers: Is there a lot?
Mr Streeter:
Yes. We're talking potentially, if the vessel is travelling in
ballast, thousands of tonnes. A vessel may potentially carry
upwards of 10,000 tonnes of ballast water. The difficulty is it's
carried in various compartments, and if the vessel is already
under stress because of the waves and heavy weather and then you
start loading and unloading ship, you can put it in positions
where-
Mr Bisson: I
think there are cases where that happens.
Mr Streeter:
There are cases where it's been speculated that that was the
cause of a fatality, but I would say there's no concrete, solid
proof. There are cases where we believe ships have been stressed
and, of course, we have insufficient data of the effect of this
over the life of a ship.
Mr Bisson: Interesting. Thank
you.
Mrs Julia Munro (York
North): Actually, I wanted to follow on that last
comment, because it seemed to me as I was listening to your
presentation that the question of the ballast is a significant
one, particularly when you outline the kind of quantity that this
represents. Does that mean that what you see as an alternative
would be some methods of sterilization, some methods of the
treatment of the water, as opposed to the exchange?
Mr Streeter:
We see those other alternatives as alternatives to exchange. We
need to do work in two significant areas right now. One is to
confirm, as Mr Ouellette clearly pointed out, the effectiveness
of ballast water exchange. The second is an issue that we call
NOBOBs, meaning "no ballast on board," where ships come in and
declare that they have no ballast because they've pumped it all
out. It happens sometimes on the lakes because, of course, they
want a light draft because of the seaway. Then, of course,
there's sediment in the tank that we're also concerned about and
we want to do some testing of the sediment this year in a program
with the US Coast Guard.
So we see them as
alternatives. Very clearly we need to test, especially if you
talk-and some people are talking-biocides. There's no point in a
cure that's worse than the disease.
Mr Bisson:
Biocides? What are biocides?
Mr Streeter:
Hypochlorination, for example, kills them dead.
Mrs Munro:
Just to follow that up, because to me that is really the heart of
this issue, are there other jurisdictions that are ahead of us on
this problem in terms of being able to look elsewhere? I'm
assuming that if we have been invaded by this process, other
coastal areas must have experienced a similar kind of impact on
their native water species. Do we have the experience of other
jurisdictions?
Mr Streeter:
Unfortunately, all we have is-again as pointed out by Mr
Ouellette, whose research, I might say, is very complete-the
Black Sea and the Caspian Sea, which are, unfortunately, bad
examples. There is no prevention there. But what we have been
doing, and as part of the working group that I mentioned that
Michigan has started and that many of us are working with, is we
have also talked with people in Australia who have been working
on ultraviolet sterilization, so we've been trying to drag in the
state of art around the world. The difficulty is making sure the
equipment itself is safe to use on board ships and then,
secondly, to make sure the ships design their pumping systems so
that it can be used on board ships.
Mrs Munro:
Thank you very much.
Mr
Ouellette: Thank you for your presentation today. Pass
on my regards to Mr Day when you're back.
Mr
Streeter: Yes, sir, I will.
Mr
Ouellette: We talked about sediment, because what
happens as the ballast water comes in is that then the weightier
material settles to the bottom and you get a heavy amount of
contaminants, invading species and that. Are the feds doing much
research in the sediment area at all? You mentioned you were
going to get involved with Michigan on that?
Mr
Streeter: No. What we're going to do is get involved in
a program with the United States Coast Guard to sample and have
this tested. I'm meeting with Admiral Hull in the US ninth
district in the next few weeks to try to set that up.
Mr
Ouellette: How effective are the biocides and the
ultraviolet light on sediment? There would be a lot of eggs in
sediment as well. Although the mature organism may be in the
water, the eggs could be in the sediment as well. How effective
are those in the-
Mr
Streeter: I really can't answer those questions at this
time. That's why the research-it may well be a combination of
exchange. One of the other areas where we're doing research at
present is we have moved a ballast water exchange area east of
the entrance to the Great Lakes, as you know, and now we're
working with the Bedford Institute of Oceanography to try to find
one off the east coast of Canada where the water is deeper and
colder still, because we're not sure what the impact may well be
down the road on the area that we've chosen, if it changes over
time.
Mr
Ouellette: Are there any filtration prevention systems
that work as the ballast is coming on-board, or just as it's
coming off-board?
Mr
Streeter: The cyclonic separator that people are
studying is, in effect, a centrifugal separator that could be
applied to both. There is nothing that would prevent you from
applying it on the influx, except that normally you have to pump
it to do that, and you're only usually pumping outside and you're
flooding in, if you know what I mean. You could apply
microfiltration on the inside, but again, the installation
details, the impact on the safety of the vessel, the impact even
on the design of the vessel are all questions that haven't been
answered, unfortunately.
1610
Mr
Ouellette: On the ultraviolet-I'm not sure how much time
we have-when we were at the US Senate committee, one of the
presenters was a shipping company that explained that the ballast
can be constantly coming in and going out.
Mr
Streeter: Yes.
Mr
Ouellette: Does the ultraviolet, in order to function
properly, have to remain for a period of time, or is it something
that can pass through in the same fashion that they were
saying?
Mr
Streeter: The ultraviolet sterilization that you use
now, depending on the strength of it, you adjust the flow rate to
give a sort of resident time in the area that you're sterilizing.
Of course, the faster the flow rate, the higher the power has to
be on the ultraviolet, and then of course you start getting into
the occupational safety and health concerns of it. So it's trying
to find that balance between efficiency, safety and effectiveness
that we're all wrestling with.
Mr Ouellette: Thank you and thanks
to Transport Canada for working together on this.
The Chair:
Thank you, Mr Streeter, for coming and bringing your presentation
to us today.
CHAMBER OF MARITIME COMMERCE
The Chair:
Our next presentation will be from the Chamber of Maritime
Commerce. Good afternoon, gentlemen. Again, we have 20 minutes
for your presentation, to be divided as you see fit.
Mr Jim
Campbell: My name is Jim Campbell. I'm vice-president
and general manager of the Chamber of Maritime Commerce. With me
is one of our members, Georges Robichon, who is vice-president
and general counsel for Fednav Ltd.
The Chamber of Maritime
Commerce is a trade association that represents most of the Great
Lakes-St Lawrence waterway's Canadian and US shippers, domestic
and ocean-going carriers and ports. With more than 120 members,
the chamber has been in existence since 1959. Mr Chair, what
we'll do is, I'll make a short statement and Mr Robichon will
make a short statement. We find that questions and answers are
much more constructive.
In Ontario, the chamber
represents steel, agriculture, salt, cement and aggregate
shippers that rely on marine transportation to bring new
materials into their operations or distribute their products to
both domestic and international markets. Our organization, like
the waterway, is therefore quite unique. It is no wonder then
that the CMC would be interested in this or any other legislation
that could affect the efficient and reliable movement of the
millions of tonnes of commerce that transit the waterway every
year.
The issue of the
introduction and transfer of nuisance, non-indigenous species is
a very serious environmental matter. In Canada and abroad, the
marine industry is working with the International Maritime
Organization, the IMO, to develop stricter standards for ballast
water exchange in order to stop the transfer of organisms from
port to port. I won't go into the details. I think Mr Streeter
did an excellent job of that.
But we do wish to express
that, in the Great Lakes, every ocean-going ship, as Mr Streeter
mentioned, has its ballast water tested for salinity levels in
Montreal before it is allowed to come into the Great Lakes. If it
does not meet standards, it is then either sent back to the St
Lawrence to reballast or they actually dump salt, sodium
chloride, into the tanks to make sure the saline level is up to a
particular level. Last year alone a couple of ships were sent
back from Montreal after two days, back down river, a day of
getting their ballast exchanged, and then two days back up. It's
a very expensive process for the ship owners, so they're quite
diligent in making sure that their ballast is exchanged before
they get to Montreal.
Over the last three years
in the Great Lakes, the marine community has undertaken studies
surrounding a technological and ballast management solution by
testing a filtration system on a bulk trader in the waterway.
This is the Algo North, Algoma Central Marine's ship. A filter
was put on and it was tested over a season. It was then taken off
and is being tested in the port of Duluth at this time.
There have been some
difficulties with it. They top down at about 1,500 gallons per
minute that they could actually process through the filter, the
problem being that the laker it's on averages about 8,000 to
10,000 gallons per minute. So it is a bench model. One of the
other problems is it only worked up to about 75% to 80%
effectiveness and that's just not good enough. So there is a lot
of work to do, as Mr Streeter had mentioned.
What will happen at the end
of the day, though, is there's probably going to be a series of
measures with regard to ballast water. It'll be a management
issue. It will be things as simple as when a ship is taking on
water for ballast, it will do it further out from shore so it
doesn't bring up sediment. It will be able to not have to make
the tough decisions, as it seems the Transportation Safety Board
has suggested the captain of the Flare, which went down two years
ago, had to go through, the one in which 21 men were lost. You
were asking if changing ballast water is a problem. In fact, the
Flare had an empty ballast tank and the Transportation Safety
Board is suggesting that that empty ballast tank contributed to
it breaking up and all those men dying. So it is definitely a
safety concern.
But from Australia to the
Baltic to Lake Ontario, this is an international problem, we
believe, that requires an international solution. Currently,
legislation in Michigan, Minnesota, New York, Pennsylvania and
here in Ontario has been introduced to deal with ballast water
exchange. As well, bills have been introduced in both Ottawa and
Washington to deal with the issue on a national basis, each
different, some with very specific measures that outline
regulatory parameters, permitting and monitoring regimes, funding
mechanisms and fee structures or, like this bill, in large part
reinstate already ongoing practices.
Our difficulty with this
issue of a jurisdiction-by-jurisdiction approach to a very real
problem would be akin to the trucking industry being expected to
change their tires every time they go from a province to a
province and a state to a province and a state to a state. With a
myriad of different regulatory frameworks, it would be extremely
difficulty to trade into the lakes, regardless of the good
intent, which is one of the reasons why we are here today to
suggest that this approach to addressing non-indigenous species
is understandably one involved with frustration. In Michigan and
in Minnesota there is frustration with Washington not doing their
job; here in Ontario, Mr Ouellette has indicated quite clearly
that he is frustrated with Ottawa not doing its job. I think Mr
Streeter addressed that.
What we feel is required is
a partnership between industry, Ontario, the eight regional
states and the two national governments to develop a long-term
constructive solution for our region. We must harmonize standards
and regulations so that regardless of the port, state or province, ships will be treated
equally. We have been working with the government in Ottawa to
move forward quickly in undertaking what is needed to assure that
the lakes and all water systems in Canada are protected.
Mr Ouellette, as Mr
Streeter suggested, should be congratulated for raising the
profile of this issue. But he is also correct in his comments
today that the regional jurisdictions, with national governments,
must find common ground. We would recommend that this bill not go
forward and that Ontario direct its efforts to working with the
federal government and the Council of Great Lakes Governors to
find a regional and binational solution to this issue.
I'll pass on to Mr Robichon
and answer your questions later.
Mr Georges
Robichon: Let me just briefly describe Fednav. Fednav is
an international shipping company. We're based in Montreal. We
account for roughly half of the tolls paid to the St Lawrence
Seaway for ocean-going ships, so we would be the largest operator
of ocean-going ships on the Great Lakes. We have the same concern
that Mr Ouellette, Senator Sikkema in Minnesota and Congressman
Hoekstra have that there is a problem on the Great Lakes with
respect to indigenous species. It's existed for some time now. We
believe that the deep-sea ballast exchange, which is now imposed
on all ships that come into the Great Lakes, is effective in some
considerable way in addressing the problem. It's unlikely that
it's 100% effective.
The real issue, I think, is
one that we haven't raised here but let me give you an example. A
lot of ships that come into the lakes, and our ships are in that
category, come in fully loaded with cargo. If we bring steel, for
example, from Antwerp, we load steel in Antwerp, we come up
through the St Lawrence River, through the St Lawrence Seaway. We
bring steel, for example, into Detroit for Thyssen's plant. So
until we essentially come in to unload the steel in Detroit,
we're carrying very little ballast water in our tanks because the
ship is full. But there's always going to be a film, if you want,
or an amount of ballast water because the pumping systems on
ships are such that you cannot absolutely take out everything
that is in the tanks.
Fednav's fleet is a very
modern fleet. We're building ships at this moment. In fact, we've
taken delivery of a number of them this year and we're taking
delivery of a new one in September, so we have a fleet of very
modern ships. The ballast tanks on those ships are designed to
allow for the most possible removal of ballast water, but there's
always going to be something in the bottom of the tanks no matter
what you do.
This condition, the
so-called NOBOB, no ballast on board, is the issue, I believe,
that is causing the most concern to the US Coast Guard. To the
extent that a ship comes into the Great Lakes through the St
Lawrence Seaway in a NOBOB condition, it is not therefore subject
to deep-sea ballast exchange because, it is viewed, there is no
need because essentially you're not carrying any ballast, you're
carrying cargo.
When we bring the vessel in
to Detroit to unload the steel, we then take ballast on in
Detroit, in the river, and that ballast water gets mixed up with
whatever sediment has been left from wherever the port is that we
would have last changed; for example, in Antwerp. Then we would
take the ship from Detroit to Thunder Bay or to Duluth to load
grain, and when we're loading grain the ballast would be taken
out in the port of embarkation. Then the ship would leave, let's
say, Duluth full of grain, having unloaded in Duluth the ballast
water that it took in Detroit, and make its way back out through
the system back to Antwerp. It's not a shuttle service, but
that's a standard trading pattern for our ships: Europe into the
lakes and into ports in the United States.
1620
The issue of NOBOB, then,
is an issue because these ships are not subject to inspection
when they come into the Great Lakes because for all intents and
purposes they're not carrying any ballast. But there is this
film, this sediment on the bottom.
The perception out there is
that foreign-flag ships in particular-because Mr Ouellette's
legislation and Senator Sikkema's latest draft of his bill and
Congressman Hoekstra's legislation are all aimed at those
ships-are ones that are bringing the problem into the lakes and
that in fact the ships operated by the Canadian lakes fleet and
the US lakes fleet are being largely exempted by the legislation
on the basis that all they're doing essentially is moving the
stuff around in the lakes; they're not really introducing the
problem. It's the foreign-flag vessels, those that go out in the
ocean, those that are trading around the world, that are viewed
as the introducers of the problem and hence the ones that these
bills are being aimed at.
In fact, the ships that are
trading internationally-and there are all kinds of ships trading
internationally. We are very proud of the way we operate our
ships. We're a large operator on the lakes. We operate very
modern ships. We have management practices aboard those ships
that we believe go some considerable way, in addition to the
deep-sea ballast exchange, to ensure the tanks are cleaned out
regularly. They have to be for class purposes. Also, because of
the water levels in the lakes and because we're trading through a
system which limits the size of vessels trading, there's no
advantage to an international ship owner to bring unnecessary
ballast into the lakes. It's just depriving that ship owner of
the ability to bring cargo. So ships that are coming into the
lakes by and large, and certainly our ships, come in and they
have as little ballast as possible on board. To have anything
more than is absolutely essential-because you can't remove it
all-they're being deprived the ability to carry cargo. We're not
paid to carry ballast; we're paid to carry cargo.
We believe that if you
combine the deep-sea ballast exchange which exists now, and quite
honestly the Great Lakes are the only jurisdiction in North
America, I believe-California has legislation requiring deep-sea
ballast exchange, and Washington state, but the Great Lakes have
had deep-sea ballast exchange for some time now. If you combine that deep-sea ballast
exchange with the management practices that are prevalent in
companies like ours-in fact, we are participating with the
Michigan Department of Environmental Quality in having the
management practices that companies like ours adhere to now
applied across the board, which again will go some way to
reducing the problem of the introduction of these species.
The last issue is, all
right, if that doesn't allow you to entirely solve the problem,
which is conceivable, then what is a third possibility? That
possibility could go either way. It's could be technology, where
you would have built into ships systems whereby when ballast was
taken on there's a filtration, or when the ballast is released
it's filtered. But the technology in that regard and the size of
the equipment that's being tested this summer up in Duluth are
such that it's not practical at this point, because they haven't
been able to develop systems that allow for the discharge and
intake of ballast water. You're talking about an enormous amount
of water that's taken on when a ship is taking on ballast, and it
takes it on very quickly because as it's unloading cargo it has
to take on water to compensate for the loss of cargo. The lake
ships, for example, these self-unloaders, can discharge a
ship-and I'm not a domestic fleet operator but I think it's-
Mr
Campbell: It's 6,000 tonnes an hour.
Mr
Robichon: So it's an awful lot of cargo being discharged
and an awful lot of water therefore being taken in.
Under Senator Sikkema's
bill and under any bill that's trying to rush to solve this
problem on the spot, people are looking at the possibility of
adding chemicals to the tanks of ships. Chemicals have their own
problems, and I'll stop talking after I say one more thing. The
problem with the tanks on foreign-going ships is that because we
take on salt water in our ballast tanks, which is not the case
for the domestic fleet, the tanks of foreign-flag vessels are
lined with very sophisticated epoxy resins to prevent corrosion.
What we are testing now with the paint manufacturers, given that
we're building these ships as we talk, quite honestly, is to see
to what extent you can add a chemical like chlorine to ballast
water and what the effect will be on the tank coatings. The last
thing we need to do is to start imposing chemicals the effect of
which is to undermine the coatings on tanks, therefore exposing
the ship to concerns of safety.
On that point let me
finish. I accept very much the initiative taken by Mr Ouellette.
In fact, his bill was the first one. There have been a myriad of
bills that have come out since the Ontario bill. I believe the
way to deal with this is for everybody, all the states and
provinces and the two federal governments, to work together with
industry in coming up with a way of dealing with this. But I
think we should be very careful about rushing into doing
something to meet certain arbitrary time periods, because those
arbitrary time periods, which is the one year referred to,
essentially only allow for chemicals because there is no
technology that exists today or that is foreseen to exist within
the next year that can deal with it. So you're talking about
perhaps replacing one problem with another problem, and that is
forcing ships to carry chemicals in their tanks and discharging
them in various jurisdictions, some of which-for example,
Australia wouldn't allow one of our ships to go in if it had
chlorine in its tanks; we simply couldn't unload. So there are
implications to the third level, if you want, and I think those
implications are such that the rush to be seen to be doing
something should be tempered somewhat by fully understanding what
works today, how it's working today, and to allow the technology,
or biocides or something, whatever it's going to be, to advance,
but to advance to a point where the safety of the ship isn't put
at risk.
The Chair:
Thank you very much. That allows us a couple of minutes per
caucus for questions. Mr Bisson, we'll start with you this
round.
Mr Bisson:
I don't know if you understand French, but when I was talking to
Mr Streeter, the question I was asking was what you raise in your
particular brief, which is, is there a danger of the province
taking on this issue, which really should be a national issue
being dealt with by the feds? You've already dealt with that and
I hear where you're going, because I believe there is a problem.
I'm not an expert on this. I'm sure the member brings this
forward with all of the research that is to be done. But I
wonder, if Ontario ends up with a regulation or a law that's
different from the neighbouring states or Quebec or the
Maritimes, whether we end up with sort of an artificial situation
when you're trying to pass merchandise across by way of ships,
and I sympathize with that point. I just wonder if you want to
expand on that, and then I have a question.
Mr
Robichon: If you look at the trading pattern of our
ships, which would go into Detroit or Cleveland or Toledo or
Milwaukee or what have you, we're travelling throughout the lakes
unloading cargo and taking on different cargo. If every state
were to do like Ontario or Michigan or Minnesota, we would have
the potential, if you assume Quebec would have some role to play
and assume it entering into the system, of eight states and two
provinces imposing regulations that may not be complementary of
requiring permitting on essentially an international voyage of
trade and commerce. You'd be subject to a myriad of regulations
that would have really quite a negative effect on trading into
the lakes.
Mr Bisson:
Do I also understand correctly that part of the problem is that
some of the science and technology that's needed to come up with
a policy that deals with this in some way that makes some sense
both to the environment and the shippers isn't there yet? Is that
the other part?
Mr
Robichon: The technology in terms of devising a
system-this summer they're testing a filtration system with
ultraviolet and they're testing it on a small scale to see
whether the ultraviolet combined with the filtration kills
everything or kills as much of everything as possible. The
problem is that the technology being tested is small, and when
you take the concept and the technology and you make it work on a ship, for example, the
size of our ships or the 1,000-foot lakers that the US-flag fleet
operates, you're talking about putting on ships equipment that
would take, without exaggerating, three or four times rooms this
size just for the filtration of ultraviolet. The technology
hasn't developed to the point where it can work effectively.
1630
If you assume that chlorine
is a relatively inexpensive chemical, then you can say: "If
chlorine is inexpensive, if it's fairly easy to add to the tanks,
then what's the problem with chlorine? Various provinces and the
states are using chlorine to deal with their water systems."
The problem is that it's
not universally accepted as being a chemical that everybody
thinks is wonderful. It hasn't been tested fully as to its
effectiveness in salt water, which is what we are carrying in our
tanks. From our perspective in particular, it also hasn't been
tested to see what effect it has on the coatings of the tanks,
which may put the ship at risk.
Mr Bisson:
I have a very quick question to your counterpart. What percentage
of ships that go into the Great Lakes are actually ocean-going as
compared to domestic fleet?
Mr
Campbell: Up to the last couple of years it's been about
50-50.
Mr
Ouellette: You mentioned chlorine. Do you know if
chlorine is effective on sediment as well?
Mr
Robichon: They don't know. If I may answer the question,
the perception is that we're carrying an enormous amount of
sediment in the tanks of these ships, and that's just not true.
There is very little. Last week, when we appeared before the
department of environmental quality in Michigan, we produced
pictures of our ships-a new ship, a three-year-old ship, a
five-year-old ship, a 17-year-old ship-and the pictures all
reflected tanks, but there is very little sediment in the tank.
This perception out there that we're carrying enormous amounts of
sediment is just absolutely false. But the answer to your
question is no, the effectiveness is unknown.
Mr
Ouellette: I realize that it may be difficult and the
shipping industry may not view this favourably; however, would
the shipping industry also be responsible or want to take on the
actual $25 million to $30 million for Ontario Hydro alone for
zebra mussels? We have to look at alternatives and there has to
be a way to go about this, and somebody has to take the lead. To
date, there hasn't been a lead by the feds in this area, and
until we started pushing very hard-we're starting to see other
jurisdictions, as you mentioned.
The current requirement is
a guideline, as Mr Streeter had said. The US Coast Guard is
participating in that in doing the inspections; however, it's
only a guideline so far.
Mr
Robichon: But it's mandatory in the US. For ships coming
into the St Lawrence Seaway, which you have to go through,
there's a mandatory ballast exchange.
Mr
Ouellette: Yes, but if they come into an Ontario port,
it's still under the guidelines as opposed to-
Mr
Robichon: It's almost academic, because you can't get to
an Ontario port without going through the seaway. If through the
seaway the US Coast Guard requires mandatory ballast exchange,
the problem has been solved.
Mr
Ouellette: There are also problems with the inspections,
I understand, from what we've heard from the jurisdictions in the
States, with the Coast Guard.
Mr
Robichon: I've heard that. A US Coast Guard chap was at
the meeting in Michigan last week. Patrick Garrity, who is from
the ninth district US Coast Guard, indicated there has been
absolutely no problem with compliance whatsoever.
Mr
Ouellette: Was he at Senator Sikkema's hearings that
came forward where there was some major discussion-
Mr
Robichon: I debated with Senator Sikkema in Duluth. I've
been speaking because this affects Fednav in a big way and
because we're the largest operator on the lakes. We believe the
way to deal with this is that there should be either regulations
or guidelines, whatever you want to call them, but they should be
regional. It's not the way to go to have every state and province
decide they're going to go their own way with their own
regulations, their own permitting. It's going to be an
ineffective way of trying to solve a problem.
Mr
Ouellette: One of the difficulties from the shipping
industry now is that there are eight jurisdictions plus two
states effectively that could be involved in this bringing
various legislation forward, and the difficulty is requiring
unified legislation for all of Canada. What will the response be
from the industry when Canada comes forward with guidelines in
conjunction with the States? Will that satisfy it or will they be
asking for a requirement that's going to comply worldwide?
Mr
Robichon: Through the Shipping Federation of Canada,
which represents the international fleet, we have been very
active-and I think Mr Streeter would confirm that-in working out
these guidelines, which are supposed to come out in September.
Quite honestly, in terms of the process that we're going through
now on the lakes, we-Fednav, the Shipping Federation of
Canada-have been outspoken from day one in saying, "We recognize
there's a problem, but the way to deal with it is to deal with it
regionally and not by individual states and provinces." We've
been absolutely straightforward on it, consistent. I said the
same thing to Senator Sikkema. I am saying the same thing to you.
I will say the same thing to the people of Minnesota and New York
and whoever else is doing it. It's just not the way to go about
it, various jurisdictions taking on different ways of resolving
one problem. It's a problem with the lakes.
Mr
Ouellette: What do you as the industry feel is the most
cost-effective method in dealing with the problem, and at what
success rate?
Mr
Robichon: Senator Sikkama's original bill said the water
in your ballast tank had to be sterilized. I think he's accepted
the fact that sterilization is not feasible. You don't have
anything that's sterilized these days.
What is effective? We believe the deep-sea ballast
exchange combined with the management practices that companies
like ours adhere to-that will be made applicable, if you want,
across the board-those two things taken together will bring the
effectiveness of dealing with the problem to a very significant
level, such that, for example, the state of California and the
state of Washington, both states being fairly environmentally
conscious, have said that's good enough for them. Deep-sea
ballast exchange satisfies California and satisfies the state of
Washington. For some reason, it doesn't satisfy the Great Lakes.
I'm not sure why, quite honestly.
The Chair:
Mrs Munro, do you have a fairly brief question?
Mrs Munro:
Very brief. I wanted to come back to an issue that you began
with, and that was the question of salinity and whether or not
you are satisfied in your own mind that that guarantees various
aquatic nuisance species are killed, that kind of testing.
Mr
Campbell: At this point, from work that had been done in
the past, they have developed a standard of salinity where there
is an assumption that it would kill freshwater organisms. That's
really what they're killing. They're trying to kill the
freshwater organisms so they don't have an opportunity to live
through the voyage. The problem is, there are some freshwater
organisms that are resilient to salt, so that's another challenge
we're going to be dealing with.
Mrs Marie
Bountrogianni (Hamilton Mountain): You've alluded to
this, and I want a more clear-cut answer, given this isn't my
area of expertise by a long shot.
Mr Bisson:
I thought you were the expert.
Mrs
Bountrogianni: No, that's my husband. I didn't get this
in time.
Is there conclusive
research that the ballast water guidelines outlined in this bill
will solve the difficulty here that the bill is trying to
address? Is there conclusive scientific research?
Mr
Campbell: The ballast water guidelines, as stated in
this bill, are largely referring to what's taking place right
now, which is mandatory testing in Montreal, a voluntary ballast
exchange program within our national government. My reading of Mr
Ouellette's bill is that it's largely repeating and emphasizing
to make sure that these ships that do come into Ontario ports are
in fact going through that process. But it's all we have right
now. They are being adhered to in Montreal. Ships are not coming
in that do not meet those standards, and "those standards" refers
to those of the Canadian Coast Guard that are being used right
now in Montreal.
Mrs
Bountrogianni: The other question is, given that the
federal government or the two governments of US and Canada have
not gotten together as far as common regulations, could this not
be politically an impetus for that to occur?
Mr
Campbell: We hope so. As Mr Robichon said, we're really
pushing right now. In fact, since 1988 the Shipping Federation of
Canada, which represents saltwater vessels in the Canadian
market, has been trying to get that kind of coordination. What's
happening here in Ontario, Michigan, Minnesota and New York has
gotten a lot more broad-based support within the industry to say,
"Listen, Washington and Ottawa, let's get your act together and
find some coordination here."
Mr Robichon and I are
meeting with an ADM in Transport Canada on Wednesday to see where
we can go from here. We've already made contacts with the
department of international trade and foreign affairs to deal
with the higher-level individuals in Washington, so we're hoping
that this and other measures have pushed things along. But it
will make it more difficult if legislation like this goes
forward, even in the short term, because we run nine to nine and
a half months a year into the Great Lakes, and we're already
dealing with a huge amount of red tape and regulation within
eight states, two provinces and two national governments. This is
just one more shortcoming that people are looking for, I would
assume, to not come into the lakes and upset the already fragile
economics of Great Lakes shipping.
1640
Mrs
Bountrogianni: One quick last one. Shipping is a huge
industry. Would the $10,000 fine have any effect at all? I know
that's not the point. I'm just saying, would that have any effect
at all? We've received e-mail that it's not enough.
Mr
Robichon: I don't think it's a question of whether the
fine would-it's a question of, is this the right thing to do? And
we don't believe it's the right thing to do. If this legislation
were to become law and there were regulations under it aimed at
impeding the flow of shipping on the Great Lakes, then the issue
of the fine might be complicated by a challenge to the
constitutionality of the legislation, quite honestly. It's the
same thing we had with Senator Sikkema.
We believe all these things
are being done the wrong way. They're just dealing with it by
individual initiatives, which together would be great if they
were consistent. But fending off different regulations brought in
by different states purporting to exercise their jurisdiction,
all you're going to do-I said the same thing in Duluth-is have a
bunch of lawyers fighting legislation instead of concentrating on
trying to solve the problem. I believe that very firmly.
Mrs
Bountrogianni: I felt obligated to ask that question,
given a constituent e-mail.
The Chair:
Mr Levac, you had a question?
Mr Levac:
Just maybe a question of action. I'm concerned that Mr
Ouellette's intent, which was to offer some type of solution to a
problem-and we're all talking about it. Every presentation I've
heard and all the packages we've received indicate that, "Yes,
we've got a problem and we want a solution to this." What I'm
hearing and what I'm reading is the IMO, and the government
person here, the federal representative here, is making an
indication that indeed we are making strides but maybe they're
not as quick as what some people want us to do and we're trying to co-operate
and pull all the partners together.
I'd like to know if you
have a suggestion besides the fact that you've made a
presentation to us today that said: "We're doing that. We're
trying to meet with people." What I don't want to hear is a
balance between Mr Ouellette's intent, which is, "Look, we've got
a problem and we've got to deal with it," which I believe is
noble and honest, and, "But it's the feds' fault." What I want to
hear is, "What is the solution?"
Mr
Campbell: We've been working quite closely with the
federal government on this. As I said, we're trying to get
Washington going. A group has been put together by the Michigan
Department of Environmental Quality, which has been largely
mandated by the governor to deal with this. They've got
subcommittees working on everything from new technologies to
ballast water management to the economics of the issue. Work is
being done as we speak.
Mr Levac:
Can you give us an honest timeline when you perceive any of these
things happening?
Mr
Robichon: We're participating at the IMO level; Mr
Streeter made reference to that. It takes time to get all the
nations of the world to agree on how to solve this problem. It's
a long process. The Great Lakes have been in the lead, because
they're an identifiable body and there have been problems in the
lakes. In fact the mandatoriness of the deep-sea ballast exchange
applies only to the Great Lakes.
The timeline, quite
honestly, has advanced to the point that the management practices
that companies like ours adhere to and have adhered to, and that
we'd like to think will now be imposed on all international
operators into the lakes, has come out of this process. We have
taken our management practices and we've got the other companies
and said, "Look, this is a good way of moving one step above
deep-sea ballast exchange."
The problem we have is the
third thing, either technology or chemicals. The only one the
Michigan Department of Environmental Quality and, we believe, the
Council of Great Lakes Governors is going to focus on-because
they're acting within this one-year period, which Senator Sikkema
has imposed, or at least is threatening. He hasn't imposed it
yet, because his bill isn't law, but he's saying he wants to see
action within a year. The only thing that can be done within a
year is adding chemicals. We simply are not sure whether the
chemicals are effective and whether it's the right thing to do.
We're all being driven now to deal with chemicals, because it's
the only thing that can be done in addition to what is being done
now that can be dealt with in the framework of one year. That's
the concern we have.
Mr Levac:
Thank you for your presentation and for the previous written
presentations, and thank you for your patience, Mr Chairman.
The Chair:
Thank you, Mr Levac. Gentlemen, I'm loath to do this-as Chair, I
can't remember the last time I asked a question of witnesses-but
just to help me out here, both you and Mr Streeter have mentioned
the guidelines that were adopted. I see in his presentation that
the coast guard started those on May 10, 1993-the ballast water
exchange requirements and subsequently the tests.
Is it your understanding
that there have been no new organisms brought in since then, or
should I take from the Ontario Federation of Anglers and Hunters
that the most recent invader, the fish-hook water flea, arrived
after the date of those inspections?
Mr
Campbell: No one knows. They could have been here for
years. They could have been here pre-1993 and nobody found them,
because you're moving a species into a new environment, a huge
environment in which they could have been incubating for years
and we wouldn't know about it.
There are scientific
statistical analyses that can be done that I've read about, but
in large part (1) We don't know, because they could have been
here for years and (2) we might be finding them because now we're
actually looking for them. The best we could suggest is that the
system is working, but who is to say? I wish we could answer
better.
The Chair:
I appreciate your candour, and I appreciate your taking the time
to come before us. We actually went a little over, but there were
good questions from all around. Thank you very much, and I
appreciate your taking the time to come before us today.
Under the subcommittee
report we have accepted, we were then going to move to
clause-by-clause consideration of the bill. We will do that
now.
Mr Ouellette, if you want
to make any general comments, or any other members of the
committee, you can do that at any point in this process, but I
will pose the first question.
Are there any amendments,
comments or suggestions on section 1 of the bill?
Mr Bisson:
I have a general comment on section 1. I'm interested that Mr
Ouellette brings this bill forward. I thought he came from a
government that didn't believe in regulation-open it up to the
marketplace and allow the powers that be. We all know that
according to the Conservative mantra, environmental legislation
is bad. I'm encouraged to see there's a little bit of common
sense somewhere within the government and that they recognize
there is a role for government. This is just one example. It may
not be the ideal piece of legislation, but am I to read that all
of a sudden your government has woken up and realized it has
responsibilities?
The Chair:
I thought Mr Bisson's question would go on much longer. Mr
Ouellette, you don't have to reply, but if you feel inclined.
Mr
Ouellette: If Mr Bisson looks on the record, he will
notice the recommendation for sulphur reduction as well. I had
meetings with the federal government, with international
agencies, with General Motors, and quite a period of time before
the federal government did any announcement on sulphur reductions
as well. If you look at the record, certainly the actions speak
for myself and what I think in a lot of these areas.
Mr Bisson: So the answer is, there
is a need for environmental regulation.
Mr
Ouellette: We all stand on our own.
Mr Bisson:
OK, thank you.
The Chair:
Any further comments on section 1?
Mr
Ouellette: I have an amendment.
Mr Bisson:
On your bill?
Mr
Ouellette: Yes, it's a drafting error.
I move that the definition
of "ballast water control guidelines" in section 1 of the bill be
amended by striking out "section 6" and replacing it with
"section 5."
It was a drafting error in
the bill when the bill was first drafted.
The Chair:
Any further discussion on the amendment? Seeing none, I'll put
the question. All those in favour of the amendment? Opposed? The
amendment is carried.
Mr Bisson:
I just have a question of leg research. If you go to the first
page of the bill, I just wonder why they drafted it that way. In
the English section they refer to the French part of the bill,
and in the French section to the English part of the bill. Am I
missing something?
1650
The Chair:
I think your question should actually go to leg counsel, not
research.
Mr Bisson:
Sorry. Wrong person.
I'm just reading the bill.
It says: "`Great Lakes system' includes the Great Lakes, any
navigable waters connecting the Great Lakes," etc, and in
brackets, "réseau des Grands Lacs." Oh, it's OK. Sorry.
Don't go there. It's fine. I've answered my own question. If I
had read further, I would have understood what you were
doing.
The Chair:
Any further comments on section 1 of the bill? Seeing none, I'll
put the question. Shall section 1, as amended, carry? It's
carried.
Any comments or amendments
on section 2 of the bill?
Mr Bisson:
Just a general comment, and I don't want to belabour this, but I
have some concerns about trying to do this from strictly a
provincial standpoint. I understand what you're trying to do
here. You're trying to push the debate to the point of getting
the feds to respond, and hopefully they're going to do what needs
to be done. But I just want to put on the record as a New
Democrat that I support what you're doing in intent, but I really
believe we need to have a national policy that also deals with
the United States, so that we have a policy that is more in
keeping with trying to deal with the issue not just from
Ontario's jurisdiction but from a national one. I commend what
you're trying to do. You're trying to push the yardstick, I
guess.
The Chair:
Any further comments?
Mr Levac:
If it's permissible I'd like to ask Mr Ouellette that question to
see whether he agrees with the Chamber of Maritime Commerce and
the people who have made presentations today regarding the
concern they have of piecemeal legislation with all the
stakeholders versus the attempt to get the one body involved in
all of the negotiations. Could you comment on that?
Mr
Ouellette: As the Chamber of Maritime Commerce had
mentioned, there are guidelines out there. According to them,
they're being adhered to. According to others, there is not
compliance. If they're being adhered to, in their eyes, then it
shouldn't be a problem passing legislation that's already being
adhered to.
The reality is that the
feds have not drafted legislation that is going to take care of
problems regarding zebra mussels or the spiny water flea. I might
add, spending quite a bit of time on Lake Ontario, that I never
actually saw spiny water fleas until two years ago. That was the
first time I had ever seen them. That's from 1986 to 1990, and I
was on virtually three or four times per week.
The intention is that
somebody has to take the lead on this, and quite possibly it
should be the province. This is minimal legislation. This is a
way which doesn't exclude the feds from drafting legislation that
says, "OK, you're going to have to do a little bit more than what
they say in the province of Ontario." The jurisdictions I spoke
to, all the states, were very clear that, yes, this would be a
very good minimal thing we should have. So even if further
federal legislation is drafted, this should be part of that
package.
Mr Levac:
May I continue, Mr Chair?
The Chair:
Absolutely.
Mr Levac:
Were you hearing, then, from your presentations-and you've given
us reason to believe you've been in concert with a lot of the
states that were involved in this-that they feel the same way
about their federal government in terms of looking for
leadership, and once that's done they too believe the federal
government on the United States side would co-operate and start
looking at getting together with the Canadian side?
Mr
Ouellette: Yes. I mentioned a quote from Senator Sikkema
when I was there, if I can quickly find it. Actually I can't, but
he goes on to say that in that the federal government in the
States as well is not proceeding with legislation that protects
the Great Lakes, then somebody else has to.
Mr Levac:
I'll continue, and instead of questions maybe make a statement or
two. Just the fact that number 2 applies directly to the Great
Lakes, it also includes the impact it has in the United States
and has an impact on what the federal government does and on what
the federal government in Canada does. Maybe an observation:
Success has been very long coming when the federal government is
used as a whipping boy versus "Come to the table; we need to
discuss this." Have you designed a tactic that you believe would
be successful in getting your federal partners to the table? Have
you been lobbying, or have you done anything that has tried to
get them, because my understanding is-Mr Streeter has made it
clear to me in his presentation, and I have nothing to go against
his word-that they are indeed doing something as opposed to
nothing. I want to make sure I could bring that together with
some kind of conscience that says: "Yes, we understand what Mr
Ouellette is doing. We believe his track is the correct one." I
would concur with my colleague from the NDP that the environment is of utmost
importance to all of us, and that there's a way to get them to
the table.
Mr
Ouellette: As the Chamber of Maritime Commerce has said,
this is the first bill that is out there. We contacted every
jurisdiction on the Great Lakes, and none of them to date had any
legislation coming forward at all. It wasn't until this bill came
forward that we received a response. There may have been
something going on. Quite possibly, jurisdictions didn't want to
tell us it was going on. But we did contact every jurisdiction on
the Great Lakes. As the Chamber of Maritime Commerce said, it
wasn't until this first bill that they saw a flurry of them
coming out afterwards.
Mr Levac:
Thank you for that. Along with that, then, my comment would
be-and I'll say it guardedly, because that's what I did the last
time I spoke in this room-if the intent is to get the best
possible legislation for us, and if the intent is to pull us all
together to create the environmental legislation that is needed,
and I don't think anyone denied that legislation was needed, then
I support the bill. Mr. Ouellette knows-we spoke
before about this-that I know and appreciate his intent, and I
support it. However, that being said, I do want to say guardedly
that my concern lies with creating another battleground with the
federal government simply because that's the appropriate thing to
do on an ideological base, versus what's good for the
environment. I'll make that statement very clear and
straight.
The Chair:
Thank you, Mr Levac. I think you'll find that one of your
colleagues, Mr Patten, would be the first to suggest that private
members' bills can become the foundation for something bigger and
more encompassing, as he did with his bill on the changes
necessary to the Mental Health Act.
Mr Levac:
I appreciate that, and that's what I'm basing it on: the fact
that Richard and I had a discussion about that, and our hope and
desire is to try to see another way to do things.
The Chair:
Thank you very much.
Any further comments on
section 2? Seeing none, I'll put the question. Shall section 2
carry? Carried.
Seeing that we have no
other amendments tabled before us, I'll ask the question for all
the remaining questions. Shall sections 3 through-
Mr Bisson:
Question on 3.
The Chair:
OK. Any comments on section 3?
Mr Bisson:
I just want to make sure I understand what you're doing here. If
I understand what you're doing by way of this bill, technically
it's to say that it would force operators of ships, when in
Ontario waters, to basically adhere to the water control
guidelines. That's all you're really doing.
Mr
Ouellette: No. Section 3 specifically-if I may, Mr
Chair?
The Chair:
Absolutely.
Mr
Ouellette: You'll notice it says "shall not dock ... at
a provincially or privately owned dock...." That excludes federal
ports. This is not an intent to enact-
Mr Bisson:
I don't think you follow my drift. That's not where I'm going.
What I'm saying is that what you're trying to do is that if the
shipping operators are not doing what they should do, according
to the guidelines, you have an authority provincially to force
them to do it by way of penalty. That's all you're doing here.
You're not invoking a new technology or anything like that.
Mr
Ouellette: That's right.
Mr Bisson:
It's pretty innocuous. I don't get why they would be opposed to
that. Basically, that's what they're supposed to do in the
first-don't the feds enforce their own guidelines?
Mr
Ouellette: They're only guidelines, and there is no
stipulation that you must comply with the guidelines, although
it's a guideline that's expected. My understanding from when I
was in the States and we spoke about the US Coast Guard was that
the waybills and that dictate where and who and how the ship will
be inspected.
Mr Bisson:
But let me understand something-and I wish the gentleman from the
chamber was still here. If I understand how this works, he was
mentioning there were occasions last year when they sent a couple
of ships out of the port of Montreal because they didn't meet the
guidelines, so they sent them back down river to redo their
bilges. They must have done that through some sort of
authority.
Mr
Ouellette: The US Coast Guard is doing the inspection in
Canada.
Mr Bisson:
In the port of Montreal?
Mr
Ouellette: Yes.
Mr Bisson:
I didn't know that.
Mr
Ouellette: They could be coming through there, and
they're still being inspected there. We didn't ask that question,
or didn't ask where that ship was destined. If it was a US port,
then they would have had that authority.
Mr Bisson:
I'm just wondering. I guess where I'm coming from is that I would
think that if there are water control guidelines when it comes to
how you deal with bilge water, then there would be some sort of
authority by the federal government to act on that if they're not
following the guidelines. All you're attempting to do, in
facilities that are under the jurisdiction of the province, is
make sure we have the ability to enforce their guidelines, and
not create a new set of guidelines at this point.
Mr
Ouellette: Essentially, yes.
Mr Bisson:
All right. Then I'm going to have a question when we get to
section 5. I'm all right with 3. If that's what you're doing, I'm
fine with it. Nothing new?
Mr
Ouellette: No.
Mr Bisson:
OK, thank you.
1700
The Chair:
Any further comments? Seeing none, I'll put the question. Shall
section 3 carry? Section 3 is carried.
Are there any comments or
amendments on section 4?
Mr Bisson:
Just give me a second. I read something here. Under your (b),
what are you trying to get at here? I understand what you're saying under (a) and (c).
You're saying if there was-
The Chair:
On section 4?
Mr
Ouellette: I think that was section 3, Mr Bisson.
Mr Bisson:
I'm sorry. I allowed it to skip by. Too late. We already did 3. I
can't raise it.
Mrs
Bountrogianni: Is $10,000 enough?
Mr
Ouellette: I wouldn't think so.
Mrs
Bountrogianni: Do you want to make it more?
Mr Bisson:
I'd be interested to hear leg counsel, because that was my
question. I imagine the $10,000 comes from somewhere. It has to
be within the ballpark of what these offences are worth when it
comes to statute, right? Is that why this $10,000 is there?
Mr James
Flagal: It's open to a committee to impose what penalty:
$10,000 is a particular amount that will appear in several
provincial offences statutes. But if you look at stuff like the
Environmental Protection Act or Ontario Water Resources Act or
something like that, you'll see far higher amounts.
Mr Bisson:
It's her question, so I should let her do it.
Mrs
Bountrogianni: It's OK. This is good. I learned
something. Coming from Hamilton and knowing that the fines for
the steel company didn't necessarily do anything for a long time,
I'm just asking, from your experience, is $10,000 enough to
deter?
Mr
Ouellette: I don't think so. The reason I say that is
because of the legislation on geoscience that I'm working on.
There was a clause in there that we brought in for repeat
offenders. You'd need to be able to increase that. At that time,
I hadn't anticipated that in the legislation. Increasing it would
allow courts to decide, for second- and third-time offenders,
whether it was necessary.
Mr Levac:
Then I would look to maybe adding to that now and seeking some
kind of quiet eye contact for guidance on this. I, too, believe
that if one company is responsible for repeat offences, they're
snubbing their nose at $10,000 saying: "That's chump change.
Let's just keep paying the $10,000. We get to do what we want to
do." I would respectfully suggest then that an amendment would
read, "And subsequent to second and third offences, the fine
increases"-
Mr Bisson:
Doubling each time?
Mr Levac:
-"double each time." I would defer to leg authority to say
whether or not those things are doable, but I'm assuming they
are.
The Chair:
I would certainly tell you that the amendments are acceptable.
You could ask leg counsel to craft one that respects the intent
that's just been brought forward. While he does that, Mr
Bisson?
Mr Bisson:
My question is to leg counsel and he's trying to draft an
amendment.
The Chair:
Go ahead, please.
Mr Bisson:
I'm going to come back to the point that I was making. In various
bills where we've dealt with the issue of fines, the way I
understand it is, if you make the fine out of sync with what the
other statutes are for similar types of things, the judge will
just overturn the decision, right? Is that why the $10,000 is
there and why there's no doubling and all that?
Mr Flagal:
I don't understand. If it's not in the nature of a similar type
of statute?
Mr Bisson:
Yes. My understanding on various bills that we've dealt with is,
when we've tried to increase the size of the fine as a deterrent,
what leg counsel has told me before-and other committee members
as well-is if you make the fine out of step with what is
reasonable by way of other statutes, when the person who has been
charged goes to court, they can actually have the penalty lifted
on the basis that it's out of step, it's unfair or whatever. It's
too great.
Mr Flagal:
I'm not sure if I understand the concern. The particular statute
will impose a fine. Let's say it's a particular type of statute
that's similar to this one, this is an attempt to try and protect
against pollution of the water, as I understand it.
Mr Bisson:
Yes.
Mr Flagal:
A similar sort of statute may be included in the Environmental
Protection Act.
Mr Bisson:
What is the range of fines in there?
Mr Flagal:
If you give me a second, I can quickly go get that.
Mr Bisson:
You follow my point, because we've been here before, where
basically you try to get a fine increased in a bill and you could
end up biting your nose to spite your face if the fine is out of
sync. That's my understanding.
Mr Flagal:
Under the statute the court is faced with the offence that's
before it and the sentencing provision that is before it. I can't
think off the top of my head of a particular situation where a
defendant can say-just as an example; this is not the case-"But
just a second, the Ontario Water Resources Act provides a fine
which is much less," and this would be somehow unfair. With
respect to the environmental laws, with respect to what sentence
is provided, I can get that very quickly, if you'll just give me
a second.
The Chair:
Fair enough.
Mr Bisson:
Maybe we can move on to section 5.
Mr Levac:
I was going to say that to expedite what's going on, I don't mind
coming back to this, but I don't want it to leave the table. I'll
tell you why. If it speaks to the intent and the integrity of
what it is we're trying to do, I personally believe that if we're
going to give a $10,000 fine, and it's going to be laughed-I'm
speaking to my integrity of why I'm supporting it. I need to come
back to this to make sure we're headed down that path. I
understand what you're saying, but I'm saying, if that indeed is
the case, then we'd better start moving all of them up.
Mr Bisson:
I remember we got into this debate on a couple of bills before,
actually in the last Parliament, where we were trying to deal
with the issue of a penalty. What we were told at the time was,
if we made the penalty so great that it was out of step with what
was reasonable by way of other statutes, the judge would just
look at it and say,
"This is a badly drafted law," and could decide to do
anything.
The Chair:
I think there's consensus around the table to stand down section
4 and await the response of the legislative counsel.
We'll move on to section 5.
Are there any comments or amendments to section 5?
Mr Bisson:
This is the crux of it. If I understand what you're doing here,
you're saying that by way of regulation you will be able to
develop new water control guidelines.
Mr
Ouellette: It's a standard drafting procedure to have
that in there, that the Lieutenant Governor in Council may draft
new regulations. The intention is not to draft new
guidelines.
Mr Bisson:
If it's not the intent, I'm just wondering. The way I read it, it
says, "May make regulation prescribing ballast water control
guidelines."
Mr
Ouellette: Regulations have to be established for the
piece of legislation. However, those regulations will be worked
through in conjunction with what currently is-
Mr Bisson:
I just want to be clear about what I'm doing here. This is not to
give power to the bill to go out and create our own set of water
control guidelines outside of what's going on in other
jurisdictions?
Mr
Ouellette: No.
Mr Bisson:
Then I need to get leg counsel to let me know if that's what
happens here, or maybe Jerry, if he can help. I don't know. I
know it's a standard-
The Chair:
I think we'd best stand down this section as well until leg
counsel has returned. Do committee members agree? Agreed.
That takes us to section 6.
Any comments or amendments to section 6 of the act? Seeing none,
I'll put the question. Shall section 6 carry? Carried.
Section 7 of the act: Are
there any amendments or comments? Seeing none, I'll put the
question. Shall section 7 carry? Carried.
Shall section 8, the short
title of the bill, carry?
Mr Bisson:
We're calling the act the Great Lakes Environmental Protection
Act.
Mrs
Bountrogianni: It's a little too much, isn't it? We
aren't really protecting the Great Lakes; we're doing a small bit
to protect the Great Lakes.
The Chair:
I thought I heard "Carried" already.
Mr Bisson:
Whoa. You never said, "Any discussion or comments?"
The Chair:
OK, then we'll ask the question again. Are there any further
comments?
Mr Bisson:
Yes. I'm just wondering if you're averse to just changing the
title to something dealing with bilge water. Do you know what I
mean?
Mr
Ouellette: Ballast; bilge is different again.
Mr Bisson:
Well, I'm not a seafarer; I'm a pilot. It gives you the
impression this is a bill that deals with the encompassing issues
of-
Mr
Ouellette: Quite possibly we should stand that down,
because it was leg counsel who recommended that be the name of
it.
Mr Bisson:
I'm not wedded; that's fine. I'm not going to worry about it.
The Chair:
Any further comments?
Seeing none, I'll put the
question. Shall section 8, the short title of the bill, carry?
Show of hands.
All those in favour?
Opposed? Section 8 is carried.
Shall the preamble carry?
Carried.
Shall the title carry?
Carried.
With that, we'll take a
short recess and await the return of legislative counsel.
Mr Bisson:
Can't we go on to the next item? We had a motion.
The Chair:
If that's the will of the committee, we could certainly do
that.
Mr Bisson:
We could get that out of the way, right, Toby? I'm asking
unanimous consent that we can move on to-
The Chair:
That we would stand down further consideration of Bill 15 in
abeyance until the return of legislative counsel?
Mr Bisson:
Yes.
The Chair:
The committee agrees with that? Agreed.
COMMITTEE BUSINESS
The Chair:
Mr Barrett, I believe you have something for us.
Mr Toby Barrett
(Haldimand-Norfolk-Brant): I have a notice of motion. On
behalf of Ted Chudleigh, MPP, Halton, I move that pursuant to
standing order 124 the committee consider establishment of new
legislation, entitled the Professional Foresters Act, 2000.
The Chair:
Thank you. Any discussion?
Mr Bisson:
Only to say this is long overdue and you'll have support from us
at 110 miles an hour.
The Chair:
Thank you very much. Mr Levac.
Mr Levac:
Does this motion give us direction as to when we plug that into
the timetable of when we deal with that?
The Chair:
Yes, the subcommittee had agreed we would deal with it this
Wednesday. But we need this motion passed to empower the
committee, under standing order 124, to deal with it.
Mr Levac:
That's why I mentioned it, because I wasn't sure how it clicked
it. Now that I know that, no problem.
The Chair:
Thank you very much. Further discussion?
Mr Bisson:
For the record, I just wanted to say that the NDP is supportive
of trying to speed this thing up. There have been various
attempts by members to deal with this over the last 10 years that
I've been here. Unfortunately, all governments since I've been
here have not supported this, so let's hope that yours does, even
though you guys voted against it last time.
The Chair: Any further discussion?
Seeing none, I'll put the question. All those in favour of Mr
Barrett's motion? Opposed? The motion is carried.
Again, pursuant to the
discussions of the subcommittee we will consider standing order
124, the request for a new Professional Foresters Act, 2000, at
the next meeting. The clerk advises me we already have seven
groups that have expressed an interest in speaking to that
bill.
Having dealt with that and
still awaiting the return of legislative counsel, the committee
will stand in recess until his return.
The committee recessed
from 1712 to 1731.
GREAT LAKES ENVIRONMENTAL PROTECTION ACT, 1999 /
LOI DE 1999 SUR LA PROTECTION ENVIRONNEMENTALE DES GRANDS
LACS
The Chair:
I call the committee back to order for the purpose of considering
Bill 15. When we broke, Mr Flagal was seeking to get answers to a
couple of questions that had been posed and to craft a couple of
amendments which might deal with the concern about the fine
structure.
Let's start by getting
section 4 back on the table. Are there any comments on section 4
of the act?
Mr Levac:
As this has been modified, can I assume then that the research
was done to show that it is doable, to Mr Bisson's question?
Mr Flagal:
Yes. I checked with legislative counsel. If this is a private
member's bill, which can provide offences just like a government
bill, the question was posed, "What happens if the fines are out
of sync with the statute that regulates matters of a similar
area?"
That is fine. There is no
problem in providing a different penalty. I think there is
convention in drawing upon a particular amount and people will
say, "What is the sort of practice?" That's just a practice. It
doesn't necessarily mean that if a private member feels that a
matter requires a particular type of penalty they cannot impose
it in the bill. They can.
That's what I think got
confused; $10,000 is often the practice, I guess you would say,
for many bills that come forward. But if you wanted to look,
let's say, at a statute-in this case, I'll look at the Ontario
Water Resources Act-and provide for the similar type of penalty
as imposed under that particular act, you can.
Mrs
Bountrogianni: Now I agree with the title.
Mr Levac:
Thank you for that.
Interjections.
Mrs
Bountrogianni: I'm serious.
Mr Levac:
With a nod from Mr Ouellette, if that satisfies what it was we
were talking about when I asked the question about a friendly
amendment or an amendment to what the act is, if that's
acceptable, I would it move it.
The Chair:
Mr Ouellette, if you're amenable to that, Mr Levac is prepared to
move this amendment. I'd like to hear discussion.
Mr Levac:
I guess what I'm trying to do is make this as friendly and
portable as possible in terms of what our intention is here for
the environment.
Mr
Ouellette: Yes, that's fine.
The Chair:
Thank you. Mr Levac, if you'd like to read the amendment into the
record.
Mr Levac:
I move that section 4 of the bill be struck out and the following
substituted:
"4(1) Every individual who
contravenes this act is guilty of an offence and is liable,
"(a) on a first conviction,
for each day or part of a day on which the offence occurs or
continues, to a fine of not more than $20,000; and
"(b) on each subsequent
conviction,
"(i) for each day or part
of a day on which the offence occurs or continues, to a fine of
not more than $50,000,
"(ii) to imprisonment for a
term of not more than one year, or
"(iii) to both such fine
and imprisonment.
"Penalty: corporations
"(2) Every corporation that
contravenes this act is guilty of an offence and is liable,
"(a) on a first conviction,
for each day or part of a day on which the offence occurs or
continues, to a fine of not more than $100,000; and
"(b) on each subsequent
conviction, for each day or part of a day on which the offence
occurs or continues, to a fine of not more than $200,000.
"Directors, officers'
liability
"(3) A director or officer
of a corporation who caused, authorized, permitted or
participated in an offence under this act by the corporation is
guilty of an offence and is liable,
"(a) on a first conviction,
for each day or part of a day on which the offence occurs or
continues, to a fine of not more than $20,000; and
"(b) on each subsequent
conviction,
"(i) for each day or part
of a day on which the offence occurs or continues, to a fine of
not more than $50,000,
"(ii) to imprisonment for a
term of not more than one year, or
"(iii) to both such fine
and imprisonment."
The Chair:
Is there any further debate on the amendment? Seeing none, I'll
put the question. All those in favour of the amendment?
Carried.
Shall section 4, as
amended, carry? Section 4, as amended, is carried.
That leaves us with section
5. Any further comments or amendments to section 5?
Ms Shelley Martel
(Nickel Belt): Mr Chairman, my colleague is replacing me
in the House and I'm replacing him down here. Let me ask this
question. He may have gotten to it, and I apologize if he did; I
don't think so.
His question was why we
would really need section 5, which would actually provide the
government with regulation-making power, if the intent of the
legislation was really
to make sure that shipmasters adhered to federal guidelines that
have been adopted by the Canadian Coast Guard and to make sure
that if they docked at a provincially owed dock or at a privately
owned dock or wharf in the Great Lakes those guidelines would
then apply. My question then would be, if that's all we're doing,
why do we need a provision which would allow the Lieutenant
Governor-ie, cabinet-to make additional regulation?
The Chair:
I think he wanted that question posed to Mr Flagal, who had
already left the room to do his research on section 4. I don't
know if you've caught the gist of the question.
Mr Flagal:
It's on authority to adopt these water control guidelines. If the
Lieutenant Governor in Council is of the opinion that it just
wants to adopt, by reference, the guidelines adopted by the
federal government, it can. So in answer to your question, I
guess a way for them to make those guidelines binding through
this piece of legislation-and those are the standards they want
to follow-is by adopting. It doesn't say that's something they
have to do, but that is one of the things they could do under
section 5.
Ms Martel:
But if you were going to do that, and I was given to understand
that was the intent, why wouldn't you then give the Lieutenant
Governor the power to do just that and state right in section 5
what guidelines it is you're referring to? So that you shut the
door on other regulations that probably have not been discussed
here, because I suspect what has been discussed is coast guard
regulations, and you make it absolutely clear what you're
expecting the government to implement.
Mr Flagal:
If that's a policy choice, if that is something this committee
wishes to do, if they want to adopt through this legislation
those guidelines, and that's what needs to be conformed with,
then I need to see those guidelines with a title and that section
would have to be redrafted to say they have to act in accordance
with those guidelines. OK? That's what would have to happen. I
haven't seen those guidelines. If those guidelines exist, and I'm
sure they do, great. Then instead of giving a regulation-making
authority to cabinet, section 5 can just say, "The guidelines
shall be X." It may need a restructuring. I'd have to look at the
bill again to see whether or not it needs a restructuring. But if
that is your intent, as opposed to leaving it to the Lieutenant
Governor in Council to adopt the federal guidelines, I'd have to
look at the bill. I have not been presented with those
guidelines.
1740
Ms Martel:
Maybe I can ask one other question. I wasn't here for the debate,
and I don't know what Mr Ouellette's intentions are or were.
Maybe you can just describe if that was the sum total of it, and
if that's the case, if we can move to find a way to put that
section in so that the government will comply with those
guidelines.
Mr
Ouellette: The intention is to make sure that there's
mandatory compliance. However, should the guidelines entirely
change, are we able to change anything here to make sure that is
a minimal compliance we can stay with? Do you understand?
Ms Martel:
Yes.
Mr
Ouellette: The one thing I would commit, in the same
fashion that we worked together on the amendment on section 4, is
that during the regulation process I would be happy to sit down
with the opposing parties and have it on record to work on
regulations to ensure that that's what is taking place.
Mrs Munro:
I guess this question that I'm posing is really more correctly
addressed to legislative counsel. Given the discussions that we
had this afternoon from those presenters, it seems to me the
issue is that the science that would go into any regulation is
not yet at a point where there is consensus. We heard
considerable discussion about various options. So it would seem
to me that what we should be doing is allowing in this part of
the bill an opportunity to provide an avenue for what might come
to be regarded as the right way to go in terms of this
environmental issue. I don't have the sense that there is that
consensus at this point.
The Chair:
Mr Flagal, do you wish to respond to that?
Mr Flagal:
The regulation-making authority in section 5 is very broad. It
simply states, "The Lieutenant Governor in Council may make
regulations prescribing ballast water control guidelines." That
would mean that whatever practice, as I can see from section 5-if
a consensus is ever found or if the province decides that these
are the practices it would like to see adopted, then it can
prescribe those in the guidelines. Section 5 doesn't prejudge an
outcome; it simply provides authority.
Mrs Munro:
But I think that's really important at this point, given the
kinds of things we heard in relation to the discussions that are
taking place as to the mechanics, the science, the use of
biocides, the use of ultraviolet and so on. I don't think it's
the intent of this piece of legislation to lock in. In fact, I
think it's supposed to be broad for that reason.
Mr Levac:
I believe Mrs Munro's observations are correct in that what we've
heard are concerns as to which methodology is going to be used,
and indeed there could be even new science coming up that helps
us solve that problem. However, I do want to point out that I
believe what Mr Bisson was getting at was-I believe I heard this
and maybe you can correct me if I'm wrong-that the federal
statutes would supersede this anyway in terms of jurisdiction. I
think if we tied the federal government's concerns into section
5, we would then be addressing whether or not the federal
government is introducing those new scientific methodologies,
because I'm going to assume that once the process starts, the IMO
and the federal governments on both borders are going to be
adopting these new sciences. They will be looking at these all
along. We were told today that Mr Streeter and the companies are
all still working together in trying to find and use these new sciences that do two
things: first of all, address the problem, which is what we're
all talking about, and second, don't infringe upon their
abilities to perform their industrial jobs without bringing
corrosion to their ships and without costing an exorbitant amount
of money for those efficiencies.
That being said, I would
also like to then say, why not something to the effect of, "The
Lieutenant Governor in Council may make regulations prescribing
ballast water control guidelines as adopted by the federal
jurisdiction for the purpose of this act"? Does that not address
what Mr Bisson's saying and also give as much freedom as possible
because it shrinks a little bit what Mr Flagal is saying? You're
saying it's very broad, and I do read it that way, that anything
that comes along, the provincial government can turn around and
say, "These are the guidelines for ballast control."
Mr Flagal:
There's one thing I need to point out about adopting guidelines
that you may want to think about, and that is, guidelines are
often written in guideline form and may not be binding in the way
they're expressed. I'll give you an example. It may use a lot of
permissive language: "A master may" or something like that.
They're fine for that-I can think about adopting the federal
government guidelines-but before you take guidelines and just
say, "We're going to adopt them," it's important to study the
guidelines and the content of them to make sure that they create
duties and that they are enforceable. The reason I say this is
that often when you take guidelines and you want to make them
into regulation-and you see that done sometimes within the
province, that a guideline will often get turned and you say,
"We're going to create duties and make people test water," for
instance, or something like that. You have to make sure that the
regulation imposes those duties.
I simply point that out
because I have not seen the guidelines, I cannot tell you what
sort of duties those guidelines impose on people, and that is why
I think there was an attempt to leave it as section 5 is couched
right here, because you may want to take those guidelines and
say: "Let's look at them. You want to know something? This is
permissive, but we may want to make this mandatory, as a
requirement, or clarify the language of what may be."
Mr Levac:
I can appreciate that explanation. I was just trying to put
something out there that would address both of those concerns.
It's pretty hard to marry both of them because one says, "No, you
have to have complete freedom," and the other one says, "But we
want to bring that down a little bit and not give so much
regulatory power under that section." I'm just trying to find
that ground on which we can do both, because I do understand both
sides of that. It's trying to find out what it is that marries
that, but I don't think it's going to be. I just brought it out
there to discuss, so I'll defer to my colleague across the
way.
Mr
Ouellette: As mentioned by Mr Streeter, they are
voluntary guidelines. That's one of the difficulties right now
with the federal legislation. That's why there is such a strong
concern, that they are voluntary, which necessarily doesn't mean
they have to have compliance. So are we going to draft
legislation and bring it forward where we don't really need
compliance?
The Chair:
Ms Martel, I'll offer it to you because, to be fair, you weren't
here for the earlier presentations. The members of the committee
received a packet that does outline the guidelines. I would
think, just from a legal viewpoint, that the wording would have
to be changed. So I don't know what you're suggesting when you
say just adopting them captures that reality. In other words, as
they are currently written, by using words like "voluntary" they
would be inconsistent with the other sections of the act we've
already passed, because this is not a voluntary procedure we're
dealing with here.
Ms Martel:
My only question then would be, why in the preamble does it say,
"If ocean-going ships adhere to appropriate guidelines, such
as"-and we list the Canadian Coast Guard ones-"it should reduce
the probability of additional non-native species being
introduced." I read that and I assume someone has looked at and
assumed the guidelines are going to do something positive. If
that's not the case, if they're only voluntary and we have some
concerns about how stringent they really are, then I think your
preamble is just a little bit misleading. All I'm trying to get
at is, if the focus was to use at least these guidelines as a
starting point, then why can't we find a way to say that? If
you've got this concern that the guidelines aren't that great,
then you've got a problem with the preamble that basically says,
"If you follow these, we're going to reduce some of this stuff."
I just see a contradiction there. I'm sorry that I missed the
debate, but I just see a real contradiction there.
Mr
Ouellette: The explanatory note is for the guidelines
for this bill, not the federal ones, so it doesn't specifically
say the federal guidelines here; it just says "water control
guidelines prescribed by regulations," which is enacted through
section 5.
Ms Martel:
But if I look at your preamble-
Mr
Ouellette: Not the explanatory note?
Ms Martel:
The preamble is very clear, right? Your preamble says, "Great
Lakes Ballast Water Control Guidelines of the Canadian Coast
Guard." Maybe I'm assuming incorrectly that-
Mr
Ouellette: I thought you were referring to the
explanatory note.
Ms Martel:
I'm looking at the preamble.
1750
Mr
Ouellette: Obviously it's legislative counsel who
drafted the preamble for this, the "such as the Great Lakes
Ballast Water Control Guidelines."
Mrs Munro:
"Such as" is not an exclusive list. It's like, "for example," and
I think that's the whole rationale behind section 5.
Mr Levac:
Which makes me come back to the comment that I made then. I'm not
necessarily challenging you, but if "The Lieutenant Governor in
Council may make regulations prescribing ballast water control
guidelines for the
purpose of this act," the fact that we are taking a look at that
particular federal guideline doesn't necessarily mean that the
regulations have to actually adhere to that. It means that you
may make regulation. It's got these guidelines in. As you said,
they're voluntary and they're guidelines, but what would prevent
that? Is it just narrowing the spectrum, that it says you only
speak to the federal guidelines?
Mr Flagal:
The problem is the use of the word "guidelines." "Guidelines"
does usually imply voluntariness but guidelines may be
enforceable if they're adopted by regulation and therefore have
the force of law. The perfect example is that prior to the
Canadian Environmental Assessment Act, there was the
environmental assessment review process, which was a guideline.
Then a court said: "Hey, it's a guideline, but it actually has
been adopted in a mandatory way by order in council by cabinet.
It's compulsory." So it can be made compulsory. You can adopt the
federal guideline by the regulation. If the Lieutenant Governor
in Council wanted to do something more-it's an open
regulation-making power-it could.
Mr Levac:
Which is why I'm saying, why couldn't you add that then and just
know that's their power, that they have that power?
Mr Flagal:
To adopt?
Mr Levac:
To adopt other regulations.
Mr Flagal:
To adopt other regulation? That's what I'm saying. "The
Lieutenant Governor in Council may make regulations prescribing
... water control guidelines for the purpose of this act." Water
control guidelines means the guidelines prescribed by regulation.
You get in this wonderful circle and when the circle ends, the
standards are in the regulation. They're just like any other
standards. These ones happen to be called "guidelines." They
could be the federal guidelines. Let's say you like a part of the
Michigan guidelines, that you find that quite attractive, a
component that you wanted to include. You can incorporate some of
the Michigan elements. I mean, it's wide open.
Mr Levac:
I understand that completely and I think what I was just trying
to do in entering the debate was to try to rest assured Mr
Bisson's comments about having other regulatory power beyond
what's being established by these bodies. I think he sees it as a
way more open-ended legislative power that he was bringing up as
a concern. All I was trying to do was to find out whether or not
there was a way to include the discussion and narrow it. It
doesn't sound like that's happening, so I'll leave it at that for
myself.
The Chair:
Any further comments?
Ms Martel:
I'll just close by saying this: It seems to me that if it was
important enough for the guidelines to be specifically named in
the preamble as a mechanism by which, if implemented, they could
reduce non-native species from being introduced, then the least
you would want to do in the regulation section is ensure that as
a minimum those same guidelines are ones that have to be adopted
by cabinet. That's my only point. For whatever reason,
legislative counsel had them included, named specifically, in the
preamble as a measure that would reduce this problem. My
suggestion would only be to find some way to make sure that, as a
minimum, they are the least that cabinet has to do. Right now, as
I read section 5, cabinet wouldn't even have to adopt them.
Correct?
Mr Flagal:
No, they're not-
Ms Martel:
So why bother referring to them specifically then in the
preamble? But hey, I didn't come down here to cause problems
today; I'm just saying I think it would strengthen your preamble
if they were included in some way there.
The Chair:
Any further comments? Seeing none, I'll put the question. Shall
section 5 carry? Section 5 is carried.
Shall the bill, as amended,
carry? Carried.
Shall I report the bill, as
amended, to the House? Agreed.
That finishes off our
considerations of Bill 15. Thank you, everyone.
COMMITTEE BUSINESS
The Chair:
Now we get to the last little bit of housekeeping, Mr Barrett's
bill. After the standing order 124, we had agreed we're moving
through our private members' bills in sequence. Mr Barrett's bill
would be next. I believe you had a request for us?
Mr
Barrett: Just to get some advice and perhaps a decision
from this committee. Bill 13, the Ontario Marine Heritage Act,
also known as the shipwreck bill, is before this committee. Over
the winter I received maybe 170 e-mails on it. I've written
letters to well over 200 dive clubs and individuals. I feel it's
very important to have a bit of consultation on this bill. Given
the interest out there in the community, from all the Great
Lakes, I thought it was important that it not just go through
this committee and, if I can use the phrase, be
rubber-stamped.
I would like to request
advice from this committee or a decision that we could advertise
and receive deputations on this bill. I'm suggesting on into the
summer, if the committee was agreeable to this, to visit a Lake
Ontario port. I know Mr Gerretsen has had a lot of feedback down
in the Kingston way; Owen Sound is a federal dive site. Many of
those sites have been stripped, unfortunately. There's a lot of
interest at my own lake, Lake Erie. So I'm suggesting we visit a
couple of ports in late summer. I would ask the committee to
perhaps make a ruling on that.
The Chair:
I think what would be appropriate for the committee, because we
are not normally empowered to meet when the House is not meeting,
is to request the House leaders to consider a motion that would
allow the committee to meet for up to three days of hearings
during the intersession for the purpose of holding public
hearings on Bill 13. Then the subcommittee can deal with the
substance.
Mr Levac and I were speaking earlier, and based
on the responses you get to an advertisement on the parliamentary
channel and on the Internet, we could then determine the whys and
wherefores. But at this stage, I think the question to be posed
is whether we are interested in asking the House leaders to
consider acceding to such a motion.
Mr Levac:
I would move that we send that request to the House leaders.
Ms Martel:
I agree.
The Chair:
I don't see any heads in opposition, so all those in favour of Mr
Levac's motion that we seek that approval from the House leaders?
Contrary, if any? The motion is carried. The clerk will please
send a letter to that effect to the House leaders with all great
haste.
The timing was perfect.
Seeing as it's 6 o'clock, the committee stands recessed until
3:30 this Wednesday.
