Canada: Maritime Law Newsletter - An Annual Summary Of Key Canadian Legal Developments

Introduction

2018 was another active year in Canadian maritime law. The federal Government's Oceans Protection Plan (OPP) has continued to spur legislative, regulatory, and policy changes in a number of areas, ranging from the proposed Wrecked, Abandoned or Hazardous Vessels Act, to the proposed Oil Tanker Moratorium Act, to various regulations and policy initiatives aimed at protecting marine wildlife. Numerous important legal decisions concerning maritime law and related admiralty practice areas were also rendered in 2018. Additionally, the legalization of recreational-use cannabis in Canada has created multiple new obligations at all levels of the maritime industry.

A. Policy Developments

1. Pilotage Act Review

The Government's review of the Pilotage Act, R.S.C., 1985, c. P-14, was completed in Spring 2018. The Pilotage Act was originally enacted in 1972, following the Royal Commission on Pilotage. The Pilotage Act provides the legislative framework for pilotage services in Canada and establishes the four Pilotage Authorities as Crown corporations: the Atlantic Pilotage Authority, the Great Lakes Pilotage Authority, the Laurentian Pilotage Authority, and the Pacific Pilotage Authority.

The Pilotage Act has been reviewed several times since its inception, either as a stand-alone subject or as part of a wider review of transportation issues. Although there have been several recommendations for reform, there was only one set of substantial amendments made in 1998. Otherwise, the majority of the Pilotage Act is largely unchanged. According to the Government of Canada, the primary purpose of the current Pilotage Act Review is to "modernize the legislation to better align with the existing and future realities of the marine transportation system".

The Final Report makes 38 recommendations categorized under the themes of purpose and principles, governance, labour, safety framework, tariffs and fees, and technical amendments.

Highlights of the Report include recommendations that:

• the Pilotage Act be amended to include the following:
  
  
  • A Preamble, setting out the rationale for legislative action and the linkages to the broader public interest, including environmental protection;
  • A Purpose clause that clearly outlines the government's legislative purpose of establishing a safe, efficient, responsive and accountable national system of marine pilotage as a regulated monopoly, as well as outlines the public outcomes the legislation is meant to secure; and
  • A statement of governing policy principles for the national marine pilotage system.
• the government make a commitment to developing and implementing a code of conduct for all licensed marine pilots;
• the Great Lakes Pilotage Authority and the Laurentian Pilotage Authority be amalgamated into the St. Lawrence and Great Lakes Pilotage Authority;
• one position on the Board of Directors of the Pacific Pilotage Authority be reserved for a representative from the Indigenous communities of British Columbia;
• the final offer selection process be amended so the arbitrator must consider the purpose and principles of the Pilotage Act when making arbitration rulings;
• the Pilotage Act be amended so all pilot corporations, as monopoly service providers, be subject to greater levels of transparency and accountability;
• the Pilotage Act be amended to provide the Minister of Transport, with the approval of the Governor in Council, the authority to make all regulations pertaining to pilotage safety, and that the Pilotage Act and its regulations have primacy over pilotage services contracts;
• the Pilotage Act be amended to provide the Pilotage Authorities with the authority to adopt and enforce binding practices and procedures related to the safe and efficient delivery of pilotage services;
• Transport Canada, as the independent regulator, establish a comprehensive set of key safety performance indicators;
• the government provide the necessary resources to develop the pilotage safety regulatory and oversight capacity in Transport Canada;
• the Pilotage Act enforcement provisions be amended to include an Administrative Monetary Penalty scheme that imposes higher penalties for serious violations;
• the Pilotage Act be amended to provide the Minister of Transport with the authority to regulate the conduct of pilotage risk assessments;
• the Pilotage Act be amended to establish an objective that Pilotage Authorities must optimize the use of new technologies;
• the Pilotage Act be amended to provide the Minister of Transport with the authority to require the Pilotage Authorities to publish their voyage plans and that the Minister of Transport exercise this authority;
• the Minister of Transport pursue an amendment to subsection 22(2) of the Pilotage Act to extend eligibility to all foreign masters and navigation officers for a pilotage certificate and subsequently terminate the Pacific Pilotage Authority waiver program and replace it with pilotage certification;
• Transport Canada implement and administer a standardized exemption scheme and stipulate the requirements in a new national regulation;
• Transport Canada amend the general fitness requirements in the General Pilotage Regulations (SOR/2000-132) and undertake a review of the processes for determining medical fitness of pilots;
• Transport Canada amend the Marine Personnel Regulations (SOR/2007-115) to formally recognize crew experience, training, and qualifications required under the Polar Code;
• the Pilotage Act grant the Pilotage Authorities complete authority to fix tariffs and other fees as is the case with NavCanada and the Port Authorities;
• the grounds for filing a tariff objection to the Canadian Transportation Agency be limited to compliance by the Pilotage Authorities with clearly specified statutory criteria (including Pilotage Authority operational considerations) and processes, and that only those subject to tariff charges, or their representatives and associations, be able to file objections;
• the Canadian Transportation Agency render decisions no later than 90 days after receiving a notice of objection;
• the Pilotage Authorities be authorized to fix fees for all other products and services provided by them.

2. Establishment of New Marine Refuges and Parliamentary Committee Report on Marine Protected Areas

The Parliamentary Standing Committee on Fisheries and Oceans released its fourteenth Report of the 42^nd Parliament: Healthy Oceans, Vibrant Coastal Communities: Strengthening the Oceans Act Marine Protected Areas' Establishment Process. The Report was presented to the House of Commons on June 11, 2018. The Report provides 24 recommendations relating to more effective designation and administration of marine protected areas.

On December 21, 2017, seven new marine refuges off the coasts of Newfoundland and Labrador and Nunavut were established by the Department of Fisheries and Oceans. These refuges represent an additional 2.53% of protected ocean, bringing Canada's current total to 7.75%. The OPP goal is to increase that percentage to 10%. The new area is made up of an additional 145,598 km² of protected ocean.

3. Comprehensive Economic and Trade Agreement

The Comprehensive Economic and Trade Agreement (CETA) is the free trade agreement between Canada and the European Union, provisionally applied since September 21, 2017. CETA will be in force once the parliaments in all EU Member States ratify the text. Chapter 14 of CETA introduces significant changes to Canada's coasting trade regime, which protects Canadian shipowners against competitors registered under foreign flags.

Under the Coasting Trade Act, S.C. 1992, c. 31, only Canadian-flagged vessels or duty-paid vessels can carry goods or passengers between two Canadian ports. Foreign shipowners must apply for a coasting trade license. CETA changes this framework because it gives preferential market access to EU shipowners. Under CETA, there are three activities that no longer require a coasting trade license if performed by EU vessels. First, EU shipping lines can now provide feeder services on both continuous and single trip bases between the ports of Montréal and Halifax, provided the service is part of carriage involving the importation of inbound goods into Canada or of outbound goods from the country. Second, CETA allows European vessels to transport their own empty containers as long as they do not derive a direct financial benefit from doing so. Finally, Canadian companies can now hire EU vessels for dredging anywhere in Canadian waters.

4. Cumulative Effects of Marine Shipping initiative

The Government of Canada will dedicate $9.3 million over the next five years to the Cumulative Effects of Marine Shipping initiative under the OPP. The initiative seeks to develop a new framework for assessing potential cumulative effects of marine shipping on the environment. It will be applied in six pilot areas: Northern and Southern British Columbia, the St. Lawrence River (Québec), the Bay of Fundy, the south coast of Newfoundland, and the eastern Arctic (Nunavut).

Under the initiative, Canada will work with Indigenous peoples, local stakeholders, and coastal communities to better understand Canada's coastal ecosystems. The information will allow Canada's marine safety system to be better equipped to support the marine shipping industry and protect the marine environment.

5. BC Government Clean Growth Future initiative: Clean Transportation

The Government of British Columbia has released an intentions paper, Clean Transportation: Building a clean growth future for B.C. The paper sets out the government's plans for:

• integrating transportation and land use planning;
• supporting electric or hybrid ferries;
• increasing use of clean electricity and technologies in ports;
• integrating cleaner and more efficient shipping corridors;
• examining ways to shift modes of transportation, such as moving more goods by rail; and
• increasing engagement with stakeholders to make trade and shipping more efficient in B.C.

The strategy will be unveiled in late 2018.

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