Recent studies have indicated that the number of foreign flagged vessels transiting Canadian waters may dramatically increase in the near future, due to a rapidly receding polar ice cap resulting from global warming. At a recent United Nations climate summit in Poznan, Poland, experts revealed that the Arctic is warming at twice the rate of the rest of the world, leading its ice to shrink to a record low in 2007. According to the Circumpolar Flaw Lead System Study, a $40 million Arctic research project, the Arctic sea could be ice free for an entire summer as early as 2015.
Given this, it is perhaps not surprising that shipping lines in China, South Korea and Japan are reportedly attempting to secure insurance for ice class vessels.
In response to these developments, the Federal Government has embarked on a variety of recent legislative and enforcement initiatives with respect to the shipping industry.
In 2008, the Administrative Monetary Penalty Regulation of the Canada Shipping Act, 2001 came into force. The Regulations provide for a maximum penalty of $25,000 in respect of various contraventions of the Act, through the issuance of a violation notice, as an alternative to court enforcement. It should be noted that with respect to certain offences, however, such as failing to properly register a vessel, or failing to staff a vessel with a competent crew, a separate fine may be levied for each day that the violation in question continues to occur. While Transport Canada Marine Safety retains the ability to lay charges against anyone who fails to comply with the Act or Regulations, it is expected that this will only occur with respect to serious or deliberate offences. It remains to be seen whether the adoption of an administrative penalty regime will give rise to an increase in the number of violations issued against vessels, and their owners or charterers.
Transport Canada has also proposed changes to the Navigable Waters Protection Act. In 2008, department officials appeared before the Federal Standing Committee on Transportation, Infrastructure and Communities, in order to discuss future amendments to the Act. Perhaps most notably, the proposed changes include increasing the fines that may be levied under the Act, and broadening the inspection powers provided to Navigable Waters Protection Officers.
On January 28, 2009 the Federal Government tabled Bill C 3, An Act to Amend the Arctic Waters Pollution Prevention Act, for First Reading. The changes in question will double the application of the Act to 200 nautical miles from the nearest Canadian shore, and make the Act applicable anywhere within Canada’s Exclusive Economic Zone. The Bill was originally introduced in the last session of Parliament, in October 2008, but died on the Order Paper, when Parliament was prorogued in December 2008.
On March 4, 2009, the federal government introduced Bill C 16, the Environmental Enforcement Act, omnibus legislation that keeps a Conservative Party campaign promise to strengthen the enforcement and penalty provisions in various maritimerelated statutes, among others. Bill C 16 will amend nine federal statutes, including the Canadian Environmental Protection Act, 1999, the Migratory Birds Convention Act, and the Antarctic Environmental Protection Act, to substantially increase fines and bring in mandatory minimum sentences, even on a first offence.
In another new change concerning foreign vessel traffic through Canadian Arctic waters, the Federal Government has stated that it will enact regulations requiring all large ships transiting through Canada’s Arctic to report to the Canadian Coast Guard through NORDREG, the arctic marine traffic monitoring system. Presently, foreign vessels entering Canadian waters north of the 60th parallel are merely “encouraged” to register with NORDREG. The proposed change would make such registration mandatory. Lastly, changes in the enforcement of Canadian maritime laws are also evident in two recent cases in which Transport Canada has laid pollution related charges under the rarely invoked ship source pollution provisions of the Migratory Birds Convention Act and the Arctic Waters Pollution Prevention Act, respectively.
In July 2008, Transport Canada laid charges against a number of parties in connection with a spill of 19,000 litres of diesel fuel into the Robson Bight Ecological Reserve in Johnstone Strait, B.C. The accused were charged with unlawfully discharging oil into waters frequented by migratory birds in violation of the Migratory Birds Convention Act. The Act, which implements Canada’s obligations under a bilateral Canada U.S. treaty aimed at protecting migrating birds that cross North America, provides for a maximum fine of $300,000 in the case of summary conviction offences and $1,000,000 in the case of an indictable offence. This is believed to be the first prosecution under the Act since changes to its enforcement provisions were enacted in 2005. Also in July 2008, Northern Transportation Company Ltd. was fined $10,000, after pleading guilty to unlawfully depositing waste, oil or an oil mixture into Arctic waters under the Arctic Waters Pollution Prevention Act. The charges arose from a spill of 1,000 litres of diesel fuel into Coronation Gulf, near Kugluktuk, Nunavut.
As these legislative and enforcement measures indicate, the Federal Government appears to be taking an active approach in maintaining Canadian sovereignty in the Arctic. Given the rapidity of change occurring in the realm of international shipping, these shifting currents may be a sign of further things to come.