Graham Walker And Dionysios Rossi, Vancouver Sun, August 3, 2010
Perhaps no single story has dominated news coverage recently like the BP oil spill in the Gulf of Mexico. It has raised questions about the legal status of offshore oil and gas development and tanker traffic along the west coast of British Columbia.
Concerns about the status of B.C. offshore exploration became more acute when Calgary's Enbridge Inc. announced plans to construct and operate two pipelines from Edmonton to Kitimat that would increase tanker traffic in the area to an estimated 220 ships annually. Concerns have been further heightened by the Enbridge oil spill that released more than three million litres of oil into Michigan's Kalamazoo River.
Last year, Natural Resources Canada (NRC) appended a "correction" to a
2004 report commissioned by the former federal Liberal government, which had concluded that lifting the federal moratorium at that time was not justified given public opposition to offshore oil and gas exploration. The 2009 correction noted that what NRC characterized as the "de facto" moratorium did not apply to tanker traffic. It further noted that there was no existing legislation requiring the federal government to maintain the ban, which was not originally imposed by an actual cabinet order (hence its description as a "de facto" moratorium.)
Environment Minister Jim Prentice has since confirmed that Ottawa has no plans to lift the moratorium on offshore oil and gas exploration at this time, but has not committed to enacting legislation making the ban law.
These developments raise the question of what federal regulatory regime would govern marine pollution on the west coast if offshore oil and gas exploration were to proceed, or tanker traffic to increase. To this end, the relevant federal legislation includes:
1. The Marine Liability Act, S.C. 2001 c. 6.
The act applies to oil pollution damage that occurs in the territory of Canada, in Canadian waters or in the Exclusive Economic Zone of Canada, as well as to the waters of a state other than Canada that is a party to the 1992 Civil Liability Convention.
The act, administered by Transport Canada, is the primary legislation governing civil liability and compensation for pollution by oil tankers.
Under the act, a ship owner is liable for oil pollution damage, and the reasonable costs and expenses of "measures taken to prevent, repair, remedy or minimize pollution damage from the ship" where there has been damage to the environment.
The act incorporates the provisions of two international treaties, the 1992 Civil Liability Convention, and the International Oil Pollution Compensation Fund, as well as Canada's Ship Source Oil Pollution Fund, to create a multi-tiered compensation framework for the victims of persistent oil spills.
2. The Canada Shipping Act, 2001, S.C. 2001, c. 26.
This is the principal legislation governing commercial and recreational vessel use in Canada, and applies to oil-carrying vessels and oil-handling facilities.
It contains a number of provisions and regulations governing the prevention of marine pollution by establishing standards relating to the carriage and discharge of pollutants, including oil chemicals, garbage, sewage and air emissions, as well as those relating to responses to environmental spills. It also creates an offence for the discharge of pollutants, including oil, in Canadian waters or the Exclusive Economic Zone of Canada.
This act is administered by Transport Canada, in conjunction with the Department of Fisheries and Oceans.
3. The Canadian Environmental Protection Act, 1999, S.C. 1999 c. 33.
This is Canada's primary pollution-prevention statute. The act contains several sections prohibiting pollution resulting from disposal at sea. It imposes liability for the costs and expenses that the Crown reasonably incurs to remedy or mitigate damage resulting from the disposal of waste.
It prohibits civil claims for individual compensation, however, where such claims may be brought pursuant to the Marine Liability Act.
The act is administered by Environment Canada in conjunction with Transport Canada.
4. The Fisheries Act, R.S.C. 1985 c. F-14.
This act applies to "Canadian Fisheries Waters," defined as "all waters in the fishing zones of Canada, all waters in the territorial sea of Canada and all internal waters of Canada." The act makes it an offence to " permit the deposit of a deleterious substance of any type in water frequented by fish."
It's administered by the Department of Fisheries and Oceans.
5. The Migratory Birds Convention Act, 1994, S.C. 1994, c. 22.
This act implements Canada's obligations under a bilateral Canada-U. S. treaty aimed at protecting migrating birds that cross North America. The act applies in Canada and in the Exclusive Economic Zone of Canada. It prohibits the deposit of a substance that is harmful to migratory birds in waters frequented by migratory birds, or in a place where the substance may enter such waters.
The act is administered by the Canadian Wildlife Service of Environment Canada.
As this information indicates, if there were an oil spill on the west coast, civil and/or criminal liability could be imposed under a number of federal statutes. It remains unclear, however, as to which particular act federal authorities would invoke when carrying out these enforcement measures, or whether new legislation would be specifically enacted for this purpose. Also unclear is what federal authority (Transport Canada, Environment Canada or the Department of Fisheries and Oceans) would have primary responsibility for such an investigation/ prosecution.
Like many issues surrounding offshore oil and gas development along the west coast, it appears that specific details regarding the legal regime that would govern potential spills may be the subject of future discussion and debate.
Graham Walker and Dionysios Rossi practise maritime, environmental and oil and gas law at the Vancouver office of national law firm Borden Ladner Gervais LLP.
A version of this article originally appeared in the July edition of Western Mariner Magazine.
