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  • Tanker ban bill contrary to the Law of the Sea and ignores the reality of maritime transport

    Posted on: February 4th, 2018

    By Alex Binkley

    Federal legislation to ban oil tankers from the northern section of the British Columbia coast is inconsistent with provisions of the U.N. Law of the Sea and should be subject to regular reviews, shipowner groups say.

    In submissions to the Commons Transport Committee study on the bill, the Chamber of Shipping and the Shipping Federation of Canada called the bill an unjustified move that interferes with maritime commerce. Meanwhile the International Chamber of Shipping (ICS), which represents the world’s national shipowner associations and 80 per cent of the world merchant fleet, warned, “Such a draconian step could lead to serious concerns being raised by Canada’s international trading partners.” Simon Bennett, ICS’s Director of Policy and External Relations, said, “We would instead encourage Canada to continue its strong history of environmental protection and support for responsible global trade through the implementation of practical measures consistent with international best practices. This includes respecting IMO’s’s role in developing safe and sustainable shipping regulations and recommendations that might address any concerns that Canada may have.” The global shipping industry “fully recognizes the importance of robust environmental protection measures, and is committed to the goal of zero pollution, consistent with the comprehensive global regulatory framework adopted by the IMO in accordance with the U.N. Law of the Sea to which Canada is a State Party,” he said.

    Robert Lewis-Manning, President of the Chamber of Shipping, told a Commons Transport Committee hearing the bill is inconsistent with the U.N. Law of Sea convention that requires coastal states not to interfere with the right of innocent passage. It also shows a lack of understanding of maritime transportation, he said.

    The government has only recently released the study used to determine which products would be covered under the law, he said. If shipowners had been consulted for the study, they would have explained ships usually carry cargo destined for several ports on each voyage.

    The bill’s provision to limit the quantity of scheduled commodities to 12,500 tonnes “could result in unintended consequences such as increased freight charges or a complete disruption in the supply chain,” he said. “In this manner, a ship owner leverages efficiencies through multiple orders of a single or similar product.” As well, the bill “establishes a precedent in Canada for managing our national supply chain and is another layer of complexity on the already multi-faceted supply chain thereby making Canada a more complex country in which to operate,” he said. It does not provide “a constructive framework for properly reviewing the maritime transportation supply chain of B.C.’s north coast.”

    ShipFed President Michael Broad said that Transport Canada concluded five years ago “that the existing regulatory regime, combined with the implementation of enhanced safety measures, could support the safe movement of oil through the northern coast of B.C.” No reason is offered for “a complete reversal of this position, or to support an outright conclusion that the risks of transporting oil through the north cannot be mitigated by means other than a moratorium.” The moratorium “does a disservice to our industry and to the public by creating doubt about the effectiveness of the framework that governs shipping activity and marine safety in Canadian waters,” he said. More than 100 million tonnes of oil and petroleum products have moved annually off the East Coast of Canada during the last decade without a major spill.

    ShipFed is also concerned about “the legal and diplomatic questions related to Canada’s ability under international law to deprive tankers of the right of innocent passage and freedom of navigation,” he said. “The government appears to have attempted to circumvent this possible conflict by crafting the moratorium as a prohibition on loading, unloading or anchoring at certain ports and marine installations – rather than a prohibition on the passage of tankers per se (thereby using the back door to accomplish what could not be done through the front door).

    Under the Law of the Sea, coastal states can “designate particularly sensitive areas, in which they can apply stricter measures (such as areas to be avoided or routing requirements) after having completed an informed risk assessment process,” he said. The moratorium needs “to take place within the context of this international framework, which is where it properly belongs.”

    The Shipping Federation also called for a periodic review of the need for the moratorium to ensure it’s “based on an appropriate assessment of risks in response to evolving circumstances.” The ban was promised during the 2015 national election campaign but the legislation wasn’t presented to Parliament until this past May. Fines as high as $5 million could be imposed for violating the law. Exemptions are available for ships resupplying northern communities with heating oil and fuel or carrying further refined petroleum products.

    Lewis-Manning said the bill’s drafters should have copied proposed amendments to the Oceans Act and the Canada Petroleum Resources Act that require a precautionary approach including “analysis and an evidence base to support a longer term management plan.” That would require “a risk assessment to be conducted at a minimum of every five years such that it could inform the regulatory process of scheduled products,” he said. It “would be grounded in an evidence-based analysis that would engage effective stakeholders collaboratively, and would also provide a responsible legislative framework that could be sustained over the long term.”