The Advocate
Informing Marine Engineers about legal matters
Authored by: Darren Williams, Williams & Company
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Of Seagulls and Bilge Water: A Primer on Bill C-15
Despite its harmless sounding name, “An Act to amend the
Migratory Birds Convention Act, 1994 and the Canadian Environmental
Protection Act, 1999”, the new federal law proposed under Bill C-15,
targeting the effects of marine pollutants on migratory birds, has
wide ranging and significant effects for mariners. Fines of up to
$1,000,000 for vessels under 5000 deadweight tonnes, minimum fines
of $500,000 for vessels over 5000 tonnes, jail time, and personal
liability for masters, chief engineers, and directors and officers,
are just a few of the hard-hitting provisions in this controversial
proposed law.
Although the principal intention of Bill C-15 was to address
pollution (particularly bilge water discharge from larger vessels)
in Canada’s exclusive economic zone (between 12 and 200 miles
offshore), the Bill effects all areas frequented by migratory birds.
When you consider that the common seagull is such a bird, it is
unlikely any coastal area, and therefore any mariner and any vessel,
will escape application of this law.
In this "Advocate" I will provide readers with a brief synopsis of
portions of the proposed law and describe components of it that
mariners are well advised to be aware of in the likely event Bill
C-15 becomes new law.
Application Out to 200 Nautical Miles
Bill C-15 clarifies the prohibition against depositing oily bilge
waste, and other pollutants, into the ocean. While Canada has for
some time had laws prohibiting the discharge of pollutants into
“Canadian waters” (waters inside the 12 mile limit), Bill C-15
strengthens these laws by prohibiting the “deposit” of any
“substance harmful to migratory birds” in areas “frequented” by
these birds. These words make for a low threshold in proving whether
an offence has been committed - arguably, as little as a tablespoon
of oily water is a deposit harmful to migratory birds.
Although ships passing though Canada’s exclusive economic zone
(those waters from 12 to 200 miles offshore) are normally not
affected by Canada’s domestic laws, international law permits Canada
to enforce laws in the exclusive economic zone (“EEZ”) where an
activity causes or threatens to cause “major damage” to the marine
environment. What degree of discharge constitutes “major damage” is
up for debate. Bill C-15 states that the Act applies “in Canada and
in the exclusive economic zone of Canada”.
This being said, it is unclear whether the lower threshold offence
of “depositing” a pollutant can be enforced outside Canadian waters
(bounded by the 12 mile limit) but within the 200 mile limit of the
EEZ. Although the wording of Bill C-15 states the lower threshold
test will apply to waters inside the 200 mile limit, it is
questionably whether this is within the Federal government’s power.
Arguably, Canada would be attempting to enforce a lower threshold
(“deposit” versus “major damage”) than is contemplated by the
international law that allows such jurisdiction over the EEZ.
Subjects of Protection: Migratory Birds, including Gulls I have
mentioned that seagulls are included in the definition of migratory
birds, so too are other common coastal birds like petrels, gannets,
shearwaters and terns. Importantly, a migratory bird does not have
to be present at the time an illegal deposit occurs in order for
there to be an offence. Canadian Courts have interpreted
“frequented” in terms of pollution law intended to protect fish, and
have held that for an area to be “frequented” by an animal, there
need only be proof that such an animal has been there and may be
there at the time of the deposit. In other words, there does not
need to be proof that the animal was actually there at the time the
deposit occurred for there to be an offence.
Prohibited Acts
There are many prohibitions under Bill C-15, and we only have
room to mention a few. It is an offence to “deposit” a substance
harmful to migratory birds. The term “deposit” is broadly defined to
include “discharging, spraying, releasing, spilling, leaking,
seeping, poring, emitting, emptying, throwing, dumping or placing”.
This definition is broad enough to capture intentional and
accidental, direct and indirect acts of allowing pollution into the
water.
It is also an offence under Bill C-15 to destroy, alter or falsify
records, or otherwise interfere with an investigation of an offence.
This would include changing engine-room or wheelhouse log books,
computer data or other records belonging to the ship. Bill C-15 also
contains “whistleblower protection” that prohibits employers from
making reprisals against employees (including contractors) that
report possible offences, provided the employee is acting in good
faith.
Persons Subject to Liability
Both persons and vessels are subject to liability under the new
law. Typically the ship will be named as a defendant where it is not
obvious who onboard caused the deposit – in these cases it will be
left to the owner of the vessel to respond to the charge.
Aside from owners, the proposed law creates an obligation on
masters, chief engineers and operators of a vessel to take
reasonable steps to ensure compliance with the prohibitions. If the
vessel is owned by a corporation, directors and officers who are
shown to influence activities of the vessel are deemed to have this
obligation of ensuring compliance.
Fines & Penalties
Depending on the circumstances, offences will either be
prosecuted by summary conviction, or by the more serious method of
indictment. On the more common summary conviction proceeding, the
Court may levy a fine of up to $300,000 or up 6 months in prison, or
both. If prosecuted by indictment, the accused is subject to a fine
of up to $1,000,000 or up to 3 years imprisonment, or both. Fines
and may be doubled for second and subsequent offences.
Importantly, for offences involving vessels over 5000 tonnes
deadweight, there are mandatory minimum fines. If the prosecution
elects to proceed by indictment, the accused is subject to a minimum
$500,000 fine, and if by summary conviction, a minimum $100,000
fine. It is important to remember that these penalties apply to
masters, chief engineers, operators, and owners, including directors
and officers of companies.
Defences to Conviction
Offences under the new law are termed “strict liability”, or “hybrid” offences. They are so called because the burden of proving the offence was committed lies between the criminal burden of “beyond a reasonable doubt” and the civil burden of the “balance of probabilities”. In a strict liability offence the Crown must prove beyond a reasonable doubt that the offence occurred. If the Crown is successful in doing so the accused may then escape conviction by showing that they were “duly diligent” is exercising reasonable care to avoid committing the offence – this is the “due diligence defence”. We will discuss the due diligence defence as it relates to oil pollution in later issues of the Legal Desk.
Coming into Force
When will Bill C-15 become law? The Bill has been passed through the House of Commons and is now in Committee Stage of the Senate, with only a final Senate reading and Royal Assent to be completed before coming into force. Recently however, the Gomery Commission inquiry into government mis-spending has raised the possibility that a snap federal election may occur before the proposed law comes into force. At the moment it appears most likely, in my opinion, that the election will be delayed until at least November of 2005, leaving adequate time for the law to come into force. This point, along with more on the effects of Bill C-15, will be address in future issues of the "Advocate".
Darren Williams is a Barrister and Solicitor (Lawyer) specializing in Admiralty Law, which has jurisdiction over maritime matters. Darren has worked extensively on the water as well as in the courtroom. He is a Barrister & Solicitor based out of Victoria, British Columbia, Canada, practicing at the Law Firm of "Williams & Company".
On this webpage, he brings us timely and relevant articles on the legal aspects of being a Marine Engineer in today's world. Although the articles have a predominately Canadian flavour, we are sure you will find his legal point of view enlightening where ever you ship sails. Darren has also published other legal articles on general admiralty law, view them all at the Williams & Company website. You can reach Darren for question or comment by phone at 250-478-9928 or by email.