Order Fixing July 30, 2019 as the Day on which the Act Comes into Force: SI/2019-30
Canada Gazette, Part II, Volume 153, Number 11
SI/2019-30 May 29, 2019
WRECKED, ABANDONED OR HAZARDOUS VESSELS ACT
Order Fixing July 30, 2019 as the Day on which the Act Comes into Force
P.C. 2019-577 May 21, 2019
Her Excellency the Governor General in Council, on the recommendation of the Minister of Transport, pursuant to section 154 of the Wrecked, Abandoned or Hazardous Vessels Act, chapter 1 of the Statutes of Canada, 2019, fixes July 30, 2019 as the day on which that Act comes into force.
(This note is not part of the Order.)
To seek the Governor in Council’s approval for an order fixing the day on which the Wrecked, Abandoned or Hazardous Vessels Act (the WAHVA or the Act) comes into force.
The coming-into-force date of the WAHVA will be three months to the day after the Government of Canada deposits the instrument of accession to the Nairobi International Convention on the Removal of Wrecks, 2007 (ICRW) at the International Maritime Organization (IMO).
The objective of this Order in Council is to establish the date for the coming into force of the WAHVA.
Wrecked, abandoned and hazardous vessels pose hazards to the marine environment, put public health and safety at risk, represent a threat to navigation, can cause harm to local economies such as fishing and tourism industries, and are risks to marine infrastructure. Most vessel owners are responsible; they maintain and dispose of their vessels properly. However, the small percentage that are not responsible can significantly impact local communities. Cleaning up these vessels, including removal and disposal, can be expensive and the costs are too often borne by taxpayers.
In November 2016, as part of the Oceans Protection Plan (OPP), the Government of Canada announced a comprehensive National Strategy to Address Wrecked or Abandoned Vessels (National Strategy) that focuses on the prevention and removal of these problem vessels. The WAHVA is a central measure under the National Strategy.
The WAHVA aims to protect Canada’s coastal and shoreline communities by strengthening federal authorities and supporting the “polluter pay” principle by holding vessel owners responsible and liable. More specifically, the WAHVA will prohibit vessel abandonment; enable the federal government to take proactive actions on hazardous vessels; bring the ICRW into Canadian law; and consolidate numerous related provisions that are currently found within the Navigation Protection Act and the Canada Shipping Act, 2001 (CSA), such as provisions related to the International Convention on Salvage, 1989 (Salvage Convention) and the Receiver of Wreck (RoW).
The ICRW was tabled in Parliament on September 21, 2017, for the requisite 21—sitting-day period prior to the WAHVA being introduced on October 30, 2017.
The WAHVA consists of a preamble that provides the enacting clause, interpretation provisions and other key items necessary for the proper application of the legislation. This preambulatory part sets out the purpose of the Act, as well as the exclusions in its application, and it also defines the powers, duties and functions of the Minister of Transport and the Minister of Fisheries, Oceans and the Canadian Coast Guard.
The Act contains 10 parts:
- Part 1 gives effect to the ICRW. This part addresses hazardous wrecks resulting from a maritime casualty. The text of the ICRW is set out in Schedule 1 of the Act.
- Part 2 sets out the rules designed to prevent and address irresponsible vessel management. These include prohibitions against abandoning a vessel, causing a vessel to become a wreck, leaving a vessel adrift for more than 48 hours, and leaving a dilapidated vessel in the same area for more than 60 consecutive days without consent. Part 2 also empowers the Minister of Fisheries, Oceans and the Canadian Coast Guard to issue directives or to take direct action when a vessel poses, or may pose, a hazard including hazards to the environment, local economy, public health and safety, and marine infrastructure. Furthermore, this part clarifies and sets out the authorities of the Minister of Transport and the Minister of Fisheries, Oceans and the Canadian Coast Guard to take certain measures when the vessel owner is non-compliant, unknown or cannot be found. Part 2 does not apply to vessels that are less than 5.5 m in length and designed to be primarily human-powered or wind-powered.
- Part 3 centres around the Salvage Convention, which Canada ratified in 1994. It is mainly concerned with contractual obligations and intended to ensure uniform rules regarding salvage operations and protecting salvor rights. This part removes the provisions relating to the Salvage Convention from the CSA and re-enacts them under the WAHVA, subject to certain minor revisions to improve clarity. The text of the Salvage Convention is set out in Schedule 2 of the Act.
- Part 4 removes provisions respecting the RoW from the CSA and re-enacts them under the WAHVA. The Act enhances the powers and functions of the RoW and strengthens the protections for owners, salvors and the Crown. As an example, under the WAHVA, persons are generally no longer allowed to take possession of a found wreck without first reporting it to the RoW, unless the wreck is in danger and possession is necessary to secure or protect it. A person claiming ownership of a wreck must submit a claim to the RoW within 30 days after the day on which notice was given that the wreck was reported.
- Part 5 of the WAHVA establishes a new compliance and enforcement regime which vests the Minister of Transport and the Minister of Fisheries, Oceans and the Canadian Coast Guard with the powers and authorities needed to address breaches of the Act, including the imposition of administrative monetary penalties (AMPs), the prosecution of regulatory offences and the ability to recover costs assumed when the Government must take measures to address a problem vessel.
- Part 6 contains general provisions relating primarily to liability and immunity. It provides that those authorized to act under the legislation are immune from personal liability except if they act in bad faith. Also, the usual rule that the Crown is civilly liable is preserved. Section 128(1) further establishes that any person that provides assistance or advice or that is otherwise directed by the Minister of Transport, the Minister of Fisheries, Oceans and the Canadian Coast Guard, or an enforcement officer to take measures under the Act is relieved from civil liability provided they did not act in bad faith. Such persons are also relieved from criminal liability provided they acted reasonably.
- Part 7 vests the Governor in Council, on the recommendation of the Minister of Transport, with regulation-making authorities on a broad range of topics including wreck removal insurance requirements, fees payable, the detention of vessels, requirements regarding the dismantling or disposition of vessels, the protection of heritage wrecks, and ocean war graves, as well as the nature and extent of directions and notices issued under the Act.
- Part 8 contains transitional provisions as well as related and consequential amendments to other federal statutes including the CSA, the Customs Act, the Navigation Protection Act and the Transportation Appeal Tribunal of Canada Act.
- Part 9 requires that the Act be referred to a committee in either the House of Commons or the Senate of Canada, or in both, for study following the fifth anniversary of the coming into force of the Act.
- Part 10 provides the provisions for the coming into force of the Act by order in council.
The coming into force of the WAHVA will provide the Government of Canada with greater authorities to prevent and address wrecked, abandoned and hazardous vessels in Canadian waters and in Canada’s Economic Exclusive Zone (EEZ). Until now, federal legislation primarily empowered the Government to address limited impacts from vessels such as oil discharges and obstructions to navigation. Under the WAHVA, the Government is empowered to take direct action on the vessel itself and address a broader range of hazards such as hazards to the environment, infrastructure, tourism or public health and safety. By prohibiting abandonment, the WAHVA also ensures that owners cannot abdicate their responsibilities by abandoning their vessel. The Act will provide the Minister of Transport and the Minister of Fisheries, Oceans and the Canadian Coast Guard with powers to inspect for compliance and take enforcement measures as appropriate, including the imposition of AMPs in cases of non-compliance. For example, for minor violations, the maximum amount of an AMP is $5,000 for individuals and $25,000 for companies or corporations. For serious violations, the maximum amount of an AMP is $50,000 for individuals and $250,000 for companies or corporations. In addition, the Government of Canada can proceed by way of prosecution for several offences that can result in fines for individuals ranging from $5,000 to $1,000,000 and/or imprisonment, and fines for companies or corporations ranging from $100,000 to $6,000,000.
The Act extends heritage wreck regulation-making powers to Canadian and foreign military aircraft and vessels; these authorities also include ocean war graves following amendments brought in by the Senate of Canada.
The expanded authority under the WAHVA enables the Government to take measures to address the vessel itself and any equipment, cargo or other items from the vessel which may pose a hazard. These additional authorities support the goal of preserving the marine environment and protecting coastal communities and infrastructure as a key part of the OPP.
The Act also brings the ICRW into Canadian law. It was ratified by over 40 member states, which account for 72% of the world merchant shipping tonnage. The ICRW establishes ship owner liability for the costs of locating, marking and removing hazardous wrecks, and imposes insurance requirements on vessels weighing over 300 gross tons. It also establishes a set of international rules governing the rights and obligations of shipowners, coastal states, and flag states with respect to wrecks that result from a maritime casualty within the Exclusive Economic Zone of the member state party to the Convention (State Party). It also provides State Parties with a global regime for strict liability and compulsory insurance for wrecks. A State Party has the option to extend the ICRW to cover all ships and wrecks within its territory and territorial sea, and Canada has expressed that it will exercise this option.
The implementation of the WAHVA has financial implications, notably an increase in funding that is required to enable federal compliance monitoring and enforcement activities across Canada. New incremental funding has already been provided to Transport Canada and funding to set up a foundational enforcement program was provided to the Department of Fisheries, Oceans and Canadian Coast Guard through the OPP to hire and train enforcement officers. Supplemental OPP funding has been provided to Transport Canada and Fisheries and Oceans Canada’s Small Craft Harbours Program for the removal and disposal of abandoned and wrecked vessels.
Federal, provincial and territorial implications
Measures available under the legislation may require consultation with or the involvement of other levels of government when identifying risks or hazards, exchanging information (e.g. to identify owners), or remediating problem vessels. The Act also provides the federal government with the ability to delegate its powers, duties and functions to any person, including a provincial or territorial government; a local authority; or a government, council or other entity acting on behalf of an Indigenous group.
The Government of Canada has engaged with industry stakeholders, Indigenous groups, and other levels of government. Various engagement sessions were held, notably:
- In 2010, Transport Canada issued a preliminary discussion paper and conducted initial consultations on the text of the ICRW with the shipping industry, the marine insurance industry, boating associations, port authorities, and the provinces and territories. The responses were positive.
- In 2015, Transport Canada released a more comprehensive discussion paper seeking comments on a proposed regime based on the ICRW. There was broad support from stakeholders to accede to the Convention and extend it to Canada’s territory and its territorial sea.
- Since 2016, over 40 engagement sessions and bilateral meetings were held with stakeholders and the public across Canada, namely 11 regional meetings with Indigenous groups to discuss the issue of wrecked, abandoned and hazardous vessels, including requirements for legislation.
Throughout the above engagement activities, there was overall support for the principles of the proposed legislation, including
- accession to the ICRW and its extension to all Canadian waters;
- increased vessel owner responsibility and liability;
- stricter enforcement;
- enhanced federal leadership; and
- prohibition on vessel abandonment.
During the legislative process, Bill C-64 was considered by the House of Commons Standing Committee on Transport, Infrastructure and Communities on February 5, 2017, which reported back to the House of Commons with amendments on March 2, 2018.
In the Senate, Bill C-64 was studied by the Standing Senate Committee on Transport and Communications. On December 10, 2018, the legislation was referred back to the House of Commons for concurrence of Senate amendments. On February 1, 2019, the House of Commons concurred with the Senate amendments and sent the Bill back to the Upper House for royal assent. These amendments further clarify that heritage wreck regulation-making powers extend to the wrecks of non-commercial governmental vessels, mineral exploration vessels and Canadian and foreign military vessels and aircraft, including ocean war graves.
Bill C-64 received royal assent on February 28, 2019.
For more information please contact
Preparedness and Response
Canadian Coast Guard