4 Analysis of the national laws and regulations of Canada

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1 Excerpt on Canadian Governance of Arctic Shipping by D. VanderZwaag* and S. Rolsn** from The Legal Regime for Arctic Shipping and National (Canada, Greenland & Russia) and International Law (London: MRAG, August 09) (Report prepared by E. Molenaar, D. VanderZwaag, S. Rolsn, L. Holm-Peterson, M. Vladimirovich Korel skiy, and S. Hodgson for the European Commission). 4 Analysis of the national laws and regulations of Canada 4.1 Introduction Arctic marine transportation is a key element of Canada s Integrated rthern Strategy, supporting key priorities in economic and social development and environmental protection and sovereignty. 169 Renewed interest in the Canadian Arctic has focussed on opportunities for exploration and exploitation of mineral resources and ecourism and adventure cruising. Changes in the Arctic ice regime have led speculation of an increased numbers of vessels seeking transit Arctic routes. The Canadian government has made various commitments support its vision for the rth and enhance Canada s security and enforcement capability in the Arctic, including CDN$7 million for construction of a new Polar Class icebreaker The primary shipping transit route through the Canadian Arctic is the fabled rthwest Passage. Currently, there are few complete transits of the rthwest Passage annually, although numerous vessels ply Canadian Arctic waters during the summer months. Spanning the entire rth American continent from the Pacific the Atlantic Ocean, there are several different routes through the Canadian Arctic Archipelago, including the McClure Strait, Dease Strait and the Prince of Wales Strait, but not all of them are suitable for modern commercial ships (Figure 6). Currently, most commercial vessels entering Canadian Arctic waters are heading for the port of Churchill, Maniba, on Hudson Bay. * Canada Research Chair in Ocean Law and Governance, and Direcr, Marine & Environmental Law Institute, Schulich School of Law, Dalhousie University, Halifax, Canada. ** Seawinds Consulting Services, and Associate, Marine & Environmental Law Institute, Schulich School of Law, Dalhousie University, Halifax, Canada. 168 This Chapter is partly drawn from the Governance of Arctic Marine Shipping technical report prepared for the Arctic Council s Arctic Marine Shipping Assessment (Ocber 08). Contriburs the Canadian section of the Report besides the current authors (David VanderZwaag and Susan Rolsn) included Aldo Chircop, Kenneth MacInnis, Moira McConnell, Angus McDonald, and K. Joseph Spears. 169 Prime Minister of Canada, rthern Strategy Backgrounder, ( March 08), available: < 170 Ibid. 44

2 Figure 6. Routes through the Canadian Arctic Archipelago Source: Map created by the Dalhousie University GIS Centre, 23 May The national maritime administration of Canada is Transport Canada, and its principal responsibilities are performed through Marine Safety. The Prairie and rthern Region Division of Marine Safety is responsible for inspection and navigation in Canadian Arctic waters. Transport Canada s marine responsibilities include policy and regulary development and administration, navigational and marine safety, pollution prevention, security, and port State control. Transport Canada is the lead agency under several key laws that govern shipping controls in the Arctic (see Annex C) Transport Canada shares its jurisdiction in many areas and collaborates with several other departments and agencies in relation Arctic shipping. These departments operationalize the international instruments which Canada is a party The Department of Fisheries and Oceans (DFO) is responsible for Canada s scientific, ecological, social and economic interests in the oceans, including fisheries, hydrography and marine services. The Canadian Coast Guard (CCG), a special operating agency currently reporting DFO, deals with operational service matters. These operational services include ice breaking, boating safety, search and rescue, aids navigation, environmental protection and response, and marine communications and traffic services. The Central and Arctic Region headquarters is located in Winnipeg, Maniba. Marine Communications and Traffic Services (MCTS), a branch of the CCG, monirs marine traffic movement and provides incident command and control ability. MCTS Centres are located at Inuvik and Iqaluit in the western and eastern Arctic respectively and are operational mid- until mid-december for the shipping season Environment Canada is the lead federal department for the cleanup of oil spills and hazardous wastes with responsibilities in the Arctic that include provision of ice and meteorological services assist navigation in Canadian Arctic waters and the 45

3 establishment of protected areas such as national wildlife areas and migrary bird sanctuaries. The Canadian Ice Service provides an information service on sea ice and iceberg conditions and movements in the Canadian Arctic. 171 Environment Canada also runs the Weatheroffice, which provides meteorological information on the Arctic. 172 The Parks Canada Agency, operating under the aegis of Canada s Environment Minister, is responsible for the implementation of policies and programs that relate Canada s national parks, national marine conservation areas, and other national hisric sites and heritage areas Department of National Defence (DND) and Canadian Forces (CF) operations in the Arctic fall under Canada Command and the Joint Task Force rth (JTFN), headquartered in Yellowknife, rthwest Terriries. JFTN is primarily tasked with exercising Canadian sovereignty north of 60 o N latitude and coordinating and supporting CF activities in the rth. The CF are responsible for coordinating SAR activities in Canada, and for providing dedicated aircraft support these operations. Canadian Rangers provide local expertise, conduct patrols, and provide assistance in SAR operations in remote communities across the Canadian Arctic. Canada s most northerly base, Canadian Forces Station Alert, is located on the northern tip of Ellesmere Island The Canadian Border Services Agency (CBSA) is responsible for cusms and immigration enforcement and intelligence. However, it does not have any dedicated maritime surveillance capabilities. It does operate several marine programmes though targeting marine passengers (cruise ships and ferries), marine containers, and vessels suspected of smuggling contraband or illegal immigrants The Royal Canadian Mounted Police (RCMP) are the lead enforcement agency for non-fishing illegal maritime activities. The Marine and Ports Program enforces the laws that deal with national security, organized crime, and other federal statutes such as those involving smuggling, illegal drugs and immigration. Marine Security Emergency Response Teams (MSERTs) respond major maritime incidents requiring the armed boarding of a vessel. 4.2 Maritime zones 197. Canada s Oceans Act, which entered in force in January 1997, sets out Canada s maritime zones applicable not only Atlantic and Pacific offshore areas but also the Arctic. The Act declares a terririal sea of 12 nm from the terririal sea baselines, 173 a contiguous zone adjacent the terririal sea out 24 nm from the terririal sea baselines, 174 an EEZ adjacent the terririal sea and extending out 0 nm from the 171 See the Canadian Ice Service website at < (accessed 3 09). 172 See the Weatheroffice website at < (accessed 3 09). 173 Oceans Act, S.C. 1996, c., s Ibid., s.. 46

4 terririal sea baselines, 175 and a continental shelf of at least 0 nm or further in case of an extended continental margin Specifically acknowledging the navigational rights and freedoms of foreign vessels for each zone, the Oceans Act does include some provisions aimed at protecting those rights and freedoms. Arrest of a person reasonably believed have committed an offence in Canada of cusms, fiscal, immigration or sanitary laws may only be exercised on board a foreign ship in Canada s contiguous zone with the consent of the Atrney General of Canada. 177 The Act authorizes the Governor in Council (federal cabinet) make regulations extending application of federal or provincial laws the EEZ or continental shelf but the Act calls for such laws be applied in a manner consistent with the rights and freedoms of other States under international law, in particular with the rights and freedoms of the States in relation navigation and over-flight In the wake of a trial run of the rthwest Passage by the SS Manhattan in 1969, 179 Canada responded the threat of further oil tanker transits in vulnerable Arctic waters by establishing a 0 nm pollution prevention zone in the Arctic through the Arctic Waters Pollution Prevention Act. 180 That special zone was subsequently sub-divided in 16 shipping safety control zones (Figure 7). 181 Table 1 sets out the dates of entry permissible for ships on the basis of Arctic class. As discussed below, Canada continues apply more stringent than IMO standards in such areas as pollution discharges and ship construction and crewing in these zones. 175 Ibid., s Ibid., s. 17. For a review of possible extended claims in the Canadian western and eastern Arctic, see Elizabeth Riddell-Dixon, Canada and Arctic Politics: The Continental Shelf Extension (08) 39 Ocean Development & International Law Canada has until 7 December 13 submit its claims the Commission on the Limits of the Continental Shelf. 177 Oceans Act., note 173 supra, s Ibid., s. 26(3). 179 See John Kirn and Don Munn, The Manhattan Voyages and Their Aftermath, in Franklyn Griffiths (ed.), Politics of the rthwest Passage (Kingsn and Montreal: McGill University Press, 1987), pp Arctic Waters Pollution Prevention Act, R.S., 1985, c. A-12 [hereinafter AWPPA]. The zonal coverage of 0 nm was set out in the definition of arctic waters provided in s. 2 of the Act. 181 See Shipping Safety Control Zones Order, C.R.C., c

5 Figure 7. Shipping Safety Control Zones Source: Transport Canada 0. An Act amend the Arctic Waters Pollution Prevention Act, introduced in the House of Commons on 3 December 08, received royal assent on and was proclaimed force on 1 August As outlined in Part 2.2 above, a very controversial zonal claim by Canada continues be the internal waters status of the Canadian Arctic Archipelago. On 1 January 1986, Canada formalized the internal waters claim by drawing straight baselines around its Arctic islands In doing so, Canada clearly was relying on an hisric internal waters claim. That is clear from the Statement of Joe Clark, Secretary of State for External Affairs, in the House of Commons when he announced the drawing of baselines on September, The corresponding Terririal Sea Geographical Coordinates (Area 7) Order (SOR/85-872) has in its preamble hisric waters wording, "Whereas Canada has long maintained and exercised sovereignty over the waters of the Canadian Arctic archipelago." 182 See Parliament of Canada, LEGISinfo, 40th Parliament, 2 nd Session, Elizabeth II, 09, Statutes of Canada 09, Chapter 11, available: < (accessed 11 August 09) However, the Shipping Safety Control Zones Order remains be amended formally extend the zones out 0 nautical miles (Ross MacDonald, Special Projects and Arctic Shipping, Transport Canada, pers. comm., August 09). 183 Terririal Sea Geographical Coordinates (Area 7) Order, S.O.R./

6 Dates of Category Zone Zone Zone Zone Zone Zone Zone Zone Zone Zone Zone Zone Zone Zone Zone Zone Arctic Class 1 Arctic Class 8 Arctic Class 7 Arctic Class 6 Arctic Class 4 Arctic Class 3 Arctic Class 2 Arctic Class 1A Arctic Class 1 Type A Type B Type C Type D Type E Dec Dec Dec Feb. 28 Dec Mar. Jan. Dec Mar. Jan. Dec Mar. Jan. 1 Dec. Dec Feb. 28 Jan Dec. 1 Dec Mar. 5 1 Jan. Jan. 5 Dec. Dec. Dec Feb. Dec Feb. Jan. 25 Dec Mar. Jan. 25 Dec. 1 Dec Dec te: Additional date restrictions are contained in Section 6 of the Arctic Shipping Pollution Prevention Regulations for certain ships. Source: Transport Canada, Zone/Date System Map and Dates of Table, available: < (accessed 3 09). Table 1. Dates of entry by Arctic class and shipping safety control zone 1 Feb. 5 Jan. Dec

7 3. Various authors have suggested Canada may also rely on cusmary international and convention law in drawing straight baselines around the Arctic archipelago. There is an argument that the LOSC Art. 8(2) innocent passage provision would not be applicable as Canada made its baselines (based on cusm) before being bound by LOSC in While Canada may rely on various justifications for its action, 185 the United States and other States protested against the internal waters claim. 186 Just before leaving office, former United States President George W. Bush reiterated the United States position that the rthwest Passage is a strait used for international navigation and thus subject the right of transit passage Arctic shipping rules and standards Discharge and emissions standards 5. The Arctic Waters Pollution Prevention Act (AWPPA) continues be the statury mainstay in the control of marine pollution from ships. Section 4 of the Act prohibits persons and ships from depositing or permitting the deposit of any waste in Arctic waters except as authorized by regulation. Arctic Shipping Pollution Prevention Regulations (ASPP Regulations), 188 passed pursuant the Act, provide only narrow exceptions where oil or an oily mixture may be deposited, such as for the purposes of saving life or the ship or through engine exhaust. 189 The Regulations do not allow the oily bilge water or oily ballast water discharges authorized under MARPOL 73/78, nor are garbage deposits allowed. The Regulations do, however, authorize ships and persons on a ship deposit sewage in Arctic waters as may be generated on board. 190 The oil and sewage deposit discharge provisions are made applicable all ships The AWPPA also provides broad power pollution prevention officers call upon the assistance of other ships in countering actual or threatened waste deposits in Arctic waters. The Act authorizes pollution prevention officers order any ship take part in the clean-up or control of substantial waste deposits or respond the threat of such deposits The Canada Shipping Act, 01 (CSA 01) also plays key roles in addressing vessel-source pollution in the Arctic. The CSA 01 through Regulations for the 184 See D.McRae, Arctic Sovereignty? What Is at Stake?, Behind the Headlines (07). 185 The drawing of straight baselines around a fringe of islands in accord with cusmary and conventional law are also among the justification. See, e.g., Pharand, note 27 supra; D. Pharand, The Arctic Waters and the rthwest Passage: A Final Revisit (07) 78 Ocean Development & International Law 3 69; S. Lalonde, Increased Traffic Through Canadian Arctic Waters: Canada s State of Readiness (04) 38 Revue Juridique Themis 49; and Kraska, note 27 supra. 186 Franckx, note 26 supra, at p See note 433 supra. 188 Arctic Shipping Pollution Prevention Regulations, C.R.C., c. 353 [hereinafter ASPP Regulations]. 189 Ibid., s Ibid., s Ibid., s. 3(2). 192 AWPPA, note 180 supra, s. (4)(c). 50

8 Prevention of Pollution from Ships and for Dangerous Chemicals 193 (Pollution Prevention Regulations) set standards relating air pollution from ships and anti-fouling systems with the standards applicable ships operating in waters under Canadian jurisdiction and Canadian ships generally. The emission of ozone-depleting substances from ships is prohibited with limited exceptions. 194 The sulphur content of fuel oil used on board ships is required not exceed 4.5 per cent by mass. 195 Shipboard incinerars are required meet the requirements of regulation 16(2)(a) of Annex VI MARPOL 73/ and incineration of some substances is prohibited. 197 Nitrogen oxide emission limits for diesel engines on ships are also established. 198 The Regulations also establish control measures for organotin compounds used as biocides in anti-fouling systems including a requirement that ships not bear such compounds on their hulls or shall have a barrier coating prevent leaking of such compounds Ballast Water Control and Management Regulations, 0 issued in 06 pursuant the CSA 01, are made explicitly applicable shipping safety control zones in the Arctic as well as waters of the Canadian EEZ. 1 The Regulations require ships carry on board and implement a ballast water management plan 2 and set ballast water exchange requirements for ships involved in transoceanic 3 and non-transoceanic navigation. 4 For a ship engaged in transoceanic navigation (navigating more than 0 nm from shore where the water depth is at least 2,000 metres), the ship is generally prohibited from discharging ballast water taken on board a ship outside waters under Canadian jurisdiction unless the ship conducts the exchange before entering Canadian waters in an area situated at least 0 nm from shore where the water depth is at least 2,000 metres. 9. Where a ship cannot comply with the open ocean discharge requirement due safety or stability concerns, the Regulations provide for special discharge zones in Canadian waters, two of which are in the rth. A ship voyaging a port, offshore terminal or anchorage area in Hudson Bay is allowed discharge ballast in an area in Hudson Strait east of 70 o west longitude where the water depth is at least 0 metres. A ship voyaging a port, offshore terminal or anchorage area in the High Arctic is allowed discharge ballast water in an area in Lancaster Sound east of 80 o west longitude where the water depth is at least 0 metres. For ships involved in non-transoceanic navigation (not navigating more than 0 nautical miles from shore where the water depth is at least 2,000 metres), their ballast water exchange is required occur before entering Canadian 193 Regulations for the Prevention of Pollution from Ships and for Dangerous Chemicals, S.O.R./07-86 [hereinafter Pollution Prevention Regulations]. 194 For example, as a result of damage a ship s equipment or minimal release associated with the recapture or recycling of an ozone-depleting substance. Ibid., s Ibid., s Ibid., s. 9(2). 197 For example, polychlorinated biphenyls, garbage containing more than traces of heavy metals and refined petroleum products containing halogen compounds. Ibid., s Ibid., s Effective 1 January 08. Ibid., s. 174 and Schedule 6. 0 Ballast Water Control and Management Regulations, S.O.R./ Ibid., s Ibid., s Ibid., s Ibid., s

9 waters in an area at least 50 nm from shore where the water depth is at least 500 metres. The same two northern special discharge areas may be used by a ship involved in nontransoceanic navigation in case of stability or safety justifications. 2. The Ballast Water Regulations and Pollution Prevention Regulations both protect the sovereign immunity of ships owned or operated by a State and used only in government non-commercial service. Such ships are exempted from the ballast water ships discharge and management requirements 5 and from the various MARPOL 73/78 pollution discharge standards The Migrary Birds Convention Act, 1994 also holds potential for addressing vesselsource pollution in the Arctic. The Act, applicable Canadian waters and the EEZ, 7 prohibits unauthorized deposits by any person or vessel of a substance that is harmful migrary birds. 8 Game officers are given powers direct and detain vessels having committed or committing an offence 9 and powers of search, seizure and arrest of such vessels are set out. 2 However, the consent of the Atrney General of Canada is required before the exercise of such powers in relation a foreign vessel in the EEZ The Canadian Environmental Protection Act, 1999 controls ocean dumping in waters under Canadian jurisdiction including in the Arctic. The Act prohibits dumping of wastes without a permit 212 and restricts the types of waste that may be permitted those on the safe list 213 set out in the 1996 Procol 214 the London Convention The Fisheries Act 216 provides a further pollution prevention net applicable Arctic waters as well as other fishing zones of Canada. 217 Section 36(3) of the Act prohibits any person from depositing a deleterious substance in water frequented by fish. The deleterious deposit provision may cover a wide range of pollutants and deposirs are subject prosecution unless the deposit is authorized by regulations, 218 for example, sewage discharges authorized under the ASPP Regulations Ibid., s. 2(2)(c). 6 Pollution Prevention Regulations, note 193 supra, s. 3(2). 7 Migrary Birds Convention Act, 1994, 1994, c.22, s Ibid., s. 5.1(1). 9 Ibid., s Ibid., s. 18.3(3). 211 Ibid., s. 8.1(9) and 18.3(4). 212 Canadian Environmental Protection Act, 1999, S.C. 1999, c. 33 [hereinafter CEPA]. 213 Ibid., Schedule 5. These wastes include, among others, dredged material, fish wastes, organic wastes of natural origin and vessels and platforms, but proposed disposals would still be subject a waste assessment audit. 214 Procol the Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matter, London, 7 vember 1996, 36 I.L.M Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, London, 29 December 1992, 46 U.N.T.S Fisheries Act, R.S.C. 1985, c. F Ibid., s Ibid., s Pollution Prevention Regulations, note 193 supra, s

10 214. Transport Canada has issued guidelines encourage pollution prevention by cruise ships operating in waters under Canadian jurisdiction including Arctic waters. 2 Numerous pollution sources are addressed. For example, cruise ships are urged land ashore used phographic and x-ray development fluids or treat such fluids remove silver for recycling. 221 Cruise ships are advised not discharge chlorinated dry-cleaning fluids in the environment but land them ashore a licensed facility or service. 222 The collection of spent batteries and landing them ashore for recycling is advocated. 223 Guidance on the discharge of graywater, including drainage from showers and laundries, is also given with cruise ships urged not discharge graywater in port and not within four nautical miles from shore Only one vessel-source pollution case has been reported for Canadian Arctic waters. In Regina v. Le Chene. 1, (1987) N.W.T.R. 9, a Canadian registered oil tanker was charged under the AWPPA for depositing 19,000 gallons of jet fuel resulting from various shortcomings including an old hose for pumping the fuel shore, lack of a searchlight for moniring the hose on a dark night and lack of equipment contain and recover a fuel spill. The Court imposed a CDN$14,000 fine and emphasized the need for deterrence when deciding on the appropriate sentence CDEM standards 216. The ASPP Regulations address construction of ships by requiring general international ship safety standards be adhered by ships navigating in Canada s ship safety control zones as well as special Arctic-specific construction standards. As for Canadian ships, 225 the Regulations require compliance by non-canadian ships with the construction related standards of SOLAS 74 and the International Convention on Load Lines, It is be noted that the AWPPA and ASPP Regulations also apply warships and other government vessels. This arguably goes beyond the scope of Article 234 of the LOS Convention Special construction and design standards for Arctic shipping have also been imposed. Ships over 0 gross nnage and carrying oil in excess of 453 m 3 are not allowed navigate in any zone unless they meet special construction standards set out in schedules the Regulations Transport Canada, Pollution Prevention Guidelines for the Operation of Cruise Ships Under Canadian Jurisdiction, TP 14702E (05). 221 Ibid., s Ibid., s Ibid., s Ibid., s Canadian ships are subject the various technical standards pursuant the CSA 01 and subsidiary regulations such as the Hull Construction Regulations, C.R.C., c. 14; Marine Machinery Regulations (S.O.R./90-264) and Load Line Regulations (S.O.R./07-99). 226 ASPP Regulations, note 188 supra, s Ibid., s. 3(1) and 6(1). 53

11 219. The Regulations have established a zone/date system for such ships with earliest and latest entry dates for each of the 16 shipping safety control zones being set corresponding the ice capability of 14 categories of ships (Figure 7). 228 For example, the most powerful Arctic Class vessel could operate year round in all the zones while the least ice-capable, Type E ship (open water), would be excluded from entering the first six zones at any time of the year as those zones have the most severe ice conditions. 229 Zone 1 is considered have the most challenging ice conditions and Zone 16 the easiest. exception regarding construction standards is made for any naval vessel or ship engaged in non-commercial government service. 2. The categories include nine Arctic class ships (, 8, 7, 6, 4, 3, 2, 1A and 1) with classifications based on the thickness in feet of ice that the vessel would have the power and strength break, and five ships types (A, B, C, D and E). The types are based on the Finnish-Swedish (Baltic) rules where Type A ships can operate in thick first-year ice and Type E ships are considered open water vessels with no ice strengthening. 2 To complicate matters, in 1995 Transport Canada issued the Equivalent Standards for the Construction of Arctic Class Ships that set construction standards for four classes of new ships with each of the four classes being the equivalent an Arctic Class set out in the Regulations. 2 The categories (and Arctic Class equivalent) are as follows: CAC 1 (Arctic Class ); CAC2 (Arctic Class 8); CAC3 (Arctic Class 6); and CAC4 (Arctic Class 3) To provide more flexibility for ship entries in light of variable ice conditions year year, Canada introduced the Arctic Ice Regime Shipping System (AIRSS) in The System, having a legal foundation under section 6(3) of the ASPP Regulations, allows ships navigate outside the present zone/date system when ice conditions are suitable. 233 The System uses a mathematical formula, considering concentrations of ice and ice types, determine whether a ship can enter the ice regime in a particular zone. A ship choosing follow the system based on actual ice conditions would be required have a qualified ice navigar on board In August 09, Transport Canada issued a Ship Safety Bulletin (. 04/09) explaining its policy wards the application of new rules concerning structural and machinery requirements for Polar ships, promulgated by the IACS. The interim policy be followed until appropriate regulary changes are made, clarifies how the seven Polar classes under the IACS Unified Requirements will be treated under the Canadian Arctic categories. For example, Polar class 6 and 7 vessels under the IACS scheme will be allowed operate as Type A and B vessels respectively under the Canadian regime. 228 Ibid., s. 6(2). 229 Department of Fisheries and Oceans and Canadian Coast Guard, Ice Navigation in Canadian Waters (Ottawa: Department of Fisheries and Oceans/Canadian Coast Guard, 1999). 2 Transport Canada, Arctic Ice Regime Shipping System (AIRSS) Standards. TP12259E (Ottawa: Transport Canada, 1998) [hereinafter AIRSS Standards]. 2 Transport Canada, Equivalent Standards for the Construction of Arctic Class Ships TP (Ottawa: Transport Canada, 1998). 232 Transport Canada, User Assistance Package for the Implementation of Canada s Arctic Ice Regime Shipping System (AIRSS) TP12819 (Ottawa: Transport Canada, 1998); AIRSS Standards, note 2 supra. 233 DFO/CCG, note 229 supra. 54

12 223. Canada, through the National Research Council of Canada, has conducted a reexamination of the zone/date intersection of the regulations in light of climate change in a recent study. 234 The data on which the zones are based is now 40 years old and these have become dated. This report builds on earlier work the Canadian Hydraulics Centre (CHC) underok on the ice regime system. The purpose of the report and research was initiate a dialogue among the stakeholders build a better Arctic shipping regime and that dialogue is ongoing The owner or the master of a ship proposing navigate within any zone may apply for an Arctic pollution prevention certificate. The certificate may be issued by a Canadian marine inspecr or from a surveyor of a classification society outside of Canada, indicate that the ship complies with the Regulations when in Canadian waters. 235 Such a certificate is not, however, mandary before any navigation in Canadian arctic waters tanker is allowed navigate in any zone without the services of a qualified ice navigar. 236 The ASPP Regulations define qualified as having served on a ship in the capacity of master or person in charge of the deck watch for a tal period of at least 50 days, of which days must have been served in Arctic waters while the ship was in the conditions that required the ship be assisted by an ice-breaker or make manoeuvres avoid concentrations of ice There are no additional special manning provisions Various equipment requirements are imposed in relation Arctic shipping through three additional regulations under the AWPPA. Steering Appliances and Equipment Regulations 238 require testing of steering gear units of ships before departure 239 and mandate every tanker, chemical carrier or gas carrier of,000 ns or more have an alarm system in the event of a steering power failure and ensure the capability of moving from aumated manual steering. 240 Ship Station (Radio) Regulations, establish various radio equipment requirements and including a radio facsimile terminal for Arctic class ships or a Type A ship navigating in most shipping safety control zones in order receive transmissions of ice information. 242 Navigation Safety Regulations 243 set additional equipment requirements for vessels (including non-canadian ships) navigating 234 G. W. Timco and I. Kubat, Regulary Update for Shipping in Canada s Arctic Waters: Options for an Ice Regime System TP 14732E Technical Report CHC-TR-045 (Ottawa: Canadian Hydraulics Centre, National Research Council of Canada, 07). 235 ASPP Regulations, note 188 supra, s. 13. The Regulations do not require a certificate before entry in Arctic waters but the certificate provides, in the absence of any evidence the contrary, proof that a ship complies with the standards prescribed in the Regulations. Ibid., s Ibid., s. 26(1). 237 Ibid., 26(7)(b). 238 Steering Appliances and Equipment Regulations, S.O.R./ Ibid., s Ibid., s Ship Station (Radio) Regulations, 1999, S.O.R./ Ibid., s Navigation Safety Regulations, S.O.R./

13 in shipping safety control zones in relation gyro-compasses, 244 radar, 245 and echosounders Canadian efforts prevent and control spills related bunkering operations (fuelling of ships) and the loading or unloading of oil, noxious liquid substances or a dangerous chemical might be described as fragmented. The ASPP Regulations require Arctic class ships have on each side of the deck a bunkering station for connection of a bunkering hose with a flange having dimensions set out in Schedule IX. 247 A length of bunkering hose of at least m is also required. 248 The Pollution Prevention Regulations under the CSA 01 require ships of 0 ns or more be equipped with a container or an enclosed deck capable of retaining leaked or spilled oil during bunkering operations. 249 The Regulations also set out various technical requirements for transfer operations including the strength of transfer conduits which must have a bursting pressure of not less than four times their working pressures and must be subject hydrostatic testing at least once during the year. 250 Arctic Waters Oil Transfer Guidelines 251 add a recommendary overlay including a call for all persons / organizations responsible for transfer operations in excess of 500 m 3 in a single event notify Transport Canada 252 and provide adequate clean-up equipment. 253 Guidelines for the Operation of Tankers and Barges in Canadian Arctic Waters (Interim) 254 establish further guidance for preventing oil spills from tank vessels larger than 0 gross register ns, including a recommendation that all tankers operating in Canadian Arctic waters be fitted with a 0 mm high coaming surrounding the main deck at the gunwale Various crewing provisions are set out in the Marine Personnel Regulations. 256 The Regulations set training requirements for issuance of certificates of competence by the Minister of Transport in such areas as master mariner, chief mate, first-class engineer, supervisor of a chemical transfer operation, and supervision of an oil transfer operation in Arctic waters (north of 60 o N latitude). 257 Canadian and foreign vessels in Canadian waters are required meet the safe manning requirements established in accordance with IMO Resolution A.890(21), Principles of Safe Manning. 258 Division 4, Part 2 of the Regulations establishes the minimum complement of crew aboard foreign vessels in Canadian waters including the master, radio watch, deck watch, and engineers. 259 The 244 Ibid., s Ibid., s Ibid., s ASPP Regulations, note 188 supra, s. (a). 248 Ibid., s. (b). 249 Pollution Prevention Regulations, note 193 supra, s Ibid., s Transport Canada, Arctic Oil Transfer Guidelines, TP 783E (Ottawa: Transport Canada, April 1997). 252 Ibid., p Ibid., p Transport Canada, Guidelines for the Operation of Tankers and Barges in Canadian Arctic Waters (Interim), TP 11663E (Winnipeg: Transport Canada, Prairie & rthern Region, Marine, April 1997). 255 Ibid., p Marine Personnel Regulations, S.O.R./ Ibid., Part Ibid., s Ibid., s

14 Regulations also set out minimum hours of rest and maximum hours of work for crew members, 260 but no specific requirements have been established for Arctic waters Liability, compensation and insurance standards 229. Canada s liability and compensation regime relating damage from ship-source pollution in the Arctic is complicated with two main statury foundations governing civil liability, the AWPPA and the Marine Liability Act. 261 Other legislation and Canadian common law may also be relied upon. 2. The AWPPA makes the shipowner and owner of the cargo jointly and severally liable for damages relating a deposit of waste from a ship. 262 Such liability is absolute and does not depend on proof of fault or negligence. 263 Damages recoverable include claims by the Canadian government for reasonable clean-up costs and efforts remedy or mitigate any conditions 264 and claims by persons for actual loss or damage The AWPPA authorizes the Governor in Council make regulations stipulating financial responsibility, such as insurance or an indemnity bond, and setting limits of liability for shipping incidents. 266 The Arctic Waters Pollution Prevention Regulations 267 require the shipowner provide evidence of financial responsibility, which may be a declaration of insurance by an underwriter, before a ship carrying more than 00 ns of waste can navigate in any shipping safety control zone. 268 The form of financial responsibility must allow a direct action against the insurer. 269 The Regulations set limits of liability for the shipowner and cargo owner. The maximum amount of joint and severe liability is determined by multiplying 2,000 gold francs by the number of ns of the ship s nnage with the maximum liability not exceeding 2 million gold francs Ibid., ss. 3 and Marine Liability Act, S.C. 01, c. 6 [hereinafter MLA]. 262 AWPPA, note 180 supra, s. 6(1)(c). Waste is defined broadly in s. 2 include: (a) any substance that, if added any water, would degrade or alter or form part of a process of degradation or alteration of the quality of that water an extent that is detrimental their use by man or by any animal, fish or plant that is useful man, and (b) any water that contains a substance in such a quantity or concentration, or that has been so treated, processed or changed, by heat or other means, from a natural state that it would, if added any other water, degrade or alter or form part of a process of degradation or alteration of the quality of that water the extent described in paragraph (a). 263 Ibid., s. 7(1). 264 Ibid., s. 6(3). 265 Ibid., s. 6(2)(b). 266 Ibid., ss. 8(1)(d) and Arctic Waters Pollution Prevention Regulations, C.R.C., c Ibid., ss. 12 and Ibid., s. 12(2). The Regulations provide that the insurance contract may set out various defences open the insurer including an act of war or negligence by the government authority responsible for maintaining navigational aids. 270 Ibid., s. (1). 57

15 232. The AWPPA sets further conditions on claims. Claims by persons suffering actual loss or damage are ranked ahead of the Crown s cost recovery claims. 271 Claims must be commenced within two years after the deposit of waste occurred or could reasonably be expected have become known those affected While the Marine Liability Act (MLA) covers liability in relation carriage of passengers and goods by water 273 and sets limits of liability for maritime claims against a shipowner in respect of loss of life, personal injury or damage property, 274 the predominant focus of the Act is on providing a liability and compensation regime for oil pollution damage. The provisions help give domestic effect the 1992 Procol the Civil Liability Convention and the 1992 Procol the Fund Convention Shipowners are made strictly liable for oil pollution damage from ships 275 caused on the terriry of Canada, in Canadian waters and in the EEZ. 276 Liability extends reasonable costs and expenses taken prevent, repair, remedy or minimize oil pollution 277 ; pollution moniring expenses 278 ; loss of income by fishers and other claimants 279 ; and costs of reasonable measures reinstate the environment Various defences are open shipowners including an act of war, an exceptional natural phenomenon, an intentional act by a third party, or negligence by a governmental authority in maintaining navigational aids Maximum liability limits are set for owners of a ship subject the Civil Liability Convention according the nnage of the ship. 282 The maximum claim against an owner relating an oil tanker spill in Canada as of April 1, 08 was CDN$1.745 million AWPPA, note 180 supra, s. 6(4). 272 Ibid., s. 6(5). 273 MLA, note 261 supra97, Part 4 (Liability for Carriage of Passengers by Water) and Part 5 (Liability for Carriage of Goods by Water). 274 The MLA implements the Convention on Limitation of Liability for Maritime Claims, 1976 and its 1996 Procol in Canada and establishes maximum liability for ships not covered by other international liability conventions such as those relating oil pollution and nuclear damage. For example, the maximum liability for ships under 0 ns is set at $1,000,000 for claims for loss of life or personal injury and $500,000 in respect of any other claims such as property damage. Ibid. s. 28. For a further discussion, see Hugh M. Kindred, The ocation of Civil Liability for Damage the Marine Environment in the New Canadian Law of Merchant Shipping, or the Polluter Pays How Much? (03) 26 Dalhousie Law Journal MLA, note 261 supra, s Ibid., s Ibid., s. 51(1)(b). 278 Ibid., s. 51(1)(c)(i). 279 Ibid., s Ibid., s. 51(2). 281 Ibid., s. 51(3). 282 Ibid., s. 54. The maximum liability for the owner of a ship not flagged in a Party the Civil Liability Convention would be established pursuant the Limitation of ocative Claims Convention of 1976 and its 1996 Procol. Ibid., s Administrar of the Ship-source Oil Pollution Fund, Ship-Source Oil Pollution Fund: The Administrar s Annual Report (Ottawa, 08), p. 3 [hereinafter Administrar s Annual Report]. 58

16 237. The MLA also provides for claims against the International Oil Pollution Compensation (IOPC) Fund. 284 Such claims may be brought where a claimant has been unable obtain full compensation from the ship s owner or the owner s guaranr. 285 As of April 1, 08 the IOPC Fund provided a further compensation tier of CDN$ million for a tanker spill, therefore the maximum compensation payable under both the CLC and Fund was CDN$ million In addition the international convention compensation regimes relating oil spills from tankers, Canada has established its own domestic Ship-Source Oil Pollution Fund (SSOPF). 287 The SSOPF covers oil spills from all classes of ships, not just sea-going tankers carrying persistent oils, 288 provides for recovery even where a particular ship may not be identified as the source of a spill, 289 and allows most claimants expedited recovery as a Fund of first resort. 290 The SSOPF offers a further tier of compensation, standing at CDN$2,1,4 as of 1 April Thus, the tal limits of liability for oil spills in Canada sod at CDN$ million as of April Given the MLA s extensive addressing of compensation relating oil spills, it appears likely that the civil liability provisions of the Arctic Waters Pollution Prevention Act will play a backsp role. 293 The AWPPA may be particularly relevant for vesselsource pollution incidents other than oil, for example, chemical spills or noxious substance discharges Two other federal statutes may also provide limited avenues for compensation relating Arctic vessel-source pollution incidents. 294 The Transportation of Dangerous Goods Act 295 allows the Canadian government recover costs and expenses relating taking measures respond an accidental release of dangerous goods. 296 The Canadian Environmental Protection Act, allows civil actions by persons suffering loss or damage resulting from contraventions of the Act or its regulation which might cover ocean dumping incidents or xic substance deposits MLA, note 261 supra, s Ibid., s Administrar s Annual Report, note 283 supra. 287 MLA, note 261 supra, s Administrar s Annual Report, note 283 supra, p MLA, note 261 supra, s. 84(e). 290 The exception is a Response Organization established under the Canada Shipping Act. Administrar s Annual Report, note 283 supra, p Ibid., p Ibid. 293 It should be noted that the AWPPA, in section 2.1, provides the Marine Liability Act would prevail in case of any inconsistency relating liability and compensation provisions. 294 For a further discussion, see Kindred, note 274, at pp Transportation of Dangerous Goods Act, S.C. 1992, c Ibid., s CEPA, note 212 supra. 298 Ibid., s. 40. However, CEPA may have very limited application in light of s. 42(3) which provides: claim for damages caused by a ship may be made under this Act the extent that a claim for damage may be made under the Marine Liability Act or the Arctic Waters Pollution Prevention Act. 59

17 241. Canadian common law doctrines may also be relied upon for recovering damages related vessel-source marine pollution incidents in the Arctic. n-statury based cases of action include negligence, public nuisance and possibly the public trust doctrine Navigation standards 242. Canada has established several regulations and provisions guide planning of voyages and improve marine communications and traffic services that enhance navigational safety in Arctic waters The CSA, 01 authorizes regulations be passed establishing vessel traffic services (VTS) zones in order protect the environment in a shipping safety control zone whereby vessel reporting and clearance is mandary for commercial ships. 0 However, mandary VTS zones have only been established for areas on the east and west coasts of Canada. The Arctic Canada Traffic System, referred as NORDREG, 1 monirs vessel traffic north of 60 o N latitude and in Ungava and Hudson bays. Under NORDREG, ships of 0 ns or more and those carrying a pollutant or dangerous good as cargo are encouraged follow various reporting procedures including the pre-entry provision of information about ice class, amount of oil on board (fuel and cargo) if such amount exceeds 453 m 3, date of the Arctic Pollution Prevention Certificate if carried and the name of the classification society. An exit report is also urged. accidents and incidents of pollution must be immediately reported NORDREG. Recently, the Canadian federal government announced plans move NORDREG a mandary reporting system for the shipping season Ice information, ice routeing and icebreaker assistance may be obtained through NORDREG. Ships can receive electronically ice maps and other information assist them select routes through the Canadian Arctic Archipelago, depending on ice conditions. Ships have the freedom seek out leads in ice cover and in heavy ice may request icebreaker assistance. Part 3 of the Radio Aids Navigation 09 describes the type and content of NORDREG messages. 3 The CCG operates six icebreakers in the Arctic between early and early vember. Icebreaker operations include route 299 For a review of potential common law avenues, see William Charles and David VanderZwaag, Common Law and Environmental Protection: Legal Realities and Judicial Challenges in E. Hughes, A.R. Lucas and W.A Tilleman (eds.), Environmental Law and Policy 3 rd ed. (Toron, Canada: Emond Montgomery Publications Ltd., 08) Canada Shipping Act, 01, 01, c. 26, s. 136 [hereinafter CSA 01]. 1 See, Transport Canada, NORDREG, available: < 2 Prime Minister of Canada, Backgrounder: Extending the Jurisdiction of Canadian Environment and Shipping Laws in the Arctic, (27 August 08), available: < The requirement for mandary reporting under NORDREG will initially be set out in a separate regulation that is being drafted and will be published in Part II of the Canada Gazette. Robert Turner, Navigation Safety and Radio Communications, Transport Canada, pers. comm. (14 09). 3 For details on the information required before entering the NORDREG traffic zone, see < 60

18 assistance, flood control and harbour breakouts. Vessels not participating in NORDREG will receive lower priority in requesting icebreaker assistance than those vessels making daily position reports Collision avoidance has not been an issue date, as few ships operate in the Arctic and they communicate with each other as they work through ice. This could change however if traffic increases in an extended shipping season with more open water conditions. The Collision Regulations established under CSA 01 apply vessels in shipping safety control zones established under AWPPA. 5 The Regulations include the international standards set out in the COLREG 72 as well as additional Canadian modifications for collision avoidance equipment (e.g., lights, shapes, sound and light signals, radar reflecrs) and manoeuvres. The Regulations apply foreign commercial vessels as well as pleasure craft and exploration or exploitation vessels. 6 Although the COLREG 72 do not contain specific rules for ships navigating in ice-covered waters, they do cover a situation where a ship is constrained in its ability manoeuvre due size, draught or other reason such as manoeuvring in ice Both the CSA 01 and the AWPPA provide for the appointment of pollution prevention officers (PPO). 7 Where weather, ice or sea conditions require, a pollution prevention officer may order a ship away from a shipping safety control zone in the interests of safety. 8 The PPO may also order a ship away from a shipping safety control zone when the officer suspects that the ship has failed comply with applicable standards set out in regulations related, inter alia, navigational and telecommunications equipment and maps, charts and other publications related navigation in Arctic waters. 9 Under the CSA 01, the PPO has the power inspect a response organization (see Contingency Planning below) and direct it provide required documentation 0 and direct a vessel in Canadian waters or EEZ that is required have a shipboard oil pollution emergency plan provide information concerning it and its implementation. 1 The PPO may also direct any vessel that is within or about enter these waters that is believed be carrying a pollutant proceed by a specified route and speed. 2 Pollution prevention officers are appointed by Transport Canada enforce provisions of CSA 01 and its regulations, and by both Transport Canada and the Department of Fisheries and Oceans enforce the provisions of the AWPPA and regulations pursuant it that are related shipping. 3 4 Transport Canada, Icebreaker Escort, available: < (accessed 4 09). 5 Collision Regulations, C.R.C., c. 1416, s Ibid., s. 3(1a). 7 CSA 01, note 0 supra, s. 174; AWPPA, supra note, s AWPPA, ibid., s. (4)(b)(iii). 9 Ibid., s. (4)(b)(i). 0 CSA 01, note0 supra, s. 175(b)&(d). 1 Ibid., s. 175(1)(c). 2 Ibid., s. 175(1)(b). 3 Memorandum of Understanding between Transport Canada and Fisheries and Oceans Respecting Marine Transportation Safety & Environmental Protection, Annex G: Pollution Prevention Officer Appointments (April 1996), available: < 61

19 247. The Charts and Nautical Publications Regulations, 1995 apply any ship navigating in a shipping safety control zone established under the AWPPA. 4 The Regulations require the master and owner of every ship of 0 ns or more have on board the most recent editions of navigational charts, documents and publications. 3 Provisions regarding the use of charts, including provisions for those in electronic form (ECDIS), as well as back-up arrangements for electronic charts are detailed. 6 The Regulations list the sailing directions, tide and current tables, tices Mariners, navigational aids and signals and radio aids published by the Canadian government or an authorized agent that are required onboard a vessel. The master of a ship is required plan a route that takes in account the current charts, documents and publications as required under the Regulations, in addition the annex IMO Resolution A.893(21), Guidelines for Voyage Planning. 7 To ensure safe navigation the master must also seek avoid dangerous situations in planning a voyage by, inter alia, anticipating all known navigational hazards and adverse weather conditions. 8 Any ship making a voyage during which ice may be encountered must carry and make proper navigational use of Ice Navigation in Canadian Waters, published by the Department of Fisheries and Oceans. 9 This volume contains operational guidelines and also serves as a reference and introducry training manual for ships operating in Canadian waters in which ice may be encountered In addition navigation equipment standards (see above), the Navigation Safety Regulations set out various navigational safety requirements for ships navigating in Canadian waters or a shipping safety control zone. The master of a ship is required communicate information regarding, inter alia, dangerous ice or sub-freezing air temperatures associated with gale force winds that is causing severe ice accretion on superstructures other ships in the vicinity or the shore station for the area Ships carrying more than 12 passengers and falling under Chapter 1 of the SOLAS must have a plan on board for cooperation with appropriate search and rescue services that is developed cooperatively by the ship, the company and the search and rescue services. 321 The plan should take in account IMO MSC/Circ. 79, Guidelines on Preparing Plans for Cooperation between Search and Rescue Services and Passenger Ships and include provisions for periodic testing exercises The Ship Station (Radio) Regulations, 1999 require any vessel navigating in a shipping safety control zone meet these regulations and the Ship Station (Radio) Technical Regulations, A non-canadian ship navigating in a shipping safety 4 Charts and Nautical Publications Regulations, 1995, S.O.R./95-149, s Ibid., s Ibid., s. 4, ss Ibid., s. 14(1). 8 Ibid., s. 14(2c). 9 DFO/CCG, note 229 supra. 3 Navigation Safety Regulations, note 243 supra, s. 82(2). CSA 01, note 0 supra, makes a similar provision in s Ibid., s. 81(1). 322 Ship Station (Radio) Regulations, 1999, note 241 supra; Ship Station (Radio) Technical Regulations, 1999, S.O.R./00-265, s. (1) 62

20 control zone must be equipped with a ship station and radio equipment in accord with these Regulations. 323 The Regulations set out requirements for various navigational safety equipment such as VHF radio telephones, emergency position-indicating radio beacons (EPIRBs), digital selective calling (DSC), international NAVTEX service, and emergency radio equipment and energy supply. Ships navigating in Global Maritime Distress and Safety System (GMDSS) Sea Areas A2, A3 and A4 324 must meet special requirements regarding receiving and transmission capabilities for radio installations and receipt of maritime safety information sent by Inmarsat. 325 Arctic class ships or Type A ships navigating in a shipping control zone (with exceptions for zones in Hudson Bay) must be equipped with a radio facsimile terminal capable of receiving transmissions of ice information from radio stations and ice reconnaissance aircraft In terms of ice navigation, the CCG recovers a portion of the cost of providing marine navigation and vessel traffic services commercial ships through the Marine Navigation Services Fee (MNSF) 327 and ice breaking services through the Ice Breaking Services Fee (IBSF) Ship Station (Radio) Regulations, ibid., s. 2(2). 324 The Global Maritime Distress and Safety System uses terrestrial and satellite technology and shipboard radio systems for communication in emergency situations. The GMDSS was adopted by the IMO by means of amendment of Chapter IV of SOLAS and became fully effective 1 February GMDSS divides the oceans in four sea areas: Area A1: Within range of VHF coast stations with continuous DSC alerting available (about miles) Area A2: Beyond area Al, but within range of MF coastal stations with continuous DSC alerting available (about l50 miles) Area A3: Beyond the first two areas, but within coverage of geostationary maritime communication satellites (in practice this means Inmarsat). This covers the area between roughly 76º rth and 76º South. Area A4: The remaining sea areas, including the sea around the rth Pole. Geostationary satellites, which are positioned above the equar, cannot reach this far. Within each sea area, the number and type of radio safety equipment that ships are required carry is set out dependent upon a vessel s nnage and limitations with respect coverage of various communications systems. See, Inmarsat, What is GMDSS, available: < (accessed 8 09). Governments establish sea areas off their coast based on criteria established by the International Maritime Organization. See IMO, Provision of Radio Services for the Global Maritime Distress and Safety System (GMDSS), IMO Resolution A.801(19), 23 vember 1995, Annex Founded in 1979 ensure communication between ships at sea, Inmarsat became the first intergovernmental organization transformed in a private company in Inmarsat provides mobile satellite services for distress and safety communications for the maritime community, offering three satellite communication systems that provide most of the GMDSS medium- and long-range functions as well as search and rescue coordination communications, dissemination of maritime safety information, and general radiocommunications services. See, Inmarsat, Inmarsat s role in the GMDSS, available: < (accessed 8 09). 326 Ship Station (Radio) Regulations, 1999, note 241 supra, s. (2 3). 327 Canadian Coast Guard, An Assessment of Comments from Public Consultations, Table 1: Marine Navigation Services Fee Rates Effective 1 Ocber 1998, available: < #PNSvessels>. te: the fee structure has remained unchanged since implementation. 328 Department of Fisheries and Oceans, Marine Services Fees, Icebreaking Services Fee Schedule, 21 December 1998, available: < te: the fee structure has remained unchanged since implementation. 63

21 252. The fees are authorized under the Oceans Act. 329 Domestic and foreign flagged vessels, including cruise ships, operating exclusively north of 60 o N latitude and between remote ports (as defined under the Income Tax Act) are exempt from payment of the MNSF and IBSF. Fishing vessels (both domestic and foreign), government ships and pleasure craft are exempt from payment of the MNSF However, a vessel loading or unloading cargo at Churchill, Maniba, on Hudson Bay, would be required pay the MNSF fee because the vessel was moving between exempt Canadian waters and a remote Canadian port south of 60 o N latitude. For example, a foreign-flagged vessel would pay the MNSF fee at a rate of CDN$0.2 per metric nne of cargo loaded and/or unloaded. A vessel operating south of 60 o N latitude entering Canadian waters, defined for purposes of the application of the fee as the limits of Canada s terririal sea, would be subject payment of the MNSF and the IBSF, however the latter would only be payable during the ice season (December May) when the fee is in effect An exemption for payment of the fees is made for vessels required by the Canadian government or in response an emergency enter a port south of 60 o N latitude Cruise ships 255. The Guidelines for Operation of Passenger Vessels in Canadian Arctic Waters provide Arctic cruise ship operars with information on all the relevant Canadian and terririal government agencies contact for advice and approvals in planning cruises in Canadian Arctic waters. 3 Cruise ships entering Canadian Arctic waters must comply with all relevant marine safety, security, pollution prevention and cusms regulations. Cruise ships must fall within the legal entry limit set in the ASPP Regulations for the various shipping safety control zones for their proposed itinerary. The guidelines encourage ur operars conserve the Arctic environment and suggest that operars and urists should consult the World Wildlife Fund for Nature (WWF) International codes of conduct for operars and urists respectively The Marine Environmental Handbook Arctic, rthwest Passage gives detailed information concerning Arctic marine environmental issues and concerns specifically in the rthwest Passage and serves as a reference manual, particularly for cruise ships. 333 The Handbook includes various suggested navigational practices such as staying at least 329 Oceans Act, supra note 173, s Kevin Carson, Marine Services Fees Billing, Collection and Compliance, Department of Fisheries and Oceans, pers. comm. (21 May 09). 3 Transport Canada, Guidelines for Operation of Passenger Vessels in Canadian Arctic Waters, TP 13670E (Winnipeg: Transport Canada, Prairie and rthern Region, Marine, 05). 332 World Wildlife Fund, Code of Conduct for Tour Operars in the Arctic and Code of Conduct for Arctic Tourists, available: < urism_tips/> (accessed 3 09). 333 Department of Fisheries and Oceans, Marine Environmental Handbook Arctic, rthwest Passage (Ottawa: Department of Fisheries and Oceans, 1999). 64

22 ten miles away from shore on the north and south coasts of Lancaster Sound in order avoid the fall migration routes for marine mammals. 4.4 Contingency planning and preparedness Search and rescue 257. Canada is a party the SAR Convention and must ensure that rescue resources are available in the Arctic area under its jurisdiction and cooperate with other Arctic coastal States as required. Canada has a challenging aeronautical and maritime SAR area of over million km 2 of land and sea, an area one and a half times that of Canada s land mass or of continental Europe The CSA, 01 establishes a framework for search and rescue operations in Canadian offshore waters. The Minister of Fisheries and Oceans is authorized designate rescue coordinars and rescue coordinars are given broad powers direct any vessel take part in searches or otherwise render assistance where a vessel or an aircraft is in distress or missing. 335 Authority for the control of SAR is vested in the Minister of National Defence, with the Canadian Coast Guard assuming operational responsibility for providing personnel, equipment, and infrastructure for marine SAR operations. The National SAR Secretariat supports and promotes the activities of the National Search and Rescue Program, which establishes the general parameters of SAR services and operations in Canada. 336 A recent review of SAR needs recommends a comprehensive study determine SAR service criteria specific rthern Canada Canada Command is the military organization responsible for all routine and contingency Canadian Forces (CF) operations in Canada and rth America. The Commander of Canada Command is assigned responsibility for the overall effective operation of the federal coordinated maritime and aeronautical search and rescue system. Under Canada Command, SAR operations are divided in three Search and Rescue Regions (SRR) (Figure 8), which correlate with their respective Joint Rescue Coordination Centres (JRCC). The JRCC are jointly managed by the Canadian Forces and CCG and serve as the focal point for all maritime and aeronautical SAR activity in their region. During the shipping season, Canada s SAR capability in the eastern Arctic is coordinated by the JRCC in Halifax; the JRCC in Trenn, Ontario, coordinates SAR operations the central and western Arctic marine areas Department of National Defence, Canadian Forces Search and Rescue Backgrounder, SAR BG # (21 April 09), available: < (accessed 2 09). 335 CSA 01, note 0 supra, s See, National Search and Rescue Secretariat, available: < (accessed 2 09). 337 Canadian Coast Guard, Search and Rescue Needs Analysis 07, available < (retrieved 2 09). 338 See, JRCC Trenn, available: < (accessed 2 09). 65

23 260. The JRCC and the Maritime Security Operations Centre (see Maritime Security below) are all co-located and manned 24 hours a day, facilitating an immediate and coordinated response a maritime SAR emergency. The centres are staffed by SAR Coordinars who can choose an On-Scene Co-ordinar (OSC) (usually the Commanding Officer of a government vessel with an experienced crew) as required. In the case of a SAR mission, CCG and Canadian Forces air and naval personnel and resources are tasked directly from a JRCC. The Commander of Canada Command can request CF resources from anywhere in Canada support a SAR operation. CCG vessels are assigned areas of patrol by the CCG Regional Operational Centres (e.g., the Central and Arctic Region for the Arctic) and are normally in the Arctic during the shipping season In the event of a marine SAR incident in the Arctic, CCG vessels operating in the region would be tasked respond, as would any naval vessels or vessels of opportunity operating in the region. Military fixed wing aircraft may be deployed from Greenwood, va Scotia, or Trenn, Ontario Other aircraft at Iqaluit, Nunavut, and operated by Civil Aviation Search and Rescue Association (CASARA), 340 in addition helicopters from CCG ships, may also participate in a SAR operation in the Arctic. The majority of SAR deployments involve an aeronautical response with some aircraft capable of air-droppable survival kits, including life rafts, and specialist Search and Rescue Technicians trained in Arctic rescue. Additional marine resources are also available through the CCG Auxiliary (CCGA) in the Arctic. CCGA vessels and crew are fully capable of marine rescue. 339 For details on military air resources available for SAR each JRCC, see 413 Transport and Rescue Squadron, available: < and 424 Transport and Rescue Squadron, available: < (retrieved 2 09) respectively. 340 The Canadian Forces sponsors and funds the Civil Aviation Search and Rescue Association (CASARA), a volunteer organization established in 1985 augment the military response aeronautical incidents through private aircraft and trained volunteer crews. CASARA aircraft and crews are restricted providing search and communications services. 66

24 Figure 8. Search and rescue regions in Canada Source: Department of National Defence, Canadian Forces Search and Rescue - Backgrounder, SAR BG # (21 April 09), available: < (accessed 2 09) Joint marine search and rescue exercises are conducted regularly in the Canadian Arctic. Operation NANOOK 08, a joint inter-agency operation conducted in the eastern Arctic in August 08, included a simulated marine emergency involving evacuation of a ship in distress. At the international level, CCGS Pierre Radisson and CCG emergency response personnel participated in a joint search and rescue/environmental response exercise in Greenland with Denmark, the United States and Iceland in September The Canadian High Arctic is considered as Sea Area A4 for GMDSS purposes (Figure 9). The Canadian Coast Guard fully meets the maritime safety communications requirements of the GMDSS for the entire Canadian Arctic with High Frequency Digital Selective Calling (HF/DSC) service available at the Iqaluit Maritime Communications and Traffic Services Centre covering Canadian Arctic waters above 70 o N latitude. 342 Under the Navigation Safety Regulations, every ship of 0 ns or more that is engaged on an international voyage or a voyage other than a minor waters or home-trade voyage must be outfitted with a VHF radio installation capable of receiving DSC and a receiver 341 Canadian Coast Guard, Serving Canadians, Fleet Annual Report (Ottawa: Fleet Direcrate, Fisheries and Oceans Canada, Canadian Coast Guard, 09), p CCG, Search and Rescue, available: < See also, IMO, Sub-Committee on Radiocommunications and Search and Rescue, Global Maritime Distress and Safety System (GMDSS), Report of the Joint IMO/IHO/WMO Correspondence Group on Arctic Maritime Safety Information (MSI) Services, COMSAR 13/3/4 (13 vember 08), available: < p

25 for global navigation satellite system. 343 Voice and data capability via HF and Inmarsat are available 75 o N latitude; above 75 o N latitude, vessels must rely on HF and Iridium. Transmission issues for large data files above 75 o N latitude remain a problem. Figure 9: GMDSS Sea Areas Canada Source: Canadian Coast Guard, Global Maritime Distress and Safety System (GMDSS), available: < (accessed 8 09) With the expansion of World-Wide Navigational Warning Service (WWNWS) in the Arctic waters, Canada agreed assume responsibility for coordination of navigational warnings and related maritime safety information with Arctic navigational areas (NAVAREAs) XVII and XVIII up 90 o N latitude (Figure ). A satellite broadcast service is begin on a test basis on 1 January and going in full mode of operation on 1 January 11. In addition, Canada will have state how it intends broadcast marine safety information for waters outside of the satellite coverage area Navigation Safety Regulations, note 243 supra, s. 63(1). 344 Canadian Coast Guard, Key Initiatives Ongoing Services, NAVAREAS, CCG Mid- Review, available: < (accessed 2 09). 68

26 Figure. Arctic NAVAREAs Source: International Maritime Organization, Sub-Committee on Radio Communications and Search and Rescue, th Session, Report the Maritime Safety Committee, COMSAR /16. London: IMO, 06, Annex Places of refuge for ships in need of assistance 266. Canada has had a longstanding practice of granting refuge on humanitarian grounds and on a case-by-case basis. The National Place of Refuge Contingency Plan (PORCP) 345 implements the IMO Guidelines on Places of Refuge for Ships in Need of Assistance. 346 PORCP applies all situations where a ship is in need of assistance and requests a place of refuge in Canadian waters, including internal waters, the terririal sea and the EEZ. Although regional procedures and arrangements for the Canadian Arctic have not yet been implemented, PORCP expressly includes ice issues as criteria for selecting suitable places of refuge along with other conditions PORCP also notes the need for close collaboration with Denmark and the United States in dealing with incidents in boundary waters or where the outcome could have an impact on the Greenland or the United States. 348 Each Transport Canada Marine Safety region is put in place a risk assessment team respond such requests. TC Marine Safety is responsible for implementing the regional procedures and arrangements take in account the PORCP. A ship in need of assistance would contact the appropriate CCG MCTS centre Additional provisions relevant places of refuge are granted port authorities under the Canada Marine Act with regard traffic control. Ships may be requested provide information before they are given clearance enter a port Transport Canada, National Place of Refuge Contingency Plan TP 14707E (Ottawa: Transport Canada, 07) [hereinafter PORCP]. 346 IMO Refuge Guidelines, Guidelines on Places of Refuge for Ships in Need of Assistance, IMO Doc. A.949(23), 5 December 03 (London: IMO, 03). 347 PORCP, note345 supra, Annex Ibid., para Canada Marine Act, 1998, c., s. 56(2). 69

27 269. The port authority may empower its officials provide traffic clearances; direct the master, pilot or any person in charge of the ship provide information on this ship; and direct a ship leave a dock, berth or other port facility, or leave or refrain from entering any area, proceed or remain at a specified location. 350 These powers may be exercised, among others, where there is actual or threat of pollution or hazard life or property, an obstruction navigation, or congestion navigation which poses an unacceptable risk shipping, navigation, the public or the environment Marine oil spill preparedness and response 270. The sensitivity of the Arctic pollution from oil and other hazardous substances underscores the need for preventive measures avoid accidents and incidents that could release such substances in the marine environment In Ocber 1990, the Canadian Public Review Panel on Tanker Safety and Marine Spills Response Capability (Brander-Smith Report) identified oil spill prevention as the highest priority for protecting the coastal and marine environment. 352 The Brander-Smith Report made several recommendations related marine shipping, including provision of dedicated floating environmental moniring and clean-up platforms (Rec. 6-39), housing clean-up equipment aboard Canadian Coast Guard icebreakers (Rec. 6-40), and requiring tankers and barges have oil spill containment and recovery packages on board (Rec. 6-41). The Report also called for an enhanced local response capability in Arctic communities with pre-positioning of equipment for dealing with oil spills (Rec. 6-42). Since that time, the Canadian government, in consultation with the private secr, has augmented Canada s regulary and physical capabilities prepare for and respond marine oil spills Transport Canada is the lead federal agency for Canada s Marine Oil Spill Preparedness and Response regime. The regime is built on a partnership between government and industry, with Transport Canada establishing the guidelines and regulary structure for the preparedness and response marine oil spills. The National Preparedness Plan lays out the overall framework for national preparedness capacity combat marine oil pollution incidents in Canada The CCG is responsible for responding all ship-source oil spills or pollution incidents in Canadian waters. Pursuant the Emergency Management Act, 353 the CCG is required develop and maintain a National Response Plan. 354 The National Response Plan identifies the operational framework for how the CCG will manage the response a marine oil spill, including deployment of personnel and response resources of the CCG 350 Ibid., s Ibid., s. 58(2). 352 Canada, Public Review Panel on Tanker Safety and Marine Spills Response Capability, Protecting Our Waters: Final Report / Public Review Panel on Tanker Safety and Marine Spills Response Capability (Ottawa: The Panel, 1990). 353 Emergency Management Act, 07, c Canadian Coast Guard, Environmental Response National Response Plan, < (accessed 4 09). 70

28 and other government and industry agencies. Other federal government agencies, as well as provincial and terririal governments, play a role in response preparedness capacity and contingency planning for marine oil spills Canada s Marine Oil Spill Preparedness and Response regime sets standards for response a marine oil pollution incident of up,000 nnes within prescribed time standards and operating environments. The Regime is based on the polluter pay principle. Ships transiting waters under Canadian jurisdiction are required have a shipboard oil pollution emergency plan. 355 Under the CSA, 01, ships are required enter in an arrangement with certified Response Organizations (ROs), which provide oil spill response manage and clean-up services Transport Canada has certified four private-secr owned ROs provide emergency response services for spills up,000 nnes in waters south of 60 o N latitude, including Churchill, Maniba. In the Arctic, the CCG assumes the role of RO through the Central and Arctic Region Office based in Sarnia, Ontario. Although the shipowners remains responsible as first responder, they are not required enter in a contract with an RO. 357 The operar of an oil handling facility or anyone who loads and unloads 0 nnes of oil and oil products is also required have an oil pollution emergency plan, as well as response equipment on site during the transfer In the event of an oil spill incident, the CCG assumes the role of Federal Moniring Officer (FMO) when a polluter has been identified and is willing and able respond the incident. The polluter must report the incident as required under the regulations the CSA, and manages the response and appoints an On-scene Commander (OSC). In cases where the polluter is unknown, unwilling or unable respond, the CCG will assume the role of On-Scene Commander (OSC) and assume overall management of the incident. The CCG monirs the overall response ensure that it is effective, timely and appropriate the incident. Within the CCG, the National Support Team (NST), comprised of all CCG emergency response personnel and assets, coordinates the augmentation of CCG s moniring or response operations a marine pollution incident through the cascading of human and material resources from across Canada and abroad, provides international assistance a marine pollution incident, and provides humanitarian aid in response a natural or man-made disaster Environment Canada is the federal authority responsible for environmental advice during a pollution incident. A Regional Environmental Emergencies Team, normally 355 CSA 01, note 0 supra, s. 167(1a). 356 Pollution Prevention Regulations, note 193 supra, s. 38. Established under the Canada Shipping Act, 01 (ss ), the Response Organizations and Oil Handling Facilities Regulations (S.O.R./95-405) outline the procedures, equipment and resources of response organizations and oil handling facilities for use in respect of an oil pollution incident. The Response Organization Standards (TP 12401, Ottawa: Transport Canada, 1995) outline the parameters within which these organizations must respond. 357 Environmental Response Arrangements Regulations, S.O.R./08-275, s. 2(3); Administrar s Annual Report, note 283 supra, p Environmental Response Arrangements Regulations, ibid., s. 3(1); CSA 01, note 0 supra, s. 168(d&e). 359 Pollutant Discharge Reporting Regulations, 1995, S.O.R./ te 354 supra. 71

29 chaired by a senior manager of Environment Canada, advises the On-scene Commander or the RO on environmental priorities and on scientific and other regional concerns related the incident The CCG maintains scks of equipment with trained and experienced responders at strategic locations across the Canada, including the Arctic (Figure 11). This capability can be escalated from across the country bolster local resources if needed. Prepositioned resources include community packs that are immediately deployable, rapid air transportable suites that can be airborne in 24 hours, and Delta 00T depots with resources that are transportable by barge or ship The pre-positioned emergency response materials include booms, skimmers, boats, and srage tanks for recovered oil. In addition, during the shipping season, CCG icebreakers carry first response spill equipment on board and CCG crew members are trained in its use Periodic marine oil spill response training exercises are conducted throughout the Arctic region in coordination with other government departments, provincial and terririal governments and other agencies. Specific training requirements established for CCG emergency response personnel in the National Training Plan, which is implemented on a regional basis. 363 Figure 11. Pre-positioned CCG emergency environmental response supplies 361 Administrar s Annual Report, note 283 supra, pp Ibid, p te 354 supra. 72