1 Introduction
With the enactment of the Arctic Waters Pollution Prevention Act (AWPPA) in 1970,1 Canada became the first coastal State to regulate polar shipping
Although the AWPPA was novel, Canada stopped short of establishing accompanying polar shipping policy and an institutional framework separate from the national maritime administration, responsibility for which lay with Transport Canada (TC). While the AWPPA constituted a strong assertion of coastal State interests, maritime administration continued to focus on the regulation of safety standards. TC’s internal structures operated at national and regional levels, and there was no dedicated public or private body responsible for the administration of Arctic shipping, as was the case of the St. Lawrence Seaway Authority when the seaway opened in 1959.
In the contemporary context, Canada has largely shed off colonial legislation and instead fortified its roles of coastal, port and flag State. Since 1970,
Similarly, the complexity of policy and institutional frameworks increased in response to the liberalization of trade, evolving intergovernmental relations, constitutional recognition of Indigenous rights (including Aboriginal government), environmental concerns, more government to provide services, and demands for inclusive participation in governance. The numerous changes included new or reorganized departmental portfolios for the environment in 1971, fisheries and oceans in 1979, and natural resources in 1994.
Today, federal legislation governing Arctic shipping has largely moved from unilateral rules to the implementation of multilateral international standards in the International Code for Ships Operating in Polar Waters (Polar Code) adopted by the IMO in 2014–2015.11 In addition to TC’s traditional role of national maritime administration, the governance of Arctic shipping involves more institutions at the federal, territorial, Indigenous, industry, and
This chapter undertakes a high-level survey and discussion of the fundamental characteristics of the contemporary Canadian maritime policy, legal and institutional frameworks underpinning the governance of Arctic shipping. It concludes with observations on opportunities for strengthening the governance of shipping with designation of low-impact shipping corridors in Canadian Arctic waters.
2 Policy Framework
Canadian Arctic and national transportation policies inform the policy framework for Arctic shipping. Since 2015, the Trudeau Government’s Arctic policy has complemented marine transportation policy by addressing aspects related to polar shipping. The 2016 Joint Arctic Leaders’ Statement committed to engaging with Indigenous and Northern communities to develop “a governance model for the Northern Marine Transportation Corridors and Arctic marine shipping, in a way that is environmentally and socially responsible, including respecting modern northern treaties” and improving “coverage of modern hydrography, charting and navigational information in the Arctic.”12 Subsequent policy statements reiterated the commitment to Arctic shipping. In 2017, the Arctic Foreign Policy Statement mentioned shipping as an area of focus in promoting economic and social development.13 In 2019, the Arctic and Northern Policy Framework (ANPF) aimed to ensure safe and environmentally responsible shipping according to principles that include reconciliation with Indigenous peoples.14 This includes designation of safe and sustainable
The Canada Transportation Act (CTA) provides the policy backdrop for national transportation for all modes of transport without singling out any region, including the Arctic.16 The policy goal is overarching, aiming at a “competitive, economic and efficient national transportation system that meets the highest practicable safety and security standards and contributes to a sustainable environment’ while optimizing all modes of transportation at the lowest total cost.”17 Accompanying objectives stress competition and market forces as drivers for transportation services while providing a moderating role for regulation and public authority to achieve economic, safety, security, environmental, and social outcomes. The regulator and regulatee are expected to work together to ensure integration in the national transportation system, thus ensuring that industry institutions play important roles in the governance of shipping. The CTA also provides an arbitration framework for disputes on shipping rates between carriers and shippers, including for the resupplying of Arctic communities.18
The high-level policy of the CTA creates concern, given the uniqueness of Arctic shipping. The latest review of the CTA recognized this concern and recommended “a new federal policy vision and regulatory regime to strengthen the safety and reliability of marine transport in the Arctic.”19 An ongoing concern is the continuing lack of infrastructure and capacity, such as the lack of preparedness and response capacity for spills.20 Hence, the CTA review
Shipping strategies and plans further implement national transportation policy objectives. For example, the National Shipbuilding Strategy23 is a long-term investment to renew the Royal Canadian Navy and Canadian Coast Guard (CCG) fleets through procurement contracts with Canadian shipyards across the country. While the Strategy is national in scope, it aims to build sovereignty and maritime governance capacity in Arctic waters. The OPP, which at this time plays an important role in the development of governance capacity in Arctic waters, aims to enhance the marine safety system, preserving and restoring marine ecosystems, enhancing accident and pollution prevention and response, and building Indigenous partnerships to enhance safety and environment protection.24 The OPP also supports the CCG, Canadian Hydrographic Service (CHS) and TC to develop low-impact shipping corridors in Canadian Arctic waters. The initiative is exploring the possibility of a system of routes.25
International and Canadian maritime law of general application and polar shipping regulation inform the legal framework.
3.1 Maritime Legislation of General Application
In 1970, Canada’s maritime legislation consisted of a handful of statutes, chief of which were the AWPPA, CSA and the former Navigable Waters Protection Act. At the time, federal law did not address the full scope of shipping matters, and consequently provincial law governed many areas such as carriage of goods by sea, marine insurance, and necessaries (e.g., ship repair, equipment supplies, and provisions). Today, approximately 50 federal maritime, environmental, and other statutes govern the public and private law aspects of shipping generally and Arctic shipping in particular (see Annex 1). The subsidiary legislation also has expanded exponentially. Annex 2 lists the extensive regulations under the CSA 2001 alone, with more accompanying other statutes.
From the 1970s to the 1990s, a series of Supreme Court of Canada decisions emphasized the essentially uniform nature of federal maritime law, thus limiting the application of provincial law to a few maritime issues that fell under provincial powers of property and civil rights and local undertakings.26 However, in more recent years, the Supreme Court has changed direction on the interface between federal and provincial law on double aspect issues, that is, involving both federal and provincial constitutionally allocated powers. In the spirit of the philosophy of cooperative federalism, in recent years the Supreme Court has been more readily disposed to recognize the complementary role that provincial law could play on shipping and navigation matters.27
The volume of legislation is functionally diverse and demonstrates how far Canada’s maritime interests have evolved since Confederation, and most especially since the 1970s. Contemporary maritime legislation enables Canada to assert sovereignty and maintain order and the rule of law in its waters. It regulates navigation safety, environment protection and security of ships and ports, while also facilitating Canada’s international trade. Maritime legislation implements Canada’s international public law obligations over its ships and provides for extraterritorial jurisdiction, including over Canadian ships in Antarctic waters. The regulated standards include construction, design, equipment, and crewing (CDME), and operational standards for the safety of life at sea, load lines, collision avoidance, and operational vessel-source pollution prevention.
At the private law level, maritime legislation implements rules and model clauses set out in private maritime law conventions Canada is party to, thereby providing the framework for maritime transactions. The numerous topics include civil liability for oil pollution damage, limitation of liability, and salvage model rules for the provision of commercial assistance to ships and minimization of environmental damage. The civil liability and limitation of liability instruments establish rules for compensation for oil pollution from ships, including in Arctic waters.
Uniformity of domestic maritime rules and standards has long been a central aspiration of Canadian maritime law. The purpose is to ensure the consistent implementation of Canada’s treaty obligations and to enable the application of the same safety standards to all navigable waters.28 At times, uniformity has been elusive and in some private law areas controversy continues to reign over the application of provincial law to transactions that federal law historically governed.29 In other areas, the diversity of marine regionalism provides a compelling argument for regulatory diversity to ensure relevance for local concerns. The Arctic and its unique treatment in the AWPPA and its regulations are a case in point because of the unique environmental and navigational conditions and hazards. In addition, and on a smaller and local scale,
3.1.1.1 Safety
The CSA 2001 and its regulations enable Canada to exercise its rights and responsibilities as a flag State and its coastal State right to regulate shipping in Canadian waters in accordance with international law. The Act sets out regulatory, enforcement and institutional responsibilities and procedures. As the principal instrument regulating safety, the CSA 2001 regulates CDME standards, marine documents, and ship operations, including the rules and standards in international maritime conventions and subsidiary instruments referentially incorporated by the Act.30 It also sets out the Canadian Register of Ships, regulatory framework for vessel traffic services and navigation aids, and makes provision for search and rescue. Regulations under the Act address safety and operational competency of small vessels and pleasure craft traffic in Canadian Arctic waters, which often raise safety and search and rescue challenges, most especially in remote areas.31 As will be discussed below, the CSA 2001 also serves as an umbrella for polar shipping safety regulation. The CSA 2001 does not address all maritime safety matters, and separate legislation regulates other aspects such as the safe loading and movement of cargo in containers,32 dangerous goods transportation,33 and carriage of nuclear substances.34
The CSA 2001 establishes a system of offences and enforcement procedures, as well as procedures for the investigation of the causes of incidents, accidents, and casualties to prevent their recurrence, conducted by the Transportation Safety Board of Canada (TSB), which is established by separate legislation.35 The TSB has conducted several investigations concerning occurrences in Arctic waters, including instances of grounding of passenger vessels.36
Maritime and environmental statutes and regulations govern the environmental impacts of shipping in all Canadian waters. A first layer consists of maritime statutes implementing international conventions. The CSA 2001 implements the International Convention for the Prevention of Pollution from Ships (MARPOL),37 ballast waters management convention,38 and anti-fouling systems convention39 and establishes an enforcement system based on public welfare offences.40 The Wrecked, Abandoned and Hazardous Vessels Act (WAHVA) implements the International Convention on Salvage41 and further regulates ships to prevent them from becoming wrecks and abandonment of substandard ships in ports.42
A second legislative layer regulates waste discharges harmful to sensitive environments, species, and resources. The Canadian Environmental Protection Act and regulations under it implement international rules on dumping at sea, defined to also include Arctic waters, and prohibit discharges using ships as platforms and the dumping of ships without permits.43 The Fisheries Act and Migratory Birds Convention Act further prohibit the discharge of substances that are harmful respectively to fisheries habitats and areas frequented by migratory birds.44 The establishment of marine protected areas under various
Similarly, the Canadian Navigable Waters Act regulates obstructions in navigable waters, requiring that major works in navigable waters must not interfere with navigation.49 For the purpose of such works, the Act defines navigable waters in the Arctic Ocean as “[a]ll waters from the outer limit of the territorial sea up to the higher high water mean tide water level and includes all connecting waters up to an elevation intersecting with that level.”50 Antarctic waters are also protected, and Canadian ships require prior permission to sail those waters and must comply with waste discharge rules.51
A third layer concerns a civil liability system for compensation of environmental damage, economic loss and response efforts for spills based on international conventional regimes that Canada has implemented through the Marine Liability Act.52 The three principal regimes—concerning accidental spills of cargo oil, bunker fuel, and hazardous and noxious substances—provide compensation based on limited liability.53 In the event of a large spill in Canadian Arctic waters, these regimes will establish international compensation funds
A fourth and general layer consists of national goals and standards for sustainable development, decarbonization and environmental impact assessment. Federal sustainable development legislation requires, among other, coordination across all the federal government and in compliance with Canada’s international obligations.57 Canada’s commitment to net-zero greenhouse gas (GHG) emissions by 2050 in pursuit of its Paris Agreement obligations affects all economic activities,58 although IMO energy efficiency regulations do not apply to domestic shipping unless expressly extended at the domestic level.59 Port activities and destination and logistics shipping in Canadian Arctic waters constitute activities captured by Canada’s national GHG policy. Similarly, it is arguable that environmental assessment legislation is pertinent to shipping because the Impact Assessment Act addresses activities that could affect habitats and species in internal waters, territorial sea, the exclusive economic zone (EEZ) and on the continental shelf.60 Designated projects under the Act include activities in National Marine Conservation Areas.61 Environmental assessments include those conducted by port authorities.62 The concentration of shipping in designated low-impact shipping corridors in Arctic
3.1.1.3 Ship Reporting and Security
Maritime security in Arctic waters emerged as a concern with the AWPPA and the establishment of the ship reporting system under the Northern Canada Vessel Traffic Services Zone Regulations (NORDREG) in 1977, initially based on voluntary compliance.63 In 2010, reporting became mandatory. There have been instances of vessels not complying with NORDREG mandatory reporting requirements and navigating without an active automatic identification system.64 Domain awareness requires that NORDREG is able to track vessel movements and issue clearances.
In addition to NORDREG, and while not applying to naval vessels and facilities, the Marine Transportation Security Act (MTSA) aims to ensure the security of the marine transportation system, including ships and marine facilities,65 thus providing a security backdrop for Arctic shipping. Among other, regulations under the Act implement the IMO’s International Ship and Port Facility Security Code and set out a security regime for ships, cargoes, bunkers, and port facilities.66 The Minister of Transport is empowered to prohibit entry into Canadian waters and direct the movement of vessels.67 Security offences against shipping and navigation are also criminal offences.68
3.1.1.4 Seafarers and Maritime Training
Federal labour law applies to most aspects of Arctic shipping. The Canada Labour Code69 and Maritime Occupational Health and Safety Regulations70 implement the International Labour Organization’s Maritime Labour
In the event of injury or death, seafarers and their dependents benefit from a worker compensation scheme set out in the Merchant Seamen Compensation Act.76 Differently, provincial and territorial safety regulations and worker compensation schemes apply to personnel based in the provinces and territories and injured while working at sea, such as wildlife harvesters.77 Seafarers and other maritime workers covered by provincial and territorial schemes do not enjoy rights of action under the Marine Liability Act.78
3.1.1.5 Maritime Public Health
In addition to the public health concerns over the release of aquatic organisms or pathogens in ballast waters or toxic substances from anti-fouling systems regulated under the CSA 2001, ships may be vectors of other public
3.1.1.6 Transportation of Goods and Passengers
Public and private law govern the transportation of goods and passengers in Canadian Arctic waters. We have seen the public law regulation of the safety aspects of ships carrying goods and passengers, safe containers and dangerous goods, and the security aspects of cargo handling and certain dangerous goods.
Domestic shipping in Arctic waters, defined as shipping whose ports of departure and destination are in Canada, remains reserved exclusively for Canadian ships.81
The Marine Liability Act, whose provisions prevail over the AWPPA in cases of inconsistency,82 provides the private law framework for the commercial carriage of goods and passengers in Canadian Arctic waters. It implements the international carriage of goods and passengers’ regimes Canada is party to and provides the framework for maritime contracting based on model clauses. Canada is currently party to the Hague-Visby Rules regime setting out the relationship between carriers and shippers and a limited liability regime for carriers,83 and complemented by legislation on bills of lading.84 The Rules apply to carriage in Arctic waters.85
3.1.1.7 Services to Shipping
The full range of services normally available for safe navigation in Canadian waters is limited in Arctic waters. When services are available, they are governed by federal statutory law and the maritime common law. For example, the Pilotage Act established pilotage authorities in Canada’s marine regions,90 but not in Arctic waters. This might come across as puzzling, because the purpose of pilotage is to enable ships to navigate safely in areas prone to navigation hazards and for masters to benefit from the pilot’s local knowledge of navigational conditions and regulations. While pilotage may be mandatory or recommended, mandatory pilotage is widespread in major ports and only recommended in Arctic waters and there are only isolated cases of pilotage in those waters related to resource development.91 A recent review of the Pilotage Act noted that, while the adoption of the Polar Code and use of ice navigators might mitigate the need for pilotage in the short term in Arctic waters, there is potential for pilotage in conjunction with the low-impact shipping corridors in the long term.92 An earlier legislative review noted the related issue of a shortage of ice pilots.93
Federal law does not regulate towage and pushing, except for the operational aspects covered by the collision avoidance regulations.94 Model clauses usually govern the contract, and they speak to the rights and responsibilities
The WAHVA, complemented by the maritime common law, provides the legal framework for the very limited salvage capacity in Canadian Arctic waters.96 In Arctic waters, CCG ships assist vessels in difficulty in addition to providing search and rescue, but they do not have the capabilities and know-how of commercial salvage providers. However, the experience of the Clipper Adventurer, a small passenger vessel that grounded on a shoal in Coronation Gulf, Nunavut, in 2010, appears to have set an important precedent. The vessel did not carry on board the latest information for safe navigation in Canadian Arctic waters and the CCG provided assistance to free the vessel. Subsequently the owners sued the Crown, alleging that CCG and CHS did not properly notify shipowners of the shoal. An action by the Crown to recover costs followed. Efforts at mediation failed and the owners’ case in the Federal Court failed in trial and on appeal and leave to appeal to the Supreme Court of Canada was dismissed.97 While the circumstances of the case were unusual, it appears the Crown is able to charge for the assistance it provides, particularly when the predicament of the vessel results from lack of seaworthiness or negligence. The eventual enactment of the WAHVA made provision for Canadian government tugs or vessels equipped with a salvage plant to provide and claim salvage.98
3.1.1.8 Marine Insurance
The federal Marine Insurance Act governs this maritime contract in Canada.99 Originally modelled on the UK Marine Insurance Act of 1906, the Act operates instead of provincial marine insurance legislation and provides model clauses for the insurance contract.100 The CSA 2001 requires ships to operate with marine insurance, and ships engaged in the carriage of oil, hazardous and noxious substances and passengers must carry dedicated cover, usually obtained
3.1.1.9 Ports and Harbours
There are very few ports in Canadian Arctic waters and hence the Canada Marine Act has little role to play currently. The Port of Churchill in Manitoba is located in the Hudson Bay below the 60th parallel but falls within Arctic waters as defined for the purposes of NORDREG.103 Other than Churchill, there is no other public port or port run by a port corporation under the Act in Arctic waters.104
Separately from ports governed by the Canada Marine Act, the Fishing and Recreational Harbours Act and regulations govern small crafts harbours,105 for which the Department of Fisheries and the Canadian Coast Guard (DFO) are responsible. The regulations apply to scheduled harbours, which in Arctic waters include designated harbours in Nunavut and the Northwest Territories.106 The Minister of Fisheries and Oceans controls and administers selected harbours with respect to their use, management, maintenance, and collection of charges for use. Commercial vessels operating in the Yukon and Northwest Territories enjoy an exemption from berthage charges.107
Arctic shipping involves additional risks to those usually faced by ships trading in other regions, and hence justifies specialized CDME and operational standards. Canada regulates Arctic shipping by virtue of the sovereignty it claims over historic internal waters under general international law, sovereignty over the territorial sea, and the special jurisdiction over ice-covered areas permitted by Article 234 of the LOSC.108 The following discussion does not deal with the legal basis for the exercise of jurisdiction over Arctic waters in the law of the sea, but rather with the domestic law that nourishes that jurisdiction and enables Canada to act as a coastal and flag State. The core statutes concerned are the AWPPA and CSA 2001. The AWPPA did not replace maritime legislation of general application, but rather added specialized regulations to Arctic shipping. Regulations under the CSA 2001 further complement AWPPA rules and standards.
The AWPPA was motivated by coastal State concerns over sovereignty, protection of the unique Arctic marine environment, maritime safety in the harsh navigation conditions, lack of infrastructure, and the inherent rights of Indigenous peoples.109 The definition of Arctic waters includes all waters north of 60 degrees North up to the limits of the EEZ and within the 141st meridian of west longitude claimed as the maritime boundary with the United States and the maritime boundary with Greenland.110
The AWPPA established a strict pollution prevention regime and framework for the designation of Shipping Safety Control Zones (SSCZ s), which regulations established in turn.111 The SSCZ s enable ships to operate in the zones according to their polar class and the Arctic Ice Regime Shipping System (AIRSS) for the assessment of risk. Regulations address CDME standards, fuel carried on board, cargo, onboard supplies, required navigation information, and pilot and ice navigator requirements, including icebreaking assistance, for all ship classes to enable them to navigate during periods of the year or when ice conditions permit.112 The Governor in Council has the discretion to exempt foreign government owned ships from the requirements of the Act
In 2017, the Arctic Shipping Safety and Pollution Prevention Regulations (ASSPPR) implemented the Polar Code and amendments to the International Convention for the Safety of Life at Sea (SOLAS)116 and MARPOL under the authority of both the AWPPA and CSA 2001.117 The new regulations referentially incorporated much of the mandatory and voluntary provisions of the Polar Code with some adjustments to account for transitional arrangements for Canadian ships and to ensure strict compliance with the AWPPA’s zero discharge regime.118 As a flag State, Canada extended the application of the new standards to its ships in polar waters without change. Ships operating in polar waters are required to carry a Polar Ship Certificate certifying compliance with the Polar Code and all Canadian ships must have a low temperature notation.119 As a coastal State, Canada incorporated the Polar Code’s Part I safety rules to SOLAS ships of 500 gross tonnage and more, other than fishing vessels and pleasure craft.120 Existing ships may continue to use the regime for navigation in Canadian Arctic waters based on a zone-date system, SSCZ s, and AIRSS.121 The new Polar Operational Limit Assessment Risk Indexing System (POLARIS) set out in the Polar Code will apply to new ships and will eventually replace AIRSS.122 An onboard ice navigator is required for vessels using AIRSS and non-SOLAS ships, such as fishing vessels.123 New STCW rules govern the training
As noted above, Canada’s ship reporting system in Arctic waters is set out in NORDREG. The system covers the SSCZ s and includes an area larger than the definition of Arctic waters under the AWPPA.125 NORDREG’s reporting requirements include reporting to the Iqaluit MCTS Centre the following:
- –sailing plan when about to enter the NORDREG zone;
- –daily position report after a vessel has entered;
- –additional position report when another ship is in difficulty, there is an obstruction to navigation, a navigation aid is not functioning, ice and weather conditions are hazardous; or there is a pollutant in the water;
- –final report before a vessel exits the zone; and
- –deviation reports indicating changes from the sailing plan.126
The reporting requirements apply to vessels of 300 gross tonnage or more, vessels engaged in towing or pushing another vessel when the aggregate tonnage is 500 gross tonnage or more, and vessels that carry pollutants or dangerous cargo or towing vessels carrying such cargoes.127
4 Institutional Framework
The institutional framework consists of TC, DFO, their agencies, and other bodies for which their respective ministers are responsible for the performance of core roles, and other departments playing supportive roles or providing specific services.
Established by the Department of Transport Act,128 TC is the national maritime administration of Canada. The concept of national maritime administration entails responsibility for the administration of international maritime conventions adopted by the IMO. As such, TC is the national focal point for shipping in Canada and the organization that represents Canada’s international shipping interests in the IMO. In addition to the Minister of Transport’s powers under the constitutive act, several statutes expressly allocate powers to TC that are pertinent to Arctic shipping. Although the AWPPA leaves regulatory authority to the Governor in Council and does not expressly mention the Minister of Transport, TC also oversees this statute.
TC has five major administrative regions, and the Prairie and Northern Region includes the Arctic shipping division.129 Its regulatory functions include interpretation and application of legislation applicable to polar shipping and interfacing with the IMO and the International Association of Classification Societies with respect to polar shipping standards. The division also represents Canada on the Arctic Council’s Protection of the Arctic Marine Environment Working Group and co-chairs the Arctic Shipping Best Practices Forum. Further, it provides advice on polar CDME and operational standards in Canadian Arctic waters.130
The Minister of Transport has extensive express regulatory and executive authority over most of the CSA 2001 and regulations. The CSA 2001 tasks marine safety inspectors and recognized organizations with inspection functions to ensure compliance with rules and standards. TC administers marine documents, including for Polar Code purposes. Operating within TC, the Marine Technical Review Board considers requests for exemptions from marine documents or alternative requirements for Canadian ships or persons. TC enjoys wide-ranging enforcement powers such as ship inspections, issuing of clearances, investigations, detention, and sale of ships, including foreign ships contravening international rules and standards. The Minister of Transport is also empowered to enforce vessel-source pollution offences and for directing the movements of ships.
The growth of Arctic shipping has led to an increase in stakeholder industry organizations and interested non-governmental environmental and other organizations. Separately, Indigenous organizations represent Indigenous
For its part, TC convenes the Canadian Marine Advisory Council (CMAC), a structured forum for interested parties to engage, participate and contribute to policy and regulatory initiatives operating at the national and regional levels.131 CMAC mirrors TC’s five regions, and consultations with stakeholders of Arctic shipping occur through the Prairies and Northern Region CMAC. Separately, TC also engages with Indigenous organizations directly as part of the Crown’s fiduciary duty to consult on matters affecting Indigenous rights. Together with CCG, such consultations with Indigenous communities include the initiative to designate low-impact shipping corridors (see chapter by Dawson and Song in this volume).
4.2 Department of Fisheries and Oceans
While TC is the national maritime administration, DFO plays multiple roles in maritime governance in accordance with its constitutive instrument and the Oceans Act.132 It operates through seven administrative regions, one of which is dedicated to the Arctic.133 The DFO and CCG regions within the Arctic include the Yukon North Slope, Northwest Territories, Nunavut, Nunavik, Nunatsiavut, Hudson Bay, and James Bay encompassing the entirety of Inuit Nunangat.134
The Oceans Act tasks DFO with leadership in developing a national ocean strategy and integrated management plans in collaboration with other ministers, federal boards and agencies, provincial and territorial governments, affected Aboriginal organizations, coastal communities and other persons and bodies, which by implication includes navigation and shipping as an ocean use.135 The Beaufort Sea Large Ocean Management Area is currently the only
DFO contributes more directly to governance of shipping through the CCG and CHS. Under the CSA 2001, the DFO Minister is responsible for oil handling facilities and response organizations certified by the CCG and oversees enforcement by pollution prevention officers.139 The CCG operates under the authority of the Oceans Act and CSA 2001 and the Arctic is one of its four operational regions.140 The CCG is responsible for aids to navigation, waterways management and maintenance of navigable channels, search and rescue, pollution response, icebreaking and ice management services, marine communications, vessel traffic management, and responding to wrecked, abandoned and hazardous vessels.141
In Arctic waters, the CCG plays a critical role in establishing and managing navigation aids, providing icebreaking services, responding to calls for assistance and providing search and rescue. Although there are no vessel traffic services in Arctic waters at this time, there are marine safety advisory procedures in danger areas in the Mackenzie River area in the Western Arctic.142
Operating under the DFO constitutive statute, the CHS also plays a critical role in maritime safety in Arctic waters by surveying Arctic waters and creating and maintaining navigation charts.144 The CCG and CHS are essential partners to TC in the development of low-impact shipping corridors in Arctic waters.
4.3 Other Departments and Agencies
Other departments contribute to Arctic shipping. For example, Environment and Climate Change Canada issues timely meteorological and ice forecasts through the Meteorological Service of Canada145 and the Canadian Ice Service within it.146 Established under the National Defence Act,147 the Department of National Defence provides a supporting role in the governance of shipping, for example, by undertaking maritime and aeronautical search and rescue in coordination with the CCG and providing a platform for Royal Canadian Mounted Police policing action. Global Affairs Canada is responsible for maintaining and advancing Canada’s foreign policy and Canadian interests on the legal status of Arctic waters.148
5 Discussion
Canada is a major trading nation and aspires for uniformity in maritime law and policy. However, it has vital local interests that should weigh on its domestic and international maritime policies. The policy directions set out in the CTA
Hence, the demand for equitable participation in the governance of Arctic shipping is central to marine transportation in the region, but Canada’s trade-driven national transportation policy does not address it. Perhaps the reason for this is the underlying rationale for national and international uniformity. Arctic shipping interests are a complex mixture of local, national and global concerns, and local concerns are the principal drivers for Northern communities. Canada’s interests in national and global trade tend to overwhelm sub-national regional concerns. There needs to be a balance between global, national and local shipping policy concerns. The recent review of the CTA argued that the measures recommended “will also serve to demonstrate that Canada is exerting control and sovereignty over its waters, consistent with meeting the safety and security challenges in Canada’s Arctic” but did not consider Indigenous engagement and participation in decision-making as a means to ensure policy relevance in the region.
The legal framework for shipping in Canada is unwieldy, complex and fragmented. Understanding the regulation of shipping in Arctic waters requires an appreciation of maritime law, as informed by international maritime conventions to which Canada is party or which it embraces without being a party, as well as dedicated polar shipping regulation. Unlike in civil law jurisdictions, Canadian maritime law is not consolidated into a code.
Historically, much of Canada’s general maritime regulation first reflected British imperial shipping interests and subsequently Canadian trade interests as supported by the international conventions. Multilateralism and the aspiration of regulatory uniformity underpinned Canadian maritime law. The regulation of Arctic shipping bucked that general trend and between 1970 and 2017 was primarily unilateral. The Polar Code marked a major shift from unilateralism to multilateralism in polar shipping regulation in Canada, resulting in alignment with general maritime law. However, this does not mean that
The AWPPA stopped short of defining the ‘Northwest Passage’. Perhaps definition of the passage was unnecessary at the time of adoption because the Act covered all Canadian Arctic waters. The need for a definition of routes in Canadian Arctic waters might arise in connection with the initiative to designate low-impact shipping
Low-impact shipping corridors provide a unique opportunity for Canada to pursue an integrated approach to policy, regulatory and institutional measures focused to support the corridors. With this in mind, good sense suggests legislative definition of the corridors and establishment of vessel traffic services. The CSA 2001 and regulations provide for the establishment of vessel traffic services zones within Canadian waters or in SSCZ s prescribed under the AWPPA.150 Given that the corridors will include multiple routes, not just Northwest Passage transit routes, a legal definition of the Northwest Passage per se might not be necessary. However, legal definition of the various corridors currently under consideration, including transit routes and related vessel traffic regulations, will likely be needed.151
The institutional framework for Arctic shipping needs strengthening to reflect the needs of modern governance rather than simply maritime administration, especially in view of impending designation of low-impact shipping corridors. The national maritime administration model works well for the management of Canada’s interface with the IMO and the international maritime conventions, but it falls short when demands for equitable participation are considered. Mere consultation of rightsholders and stakeholders entrenches a hierarchical national maritime administration rather than opening it up to more equitable participation and genuine partnerships. The low-impact shipping corridors in Inuit and other Indigenous homelands are more than mere transportation concerns because they affect a range of economic, environmental, and cultural needs and interests. A more inclusive approach to the governance of Arctic shipping would be an institutional framework similar to the St. Lawrence Seaway. Moreover, it is time for TC to diversify the composition of the national delegation to the IMO, which traditionally included only federal government and industry actors, to reflect other actors, such as Indigenous and non-governmental environmental organizations. While the Inuit Circumpolar Council’s recent attainment of consultative status at the IMO is an important development, the Canadian delegation to the IMO could include Indigenous delegates and possibly other representatives to better reflect Canada’s interests in navigation and shipping.
6 Conclusion
Perhaps the most pointed characteristics of the governance of Arctic shipping in Canada surveyed in this chapter are the lack of policy coherency, regulatory fragmentation, and insufficient institutional framework. While it is unclear whether the designation of low-impact and serviced shipping corridors is likely to increase navigation and shipping in Arctic waters, it is becoming clear that traditional and centralized maritime administration of shipping will not suffice. Uniformity of rules and standards are important for the facilitation of international maritime trade, but Canada’s interests as a coastal State and its responsibilities for this unique region justify higher governance standards than the general norm to ensure efficient and environment protection while also advancing equity. In particular, there will be need to decolonize the system in favour of more in-depth engagement of Indigenous peoples in the governance of shipping in their homelands.
| Subject matter | Statute | Public | Private |
|---|---|---|---|
| Transportation policy | Canada Marine Act | • | |
| Canada Transportation Act | • | ||
| Oceans Act | • | ||
| Jurisdiction over ships | Federal Courts Act | • | • |
| Oceans Act | • | ||
| Maritime safety | Canada Shipping Act, 2001 | • | |
| Canadian Transportation Accident | • | ||
| Investigation and Safety Board Act | • | ||
| Nuclear Safety and Control Act | • | ||
| Safe Containers Convention Act | • | ||
| Transportation of Dangerous Goods Act | • | ||
| Environment protection | Arctic Waters Pollution Prevention Act | • | |
| Canada Shipping Act, 2001 | • | ||
| Canada Wildlife Act | • | ||
| Canadian Environment Protection Act | • | ||
| Canadian Navigable Waters Act | • | ||
| Canadian Net-Zero Emissions | • | ||
| Accountability Act | • | ||
| Federal Sustainable Development Act | • | ||
| Fisheries Act | • | ||
| Marine Liability Act | • | ||
| Migratory Birds Convention Act | • | ||
| National Marine Conservation Areas Act | • | ||
| Oceans Act | • | ||
| Species at Risk Act | • | ||
| Wrecked, Abandoned and Hazardous Vessels Act | • | ||
| Maritime security | Criminal Code | • | |
| Marine Transportation Security Act | • | ||
| Necessaries | Federal Courts Act | • | • |
| Marine Liability Act | • | • | |
| Carriage of goods and passengers | Bills of Lading Act | • | |
| Canada Transportation Act | • | ||
| Coasting Trade Act | • | ||
| Marine Liability Act | • | • | |
| Marine Transportation Security Act | • | ||
| Safe Containers Convention Act | • | ||
| Transportation of Dangerous Goods Act | • | ||
| Pilotage Act | • | ||
| Wrecked, Abandoned and Hazardous Vessels Act | • | ||
| Recreational boating | Canada Shipping Act, 2001 | • | |
| Marine Liability Act | • | ||
| Provincial safe boating legislation | • | ||
| Marine insurance | Marine Insurance Act | • | |
| Maritime workers | Canada Shipping Act, 2001 | • | |
| Canada Labour Code | • | ||
| Merchant Seamen Compensation Act | • | ||
| Provincial occupational health and safety legislation | • | ||
| Maritime public health | Canada Shipping Act, 2001 | • | |
| Quarantine Act | • | ||
| Ports, harbours, and seaway | Canada Marine Act | • | |
| Customs Act | • | ||
| Fishing and Recreations Harbours Act | • | ||
| Liability | Marine Liability Act | • | |
| Provincial worker compensation legislation | • |
Administrative Monetary Penalties and Notices (CSA 2001) Regulations (SOR/2008-97)
Arctic Shipping Safety and Pollution Prevention Regulations (SOR/2017-286)
Ballast Water Regulations (SOR/2021-120)
Board of Steamship Inspection Scale of Fees (CRC c 1405)
Cargo, Fumigation and Tackle Regulations (SOR/2007-128)
Certain Areas Covered with Water Proclaimed Public Harbours (SI/80-8)
Collision Regulations (CRC c 1416)
Competency of Operators of Pleasure Craft Regulations (SOR/99-53)
Crew Accommodation Regulations (CRC c 1418)
Cross-border Movement of Hazardous Waste and Hazardous Recyclable Material Regulations (SOR/2021-25)
Eastern Canada Vessel Traffic Services Zone Regulations (SOR/89-99)
Environmental Response Regulations (SOR/2019-252)
Fire and Boat Drills Regulations (SOR/2010-83)
Fishing Vessel Safety Regulations (CRC c 1486)
Government Ships from the Application of the Canada Shipping Act, Regulations Excluding Certain (SOR/2000-71)
Home-Trade, Inland and Minor Waters Voyages Regulations (CRC c 1430)
Hull Construction Regulations (CRC c 1431)
Large Fishing Vessel Inspection Regulations (CRC c 1435)
Life Saving Equipment Regulations (CRC c 1436)
Load Line Regulations (SOR/2007-99)
Long-Range Identification and Tracking of Vessels Regulations (SOR/2010-227)
Marine Machinery Regulations (SOR/90-264)
Marine Personnel Regulations (SOR/2007-115)
Marine Safety Fees Regulations (SOR/2021-59)
Minor Waters Order (CRC c 1448)
Navigation Safety Regulations, 2020 (SOR/2020-216)
Northern Canada Vessel Traffic Services Zone Regulations (SOR/2010-127)
Private Buoy Regulations (SOR/99-335)
Response Organizations Regulations (SOR/95-405)
Sable Island Regulations (CRC c 1465)
Safe Working Practices Regulations (CRC c 1467)
Safety Management Regulations (SOR/98-348)
Ship Radio Inspection Fees Regulations (CRC c 1472)
Shipping Casualties Reporting Regulations (SOR/85-514)
Ships’ Elevator Regulations (CRC c 1482)
Small Vessel Regulations (SOR/2010-91)
Special-purpose Vessels Regulations (SOR/2008-121) Steering Appliances and Equipment Regulations (SOR/83-810)
Tackle Regulations (CRC c 1494)
Towboat Crew Accommodation Regulations (CRC c 1498)
Vessel Clearance Regulations (SOR/2007-125)
Vessel Detention Orders Review Regulations (SOR/2007-127)
Vessel Fire Safety Regulations (SOR/2017-14)
Vessel Operation Restriction Regulations (SOR/2008-120)
Vessel Pollution and Dangerous Chemicals Regulations (SOR/2012-69)
Vessel Registration and Tonnage Regulations (SOR/2007-126)
Vessel Safety Certificates Regulations (SOR/2021-135)
Vessel Traffic Services Zones Regulations (SOR/89-98)
Vessels Registry Fees Tariff (SOR/2002-172)
RSC 1985 c A-12 [AWPPA].
Until 1970, the Canada Shipping Act (CSA) had long provided the framework for regulating shipping through iterations in 1906, 1934, 1956 and 1970: Canada Shipping Act, RSC 1906, c 113 (repealed); Canada Shipping Act, SC 1934, c 44 (repealed); Canada Shipping Act, SC 1956, 4-5 Eliz II (repealed); Canada Shipping Act, RSC 197, c S-9 (repealed).
Merchant Shipping Act, 1854, 17 & 18 Vict c 104 (repealed); Merchant Shipping Act Amendment Act, 1862, 25 & 26 Vict c 63; Merchant Shipping Act, 1894, 57 & 58 Vict c 60 (repealed).
Theodore L. McDorman, “The History of Shipping Law in Canada: The British Dominance,” Dalhousie Law Journal 7:3 (1982–1983): 620–652; see also Edward C Mayer, Admiralty Law and Practice in Canada (Toronto: Carswell, 1916).
See David Johansen, “Bill C-14: The Canada Shipping Act, 2001,” Law and Government Division, 20 March 2001; Revised 24 May 2001, https://publications.gc.ca/Collection-R/LoPBdP/LS/371/c14-e.htm.
Navigable Waters Protection Act, RSC 1985, c N-22 (repealed); Report Addressing Bill C-10, Navigable Waters Protection Act, Ninth Report of the Standing Senate Committee on Energy, the Environment and Natural Resources, Senate of Canada, June 2009, https://sencanada.ca/content/sen/Committee/402/enrg/rep/rep09jun09-e.pdf. The Act was first enacted in 1882.
Adopted 10 December 1982 (in force 16 November 1994), 1833 UNTS 3 [LOSC].
Federal Courts Act, RSC 1985, c F-7.
Canada Shipping Act, RSC 1985, c S-9 (repealed); Canada Shipping Act, RSC 1985 (3d Supp), c 6 (repealed); Canada Shipping Act, SC 1998, c 6 (repealed); Canada Shipping Act, SC 2001, c 26 [CSA 2001].
SC 1996, c 31.
International Code for Ships Operating in Polar Waters (Polar Code), IMO Resolution MSC.385(94) (21 November 2014, effective 1 January 2017); Amendments to the International Convention for the Safety of Life at Sea 1974, IMO Resolution MSC.386(94) (21 November 2014, effective 1 January 2017); Amendments to MARPOL Annexes I, II, IV and V, IMO Resolution MEPC.265(68) (15 May 2015, effective 1 January 2017) [Polar Code].
“United States-Canada Joint Arctic Leaders’ Statement,” Prime Minister of Canada, 20 December 2016, http://pm.gc.ca/eng/news/2016/12/20/united-states-canada-joint-arctic-leaders-statement.
Government of Canada, Statement on Canada’s Arctic Foreign Policy, 12 May 2017, 12 et seq, https://www.international.gc.ca/world-monde/assets/pdfs/canada_arctic_foreign_policy-eng.pdf.
Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC), “Canada’s Arctic and Northern Policy Framework,” Government of Canada, last modified 22 November 2019, Goal 5.9 and Annex, https://www.rcaanc-cirnac.gc.ca/eng/1560523306861/1560523330587.
CIRNAC, “Arctic and Northern Policy Framework: International Chapter,” Government of Canada, last modified 22 October 2019, https://www.rcaanc-cirnac.gc.ca/eng/1562867415721/1562867459588; Transport Canada, “Oceans Protection Plan,” Government of Canada, last modified 8 July 2020, https://www.tc.gc.ca/en/initiatives/oceans-protection-plan.html.
SC 1996, c 10 [CTA].
Id., s 5.
Id., s 159(1)(c) and (2).
Government of Canada, Canada Transportation Act Review, Pathways: Connecting Canada’s Transportation System to the World, Volume 1 (2016), 67, http://www.tc.gc.ca/eng/ctareview2014/canada-transportation-act-review.html.
Office of the Auditor General of Canada, Report of the Commissioner of the Environment and Sustainable Development to the House of Commons–Fall 2010, Chapter 1: Oil Spills from Ships (Ottawa: Minister of Public Works and Government Services Canada, 2010), https://publications.gc.ca/collections/collection_2011/bvg-oag/FA1-2-2010-1-eng.pdf; Canada, Tanker Safety Expert Panel, Phase I: A Review of Canada’s Ship-source Oil Spill Preparedness and Response Regime: Setting the Course for the Future (Ottawa: Tanker Safety Panel Secretariat, 2013), https://publications.gc.ca/collections/collection_2013/tc/T29-114-2013-eng.pdf; Canada, Tanker Safety Expert Panel, A Review of Canada’s Ship-source Spill Preparedness and Response: Setting the Course for the Future, Phase II - Requirements for the Arctic and for Hazardous and Noxious Substances Nationally (Ottawa: Tanker Safety Panel Secretariat, 2014), https://publications.gc.ca/collections/collection_2016/tc/T29-114-2014-eng.pdf.
Canada Transportation Act Review (n 19), pp. 66–68.
SC 1998, c 10.
Public Services and Procurement Canada, “National Shipbuilding Strategy,” Government of Canada, last modified 26 July 2022, https://www.tpsgc-pwgsc.gc.ca/app-acq/amd-dp/mer-sea/sncn-nss/index-eng.html.
Transport Canada, “Oceans Protection Plan,” Government of Canada, last modified 4 August 2022, https://tc.canada.ca/en/campaigns/protecting-our-coasts-oceans-protection-plan.
They would consist of: “Main Corridor (Primary): The main traffic highways in the Arctic, which provide a means to enable secondary access to ports”; “Approach Corridor (Secondary): Corridors characterized by medium- to low-density traffic levels, which can provide access to navigational ports to fulfill supply links and the movement of passengers. The three types of vessel to use these traffic corridors are cargo, tanker, and passenger vessels”; “Refuge Corridor (Tertiary): Characterized by medium to low traffic, providing navigational access to places of refuge, including charted anchorage areas located nearest to primary and secondary corridors and furthest away from ports”; “Private Interest Corridor (Quaternary): Characterized by geographical extents of low buffered density levels. These corridors provide navigational access to resource development and extraction sites, or other private interests (mining sites, research bases)”; “Projected Corridor (Quinary): Characterized by geographical extents of low buffered density levels, or in the absence of any density analysis or vessel traffic data. These corridors provide navigational access to proposed or potential infrastructure for resource development.” René Chénier, Loretta Abado, Olivier Sabourin and Laurent Tardif, “Northern Marine Transportation Corridors: Creation and Analysis of Northern Marine Traffic Routes in Canadian Waters,” Transactions in GIS (2017): 1085–1097, at 1088.
For example, ITO International Terminal Operators Ltd v. Miida Electronics Inc. (The Buenos Aires Maru), [1986] 1 SCR 752, which concerned theft from a warehouse in the port of Montreal and Ordon Estate v. Grail (1996), 3 SCR 437, which concerned claims for death and personal injury in boating accidents.
For example, with respect to occupational health and safety and worker’s compensation in the fishing operations in the provinces, R v. Mersey Seafoods Ltd, 2008 NSCA 67; Jim Pattison Enterprises v. British Columbia (Workers’ Compensation Board), 2011 BCCA 35; Marine Services International Ltd v. Ryan Estate, [2013] SCJ 44. More recently, Desgagnés Transport Inc v. Wärtsilä Canada Inc, 2019 SCC 58, permitted the application of Quebec law, instead of federal non-statutory maritime law, to the sale of marine engine parts.
Whitbread v. Walley, [1990] 3 SCR 1273.
For example, with respect to the contract of supply of necessaries, such as equipment, where Quebec law was recently held to apply. Desgagnés Transport (n 27).
CSA 2001 (n 9), Schedule 1 instruments for which TC is responsible and Schedule 2 instruments for which DFO is responsible.
Small Vessel Regulations, SOR/2010-91; Competency of Operators of Pleasure Craft Regulations, SOR/99-53.
Safe Containers Convention Act, RSC 1985, c S-1.
Transportation of Dangerous Goods Act, 1992, SC 1992, c 34; Transportation of Dangerous Goods Regulations, SOR/2001-286.
Nuclear Safety and Control Act, SC 1997, c 9.
Canadian Transportation Accident Investigation and Safety Board Act, SC 1989, c 3.
Transportation Safety Board of Canada (TSB), Marine Investigation Report M96H0016, Grounding - Passenger vessel “Hanseatic”, Simpson Strait, Northwest Territories (Gatineau: TSB, 29 August 1996), https://www.tsb.gc.ca/eng/rapports-reports/marine/1996/m96h0016/m96h0016.pdf; TSB, Marine Investigation Report M10H0006, Grounding Passenger vessel Clipper Adventurer, Coronation Gulf, Nunavut (Gatineau: TSB, 27 August 2010), https://www.bst-tsb.gc.ca/eng/rapports-reports/marine/2010/m10h0006/m10h0006.html; TSB, Marine Transportation Safety Investigation Report M18C0225, Grounding Passenger vessel Akademik Ioffe, Astronomical Society Islands, Nunavut (Gatineau: TSB, 24 August 2018), https://www.tsb.gc.ca/eng/rapports-reports/marine/2018/m18c0225/m18c0225.html.
International Convention for the Prevention of Pollution from Ships, 2 November 1973, 1340 UNTS 184 as amended by Protocol of 1978 Relating to the International Convention for the Prevention of Pollution from Ships of 1973, 17 February 1978 (both in force 2 October 1983), 1340 UNTS 61 [MARPOL].
International Convention for the Control and Management of Ships’ Ballast Water and Sediments, 13 February 2004 (in force 8 September 2017), IMO Doc BWM/CONF/36 (16 February 2004).
International Convention on the Control of Harmful Anti-fouling Systems, 5 October 2001 (in force 17 September 2008), Can TS 2010 No 15.
Public welfare offences are offences subject to strict liability but entailing the defence of due diligence. R v. Glenshiel Towing Co, [2000] BCTC 665 (SC).
International Convention on Salvage, 28 April 1989 (in force 14 July 1996), 1953 UNTS 165.
Wrecked, Abandoned or Hazardous Vessels Act, SC 2019, c 1 [WAHVA].
Canadian Environmental Protection Act, 1999, SC 1999, c 33, ss 122(2), 123; Disposal at Sea Regulations, SOR/2001-275. The instruments implement the London Convention and Protocol to the Convention on the Prevention of Marine Pollution by Dumping Wastes and Other Matter, 1972, 8 November 1996 (in force 24 March 2006), Can TS 2006 No 5.
Fisheries Act, RSC 1985, c F-14, s 36; Migratory Birds Convention Act, 1994, SC 1994, c 22, s 5.1.
Oceans Act (n 10), s 39.2 empowers an enforcement officer to direct the movements of or detain a ship in Canadian waters and the EEZ when they have reasonable doubt an offence will be committed in those waters. Canada National Marine Conservation Areas Act, SC 2002, c 18, s 17; Canada Wildlife Act, RSC 1985, c W-9, s 4, re power of Minister and s 11(2) and 11.7(2) re the power of a wildlife officer to inspect a conveyance, which may include waterborne craft and move a vessel into port and unload its contents.
National Marine Conservation Areas Act (n 45), s 16(3).
Including regulations made under the AWPPA, CNWA, CSA 2001, Fisheries Act, the Coastal Fisheries Protection Act, and WAHVA to the extent of any conflict between them. Id., s 16(5).
SC 2002, c 29.
RSC 1985, c N-22, s 4.1.
Id., sch, Part 1.
Antarctic Environmental Protection Act, SC 2003, c 20, ss 9, 17, 18.
SC 2001, c 6 [MLA].
Id., Part 6 and schs 6, 7, 8.
Id., Part 7.
In the 2020–2021 reporting year, the Ship-source Oil Pollution Fund (SOPF) had two open files: Akademik Ioffe passenger and scientific research vessel grounding in Kugaruuk, Nunavut, in 2019, and Investigator, a barge grounding in Toker Point, Northwest Territories in 2016. SOPF, The Administrator’s Annual Report 2020–2021 (Ottawa: SOPF, 2021), 58, https://sopf.gc.ca/wp-content/uploads/pdf/annual%20reports/2020-2021-SOPF-Annual-Report-EN.pdf. In 2010, a claim for CDN$468,801.72 concerning the Clipper Adventure passenger vessel in Coronation Gulf, Nunavut, was closed. SOPF, The Administrator’s 30th Annual Report 2018–2019 (Ottawa: SOPF, 2019), 49, https://sopf.gc.ca/wp-content/uploads/pdf/annual%20reports/RapportAnnuelSOPF_2018-2019-ENG.pdf.
MLA (n 52), s 93.1. In the event the SOPF cannot meet its liabilities, the Minister of Finance is empowered to direct that the overage is charged to the Consolidated Revenue Fund.
Federal Sustainable Development Act, SC 2008, c 33, s 3.
Canadian Net-Zero Emissions Accountability Act, SC 2021, c 22, ss 4, 6.
MARPOL (n 37), Annex VI, reg 19.
SC 2019, c 28, s 7.
Designated Classes of Projects Order, SOR/2019-323, s 12.1.
Canada Port Authority Environmental Assessment Regulations, SOR/99-318.
SOR/2010-127 [NORDREG]. The Coast Guard in Canada’s Arctic: Interim Report, Standing Committee on Fisheries and Oceans, Fourth Report (Senate of Canada, June 2008), 31, https://sencanada.ca/content/sen/committee/392/fish/rep/rep04jun08-e.pdf. Ships are report to Coast Guard Marine Communications and Traffic Services (MCTS) system. The CCG informs TC, and the latter determines the permitting of entry.
For instance, the passage of the Kiwi Roa. “New Zealander Sails Through Arctic on Custom Yacht in Violation of COVID-19 Restrictions,” CBC News, 26 August 2020, https://www.cbc.ca/news/canada/north/new-zealand-yacht-cambridge-bay-nunavut-1.5698347.
SC 1994, c 40, s 4 [MTSA].
Marine Transportation Security Regulations, SOR/2004-144 [MTSR].
MTSA (n 65), s 16.
For example, piracy and hijacking. Criminal Code, RSC 1985, c C-46, ss 75, 78.
RSC 1985, c L-2.
SOR/2010-120.
Adopted 23 February 2006 (in force 20 August 2013), Can TS 2013 No 16.
CSA 2001 (n 9), s 100(l).
Marine Personnel Regulations, SOR/2007-115.
Amendments to the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW) 1978, as amended, Resolution MSC.416(97) (25 November 2016, effective 1 July 2018); Amendments to Part A of the Seafarers’ Training, Certification and Watchkeeping (STCW) Code, Resolution MSC.417(97) (25 November 2016, effective 1 July 2018). See STCW Code s B-V/g: “Guidance regarding training of masters and officers for ships operating in polar waters.”
Marine Personnel Regulations (n 73), s 162.
RSC 1985, c M-6.
Mersey and Pattison (n 26). See Workers Safety and Compensation Commission concerning Legislation on workers’ compensation and workplace health and safety in the Northwest Territories and Nunavut, https://www.wscc.nt.ca/about-wscc/policy-and-legislation/legislation#WorkersCompensation.
Ryan Estate (n 27).
Quarantine Act, SC 2005, c 20. See “Canada’s Cruise Ship Instructional Reference Tool,” Transport Canada, last modified 17 February 2022, https://tc.canada.ca/en/initiatives/covid-19-measures-updates-guidance-issued-transport-canada/canada-s-cruise-ship-instructional-reference-tool; Transport Canada, “Measures to Support Safe Cruise Travel in Canada,” Ship Safety Bulletin No. 18/2021 (modified 18 February 2022), https://tc.canada.ca/en/marine-transportation/marine-safety/ship-safety-bulletins/measures-support-safe-cruise-travel-canada-ssb-no-18-2021-modified-february-18-2022.
Quarantine Regulations, CRC c 1368, s 12(1).
Coasting Trade Act, SC 1992, c 31, s 3.
MLA (n 52), s 141.
Protocol to amend the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading, 1924, 23 February 1968 (in force 14 February 1984), 1412 UNTS 121; MLA (n 52), s 43(1) and sch 3.
Bills of Lading Act, RSC 1985, c B-5.
MLA (n 52), s 43(2).
Adopted 13 December 1974 (in force 28 April 1987), 1463 UNTS 20.
MLA (n 52), s 37(1) and sch 2.
Id., ss 37(2), 37.1.
Id., s 26(1) and sch 1 providing for limitation under the Convention on Limitation of Liability for Maritime Claims, 1976, as amended.
RSC 1985, c P-14.
In addition, the Port of Churchill is serviced by the Great Lakes Pilotage Authority. Transport Canada, 2018 Pilotage Act Review (Transport Canada, 2018), 96, https://tc.canada.ca/sites/default/files/migrated/17308_tc_pilotage_act_review_v8_final.pdf.
Id., VIII.
Canada Transportation Act Review (n 19), p. 60.
Collision Regulations, CRC c 1416.
For example, TOWCON and TOWHIRE model clauses. “Contracts and Clauses,” BIMCO, https://www.bimco.org/contracts-and-clauses.
WAHVA (n 42).
Adventurer Owner Ltd v. Canada, 2017 FC 105; Adventurer Owner Ltd v. Canada, 2018 FCA 34.
WAHVA (n 42), s 51.
SC 1993, c 22.
Zavarovalna Skupnost (Insurance Community Triglav Ltd.) v. Terrasses Jewellers Inc., [1983] 1 SCR 283.
CSA 2001 (n 9), s 167(1)(b)(i); MLA (n 52), ss 55, sch 5 and annex, sch 8 and annex.
Mark Rosanes, “Marine Insurers Tackle Uncharted Arctic Risks,” Insurance Business Canada, 29 October 2020, https://www.insurancebusinessmag.com/ca/news/marine/marine-insurers-tackle-uncharted-arctic-risks-237574.aspx. When provided, the insurance premium tends to have a high mark up, as much as 40 percent.
NORDREG (n 63), s 2.
Public Ports and Public Port Facilities Regulations, SOR/2001-154, sch 1. A privately owned port, Churchill is a public port of regional significance. It is important for grain and other exports and supplying northern communities. TC oversees the port to ensure compliance with environmental and navigable waters regulations. Churchill is now under Indigenous ownership and closed until 2023 pending replacement of the railway line.
Fishing and Recreational Harbours Act, RSC 1985, c F-24; Fishing and Recreational Harbours Regulations, SOR/78-767.
Northwest Territories: Hay River, Moraine Bay and Simpson Islands; Nunavut: Pangnirtung. Several other provincial harbours in the Hudson Bay are also included in the regulations. Fishing and Recreational Harbours Regulations (n 105), sch I.
Id., s 26.
Oceans Act (n 10), ss 7, 11, 12, 14; LOSC (n 7), Article 234.
AWPPA (n 1), preamble.
Id., s 2. Arctic waters extended to the outer limits of the EEZ in 2009. Bill C-3 amending the AWPPA to extend the definition of Canadian Arctic waters from 100 to 200 nautical miles was introduced in the House of Commons by the Minister of Transport, Infrastructure and Communities. Legislative Summary of Bill C-3: An Act to amend the Arctic Waters Pollution Prevention Act, 40th Parliament, 2nd Session (2009).
Shipping Safety Control Zones Order, CRC c 356.
Id., s 12(1).
Id., s 12(2).
Id., s 15.
Id., s 18.
International Convention for the Safety of Life at Sea, 1 November 1974 (in force 25 May 1980), 1184 UNTS 2 [SOLAS].
Arctic Shipping Safety and Pollution Prevention Regulations, SOR/2017-286 [ASSPPR].
Drummond Fraser, “A Change in the Ice Regime: Polar Code Implementation in Canada,” in Governance of Arctic Shipping: Rethinking Risk, Human Impacts and Regulation, eds., Aldo Chircop, Floris Goerlandt, Claudio Aporta and Ronald Pelot (Cham: Springer, 2020), 285–300, at 294.
Polar Code (n 11), Part IA, reg 1.3.1; ASSPPR (n 117), s 11.
ASSPPR (n 117), s 6.
Id., s 8(2).
Id.
Id., s 10.
Fraser (n 118), p. 294 et seq.
The other areas include: Ungava Bay, Hudson Bay and Kugmallit Bay that are not in a Shipping Safety Control Zone; James Bay; the waters of the Koksoak River from Ungava Bay to Kuujjuaq; the waters of Feuilles Bay from Ungava Bay to Tasiujaq; the waters of Chesterfield Inlet and Baker Lake; and the waters of the Moose River from James Bay to Moosonee. NORDREG (n 63), s 2.
Fisheries and Oceans Canada and Canadian Coast Guard, Radio Aids to Marine Navigations 2022 (Ottawa: Government of Canada, 2022), 3–5 et seq, https://www.ccg-gcc.gc.ca/publications/mcts-sctm/ramn-arnm/docs/ramn-arnm-2022-eng.pdf.
NORDREG (n 63), s 3.
RSC 1985, c T-18, s 3.
The other regions are Atlantic, Ontario, Quebec and Pacific.
Transport Canada, “Arctic Shipping,” Government of Canada, last modified 19 August 2010, https://tc.canada.ca/en/marine-transportation/arctic-shipping/arctic-shipping.
Canadian Marine Advisory Council, “Terms of Reference,” Government of Canada, last modified 14 January 2010, https://tc.canada.ca/en/marine-transportation/marine-safety/terms-reference.
Department of Fisheries and Oceans Act, RSC 1985, c F-15.
The others are Newfoundland and Labrador, Maritimes, Gulf, Quebec, Ontario and Prairie, and Pacific.
“Fisheries and Oceans Canada and Canadian Coast Guard Confirm New Regions’ Boundaries to Improve Services to the Arctic,” Government of Canada, DFO News Release, 5 March 2021, https://www.canada.ca/en/fisheries-oceans/news/2021/03/fisheries-and-oceans-canada-and-canadian-coast-guard-confirm-new-regions-boundaries-to-improve-services-to-the-arctic.html.
Oceans Act (n 10), ss 29, 31; Fisheries and Oceans Canada, Canada’s Oceans Strategy: Our Oceans, Our Future (Ottawa: DFO, 2002), https://waves-vagues.dfo-mpo.gc.ca/Library/264678.pdf.
Beaufort Sea Partnership, Integrated Ocean Management Plan for the Beaufort Sea: 2009 and Beyond (Inuvik: Beaufort Sea Planning Office, 2009), 4 and tables 3, 10, 14, http://www.beaufortseapartnership.ca/wp-content/uploads/2015/04/integrated-ocean-management-plan-for-the-beaufort-sea-2009-and-beyond.pdf.
Oceans Act (n 10), s 35. Designated Arctic MPA s: Tarium Niryutait (2010), Anguniaqvia Niqiqyuam (2016), and Tuvaijuittuq (2019). See Fisheries and Oceans Canada, “Marine Protected Areas across Canada,” Government of Canada, last modified 3 March 2020, https://www.dfo-mpo.gc.ca/oceans/mpa-zpm/index-eng.html.
Anguniaqvia niqiqyuam Marine Protected Areas Regulations, SOR/2016-280, s 3. In the case of Tarium Niryutait, permissible shipping includes “any movement or other activity of a ship, submarine or aircraft if the movement or other activity is carried out for the purpose of: (i) public safety, law enforcement or national security or for the exercise of Canadian sovereignty and the ship, submarine or aircraft is owned or operated by or on behalf of Her Majesty in right of Canada or by a foreign military force acting in cooperation with, or under the command or control of, the Canadian Forces, or an emergency response under the direction, command or control of the Canadian Coast Guard.” Tarium Niryutait Marine Protected Areas Regulations, SOR/2010-190, s 7(j).
CSA 2001 (n 9), ss 167, 174.
The other three operational areas are Central, Atlantic, Central and Western.
Oceans Act (n 10), s 41; CSA 2001 (n 9), Part 5; Vessel Traffic Services Zones Regulations, SOR/89-98, s 2: “marine traffic regulator” is defined as a person designated by the CCG Commissioner under CSA 2001, s 562.18(2).
Radio Aids to Marine Navigations (n 126), pp. 3–10.
Memorandum of Understanding between: Transport Canada and Fisheries & Oceans Respecting Marine Transportation Safety and Environment Protection (April 1996), https://tc.canada.ca/en/marine-transportation/marine-safety/memorandum-understanding-tc-dfo.
Department of Fisheries and Oceans Act (n 132), s 4.
Environment and Climate Change Canada (ECCC), “Meteorological Service Standards,” Government of Canada, last modified 15 November 2021, https://www.canada.ca/en/environment-climate-change/services/meteorological-service-standards.html.
ECCC, “Canadian Ice Service,” Government of Canada, last modified 11 March 2022, https://www.canada.ca/en/environment-climate-change/services/ice-forecasts-observations/about-ice-service.html.
RSC 1985, c N-5.
Department of Foreign Affairs, Trade and Development Act, SC 2013, c 33, s 174.
Canada’s accession to MARPOL was “without prejudice to such Canadian laws and regulations as are now or may in the future be established in respect of Arctic waters within or adjacent to Canada.” IMO, Status of IMO Treaties (7 April 2020), http://www.imo.org/en/About/Conventions/StatusOfConventions/Pages/Default.aspx (accessed 11 June 2020), 131. SOLAS provides that nothing in it “shall prejudice the rights or obligations of States under international law.” SOLAS (n 116), chap XIV, reg 2. MARPOL (n 37), Article 16 is similar. LOSC (n 7), Article 234 enables Canada to exercise legislative and enforcement jurisdiction on international shipping in its EEZ in the Arctic.
CSA 2001 (n 9), s 136(1); Vessel Traffic Services Zones Regulations (n 141). At this time, no areas of Arctic waters are designated as traffic services zones under the regulations.
Chénier et al. (n 25).