Selina Lee-Andersen

On May 12, 2017, the federal Minister of Transport introduced Bill C-48 into Parliament. Bill C-48, also known as the Oil Tanker Moratorium Act (the Act), seeks to implement the proposed moratorium on crude oil tankers on the northern part of British Columbia’s (BC) coast that was announced by the federal government in November 2016. The proposed moratorium would prohibit oil tankers that are carrying more than 12,500 tonnes of crude oil or persistent oil as cargo from stopping, or unloading crude oil or persistent oil, at ports or marine installations located along BC’s north coast from the northern tip of Vancouver Island to the Alaska border. Specifically, the proposed moratorium area extends from the Canada/United States border in the north, down to the point on BC’s mainland adjacent to the northern tip of Vancouver Island, and also includes Haida Gwaii. Vessels carrying less than 12,500 metric tonnes of crude or persistent oil as cargo will continue to be permitted in the moratorium area to ensure northern communities can receive critical shipments of heating oils and other products.The proposed Act complements the existing voluntary Tanker Exclusion Zone (TEZ), which was created in 1985 along the entire coast of BC to reduce the likelihood that an oil spill would affect BC’s shoreline. In particular, the TEZ is intended to prevent loaded oil tankers travelling between Alaska and the continental United States from travelling close to BC’s shoreline. Also, the size of the TEZ is designed to ensure that any ship will receive assistance before any oil spilled by such ship reaches BC’s shoreline. The TEZ typically extends about 70 nautical miles off of BC’s coast, but narrows to about 25 nautical miles at the southern end of Vancouver Island. The TEZ does not apply to tankers travelling to or from Canadian ports or tankers in ballast.

In addition to the oil tanker prohibition, the Act prohibits vessels and persons from transporting crude oil or persistent oil between oil tankers and those ports or marine installations for the purpose of aiding the oil tanker to circumvent the prohibitions on oil tankers. The Act also establishes an administrative and enforcement regime that includes requirements to provide information and to follow directions and that provides for penalties of up to a maximum of $5 million. Further, the Act provides that the Governor in Council may, by regulation, amend the schedule by adding or deleting any oil or class of oils. Any amendments to the schedule would be made on the basis of scientific evidence and environmental safety.

In accordance with section 2 of the Act, certain pre-arrival information must be reported in respect of an oil tanker, including: (i) its name; (ii) its country of registry; (iii) its owner’s name; (iv) its operator’s name; (v) its master’s name; (vi) name of the port or the marine installation; (vii) type and amount of any oil that it is carrying in bulk in its hold; and (viii) type and the amount of any oil to be unloaded from or loaded into its hold at the port or the marine installation.

In terms of regulated substances, the proposed legislation applies to the shipment of crude oils as defined by the International Convention for the Prevention of Pollution from Ships, namely:

Crude oil means any liquid hydrocarbon mixture occurring naturally in the earth whether or not treated to render it suitable for transportation and includes:

1. crude oil from which certain distillate fractions may have been removed; and

2. crude oil to which certain distillate fractions may have been added.

The proposed Act also applies to related oil products that are heavier and, when spilled, break up and dissipate slowly. A complete list of products captured by the proposed moratorium is outlined in the Schedule to the Act:

LIST OF PERSISTENT OILS

Item Persistent Oils
1 No. 4 fuel oils
2 No. 5 fuel oils
2 No. 5 fuel oils
2 No. 5 fuel oils
3 No. 6 fuel oils, including marine diesel oil and bunker C fuel oil
4 Synthetic crude oils
5 Slack wax
6 Lubricating oils
7 Partially upgraded bitumen
8 Gas oils obtained by vacuum distillation
9 Vacuum residue
10 Heavy blended fuel oils
11 Feedstock oil for cracking processes
12 Bituminous and fuel oil emulsions
13 Petroleum pitch
14 Condensate, if less than 50% of it, by volume, distills at a temperature of 340°C and if less than 95% of it, by volume, distills at a temperature of 370°C, when tested in accordance with the American Society for Testing and Materials ASTM D86 method entitled Standard Test Method for Distillation of Petroleum Products and Liquid Fuels at Atmospheric Pressure, as amended from time to time

The Act is part of the $1.5 billion Oceans Protection Plan (OPP) which was launched by the federal government in November 2016. The OPP is a national strategy to create a world-leading marine safety system and involves new measures to improve marine safety and responsible shipping, protect the marine environment, and to create new partnerships with Indigenous and coastal communities.