Keywords

1 Introduction

Area-based regulation of ocean uses has a long history in Canada. The aquaculture, fisheries, energy, and shipping industries have long depended on zonal approaches for licensing, offshore installation safety during operations and supply, and international navigation safety. Much of this practice has tended to be sectoral and reflected the needs of the individual industries concerned. In the last three decades, and in Canada most especially following the enactment of the Oceans Act in 1996, the concept of integrated ocean management (IOM) emerged in response to the need to consider the multisectoral dimensions of ocean uses and spaces at large and small scales (Oceans Act, 1996; Cicin-Sain & Knecht, 1998). In more recent years, IOM has evolved into marine spatial planning (MSP), a process that aims at conflict avoidance or mitigation and ecosystem-based management (Government of Canada, 2023a). Parallel to and at the same time also as part of this process in Canada, there has been growing attention on ABM in shipping at different scales and mostly at the local level to address growing conflicts between shipping and other ocean uses, impacts of shipping on endangered species and sensitive environments, impacts on the rights of Indigenous peoples, and a growing demand for more inclusive governance of marine spaces (Dalhousie University et al., 2022).

This chapter explores and discusses the Canadian regulatory framework for ABM in shipping in view of identifying discernible trends, ascertaining coherence of practices, and analyzing issues that may require policy and management attention. The focus on shipping is justified because ships tend to be the common platform used by the industrial uses of ocean space. The focus will be on maritime safety, pollution prevention, marine conservation, public health of coastal communities, and maritime security because these are some of the most pressing concerns in the orderly and safe use of ocean space. The chapter further explains the interface of mandates and regulatory initiatives and identifies issues and gaps. The chapter starts by discussing the nature and scope of ABM regulation and the pertinent regulatory authorities. Next, the chapter surveys direct and indirect forms of area-based regulation and its purposes, followed by a discussion of Canadian practices on maritime safety, pollution prevention, marine conservation, public health, and maritime security. This is followed by an assessment and concluding observations.

2 Area-Based Management Regulation

In conceptualizing risk governance in ABM in shipping, it is useful to distinguish between shipping-specific ABM tools and non-shipping-specific ABM tools that have an impact on shipping (see Chap. 2, this volume). The former concern spatially and functionally defined tools used at different scales and ship-specific measures, and the latter, while also employed at different scales, are not exclusively aimed at shipping and address larger IOM and MSP concerns, marine protected areas (MPAs), and other forms of protected areas such as for Indigenous uses and historic and cultural heritage sites. This conceptual differentiation is useful to understand the regulation of shipping and the extent of control needed through general or specific directions and spatially defined and temporally determined area-based measures.

The instruments concerned are formal regulations, executive instructions by public authorities, and other guidance instruments. Formal regulations are issued by government and industry, executive instructions by government, and guidance instruments by government, industry, and nongovernmental organizations. Regulations set out mandatory rules and standards and are enacted in primary legislation (statutes) and subsidiary legislation (ministerial regulation). Executive instructions are issued through notifications (e.g., navigational warnings and notices to mariners in the case of government and unified class requirements in the case of industry) (Government of Canada, 2023b). Guidance instruments are varied and include recommended practices.

The purposes of these instruments include maritime safety, maritime and port security, pollution prevention, protection and conservation of species and habitats, public health, and protection of Indigenous interests. The control exerted ranges from prohibiting or promoting specified conduct in particular operations to ensure safety at sea, pollution prevention and species conservation, raising awareness, and encouraging voluntary compliance. Shipping ABM tools often implement or reflect international standards and may also apply exclusively domestic standards. The regulatory strategies employed are mostly prescriptive but may also be goal-based. Prescriptive regulation sets out the exact conduct expected to meet a prescribed standard, the failure of which triggers enforcement (Baldwin et al., 2011). Goal-based regulation establishes goals rather than prescribing standards, leaving the operator options on how to comply with the goal and thereby minimize enforcement (ibid).

While not addressed in this chapter, it is useful to note that guidance instruments issued by industry, Indigenous organizations, and nongovernmental organizations do not carry the equivalent peremptory weight of regulations issued by public authorities but are still helpful because they tend to inform and facilitate compliance. In summary, ABM tools may be described as consisting of both mandatory and recommended standards of conduct.

3 Regulatory Authorities

3.1 Transport Canada and Port Authorities

The federal Department of Transport Act established Transport Canada (TC) as the national maritime administration (NMA) (DOTA, 1985). International maritime conventions designate NMAs as national focal points, thus enabling TC to serve as the domestic implementation conduit of instruments adopted by the International Maritime Organization (IMO), a specialized agency of the United Nations and the competent international organization for international shipping under the United Nations Convention on the Law of the Sea, 1982 (IMO Convention, 1948; UNCLOS, 1982). TC derives its authority from its own constitutive act as well as other major shipping legislation empowering ABM, such as the Canada Shipping Act, 2001 (CSA, 2001), Canada Marine Act (CMA), and Arctic Waters Pollution Prevention Act (AWPPA), and numerous regulations under their respective remits (CSA, 2001; CMA, 1998; AWPPA, 1970).

TC operates through five major administrative regions, namely, the Atlantic, Ontario, Quebec, Pacific, and Prairie and Northern regions, with the latter including the Arctic shipping division. It consults stakeholders in the Canadian Marine Advisory Council (CMAC), convened at the national and regional levels, and calls for submissions in dedicated regulatory consultations (Government of Canada, 2010; CMAC, 2010). In contrast, consultations with Indigenous peoples are guided by the Crown’s fiduciary duty to consult on matters affecting Indigenous rights, which arguably applies to the ongoing process of federal designation of low-impact shipping corridors (Haida Nation v. British Columbia, 2004; Taku River Tlingit First Nation v. British Columbia, 2004; Mikisew Cree First Nation v. Canada, 2005). The ABM powers of TC mostly concern vessel traffic management, including ship routeing (e.g., traffic separation schemes), spatial designations for specific purposes (e.g., places of refuge), issuance of directions to ships (e.g., to proceed to a specific anchorage), and setting requirements for ship reporting (CSA, 2001, s 126; VTSZR, 1989). These powers are accompanied by enforcement powers, for example, directing the movement of ships, ship inspections, issuing clearances, investigations, detention (including foreign ships contravening international rules and standards), enforcement of pollution offences, and the forced sale of ships (VTSZR, 1989).

Major ports in the National Port System enjoy extensive jurisdiction over coastal and inshore waters and adjacent lands. ABM-related powers include the development and implementation of land use plans and vessel traffic services zones (CMA, 1998, s 56). More specifically, port authorities may issue traffic clearances, direct the master or officer on watch or pilot on board to provide information on the ship, direct the ship to use specified radio frequencies in communications with the port station or other ships, and specify the time for ships to arrive and leave berth, leave or refrain from entering any area, or proceed to or remain at a specified location (ibid, s 58(1)). However, there must be reasonable grounds for requiring a vessel to proceed to or stay at a particular location, and such instruction must be founded on specified circumstances. These include the following: a berth might not be available; there is pollution or a reasonable apprehension of pollution in the traffic control zone; the proximity of animals to the ship whose well-being could be endangered by the ship; an obstruction to navigation in the traffic control zone exists; presence of a ship in apparent difficulty or presenting a pollution threat or other hazard to life or property; proximity of a ship navigating in an unsafe manner or that is unseaworthy; vessel traffic congestion posing risks; and efficiency of port operations could be compromised (ibid, s 58(2)). Ships are required to follow the directions issued (ibid, s 58(3)). A port’s vessel traffic services are expected to be consistent with national standards and practices established under the CSA 2001 (ibid, s 56(3); VTSZR, 1989).

3.2 Fisheries and Oceans Canada and the Canadian Coast Guard

Fisheries and Oceans Canada (DFO) manages Canada’s fisheries and safeguards its waters by sustainably managing fisheries and aquaculture, working with fishers and coastal and Indigenous communities to enable prosperity from fish and seafood, ensuring Canada’s ocean and other aquatic ecosystems are protected from negative impacts, ensuring commercial vessels and recreational boaters navigate safely, saving lives, and protecting the environment during emergencies (DFOA, 1985, s 4; Oceans Act, 1996, s 41(1)). Area-based regulation and management measures include the designation of fisheries management zones, fisheries closures, marine refuges/other effective area-based conservation measures under the Fisheries Act, MPAs under the Oceans Act, and critical habitat areas under the Species at Risk Act (SARA) (Fisheries Act, 1985, ss 7–9.1; Oceans Act, 1996, s 35; SARA, 2002, ss 56–59).

With authority under the Oceans Act and CSA 2001, the Canadian Coast Guard (CCG) is a special operating agency under DFO and is responsible for operating the federal civilian vessel fleet. It also provides maritime services, aids to navigation, channel maintenance, marine search and rescue, marine pollution response, ice-breaking, marine communications, and traffic management services and provides support to other government departments with ships and aircraft (Oceans Act, 1996, s 41(1); CSA, 2001, s 175.1(2)). An ABM measure implemented by the CCG is the declaration of emergency zones for marine pollution response under the CSA 2001 that precludes vessels from entering or leaving polluted waters. An emergency zone declaration also triggers closure by DFO of commercial and Indigenous fishing operating within or adjacent to polluted emergency zones.

Small craft harbors are administered differently from ports under TC’s oversight. The DFO Small Craft Harbours Branch manages coastal harbors critical to the fishing and aquaculture industries that are managed by local harbor authorities (core fishing harbors), harbors that support fishing and aquaculture industries not managed by harbor authorities (non-core fishing harbors), and harbors that support recreational activity (recreational harbors) (Government of Canada, 2022a). DFO Small Craft Harbours operates under the Fishing and Recreational Harbours Act and the Federal Real Property and Federal Immovables Act and issues small craft harbor leases to the local harbor authorities for the land that the physical infrastructure and assets are located on, as well as for adjacent water lots consisting of seabed but not the water column (FRHA, 1985; FRPFIA, 1991). ABM measures used by Small Craft Harbours include “harbor property,” defined in the Fishing and Recreational Harbours Regulations as “any real property at a harbour, including marine facilities” (FRHR, 1978, s 2). Schedule I of the Regulations sets out additional geographical information about a harbor or its location.

DFO is also required under the Oceans Act to lead and develop marine spatial plans for large-scale areas in the Atlantic and Pacific regions to support social, economic, and ecological goals (Oceans Act, 1996, s 32; Government of Canada, 2023a). The plans should enable the assessment of the cumulative effects of physical activities, contribute to impact assessment processes, and plan for the sustainable use of ocean space. The membership of the federal inter-departmental Atlantic MSP Coordination Table includes representatives from DFO (Maritimes, NL, and Gulf Regions), Natural Resources Canada, Environment and Climate Change Canada (ECCC), TC, Parks Canada Agency, the Impact Assessment Agency of Canada, and the Atlantic Canada Opportunities Agency (Atlantic MSP Coordination, 2023). Due to jurisdictional overlaps, MSP does not replace existing authorities or management arrangements in the marine environment; rather, it seeks to add value to decision-making processes and to improve inter-departmental and intergovernmental coordination.

A federal Director General-level Interdepartmental Committee on Oceans (DGICO) was formed in 2006 composed of DFO, ECCC, and the Parks Canada Agency that met informally to coordinate implementation of the federal Marine Protected Areas Strategy and to advance inter-departmental program elements related to Canada’s marine conservation mandates and targets (Government of Canada, 2018). As of March 2022, two DFO-led Interdepartmental Committees on Oceans (ICOs) now exist—the Assistant Deputy Minister’s ICO (ADMICO) and at the DGICO—to support discussion and joint action on the development and implementation of federal ocean-related programs and initiatives. ADMICO and DGICO membership includes over 20 federal departments and agencies involved in policies, programs, services, regulations, and activities in the ocean sector (ICO, 2022).

3.3 Environment and Climate Change Canada and the Parks Canada Agency

ECCC is the lead federal department on environmental issues (DOEA, 1985). ECCC addresses these issues through various actions, including implementation of a Pan-Canadian Framework on Clean Growth and Climate Change; engaging with partners including provinces, territories, and Indigenous communities and organizations; monitoring; science-based research; policy and regulatory development; and environmental law enforcement. ECCC’s programs focus on minimizing threats to Canadians and their environment from pollution; equipping Canadians to make informed decisions on weather, water, and climate conditions; and conserving and restoring the natural environment (Government of Canada, 2021). ECCC’s ABM tools include national marine conservation areas and reserves, national wildlife areas, and migratory bird sanctuaries (ibid).

Falling under the oversight of the ECCC Minister, the Parks Canada Agency’s mandate includes policy implementation with respect to national parks, national historic sites, national marine conservation areas, other protected heritage areas and heritage protection programs, as well as their negotiation and acquisition (PCAA, 1998). It protects nationally significant examples of natural and cultural heritage and fosters public understanding to ensure ecological integrity for present and future generations. The Agency oversees five national marine conservation areas across Canada discussed in Sect. 5.2.

4 Direct Area-Based Regulation of Shipping

4.1 Jurisdiction for ABMs in Shipping

The Oceans Act provides a framework for direct and indirect regulatory ABM tools with respect to shipping. The Act implements Canada’s rights and duties under UNCLOS and sets out its maritime zones and jurisdictions. Canada’s maritime zones include internal waters, territorial sea, contiguous zone, exclusive economic zone (EEZ), and continental shelf, each of which permits a varying degree of jurisdiction over international shipping in accordance with UNCLOS (Oceans Act, 1996, ss 4, 13, 17). Within the EEZ and on the continental shelf, Canada may designate safety zones around offshore installations and structures for safety purposes (ibid, s 20). Canada enjoys full sovereignty over internal waters permitting full use of ABM powers over domestic and international shipping, sovereignty subject to the international right of innocent passage in the territorial sea accompanied by limitations to jurisdiction over international shipping, jurisdiction in the contiguous zone subject to the international freedom of navigation, and sovereign rights and jurisdiction over the EEZ and continental shelf subject to the international freedom of navigation limiting the exercise of jurisdiction over international shipping. Hence, in using ABM tools with impacts on international shipping, Canada must take into consideration the limitations of prescriptive as well as enforcement jurisdiction. For Canada to prescribe ABM measures with respect to international shipping in the territorial sea, contiguous zone, EEZ, and continental shelf, it would have to make a submission to IMO as the organization to which UNCLOS bestows competence over international shipping to designate such measures and which Canada would domesticate in turn.

In addition to the jurisdictional framework, UNCLOS also sets out the framework for the adoption and implementation of the national ocean management strategy and integrated management plans for estuarine, coastal, and marine ecosystems in marine areas within Canada’s jurisdiction (ibid, ss 29, 31). Although these instruments are generally for ocean management purposes, ABM in shipping is necessarily included within their ambit, as no ocean use is excluded. Hence, in developing integrated management plans, the Minister of Fisheries and Oceans and the Canadian Coast Guard (DFO Minister) have a duty to coordinate with other ministers, including the Minister of Transport (ibid, s 32(b)).

4.2 Maritime Safety

4.2.1 Vessel Traffic Services

The CSA 2001 confers on the Minister of Transport regulatory authority for the establishment of vessel traffic services (VTS) zones, under which general regulations and specific regulations for Eastern and Northern Canada have been adopted (CSA, 2001, ss 136(1)(a); VTSZR, 1989; ECVTSZR, 1989; NORDREG, 2010). Once established, a VTS zone stipulates that ships require clearance before they enter, leave, or proceed within the zone and may not proceed unless they are able to maintain direct marine communications with a VTS center (CSA, 2001, s 136(1)). The VTS officer is empowered to grant clearances; direct the captain, pilot, or officer on watch to provide any information on the vessel; direct ships to use radio frequencies in communications; and provide specific directions to leave or not enter the VTS zone or specified areas or to proceed or anchor within the zone (ibid, s 136(3)). Some navigable waters are subject to a ship reporting system (SRS), as in the case of the Arctic Canada Traffic Zone (NORDREG Zone)) under the Northern Canada Vessel Traffic Services Zone Regulations (NORDREG, 2010). The NORDREG Zone is subject to a mandatory SRS established to protect the unique Arctic environment by requiring vessels of 300 gross tonnage or more to file reports on entering, while navigating, and before exiting Arctic waters.

4.2.2 Routeing, No Anchorage, and Speed Restrictions

The CSA 2001 implements the International Regulations for Preventing Collisions at Sea, 1972 (COLREGs), which set out international rules for the safe movement of ships in all marine spaces (COLREGs, 1972). Dedicated regulations implement the rules in their entirety, provide for Canadian modifications, and set out a system of ABMs for safe navigation (Collision Regulations, 2008). The rules provide for inshore traffic zones for local small traffic (vessels of less than 20 meters), consisting of routeing measures on the landward side of a traffic separation scheme (TSS) (Collision Regulations, 2008, s 1(1)). Routes are defined,Footnote 1 and multiple routes may form a routeing system that includes “any system of one or more routes or routing measures which systems may include traffic separation schemes, two-way routes, recommended tracks, areas to be avoided, inshore traffic zones, roundabouts, precautionary areas and deep water routes” (ibid). A route may include a traffic separation zone, a routeing measure that provides for the separation of opposing streams of traffic, thus requiring vessels to maintain one direction of traffic flow and bypass each other safely in separate lanes (ibid). Routeing measures are set out in IMO regulations and designated by it (IMO, 1985).

Of particular interest is Regulation 10 of the COLREGs, which provides a strict regime for navigation in a TSS. Ships must proceed in the appropriate traffic lane in the general direction of traffic flow for that lane while keeping clear of the traffic separation zone, joining, or leaving traffic at the termination of the lane and at as small angle of the traffic flow as practicable. Naturally, vessels may traverse an inshore traffic zone for port entry or exit purposes to take on a pilot or to avoid danger. Separation zones can only be entered in cases of emergency to avoid immediate danger or to engage in fishing as appropriate.

In addition to routeing measures, ABM measures may include no anchorage sites for prohibited waters, such as in bays, channels, and canals (NSR, 2020, s 301, scheme 5). Such areas may be subject to navigational instructions or restrictions or other shipping measures contained in Notices to Mariners and navigational warnings (ibid, s 302). Some areas, such as the Burlington Canal, are also subject to size, speed, and overtaking restrictions (ibid, ss 303–304, 306–308). Navigable rivers may also be subject to similar ABMs, such as the Detroit, St. Clair, and Rouge Rivers, and specified channels (ibid, ss 312, 315, 317, 319). Similar ABMs apply to a range of other inland navigable waters, such as lakes (VORR, 2008, schemes 1–4, 5–9).

Differently from the designation of ABMs to control shipping, navigable waters themselves receive protection from works, defined as structures, dumping, or fill. The Minister of Transport may designate an area contiguous to a work to ensure the safety of persons and navigation, and the Governor in Council may designate areas where no works are to be constructed or take place (CNWA, 1985, ss 7(11), 13.1).

4.2.3 Load Line Zones and Areas

Other geographical designations for maritime safety purposes are applied in a variety of contexts. For example, Canada applies an international convention concerning load lines that establishes rules about loading and freeboard determined according to navigation seasonal zones, areas, and periods (LLR, 2007, s 7; ICLL, 1966, Annex II).

4.2.4 Pilotage Areas

Pilotage is another type of safety measure based on ABM. Canada has four major pilotage regions—Atlantic, Great Lakes, Laurentian, and Pacific—each of which provides mandatory and voluntary pilotage depending on the area concerned. The service is provided by a pilotage authority for each region established as a Crown body under the Pilotage Act (Pilotage Act, 1985). There is no pilotage authority for Arctic waters. Compulsory pilotage areas within each region are established by regulation, and, with very few exceptions (e.g., a regular member of the ship’s complement has a pilotage certificate for the area concerned), they prescribe pilotage under a licensed pilot for all commercial visiting vessels (ibid, ss 38.01, 52 and sch; GPR, 2000, scheme 2–5). Transport Canada also issues Interim Orders Respecting Compulsory Pilotage as needed (Transport Canada, 2023e). Further, pilotage authorities are responsible for regulating the pilotage profession and provision of pilots for eligible vessels (Pilotage Act, 1985).

4.3 Places of Refuge for Ships, Salvage, and Wreck

Vessels in need of assistance because of the stress of weather and fire on board or when damaged in a collision may be directed by the Minister of Transport to a place of refuge, which can be a port or other sheltered waters (CSA, 2001, s 189). Under commercial salvage, the salvor completes the contract on delivering the stricken vessel to the owner at a place of safety (ISC, 1989, art 8; WAHVA, 2019, scheme 2). It is possible that places of refuge are predesignated by public authorities for situations where the salvaged vessel is deemed to pose no risks to coastal communities, amenities, or the environment. Defined consistently with the IMO guidelines on the subject, a place of refuge is “a place where a ship in need of assistance can take action to enable it to stabilize its condition and reduce the hazards to navigation, and to protect human life and the environment” (IMO, 2004). Canada has designated anchorages and anchorage sites that could be places of refuge (Government of Canada, n.d.). However, unlike some other jurisdictions, Canada has not predesignated places of refuge for such ships, and the decision to grant or refuse refuge rests with TC Marine Safety Regional Directors based on the National Places of Refuge Contingency Plan and its regional iterations (PORCP, 2007). The Plan enables risk-based decision-making to direct the ship operator and salvor on hand to a place designated by TC. At the same time, it is worth noting that while TC has exclusive authority over granting a place of refuge under the authority of the CSA 2001, under the CMA, port authorities also have power to direct traffic (CSA, 2001, s 662(1)(f); CMA, 1998, ss 56, 58). A port authority’s powers in this regard should be read against the expectation that port practices and procedures concerning traffic zones must not be inconsistent with national standards and practices for marine vessel traffic services under the CSA, 2001 (CMA, 1998, s 56(3)).

In situations where a vessel or a wreck poses a grave and imminent safety or environmental hazard, the DFO Minister may declare an emergency zone of a size that is reasonably commensurate with the risk (WAHVA, 2019, s 67(4)). Within that zone, the Minister may direct vessels to report their positions, deny exit from or exclude entry into the zone, and provide directions to vessels with respect to routes, speed limits, pilotage, and equipment requirements (ibid).

4.4 Pollution Prevention Areas

4.4.1 General

The IMO has long used large-scale ABM tools for pollution prevention, most notably through the International Convention for the Prevention of Pollution from Ships, 1973/78 (MARPOL) (MARPOL, 1973/78). This instrument provides basic pollution prevention standards applicable to all marine areas and designates special areas with even higher standards to control waste management and discharge.

Oily waters may only be discharged in compliance with MARPOL Annex I. Canada further distinguishes between Section I waters and Section II waters (VPDCR, 2012).Footnote 2 Discharge limits are stricter for inland waters than other Canadian waters, setting different limits for each, with Section I inland waters having a 5 ppm limit and other waters having a 15 ppm limit (ibid, s 30). In Annex II, the discharge of noxious liquid substances in ballast water is regulated according to the type of substances (X, Y, and Z). Discharges are permissible if they satisfy specified criteria, such as distance from the shore, discharge rate, speed during discharge, and depth (ibid, ss 66–67). Ships may discharge sewage in designated sewage areas in Canadian waters listed in Schedule 2 of the Regulations only if the sewage is sanitized and has the prescribed low coliform count (VPDCR, 2012, s 95). Discharges in other areas of Canadian waters must occur either at least 12 nautical miles (M) from shore at a speed of at least 4 knots or, if the sewage is comminuted and disinfected, at least 3 M from shore (ibid). Canadian vessels operating in non-Canadian waters must comply with MARPOL Annex IV standards implemented in the Regulations. The discharge of garbage under Annex V is similarly subject to distance rules, as well as the type of garbage. For example, dunnage that does not contain plastics is to be discharged as far as feasible from land and at least 25 M from the nearest land, while other garbage is at least at 12 M and comminuted or ground garbage at 3 M (ibid). Cargo residues are also subject to distance requirements on the Great Lakes (ibid, s 102). Stricter rules apply to the Lake Superior and Six Fathom Scarp Mid-Lake special protection areas (ibid, ss 98, 102).

Except for emission control areas, MARPOL Annex VI regulates air pollution at the global level; however, while Canada applies Annex VI standards, it also applies additional measures with local application. For example, the Vessel Pollution and Dangerous Chemicals Regulations (VPDCR) regulate particulate matter in emissions through prescribed distances for the emission of smoke from vessels in Canadian waters within 1 M from shore (VPDCR, 2012, ss 117–118). In another instance, an ABM measure has been used in Canadian waters, although it is not prescribed in the counterpart IMO regulation. This has occurred with respect to exhaust gas cleaning systems (scrubbers). MARPOL Annex VI permits compliance with the sulfur oxide (SOx) emission standard through an alternative compliance mechanism certified by the NMA (i.e., TC) (MARPOL, 1973/78, Annex VI reg 4). Canada permits the use of scrubbers as a compliance mechanism, having implemented the IMO 2015 Guidelines for Exhaust Gas Cleaning Systems (IMO, 2015). However, due to the pollution concern over the discharge of scrubber washwater, some Canadian ports have moved to restrict the use of scrubbers by ships at anchor within their jurisdiction; therefore, vessels must switch to compliant fuel or use shore power (VFPA, 2022, s 14.4).

Canada has implemented MARPOL-designated special areas for oily wastes, hazardous and noxious substances and garbage, and air emission control areas in the VPDCR (VPDCR, 2012, s 7). While none of the IMO-designated special areas apply to Canadian waters, Canada implemented the North American Emission Control Area (NAECA) designated under MARPOL Annex VI (MARPOL, 1973/78, Annex VI regs 13–14; Appendix VII). NAECA applies to marine areas up to the EEZ limits off the east and west coasts for the purpose of controlling SOx and nitrogen oxide (NOx) emissions. Ships operating in these waters must use fuel with sulfur content that meets the SOx standard to not exceed 0.10% m/m (mass by mass) and must comply with the strict NOx Tier III emission standard. Additionally in this case, ships using heavy fuel oil must switch to NAECA-compliant fuel before entering Canada’s EEZ. NAECA emission standards do not apply to waters north of 60 degrees North, although the designation of northern waters as a similar emission control area is under consideration at the IMO (Chircop, 2020).

4.4.2 Arctic Waters and Shipping Safety Control Zones

Arctic waters constitute the first region-specific ABM regulation of shipping in Canada with the enactment of the AWPPA. In the definition of Arctic waters, the Act included internal waters, territorial sea, and EEZ north of 60 degrees North and bounded to the west by the 141st meridian and to the east by the international maritime boundary with Greenland (AWPPA, 1970, s 2). The Act further creates a system of 16 Shipping Safety Control Zones for the purpose of regulating ship design, construction, equipment, crewing, cargo carriage, supplies, navigational information, and vessel operational standards, including navigation based on risk assessment of ice and weather conditions utilizing the Arctic Ice Regime Shipping System (AIRSS) (ibid, s 11(1); SSCZO, 2010). The Act established high standards for pollution prevention, including a zero-discharge regime for oil and strict controls of other waste generated on board.

When Canada implemented the International Code for Ships Operating in Polar Waters (Polar Code) and related amendments to MARPOL and the International Convention for the Safety of Life at Sea 1974 (SOLAS) in 2017 by enacting the Arctic Shipping Safety and Pollution Prevention Regulations (ASSPPR) under the authority of both AWPPA and CSA 2001, it largely maintained the ABM approach for Arctic waters (Polar Code, 2014/15; SOLAS, 1974; ASSPPR, 2017). The Polar Code elevated the pollution prevention standards in Arctic waters to a level comparable to that of MARPOL special areas but without designating the region a special area. The most significant measure in the Code that affects the AWPPA is the introduction of the Polar Operational Limit Assessment Risk Indexing System (POLARIS), which over time will replace the AIRSS and zone system to determine the risk faced by ships of different polar classes.

In the NORDREG Zone, a regional approach to mandatory ship reporting in Arctic waters applies (NORDREG, 2010). The NORDREG zone covers an area larger than the Polar Code areaFootnote 3 and includes reporting requirements for prescribed classes of vessels before entry into the zone while navigating and before exiting Canadian Arctic waters.

4.4.3 Pacific Oil Tanker Moratorium

An unusual pollution prevention ABM in Canada is the Oil Tanker Moratorium Act applicable to the Pacific (OTMA, 2019). It consists of a single ABM measure applicable to a single class of ship—the oil tanker—prohibiting the carrying in bulk or loading of crude or persistent oil to an amount greater than 12.5 MT or anchoring at a port or marine installation on the coast of British Columbia north of 50°53′00′′ N and west of 126°38′36′′ W (ibid, s 4). This is unusual because the Act, although regional in scope, is significantly more limited than the AWPPA. A regulation of a scope limited to a class of ship and in a designated geographical area would normally be included in existing regulations, such as the VPDCR under the CSA 2001. The explanation for the legal form of this measure likely rests more with regional politics than normal NMA and ABM practice.

4.5 Pollution Response Areas

Canada has a regional system for oil pollution response based on TC-certified standing response organizations located in the major shipping regions (CSA, 2001, s 169(1)). At this time, the following organizations have been certified on a regional basis: Western Canada Marine Response Corporation, Eastern Canada Response Corporation, Point Tupper Marine Services, and Atlantic Environmental Response Team (Transport Canada, 2023a; ROR, 1995). There are no certified response organizations in Arctic waters. Under this regional system, ships of a specified tonnage that trade in oil in Canadian waters (e.g., oil tankers) are required to have a standing arrangement with a certified response organization in the region where the ship trades (CSA, 2001, s 167(1); ERR, 2019, s 2). The requirement does not apply to foreign vessels simply exercising the right of innocent passage through the territorial sea (ERR, 2019, s 3). The pollution prevention system extends to oil handling facilities loading and unloading oil, which are required to have pollution prevention plans (ibid, s 5 et seq.).

4.6 Ballast Water Management and Exchange Areas

In 2010, Canada acceded to the International Convention for the Control and Management of Ships’ Ballast Water and Sediments 2004 (BWM Convention) requiring ships to manage vessel ballast water (BWM Convention, 2004). Canada recently passed new ballast water regulations that entered into force on June 3, 2021, and that apply to Canadian vessels globally and to foreign vessels in Canadian waters (BWR, 2021). The 2021 Ballast Water Regulations give effect to Canada’s obligations under the BWM Convention to protect Canadian waters from the introduction and spread of aquatic invasive species and pathogens by Canadian and foreign vessels. They require vessels on international voyages to comply with the BWM Convention’s requirements and standards. Key requirements include meeting a performance standard that limits the number of organisms capable of reproducing to reduce the risk of aquatic invasive species,Footnote 4 and vessels are expected to use onboard ballast water management systems to meet the performance standard.Footnote 5 Furthermore, foreign vessels must exchange and flush ballast tanks in addition to meeting the performance standard when travelling to freshwaters in Canada from waters beyond Canadian jurisdiction, the Great Lakes, and the high seas. The Regulations and the BWM Convention require foreign vessels in transit and built on or after September 8, 2017, to meet the performance standard when the vessel is launched.Footnote 6

Canadian Alternate Ballast Water Exchange Areas are described in TC’s policy TP-13617e-2021 (Transport Canada, 2021). The only ballast exchange area that directly avoids an MPA is the exclusion of the SGaan Kinghlas-Bowie Seamount Marine Protected Area off Haida Gwaii, British Columbia, from the Pacific Canada Alternate Ballast Water Exchange Area. The Pacific exchange area avoidance distance of this MPA ranges from a maximum of 36 M down to abutting the northern MPA boundary. Spatial overlap exists between the Gulf of St. Lawrence Alternate Ballast Water Exchange Area (Laurentian Channel) and two Oceans Act MPAs, that is, St. Anns Bank Marine Protected Area and the Laurentian Channel Marine Protected Area. The Atlantic Canada Alternate Ballast Water Exchange Area is only 5 M south of the Gully MPA boundary. There are also several marine refuges/other effective area-based conservation measures (OECMs) that overlap with alternate ballast water exchange areas, including the Offshore Pacific Seamounts and Vents Closure, Eastern Canyons, Corsair and Georges Canyons, and six coral and sponge conservation areas in the Gulf of St. Lawrence. Marine refuges/OECMs established pursuant to the Fisheries Act via variation orders and/or conditions of license also have no impact on commercial navigation rights.

4.7 Marine Conservation ABM Tools

4.7.1 Gulf of St. Lawrence

Since August 2017, Transport Canada has issued annual Interim Orders with speed restrictions for the protection of North Atlantic right whales (NARW, Eubalaena glacialis) in the Gulf of St. Lawrence. The 2023 Interim Order states that vessels greater than 13 meters have speed restrictions in effect during April 19 to November 15, 2023, in a static zone divided into northern and southern zones. Vessels must not exceed 10 knots in static zones in the Gulf of St. Lawrence (Transport Canada, 2023d).

Temporary speed restrictions of 10 knots for vessels greater than 13 meters could be enforced in dynamic shipping zones north and south of Anticosti Island. Dynamic shipping zones coincide with vessel traffic separation schemes designated by Transport Canada, and speed restrictions are applied in these zones when at least one NARW is detected in any zone north and/or south of Anticosti Island, 5 M south of the dynamic shipping zones, or 2.5 M from the eastern and western edges of these zones. Ten-knot speed restrictions are in effect for 15 days starting on the detection date. If NARWs are not detected during the last 7 days of a 15-day period, the speed restriction is lifted at the end of the period (Transport Canada, 2023d).

A mandatory restricted area is in effect in or near Shediac Valley, an area east of New Brunswick and northwest of Prince Edward Island, where vessels greater than 13 meters must avoid the area unless exempted under the 2023 Interim Order. Furthermore, voluntary vessel slowdowns in the Cabot Strait are in effect for April 19 to June 27, 2023, and September 27 to November 15, 2023. During these periods, vessels greater than 13 meters are asked to voluntarily reduce their speed to not exceed 10 knots. Compliance with the Interim Order is conducted via the issuance of navigational warnings and the review of automatic identification system (AIS) data provided by CCG’s terrestrial AIS data receivers (Government of Canada, 2023b). Vessel owners could face penalties of up to CDN$250,000 and/or a penal sanction under the CSA 2001, liable on summary conviction to a fine of up to CDN$1,000,000 or imprisonment up to 18 months, or both. Violations for noncompliance with the 2022 Interim Order were issued to three bulk carriers under the flags of Singapore, Panama, and the Marshall Islands, with the penalties totaling CDN$24,975 (Transport Canada, 2023b). A key deterrent of noncompliance is to set fines for offenses higher than the incremental fuel costs of transiting above speed limits and the cost savings by port arrivals and departures not being delayed by speed and area restrictions. Since the 2023 Interim Order came into effect on April 19, 2023, another 317 vessels have been observed at speeds above the limit or entering the restricted area as of October 27, 2023 (Transport Canada, 2023c).

4.7.2 Southern British Columbia

In 2019, the first Interim Order Respecting the Protection of Killer Whales (Orcinus orca) in the Waters of Southern British Columbia in the Salish Sea was issued. More recently, the Interim Order released on June 1, 2023, aims to reduce underwater vessel noise and physical disturbance from vessel traffic for killer whales, focusing on key foraging areas for Southern Resident killer whales listed as endangered under the SARA (Transport Canada, 2023f).

The Interim Order prohibits vessels, subject to exceptions, from approaching killer whales at less than 400 meters in Southern Resident killer whale critical habitat designated under SARA and in British Columbia coastal waters between Campbell River (Cape Mudge) and Malaspina Peninsula (Sarah Point), including Howe Sound, to just north of Ucluelet, including Barkley Sound. In these waters, the Order prohibits positioning vessels such that they are in the path of a killer whale. Two interim sanctuary zones are created where vessel traffic is prohibited, including fishing or recreational boating, from June 1 to November 30, 2023, with some exceptions. The two zones are off the southwest coast of Pender Island and southeast end of Saturna Island. Finally, the Order creates two speed-restricted zones, subject to exceptions, implementing a mandatory speed limit of 10 knots in areas around Swiftsure Bank, during June 1 to November 30, 2023. The first area is located at the mouth of the Nitinat River, and the second is located at Swiftsure Bank.

The shipping lanes in the Salish Sea are established under both Canadian and US legislation, and vessels must transit these lanes for navigation safety. Transport Canada cannot unilaterally prohibit vessels from using the traffic separation scheme because the lanes overlap both jurisdictions and the Interim Order only applies to Canadian waters, so voluntary measures are used to reduce acoustic and physical disturbance from commercial vessels in important sections of the traffic separation scheme.

Violations for noncompliance with the 2022 and 2023 Interim Orders were issued to 15 pleasure craft vessels in southern British Columbia, with penalties ranging from CDN$500 to CDN$3,375 and totaling CDN$15,940 (Transport Canada, 2023b). A study of vessel compliance with minimum distance regulations in the Salish Sea indicated approximately 80% compliance, with recreational boats being significantly noncompliant with distance regulations and boaters being more likely to be noncompliant around killer whales by not adhering to the 400-meter whale avoidance distance (Fraser et al., 2020).

4.8 Security Zones

In addition to safety and environmental purposes, ABM tools also have been used to ensure the security of ships, ports, and other marine facilities. Canada has implemented the IMO International Ship and Port Facilities Code which provides for the designation of restricted areas, defined as “an area established under any regulation, security measure or security rule to which access is restricted to authorized persons,” thus limiting public or unauthorized access (MTSA, 1994, s 2). The various marine security (MARSEC) levels designated by the Minister of Transport vary to reflect the threat environment for vessels, marine facilities, and ports (MTSR, 2004, s 1). In addition to vessel security plans, ships entering Canadian ports are required to give advance notice of arrival (ibid, s 221). Marine facilities are also required to have security plans, accompanied by MARSEC levels, and ensure controlled and restricted access to their areas (ibid, s 322).

4.9 Port Management Areas and St. Lawrence Seaway

A port authority’s powers include the promotion of safety and environmental protection in port waters. This requires monitoring ships in or entering port waters, establishing vessel practices and procedures, requiring ships to have the capacity to use specified radio frequencies, and establishing traffic control zones (CMA, 1998, s 56(1)). Port vessel traffic management powers consist of required notices of arrival, requesting certain information from vessels to directing port entry, departure, anchoring, berthing, and movement, to proceed at a certain speed or to use the assistance of towage where appropriate and to avoid certain areas (ibid). Typically, port areas tend to be subject to mandatory pilotage regulated by the regional pilotage authorities established under the Pilotage Act and regulations. Under the Regulations, pilots must have knowledge of the harbor and other marine regulations that apply in the pilotage area in which they are licensed (GPR, 2000, ss 22.21, 22.30).

Port authorities have the discretion to use vessel traffic management powers to help prevent or mitigate the impacts of navigating vessels on marine species in port and harbor waters under their jurisdiction, including in areas other than MPAs. Among the reasonable grounds for requiring a vessel to proceed to or stay at a particular location, the CMA includes the proximity of animals whose well-being could be endangered by the ship and for which vessel compliance is required (CMA, 1998, s 58(2)–(3)). Port authorities may use this power to fulfil their duties under conservation legislation, such as SARA. Where the conservation measures extend over a large area, a cooperative approach involving port authorities, other federal authorities, and stakeholders is called for.

The St. Lawrence Seaway has its own management system shared between counterpart authorities in Canada and the United States.Footnote 7 The St. Lawrence Seaway Authority is responsible for the Canadian section of the Seaway. Its regulation is the responsibility of the Governor in Council, and the Authority, as designated by the Minister of Transport, is responsible for taking measures to ensure control of traffic (CMA, 1998, ss 88–89).

5 Indirect Area-Based Regulation of Shipping

This section discusses indirect regulation of shipping within MPAs, national marine conservation areas, marine wildlife areas, marine bird sanctuaries, and fisheries habitat sanctuaries. The principal purpose of the protected area regulations is marine conservation, but they may have incidental effects on shipping. The following legislation and related regulations are reviewed: the Oceans Act, the Canada National Marine Conservation Areas Act (CNMCAA), Canada Wildlife Act (CWA), Migratory Birds Convention Act (MBCA), SARA, and Fisheries Act. The federal 2023 Marine Protected Areas (MPA) Protection Standard is also discussed for its relevance to shipping (Government of Canada, 2023c).

5.1 Marine Protected Areas

The Oceans Act defines MPA as “an area of the sea that forms part of the internal waters of Canada, the territorial sea of Canada or the exclusive economic zone of Canada” for the conservation and protection of (a) commercial and noncommercial fishery resources, including marine mammals, and their habitats; (b) endangered or threatened marine species, and their habitats; (c) unique habitats; (d) marine areas of high biodiversity or biological productivity; (e) any other marine resource or habitat as is necessary to fulfil the mandate of the Minister; and (f) marine areas for the purpose of maintaining ecological integrity (Oceans Act, 1996, s 35(1)). Regulations exist for each designated MPA that include a general prohibition on any activity that “disturbs, damages, destroys or removes” any living marine organism or its habitat from the MPA (ibid, s 35(2)(b)). Each MPA designation is accompanied by dedicated regulations. Some MPA regulations include prohibitions on depositing, discharging, or dumping any substance and provide exceptions for permitted activities within MPAs for the purpose of public safety, national defense, national security, law enforcement, and scientific research (GMPAR, 2004, s 11(c)).

Restrictions on navigation in Canadian waters are generally limited to internal waters or the territorial sea, while the freedom of navigation in the EEZ is typically unrestricted. This freedom is illustrated in the Gully MPA regulations, which state that “the activities of a ship that is exercising international navigational rights in the Gully Marine Protected Area and is not contravening the Canada Shipping Act or any requirements of the International Maritime Organization” are exempt from submitting a plan of activities in the MPA (GMPAR, s 11(c)). Therefore, vessels in the Gully MPA are still bound by the CSA 2001 and the IMO-adopted rules and standards. The St. Anns Bank MPA regulations also state that navigation may be carried out in the MPA located off Cape Breton, Nova Scotia, and no anchoring prohibitions exist (SABMPAR, 2017, s 6).

A voluntary industry code of practice for the Gully MPA led by Ovintiv, Inc. (formerly EnCana), a hydrocarbon exploration and production company, restricts its vessels from transiting the Gully MPA (Ovintiv, 2020). This voluntary code is consistent with earlier codes adopted by Exxon Mobil and EnCana that committed their vessels to avoid the Gully MPA (Exxon Mobil, 2018; Encana, 2011: Appendix 1).

Some MPA regulations specifically include vessel operation restrictions. For example, the Musquash Estuary MPA in the Bay of Fundy limits vessel speeds in Zones 2A or 2B to no more than 5 knots or to no more than 8 knots in Zone 3 (MEMPAR, 2006, s 4(c)). These speed restrictions are set to minimize impacts on lobster, herring, and recreational fishing and manual dulse harvesting in Zones 2A, 2B, and 3. The Laurentian Channel MPA between Newfoundland and Nova Scotia restricts anchoring in Zones 1A and 1B while otherwise permitting navigation (LCMPAR, 2019, s 5(a)). Anchoring restrictions relate to the MPA conservation objectives to protect corals, particularly significant concentrations of sea pens, from harm due to human activities in the Laurentian Channel.

The Banc-des-Américains/American Bank MPA off the Gaspé Peninsula in the Gulf of St. Lawrence prohibits anchoring in Zone 1, the core protection zone and most sensitive area, as the conservation objectives for the MPA include conserving and protecting benthic habitats. No sewage or graywater discharge is permitted for vessels of 400 gross tonnage or more or certified to carry 15 persons or more, but navigation is unrestricted in the MPA (ABMPAR, 2019, s 6(a)–(b)). The Hecate Strait and Queen Charlotte Sound Glass Sponge Reefs MPA off British Columbia prohibits anchoring in its three core protection zones containing sponge reefs but otherwise permits navigation in accordance with the CSA 2001 (HSMPAR, 2017, s 7(b)(ii)). Finally, the shallow coastal Basin Head MPA in Prince Edward Island permits motorized vessels in Zone 2 solely for transiting to and from boat launches (BHMPAR, 2005, s 4(b)).

5.2 National Marine Conservation Areas

The CNMCAA enables the designation of national marine conservation areas (NMCAs) for the purpose of protecting and conserving representative marine areas for the benefit, education, and enjoyment of the people of Canada and the world (CNMCAA, 2002, s 4(1)). NMCA reserves are established where an area or a portion of an area proposed for an NMCA is subject to a claim with respect to aboriginal rights that has been accepted for negotiation by the Government of Canada (ibid, s 4(2)). There are five NMCAs, namely, the Gwaii Haanas National Marine Conservation Area Reserve and Haida Heritage Site in British Columbia, the Fathom Five National Marine Park in Georgian Bay, the Lake Superior National Marine Conservation Area, the Saguenay-St. Lawrence Marine Park in the St. Lawrence River Estuary, and the Tallurutiup Imanga National Marine Conservation Area in Nunavut.

The CNMCAA states that provisions of a management plan or an interim management plan respecting marine navigation and marine safety are subject to an administrative agreement between the Ministers of Parks Canada, Transport Canada, and DFO (CNMCAA, 2002, s 4(1)). Furthermore, regulations that restrict or prohibit marine navigation or activities related to marine safety, to the extent that such regulations can be made on the recommendation of the Minister of Transport under the CSA 2001 or AWPPA, may only be made on the recommendation of the Ministers of Parks Canada and Transport Canada (ibid, s 16(3)). TC therefore retains its authority over marine navigation in NMCAs, and the Minister of Parks Canada and the DFO Minister must jointly collaborate with the Minister of Transport to develop and implement management measures related to shipping in NMCAs. No provisions in the CNMCAA currently address shipping or shipping impacts within NMCAs, other than prohibiting the disposal of substances in NMCA waters, which would include vessel discharges (ibid, s 14(1)). The marine activities in the Saguenay-St. Lawrence Marine Park Regulations have prohibitions related to vessel speed and avoidance distance requirements around cetaceans in the Park and require cruise ships to have a permit to operate in the Park (SSLMPR, 2002, ss 3(1), 15, 19).

5.3 Marine Wildlife Areas

“Protected marine areas” may be established under the CWA to protect wildlife in any area of the sea, including internal waters, the territorial sea, or the EEZ (CWA, 1985, s 4.1(1)). The Scott Islands Marine National Wildlife Area northwest of Vancouver Island is the only protected marine area established under the CWA. The Scott Islands Protected Marine Area Regulations prohibit activities that disturb, damage, or destroy wildlife or its habitat and prohibit the dumping or discharge of any waste material or substance likely to harm wildlife or degrade wildlife habitat in the protected marine area (SIPMAR, 2018, s 2(1)). However, these prohibitions do not apply to vessels operating under the CSA 2001 or to naval vessels belonging to or under the command of the Royal Canadian Navy. The regulations also prohibit anchoring a vessel of more than 400 gross tons within one nautical mile of Triangle, Sartine or Beresford Islands, and prohibit vessels transiting within 300 meters of these islands (ibid).

5.4 Migratory Bird Sanctuaries

The MBCA implements an international convention for the protection of migratory birds in Canada and the United States, in Canada and in its EEZ (MBCA, 1994; Migratory Birds Convention, 1916). The MBCA prohibits vessels from depositing substances harmful to migratory birds and prohibits a substance from being deposited in waters or an area frequented by migratory birds or in a place from which the substance may enter such waters or such an area (MBCA, 1994, s 5.1(1)). The only exemption from this prohibition is if the deposit is authorized under the CSA 2001 or authorized for scientific purposes. Of the 259 migratory bird sanctuaries in Canada, a significant number have marine components. For example, 54 bird sanctuaries in Canada are defined as having a marine biome, including many areas at increased risk adjacent to commercial vessel traffic routes with 10+ vessels per day per square kilometer.Footnote 8

5.5 Species at Risk Critical Habitats

SARA includes a blanket prohibition that no person shall kill, harm, harass, capture, or take an individual of a wildlife species that is listed as an extirpated species, an endangered species, or a threatened species (SARA, 2002, s 32). The Act also provides for the designation of critical habitat that is necessary for the survival or recovery of a listed wildlife species and that is identified as the species’ critical habitat in the recovery strategy or in an action plan for the species (ibid, ss 2(1), 56 et seq.).

There are no regulatory measures under SARA specifically targeting shipping to protect marine species at risk. The only vessel operations in Canadian waters impacted by critical habitat relate to the IMO-designated area to be avoided (ATBA) concerning the Roseway Basin Critical Habitat off southwestern Nova Scotia for NARWs. Vessels of 300 gross tonnage and more must avoid the Roseway Basin ATBA from June 1 to December 31 annually to protect seasonally resident NARWs in the designated SARA critical habitat that comprises the ATBA (Government of Canada, 2008; IMO, 2007).

5.6 Fisheries Conservation Areas

The Fisheries Act provisions related to fish and fish habitat protection and pollution prevention prohibit the deposit of deleterious substances of any type in water frequented by fish or in any place where the deleterious substance may enter the water (Fisheries Act, 1985, s 36(3)). The Act provides an exception with respect to any deposit of a deleterious substance that, within the meaning of Parts 8 or 9 of the CSA 2001, constitutes a discharge of a pollutant caused by or otherwise attributable to a vessel. Sections 257 and 258 of the CSA 2001 on jurisdiction in case of offenses and over vessels lying off coasts apply to offences under the Fisheries Act in the same manner and to the same extent as they apply to offences under the CSA 2001. Fishery closures for the purposes of fisheries management and conservation per se have no bearing on commercial shipping, including closed areas under the Pacific Fishery Regulations, Atlantic Fishery Regulations, and the Maritime Provinces Fishery Regulations of the Fisheries Act for purposes of fisheries conservation, habitat protection, or gear conflict mitigation. Again, fisheries closures such as marine refuges/OECMs established pursuant to the Fisheries Act via variation orders and/or conditions of license also have no impact on commercial navigation rights.

5.7 MPA Protection Standard 2023

The Marine Protected Areas (MPA) Protection Standard of February 8, 2023, is intended to provide consistency and clarity on prohibited activities in federal MPAs, including Oceans Act MPAs, NMCAs, and marine components of national parks, marine national wildlife areas, and marine portions of national wildlife areas and migratory bird sanctuaries (Government of Canada, 2023c). The MPA Protection Standard applies through legal mechanisms to MPAs established by federal departments and agencies after April 25, 2019. The MPA Protection Standard was first developed in 2019 with an initial focus on prohibiting oil and gas exploration and exploitation, mining, dumping, and bottom trawling in all new MPAs. The prohibition on dumping has been expanded in the 2023 Protection Standard to include disposal at sea of waste and other matter, dumping of fill, deposit of deleterious drugs and pesticides, and enhanced restrictions on vessel discharges. Future changes to the MPA Protection Standard are expected to address offshore wind development in MPAs.

TC is leading a process to develop regulatory amendment proposals to enhance restrictions, including limitations or prohibitions, in existing and new MPAs within the 12 M territorial sea with respect to vessel discharges of oily engine bilge, sewage (blackwater), graywater, food waste, and scrubber washwater. TC is required to conduct industry stakeholder consultations for any regulatory amendments. Any necessary regulations to implement the Protection Standard could require amendments to the VPDCR and would apply to new MPAs, subject to technical and operational exceptions to ensure navigational safety.

For MPAs in the EEZ, TC will seek voluntary measures for the five substances noted above, including garbage, food wastes, and noxious liquid substances. Any increased restrictions on vessel discharges in the territorial sea may apply to existing MPAs, and voluntary restrictions may be pursued in existing MPAs in the EEZ, where possible. Since a TC-led regulatory process is required for changes to regulations in the territorial sea, they are not expected to enter into force in the near future. Within the EEZ, Canada puts into practice accepted rules and standards adopted by IMO; however, voluntary measures in the EEZ could be proposed to IMO for future adoption in international rules and standards. Furthermore, the MPA Protection Standard states that it does not apply to ballast water exchanges and releases because these are necessary for safe navigation of a vessel. However, ballast water management practices in Canada are undergoing changes that will come into effect as early as September 2024 (BWR, 2021).

Given the scope of application of the Protection Standard to federal MPAs, marine refuges and OECMs are excluded from potential voluntary or regulatory measures related to shipping. This is a potential weakness of marine refuges and OECMs to protect marine biodiversity from shipping impacts. As noted above, nine OECMs in Canada overlap with TC’s Alternate Ballast Water Exchange Areas. This gap could be addressed by marine refuges and OECMs being included in the MPA Protection Standard or as separate measures to address shipping impacts under a proposed OECM Protection Standard.

6 Discussion

6.1 Purposes and Functions

Canada employs a varied range of direct and indirect ABM tools in the regulation of shipping to pursue policy goals and management functions and ensure regulatory clarity, consistency, predictability, equity, and effectiveness. The explicit or implicit policy purposes in the Oceans Act, CSA 2001, and several marine environmental statutes are ocean management, maritime safety, environmental protection, marine security, and public health. The functions may be grouped as (a) regional provision of services and allocation of resources for the governance and support of shipping (e.g., search and rescue), (b) designation of the geographical limits of various types of shipping in support of ocean uses (e.g., through licensing and corridors), and (c) prevention or mitigation of negative interactions between ocean uses or other adverse impacts (e.g., routeing measures).

The utilization of ABMs to organize maritime functions at the regional level may be described as organizational and is necessarily reflective of Canada’s complex geography, including extremely long coastlines and numerous human settlements on three oceans and extensive inland waterways (mainly the St. Lawrence Seaway). Each of the four major areas of navigable waters has its own characteristics that require adaptation of the ABMs to the needs of the region. For example, all Arctic waters are subject to a mandatory SRS, unlike in the case of Atlantic and Pacific waters, in the interests of safety and protection of the unique environment.

The designation of geographical limits of ship-based ocean uses through ABMs may be described as allocational, as it serves to confer rights of ocean space and resource uses, thus legitimizing them and maintaining public order at sea. Such uses include all resource activities (e.g., offshore hydrocarbons, fishing) and spatial uses (e.g., aquaculture, offshore renewables, cables, pipelines). The rights conferred may concern simply a right of use (usufructuary) or preferential or even exclusive use of allocated space, as in the case of safety zones designated around offshore installations and structures, navigation in which is restricted to service vessels. As Canada gradually moves toward the allocation of ocean space to offshore windfarms, it remains to be seen whether navigation in these spaces will be limited to service vessels or other uses, such as fishing and/or aquaculture, will be permitted.

Canada’s employment of ABMs by regulation or executive order serves to address use and user interaction at sea and emergencies and may be described as operational. For example, the instructions usually given to vessels in need of assistance to head to a place of refuge to stabilize a problem on board is a case in point. ABM to enhance safety as part of the rules of the road employs routeing systems to facilitate safe navigation and the safety of other ships and activities at sea, for example, to avoid collisions, allisions, and anchors dragging submarine cables. Routeing measures for safety are mostly permanently in place, as is the case of VTS in the vicinity of and in Canada’s major ports and the St. Lawrence Seaway. However, routeing measures may also be informed by the precautionary approach and be seasonal or temporary or on an emergency basis to address specified concerns, as in the case of the protection of marine mammals and other species through areas to be avoided and speed limits in designated areas. The use of routeing measures in this manner demonstrates the value of their flexibility and nimble use. As Canada continues the process of designation of low-impact shipping corridors in Arctic waters, it will have to consider a suite of permanent, seasonal, and ad hoc routeing measures, perhaps recommended or even mandatory, as in the case of the NORDREG SRS.

6.2 Implementation of International Commitments

Canada has employed ABMs as tools to facilitate the performance of commitments to international conventions and other agreements. For example, it designated different types of protected areas in the marine environment to meet international targets under the UN 2030 Agenda for Sustainable Development, the Strategic Plan for Biodiversity and Aichi Targets, and the Fifth International Marine Protected Areas Congress, 2023 (UNSDGS, 2015, goal 14.1; CBD, 2011; IMPACS, 2023). It also applied restrictions and conditions for the mobility of shipping within national jurisdiction in accordance with IMO international convention standards (e.g., BWM exchange areas and routeing under SOLAS).

While international commitments are respected, Canada also designated ABMs in domestic navigable waters to address exclusively national or regional concerns. The designation of Arctic waters for heightened construction, design, equipment, crewing, operations, and reporting standards is perhaps the most extensive in terms of geographical area and diversity of applicable standards. It is pertinent to note that the standards for shipping in Canadian Arctic waters now mostly embrace IMO Polar Code standards, although there are also Canadian modifications (Chircop et al., 2018). However, the mandatory SRS is separate and a departure from ship reporting under SOLAS (SOLAS, 1974, Chap V reg 11). This can be explained by the imperative of having knowledge of and ability to assist traffic in Canadian Arctic waters, which is generally remote and where the infrastructure to support shipping remains largely underdeveloped. There are also Canadian modifications in ABM use in the implementation of the COLREGs, most especially with respect to navigation on the St. Lawrence Seaway (Collision Regulations, 2008, scheme 1).

6.3 Allocation of Ocean Space

Ocean space within Canada’s jurisdiction is usually subject to multiple uses. The rules of the road ensure that vessels are navigated safely when in proximity to one another and with clear rules for stand-on and give-way vessels. In certain areas where traffic converges, vessel traffic separation schemes are designed to separate opposite directions of traffic in areas where shipping tends to converge, such as within ports and harbors and in their approaches.

At times, ocean space is allocated exclusively to the exclusion of other uses to enhance safety or for the protection of sensitive parts of the marine environment. Areas to be avoided, which may be permanent or temporary, are useful measures in this regard. In other instances, longer-term exclusive assignment of space to a particular ocean use is necessary, especially for ocean uses that are stationary, have a large spatial footprint, and are regulated in accordance with designated license areas. For example, the designation of safety zones around installations and structures in the offshore oil and gas industry exclude fishing and commercial and other shipping (other than service vessels) due to the potential gear snags and collisions with rigs and oil and gas flow lines in the water column. Similarly, offshore wind turbines, which are subject to license areas and safety zones, exclude other ocean uses due to interconnecting, unburied submarine cables and anchor lines. In this context, the outcomes of risk assessment decision-support tools are key drivers of decision-making around two or more ocean uses being deemed compatible or incompatible in the same ocean space, both temporally and spatially.

Coastal and ocean uses with large spatial and functional footprints tend to be subject to public consultation processes to generate views and data on ways to mitigate conflicts and formulate compromises. The consultation processes are either through permanent structures, such as CMAC, its regional sections, and its many related Standing Committees or through ad hoc consultations such as those concerning proposed updates to the Vessel Operation Restriction Regulations in response to requests from local authorities to enhance safety, environmental protection, and the public interest (Government of Canada, 2010; Government of Canada, 2022b).

6.4 Considerations for Integration

The Oceans Act requires the DFO Minister to “lead and facilitate the development and implementation of plans for the integrated management of all activities or measures” in waters within Canadian jurisdiction (Oceans Act, 1996, s 31). This duty carries procedural requirements, in particular to work collaboratively with other federal ministers, boards and agencies, provincial and territorial governments, affected Indigenous organizations and land claims agreements, and coastal communities and other persons (ibid). It is worth emphasizing that while the Minister’s duty concerning integrated planning and management concerns “all activities,” this is qualified by a corollary duty to “develop and implement policies and programs with respect to matters assigned by law to the Minister” (emphasis added) (ibid, s 32(a)). Hence, the planning of ABMs with respect to “all activities” is significantly limited to the Minister’s sectoral concerns in the department’s own legislation, although the Minister also has a duty to coordinate with other federal ministers, boards, and agencies and even establish joint mechanisms (ibid, ss 32(b)–(c), 33). As seen earlier, the TC and ECCC Ministers enjoy ABM designation powers under their respective statutory remits.

Against this backdrop, it should not be surprising that ABM practices discussed in this chapter demonstrate approaches that appear fragmented and distinctly sectoral rather than based on integrated, comprehensive multi-use zoning. Separate federal legislation for ABM designation appears to give rise to siloed departmental mandate-driven management approaches. Hence, ABM practices concerning shipping in Canada have emerged not out of a grand coordinated scheme but rather because of the exercise of individual mandates to problems as they arise.

One may also question whether an integrated approach to ABMs in shipping is always necessary or desirable. On the one hand, one could argue that at least there should be integration of ABM tools within or that affect the shipping sector to ensure efficiency, consistency, and coherence. On the other hand, it is equally arguable that while commercial shipping is a distinct sector, shipping generally is not one sector because ships are platforms for other sectors. Hence, the needs of individual sectors ought to be reflected in the ABM tools within a primary sector. It may also be argued further that while MSP is a desirable framework to facilitate coordination of the planning and management of ocean uses, the exercise of individual ABM designation authority enables departments and agencies to address problems that arise in a nimble, measured, and efficient manner. Speed restrictions in emergency situations are cases in point.

Perhaps a key point to underscore is that there should be consultation and coordination in the administration of ABM tools of common concern to federal authorities. This is certainly a legislated expectation of the DFO Minister and is equally to be expected of other ministers and their departments and agencies where mandates overlap. Federal departments have memoranda of understanding to address areas of common concern, and some departments have such understandings with their counterparts in the United States (Transport Canada and DFO, 1996; Transport Canada and CNLOPB, 2022; Transport Canada and CER, 2022; Transport Canada and USCG, 2002). For example, the vessel traffic services provided by a port authority should be consistent with national standards and practices established under the CSA 2001 (CMA, 1998, s 56(3); VTSZR, 1989).

7 Conclusion

MSP is increasingly seen as a mainstream approach to managing ocean space to prevent or mitigate potential conflicts and promote complementary marine uses. Newer ocean uses, such as large-scale aquaculture and offshore renewables, will likely intrude into spaces that have long been the realm of traditional navigational, resource, and recreational uses. At the level of ocean management needed to prevent or mitigate conflicts, MSP can be expected to grow in strategic importance. However, even with an MSP strategy in place, the use of tactical ABM tools, most significantly those that have long been in sectoral use in commercial shipping, such as routeing measures, will be necessary. ABM tools in shipping address the ship as the platform for most ocean uses.

The Canadian experience appears to demonstrate that while MSP at the strategic level is not in general use, the use of shipping ABM tools has been widespread and useful. They constitute problem-oriented approaches, applied with variable scale and scope, involving permanent and temporary measures, frequently sectoral in scope and led by a federally mandated body. At times they are informed by IMO international standards, but they have also been fashioned to address urgent domestic issues in a nimble manner. While they are usually sectoral, they appear to produce positive safety and environmental outcomes.

If MSP should be the answer to integrated management, implying comprehensive multi-level and multi-use zoning schemes in Canada’s ocean space, law reform is likely needed. Amendment of the Oceans Act and other federal sectoral-based legislation would be required to develop and implement comprehensive spatial zoning plans for MSP and to require effective cooperation of all the departments and agencies concerned. Legal reform on this scale may not be a realistic proposition in the contemporary context, given the political divides and social priorities that currently exist in Canada.

However, in the absence of law reform to enable MSP, could Canada continue to manage its ocean spaces by using shipping ABM tools on a problem-by-problem basis? Experience suggests that this might well be the reality that coastal and ocean management must contend with. In turn, this implies that it is imperative that coastal and ocean managers on the one hand and maritime administrators on the other collaborate more closely. To facilitate collaboration and consistency in decision-making, it would be useful for MSP Operational Guidelines and Planning Standards to be developed and adopted inter-departmentally at the federal level or even intergovernmentally.