54 North and the plan to nowhere (Part II)

Transport Canada claims to have no regulatory problems, at all, with the Enbridge Northern Gateway proposal to bring AFRAMAX, SuezMax and VLCC sized ships into BC coastal waters from the pelagic Pacific.TC submitted their assessment to the joint regulatory panel with no apparent input from sources outside the information provided by the proponent (Enbridge).

Before anyone gets too carried away, what TC actually approved was the proposed plan. In short, TC has no problem with the routes and the route safety proposals offered by Enbridge, provided everything Enbridge is stating in their proposal is actually put into action. That would include markedly improved vessel traffic management, escort and pilot service expansion, spill containment guarantees and stringent terminal safety requirements.

The first, (and most obvious), problem with saying "no problem" is that none of those things actually exist. Some of them require substantial upgrading. Vessel Traffic Services alone are already inadequate north of Cape Caution and, despite initial assurances from Enbridge, to bring them to a condition to properly monitor, assess and manage a high volume of deep-sea ships into constricted waters will require Canadian government involvement on the scale of hundreds of millions of dollars.

The second, (and perhaps more significant), problem is the guidelines on which Transport Canada based their approval.

Transport Canada and Enbridge have engaged in a review of the proposal using the guidance and system checklists in TP743E TERMPOL Review Process (TRP). Given that there is currently little to physically review, any assessment must be non-binding.

Starting with the document itself, a problem arises. The latest iteration of TP743E TERMPOL is dated 2001. That precedes the Canada Shipping Act 2001 by some six years (which did not come into force until 2007). The eleven-year old document is so out-of-date that it doesn't even mention current-day navigation technology, much of which is considered mandatory by the International Maritime Organization.

Equipment such as fitted Automatic Identification Systems (AIS) and Electronic Chart Display and Information Systems (ECDIS) were still in development when TERMPOL was last issued. As a result, such systems are not even mentioned in the review process.

Nautical chart standards have so radically changed in the past decade that TERMPOL does not demand that the latest version of electronic navigation charts, meeting the International Hydrographic Organization S-57 standard, be carried by ships of any tonnage entering Canadian waters.

Perhaps that's just as well since there is no chart meeting the IHO S-57 standard for the critical stretch of Douglas Channel to Kitimat Arm. The only form of electronic display chart available for that area is a raster chart which is little more than a scanned bitmat image of an existing paper chart. While they are accurate enough for small craft, they fall well short of the standard expected in a large merchant vessel.

While many people are trumpeting the TERMPOL review of the Enbridge proposal as some form of regulatory victory, such is simply not the case. A TRP is a highly limited process and the following needs to be understood:

1.4.1 The TRP is not a regulatory instrument. Its provisions, therefore are not mandatory. The TRP’s criteria, however, are used by TCMS in determining the need for making or revising specific regulations, or for implementing special precautionary measures that may affect a ship’s operation within a particular marine terminal system or transshipment site.

1.4.2 Any report issued by a TERMPOL Review Committee (TRP) should neither be interpreted as a statement of government policy, nor should it be inferred that the government endorses the report in whole, or in part. The report reflects only the judgments of the departmental representatives who reviewed the proposal and prepared the report. Consequently, the conclusions and recommendations presented in a TERMPOL report are not binding on any department, agency, group or individual. Implementation of any recommendation, however, is the prerogative of applicable departmental executives performing regulatory functions or of the proponent, as appropriate.

In short, what that says is that Transport Canada Marine Safety has looked at a very narrow aspect of the entire Enbridge marine proposal. There is still a long row to hoe.

It must be understood, however, that DFO CCG and TCMS regulatory roles are separate and distinct from their roles in the TRP which is essentially a data and operational review process. The conclusions and recommendations contained in a TERMPOL report do not relieve a proponent from an obligation to fully comply with all applicable legislative and regulatory requirements promulgated, and as amended from time to time, by the various federal and provincial statutes and regulations which apply to shipping safety and to the protection of the environment. These Acts include but are not limited to:

• the Canada Shipping Act;
• the Navigable Waters Protection Act;
• the Arctic Waters Protection Act;
• the Canadian Environmental Protection Act;
• the Canadian Environmental Assessment Act;
• the Transportation of Dangerous Goods Act;
• the Fisheries Act;
• the Oceans Act; and
• the Canada Marine Act. 

And no one has even touched on those yet.

Hopefully we can take a look at the regulatory holes, (some of which are large enough to sail a VLCC through), in a future offering.