Order Fixing June 4, 2020 as the Day on Which Certain Provisions of that Act Come into Force: SI/2020-40
Canada Gazette, Part II, Volume 154, Number 12
SI/2020-40 June 10, 2020
BUDGET IMPLEMENTATION ACT, 2019, NO. 1
Order Fixing June 4, 2020 as the Day on Which Certain Provisions of that Act Come into Force
P.C. 2020-408 May 30, 2020
Her Excellency the Governor General in Council, on the recommendation of the Minister of Transport, pursuant to section 269 of the Budget Implementation Act, 2019, No. 1, chapter 29 of the Statutes of Canada, 2019, fixes June 4, 2020 as the day on which subsection 225(5) and sections 238, 247, 248 and 257 of that Act come into force.
(This note is not part of the Order.)
This Order brings into force subsection 225(5) and sections 238, 247, 248, and 257 of the Budget Implementation Act, 2019, No. 1, chapter 29 of the Statutes of Canada, 2019. These provisions will amend the Pilotage Act.
The objective of this Order is to bring into force certain amendments to the Pilotage Act (the Act) in support of the Government of Canada’s commitments to enhance safe navigation, prevent marine incidents and protect the environment. In particular, these provisions provide Pilotage Authorities with greater flexibility by enabling them to set pilotage charges outside the regulatory framework process, while ensuring transparency and fairness is maintained by stipulating that they observe defined charging principles when setting the charges.
Marine pilotage is an essential component of Canada’s maritime safety system. It ensures the safe transit of vessels in designated compulsory pilotage areas and prevents accidents that can result in environmental contamination and damage. The majority of commercial ships are legally obligated to have a Canadian marine pilot or a pilotage certificate holder on board in compulsory pilotage areas, which include most of the west and east coasts, the Great Lakes, and the St. Lawrence River. Pilots use their navigation expertise and knowledge of local waters to safely navigate ships through these areas. They perform more than 50 000 assignments annually, including on tankers, cruise ships, and vessels carrying hazardous cargo.
The Act, enacted in 1972, establishes the legal framework for Canada’s pilotage system, including service delivery models, fee-setting and enforcement measures. Four financially self-sufficient Crown corporations (the Atlantic, Laurentian, Great Lakes and Pacific Pilotage Authorities) have the mandate to establish, operate, maintain and administer, in the interest of safety of navigation, an efficient pilotage service in their respective regions. These Pilotage Authorities are Crown corporations that operate at “arms-length” from the federal government and report to Parliament through the Minister of Transport.
Under the Oceans Protection Plan, the Government of Canada launched the independent Pilotage Act Review (the Review) in 2017, chaired by a former Commissioner of the Canadian Coast Guard. Informed by extensive analysis and consultation with stakeholders and Indigenous peoples, the Review’s final report was released in spring 2018. It highlighted the need to modernize the framework for pilotage in Canada and identified a number of areas for improvement.
Amendments to the Act were introduced in Parliament as part of the Budget Implementation Act, 2019, No. 1, which received royal assent on June 21, 2019. They provide for a stronger, modernized pilotage system, with increased national consistency, and greater efficiency and more accountability.
Pursuant to the Budget Implementation Act, 2019, No. 1, the Act provisions must be brought into force by order in council.
As Crown corporations, Pilotage Authorities receive no funding from Parliament, which means they need to be financially self-sufficient. As such, they use tariffs to sustain their operations. Pilotage tariffs are currently set in regulation, which limits the Authorities’ flexibility to adjust to market fluctuations and maintain financial self-sufficiency when facing significant and unforeseen changes in shipping traffic. Setting tariffs in regulation helps ensure transparency and fairness, but it is administratively burdensome, and does not provide agility or flexibility when conditions change, which can limit an Authority’s ability to remain financially self-sufficient. This Order brings into force provisions that remove pilotage fee-setting from the regulatory framework process, enabling Pilotage Authorities to set pilotage charges directly. Specifically, the provisions update the Act to allow pilotage charges to be set through resolutions rather than regulations, and to indicate that resolutions made in relation to pilotage charges are not considered statutory instruments under the Statutory Instruments Act. This will enable tariffs to be updated without going through a full regulatory process. To maintain transparency and fairness, charges will be required to be set in accordance with an established charge-setting methodology, as per paragraph 33.2(1)(a) of the amended Act.
This change will help Pilotage Authorities remain financially self-sufficient, while not generating revenues exceeding their current and future financial requirements, as per the new charging principles laid out in subsection 33.2(1) of the Act. The charging principles also stipulate that Authorities must make their methodology publicly available, and ensure that pilotage charges are non-discriminatory, fair and reasonable. If someone believes that a pilotage charge was not established or revised in accordance with these principles or that public notice requirements were not met, they may file an objection with the Canadian Transportation Agency within 90 days of the Pilotage Authority announcing the proposed change on its website. If the Agency determines that an objection is well founded, it may order the Pilotage Authority to take any appropriate measures, including cancelling the establishment or revision of the pilotage charge in question, reinstating the previous charge, or providing refunds to affected users.
Subsection 33.2(2) of the Act will also be brought into force, outlining the financial requirements that must be considered by Pilotage Authorities when developing pilotage charges (including operations and maintenance costs, management and administration costs, etc.). In combination with the other provisions brought into force by this Order, the intent is to balance the need to provide flexibility and responsiveness in charge-setting with the need to ensure transparency and fairness for users of the pilotage system.
Finally, this Order brings into force technical and administrative amendments that increase consistency and clarity within the Act. Wording in section 44 is updated to align with the definition of “pilotage certificate holder” in section 1.1 that was brought into force by an order in council in August 2019. The French wording of section 45 is adjusted to replace the expression “droits de pilotage” with “redevances de pilotage,” given that the word “redevance” is employed as the equivalent to “pilotage charges” elsewhere in the Act. And lastly, definitions are added for “Agency” (referring to the Canadian Transportation Agency) and “pilotage charge.”
The amendments to the Act met with widespread support from stakeholders across the marine sector, including pilots and industry. This is reflective of the high degree of consultation that occurred prior to the presentation of the legislation. The amendments followed the Pilotage Act Review, which involved extensive consultation with pilots, the Pilotage Authorities, shipping companies, shippers, and Indigenous peoples. Following the completion of the Pilotage Act Review, the Minister and Transport Canada officials engaged in further consultation on its findings.
Following royal assent of the amendments to the Act, Transport Canada officials have continued engaging stakeholders and Pilotage Authorities on the implementation of the Act and transition to the new national pilotage framework.
Marine Safety and Security
Marine Medicine and Pilotage Programs