11. Ports and Harbours as Special Management Areas

Canada’s constitution has no head of power dedicated to ports, but jurisdiction over ports and harbours resides primarily within the federal level (BC v. Lafarge, 2007, para 36). Federal powers over federal public property, trade and commerce, navigation aids, navigation and shipping, and quarantine provide the basis for jurisdiction over ports and harbours and their activities (Constitution Act, 1867, s 91). Crown lands, as federal public property, are subject to exclusive federal jurisdiction, but other lands held by port authorities are not (BC v. Lafarge, 2007). Navigation and shipping include the corollary infrastructure and control over shipping lanes and waterways (ibid, para 62). Claims concerning shipping, including services provided to ships by ports, such as dock charges, harbour dues, and charges for related facilities, are subject to federal maritime law (FCA, 1985, s 22(2)(s)). The federal power over navigation and shipping tends to be broadly construed so that national transportation “cannot be allowed to be hobbled by local interests” (BC v. Lafarge, 2007, para. 64).

While there is no constitutional power expressly dedicated to ports, the Constitution Act designates “public harbours” as federal property (Constitution Act, 1867, scheme III). Defining “public harbours” has historically been a complex question, but at a minimum such ports and harbours that were vested in the provinces in pre-confederation times are deemed to be public harbours transferred to Canada on confederation (La Forest, 1963). This includes the major ports of Halifax, Montreal, Quebec, Toronto, and Vancouver (ibid., 527). The CMA has clarified the legal status of ports, and agreements between the federal government and the provinces have also served to clarify property rights in public ports.

The fact that ports are vested in the federal government in a proprietary sense does not necessarily mean that the application of provincial law is excluded in its entirety (BC v. Lafarge, 2007; Ballantyne, 2016, 69; La Forest, 1969, 49 et seq.). There can be situations where provincial law applies to port activities that overlap with provincial constitutional powers over local works and undertakings and property and civil rights (Constitution Act, 1867, s 92(1)). Generally, the provincial power to regulate local works and undertakings must not concern domestic shipping, or extend beyond provincial limits, or apply to international shipping, or regulate works declared by the Parliament to be of national importance or for the benefit of more than one province (ibid). Moreover, the Parliament can restrict the exercise of proprietary rights, such as waterfront ownership in the interests of navigation and shipping (Montreal (City of) v. Montreal Harbour Commissioners, 1926, 848–849).

The fact that certain activities in port may be subject to provincial jurisdiction should not be surprising. Ports are often located in urban environments, and the provinces (and municipalities created by them) are responsible for land use planning, which includes zoning and building regulations. Hence land use planning in a port or harbour environment has both federal and provincial aspects (Hamilton Harbour Commissioners v. City of Hamilton, 1976, 484). Certain activities in ports may have “double aspects”, that is, they are subject to both federal and provincial regulation because both levels have compelling interests. For example, the waterfront lands may be publicly or privately owned, and depending on the purpose of their development, they may be subject to federal or provincial regulation (BC v. Lafarge, 2007, paras 37, 62). If the development is for purely residential purposes, provincial law will apply, and if the development is for shipping purposes, federal law will apply. If the purpose is shipping-related and there is no applicable federal law, provincial law may still apply, but if there is applicable federal legislation and there is operational conflict between federal and provincial law in terms of purpose and operation, the federal paramountcy doctrine dictates that federal legislation takes precedence over provincial legislation (ibid, paras 76–77). Further, port authority land use planning in support of navigation and shipping in areas that are not public property will prevail over general provincial land use planning and regulation.

Much of the discussion on federal authority over ports and complementary provincial jurisdiction applies to small craft harbours. Harbours are also within the ambit of provincial and municipal legislatures (Re Sturmer and Town of Beaverton, 1911). The federal government may delegate some of its management responsibilities to the public or private body that has responsibility for the harbour and/or related facility. These could include, for example, the power for spatial planning and safety management (Durham v. Todd, 2010; Epstein, 2017, 180–181, 188–189). Powers related to navigation and shipping may also be shared between federal and provincial levels based on agreement, for example, with respect to boating safety regulations and enforcement (VORR, 2008).

A particular consideration in the discussion of ports and harbours in the Canadian context is the role of Indigenous rights where the location of the port or harbour is within ancestral lands or territories or when the activities of the port affect Indigenous rights. The port or harbour may be totally located on Indigenous lands subject to land claims agreements known as modern treaties. The common law prescribes a duty to consult with respect to development that affects the exercise of Indigenous rights (Mayer, 2016, 136–137).

As noted above, federal law distinguishes between ports managed by port authorities, public ports, and fishing and recreational harbours also known as small craft harbours.

In addition to the core roles played by the CMA and the FRHA and their regulations, other federal instruments are relevant for ABM in ports and harbours. The Canada Shipping Act 2001 (CSA, 2001) and regulations apply to safety measures and procedures, such as for marine communications and vessel traffic management (CSA, 2001, s 126). The Pilotage Act promotes safe navigation by regulating the certification and use of pilots, most especially in ports where pilotage tends to be mandatory (Pilotage Act, 1985). Some cargoes have special requirements concerning loading, unloading, storage, and labelling because of their inherent nature, as is the case for the classes of dangerous goods regulated by the Transportation of Dangerous Goods Act, 1992 (TDA, 1992). The security of ships and port facilities servicing them is addressed by the International Maritime Organization (IMO)’s International Ship and Port Facility Code as implemented by the Marine Transportation Security Act and by regulations under the CMA (ISPS Code, 2002; MTSA, 1994; NMHNUR, 2005, s 3).

Federal environmental law applies to different aspects of port operations. With respect to decarbonization, port activities are captured by the 2050 net-zero target for national greenhouse gas (GHG) emissions adopted under the Canadian Net-Zero Emissions Accountability Act and eventual reporting of Canada’s Nationally Determined Contribution (NDC) under the Paris Agreement (CNZEAA, 2021, s 6; Paris Agreement, 2015). Bill-C 33 will strengthen ports’ ability to pursue decarbonization (Bill C-33, 2022, s 107(2)). Similarly, for the purpose of the IAA, ports are designated federal authorities which, as part of the government of Canada, are expected to foster sustainability and respect for Indigenous peoples and apply the precautionary approach (IAA, 2019, ss 2, 6(2), scheme 1). Hence, port authorities conduct impact assessment reviews of activities within their remit in accordance with the IAA (CPAEAR, 1999).

The Canadian Navigable Waters Act and its regulations address activities that could produce obstructions to navigation in navigable waters (CNWA, 1985). However, several major ports are exempted from the application of this act,¹ although an impact assessment must be undertaken (PAOR, 2000, ss 21, 22 & scheme 2). The Act does not apply to ministerial determinations as to whether works interfere with navigation in other ports, although presumably the requirements of the IAA would still apply (ibid, s 2). Perhaps more pertinent is the Wrecked, Abandoned and Hazardous Vessels Act (WAHVA) governing the regimes for problem vessels that are abandoned in ports, salvage of vessels in distress, and the removal of wrecks (WAHVA, 2019). The Ministers of Transport and Fisheries, Oceans, and the Canadian Coast Guard (DFO Minister) enjoy powers to address problem vessels in ports, harbours, and navigable waters generally and to delegate powers for this purpose to port and harbour authorities.

The protection of marine and other species under the Canada Wildlife Act (CWA), Migratory Birds Convention Act (MBCA), and Species at Risk Act (SARA) extends to the geographical areas of ports and harbours (CWA, 1985; MBCA, 1994; SARA, 2002). Moreover, MPAs that potentially affect parts of a port or harbour’s geographical area may be designated under the Canadian National Marine Conservation Areas Act, Canada Wildlife Act, and Oceans Act (CNMCAA, 2002; CWA, 1985; Oceans Act, 1996). In some instances, parts of a port or harbour may also be designated as national parks under the Canada National Parks Act (CNPA, 2000).

Pollution prevention provisions with respect to dumping in the Canadian Environment Protection Act (CEPA), management of various wastes on board ships and discharge of pollutants under the CSA 2001, and discharge of substances deleterious to fish and habitats under the Fisheries Act and their respective regulations similarly apply to activities in ports and harbours (CEPA, 1999, s 125; CSA, 2001, s 187; Fisheries Act, 1985, s 36(3)). While there are no major ports in Arctic waters north of 60 degrees, numerous small harbours, together with shipping, are governed by the Arctic Waters Pollution Prevention Act and its regulations prescribing a zero-to-controlled discharge regime for wastes (AWPPA, 1970; ASSPPR, 2017). The Oil Tanker Moratorium Act is also relevant for minimizing the risk of oil pollution accidents in British Columbia because it creates prohibitions for oil tankers carrying more than 12,500 metric tons of crude and/or persistent oil with respect to ports and marine installations north of 50°53′00′′ north latitude and west of 126°38′36′′ west longitude, unless they enjoy a limited exception or ministerial exemption (OTMA, 2019, ss 4–6). The prohibitions include mooring, anchoring, loading, and unloading, as well as assisting such vessels to circumvent the prohibitions. Further, the WAHVA is pertinent as the removal of problem vessels in ports and waters may also help abate pollution of the port and marine environment (WAHVA, 2019).

Public health matters in the port and harbour environment are subject to the Quarantine Act, overseen by the Public Health Agency of Canada (Quarantine Act, 2005). The Act implements the International Health Regulations which, among other, establish procedures for reports with respect to ships that may have persons with infectious diseases on board (IHR, 2005). Customs matters overseen by the Canada Border Services Agency, fiscal arrangements subject to a federal provincial arrangement, taxation, and federal immovable property are subject to other federal legislation (CCA, 1985; FPFAA, 1985; PLTA, 1985; FRPFIA, 1991). Immigration matters are overseen by the Department of Immigration and Citizenship under the Immigration and Refugee Protection Act (IRPA, 2001).

Port authorities must operate ports in a sustainable manner, and for this purpose every major port has articulated its own environmental mission based on its Letters Patent and drawing on maritime, port, and environmental regulation.² By way of example, the VFPA’s regulatory power on environmental matters in its Letters Patent includes the development and operation of port infrastructure, environmental assessment, audit, remediation and rehabilitation of marine habitat and marshes, dredging and waste disposal, navigational services and aids, emergency planning and response, salvage and seizure, harbour patrol services of the port’s navigable waters, provision of vessel refuelling stations, vessel towage, management of waterways and foreshore, and complying with any international convention, agreement, or arrangement to which Canada is a party (VFPA, 2007, arts 7, 11.1).

While from an environmental perspective the purposes of the CMA are to promote sustainability and provide for a high level of environmental protection, the Act itself does not contain the full suite of ABM and other regulatory tools applicable to port and harbour authorities. The regulations concerning sustainability and environment protection are spread across several federal statutes and subsidiary regulations.

Although the national transportation policy as stated in the Canada Transportation Act declares that it “contributes a sustainable environment”, its provisions have little environmental content, let alone placing sustainability at the centre of transport policy (CTA, 1996, s 5). Somewhat similarly, while the CMA sets out a “high level of environment protection” in its purposes, the pursuit of sustainability in an integrated manner is not an express objective of the Act (CMA, 1998, s 4(d)). Hence Bill C-33 proposes an important amendment to the CMA to strengthen climate regulation (Bill C-33, 2022, s 107(2)). The FRHA makes no reference whatsoever to sustainability.

The IAA and its regulations are the principal federal instruments that mandate and set out procedures for the pursuit of sustainability across the federal government and thereby also in ports and harbours. Indeed, the first expressed purpose of the IAA is to foster sustainability, which is defined as “the ability to protect the environment, contribute to the social and economic well-being of the people of Canada and preserve their health in a manner that benefits present and future generations” (IAA, 2019, ss 2, 6(1)(a)). A corollary purpose is “to protect the components of the environment, and the health, social and economic conditions that are within the legislative authority of Parliament from adverse effects caused by a designated project” (ibid, s 6(1)(b)). The IAA applies to all federal activities on federal lands, which are defined as lands that include those owned by the Crown (including waters and airspace), internal waters, and territorial sea, thus encompassing all geographical areas within the remits of ports (ibid, s 2). Among the prohibitions in the Act are activities in the marine environment that produce change to species and habitats protected under the Fisheries Act, SARA, and MBCA (ibid, s 7(1)(a)).

Designated projects are physical activities on federal lands pre-designated in a list in the Physical Activities Regulations (PAR) or designated by the Environment and Climate Change Canada Minister (ECCC Minister) in situations where the Minister is of the opinion that the physical activity “may cause adverse effects within federal jurisdiction or adverse direct or incidental effects, or public concerns related to those effects warrant the designation”, and may include adverse effects on Indigenous peoples (IAA, 2019, ss 2, 9(1)–(2); PAR, 2019). Specific examples of designated projects in the port environment include new marine terminals, new waste management facilities and waste disposal at sea in protected areas, and generally construction, operation, and decommissioning of new terminals to handle ships larger than 25,000 deadweight tons (PAR, 2019, s 2(1) & sch). Prior to the IAA, the construction of new terminals on existing port lands was exempted for public policy reasons.

The IAA establishes an impact assessment system in five phases that include planning, impact statement, impact assessment, decision-making, and post-decision follow-up for designated projects, underscored by public access to information and consultation and a focus on Indigenous peoples and their constitutionally protected rights. At the planning stage, the Impact Assessment Agency of Canada (IAAC) determines whether to proceed with the assessment and if it needs to coordinate with other federal authorities (such as ports), provinces, or Indigenous bodies (ibid, s 14). As experts in their fields, ports are required to cooperate with the IAAC (ibid, ss 13, 23).

The designated federal authorities tasked with undertaking impact assessments of effects of designated projects include port authorities (ibid, ss 2 (definition of federal authority), 109(a) & scheme 1). Ports are required, among others, to pursue sustainability and environmental protection and to ensure that designated projects under the Act are “considered in a careful and precautionary manner to avoid adverse effects within federal jurisdiction and adverse direct or incidental effects” (ibid, ss 6(1)(a), (b), (d), (l)). Ports must pursue designated projects in accordance with the IAA, unless the IAAC determines no impact assessment for the project is required or where the effects of the projects are deemed to be in the public interest (ibid, s 8). In addition to the impact assessment requirements of physical activities on the designated list and determinations by the ECCC Minister, ports are still required to undertake assessments for other activities. A port authority must not carry out a project or exercise any power under the CMA unless it first determines that the carrying out of the project is not likely to cause significant adverse environmental effects or the project is likely to cause such adverse effects and the Governor in Council decides they are justified in the circumstances (ibid, s 82). An interesting example is the establishment of new bunkering facilities in ports for the various types of renewable fuels currently under consideration, such as hydrogen and ammonia, which are not among the designated physical activities. Although this activity facilitates the decarbonization of shipping and promotes a port’s competitiveness, it is an activity that would require impact assessment by the port authority concerned.

In undertaking impact assessments, ports are expected to track the requirements of the IAA. However, if a proposed project is a designated project under the IAA’s Physical Activities Regulations, the proponent is expected to first engage with the IAAC. Some port authorities have developed their own impact assessment review process for non-designated projects. One of the most advanced, in the opinion of this author, is the VFPA Project and Environmental Review Process, which sets out the principles, review categories, and review steps (VFPA, 2022).

Canada committed to developing a plan to set itself on a path to achieve net-zero emissions by 2050 and legislated the Canadian Net-Zero Emissions Accountability Act as a framework for this purpose, and the Minister is tasked with establishing GHG emission targets and reduction plans for each milestone year (CNZEAA, 2021, ss 6–9). Canada’s 2021 NDC did not single out the contribution of ports in reducing emissions, and the only reference to marine emissions concerns the 1% contribution of all shipping to Canada’s emissions and a commitment to international cooperation in the decarbonization of the industry (Canada NDC, 2021).

The regulation of GHG emissions from international shipping is primarily the responsibility of IMO, which recently finalized its GHG strategy (IMO, 2023). The IMO GHG Strategy recognizes the important role that could be played by ports in facilitating the decarbonization of shipping, although IMO regulation per se does not address ports and at the most can only make recommendations in their regard (Chircop, 2019, 500–501). Further, although the GHG emissions of international shipping are not reported at the national level, emissions from port activities and cabotage are considered domestic emissions and are therefore reported as part of the NDCs (ibid). Against this backdrop, ports are responsible for reducing their emissions and play a potentially significant facilitative role in the decarbonization of shipping.

The CMA is as weak on climate targets and decarbonization as it is on sustainability. Similarly, although the CSA 2001 and regulations address air emissions, there is relatively little on decarbonization, other than implementation of IMO indices for energy efficiency of ships—namely, the Energy Efficiency Design Index (EEDI), Ship Energy Efficiency Management Plan (SEEMP), and Energy Efficiency eXisting ship Index (EEXI)—and what there is currently provides little legal guidance for ports (MARPOL, 1973/78, Annex VI, regs 24–26).

At the domestic level, TC does not appear to have established a policy to guide ports’ actual efforts to reduce GHG emissions, nor does it appear to have developed voluntary emission reduction agreements from the domestic marine sector as it has for the rail and aviation industries (Senate of Canada, 2017, 31). However, it has encouraged port initiatives to reduce port-related emissions, for example, with respect to trucking, and provides cost-shared funding for installation of shore power systems for ships at berth, most especially for cruise ships (ibid, 34; TC, 2020). It appears cruise ships are better equipped to receive shore power than other commercial vessels, which lack standardized systems to plug into grids. Only a few Canadian ports—namely, Vancouver, Prince Rupert, Halifax, and Quebec City—have shore power due to the expense involved and the need for power to be supplied at preferential rates (ibid).

As mentioned earlier, Bill C-33 will empower the Governor in Council to make regulations “respecting the impact of the operation of a port by a port authority on the environment, including climate change, and the impact of climate change on the operation of a port” (Bill C-33, 2022, s 101(1.1)). The federal government will still need to set the emissions reduction targets, presumably synched with Canada’s declared NDC commitments, and sector specific share, as declared in a future NDC. Port authorities will need to develop 5-year plans for emissions and adaptation action based on public consultations. A concern for some Canadian ports is that long-term sea level rise and storm frequency could affect port operations.

Bill C-33 prescribes the content of the quinquennial plans and reports (ibid, s 116). Plans must be prepared within 1 year of the effectivity of the amendments and must contain a GHG reduction target, description of actions to achieve the target, information on material changes from the previous plan, and other prescribed information (ibid). Requirements for quinquennial adaptation plans must be prepared within 2 years of effectivity of the amendments. They must contain a description of current and anticipated impacts of climate change on port operations and assets and actions taken, description of current and future commercial opportunities arising from climate change impacts and steps taken to take advantage of them, information on material changes since the previous plan, and any prescribed information.

Port authorities have a range of powers to enable efforts to decarbonize activities and support shipping in their own decarbonization efforts. The earlier discussion of the powers of port authorities mentioned their powers concerning land use planning, permitting building construction, and transportation in the port environment. Bill C-33 tightens the requirements around publication and content of notifications of land use plans (ibid, s 118(1)).

The International Convention for the Prevention of Pollution from Ships 1973/78 (MARPOL) regulates pollution through annexes on oil, hazardous noxious substances carried in bulk, hazardous noxious substances carried in packaged form, sewage, garbage, and air pollution and includes a scheme for port state inspections for visiting ships (MARPOL, 1973/78, Annexes I–VI). Ports themselves do not undertake the inspections concerned, as this is a responsibility of TC acting as the national maritime administration, and inspections often are delegated to classification societies as recognized organizations. Rather, an integral part of the MARPOL pollution prevention system is the provision of port reception facilities for the various regulated wastes, which ports are expected to provide. The MARPOL annexes require ships to discharge oily wastes, hazardous noxious substances, sewage, garbage, scrubber residue from exhaust gas cleaning systems (EGCS), and ozone depleting substances to port reception facilities.

State parties to MARPOL Annex 1 undertake to ensure the provision of adequate reception facilities for oily residues (including oily bilge waters) in oil loading terminals, repair ports, and all other ports in which tankers and other ships have oily residues to discharge without causing undue delay to ships (ibid, Annex I reg 38). In the case of Annex II, the undertaking to provide reception facilities concerns residues of and mixtures containing noxious liquid substances (ibid, Annex II reg 18). Annex IV has similar requirements for reception facilities for sewage and Annex V with respect to garbage (ibid, Annex IV reg 12 & Annex V reg 8).

With respect to Annex VI, the undertakings concern the provision of port reception facilities for ozone-depleting substances and equipment containing such substances when removed from ships and scrubber residues from ships employing an EGCS to remove the high sulphur content in heavy fuel oil as an alternative compliance mechanism to using low sulphur content fuels (ibid, Annex VI reg 17; VPDCR, 2012, ss 111(4)(a), (6)(a), 111.1(7)(a)). Currently, Canada applies the 2009 IMO EGCS standards, rather the 2015 or even more recent 2021 versions (IMO, 2009, 2015, 2021). It is unclear why this is the case.

Ships must obtain a certificate from the reception facility attesting to the type and amount of regulated waste discharged at the reception facility (VPDCR, 2012, ss 41(1), 80(1), 107(1)). Curiously, the regulations do not seem to require similar certification for the discharge of ozone depleting substances and for scrubber residues, although the master is still required to record the transfer of ozone depleting substances to a reception facility in the Ozone Depleting Substances Record Book on board (ibid, s 124.1(2)(d)). Neither the 2009 IMO ECGS Guidelines not the Canadian regulations that implement them have anything to say on certification of receipt of scrubber residue discharged at a port reception facility. Further, while regulating the discharge of grey water, the regulations do not require its discharge at a port reception facility (ibid, s 131.1). However, new grey water (and sewage) treatment, management, and discharge measures for cruise ships in Canadian waters include periodic reporting on compliance with the measures to TC (2022).

The North American Emission Control Area (NAECA) designated under Annex VI is of relevance to Canadian ports and harbours in the Atlantic and Pacific, the Laurentian region, St Lawrence Seaway, and Great Lakes (MARPOL, 1973/78, Annex VI reg 13.6.1 & app VII). The general rule concerning sulphur content (SOx) in bunker fuel prescribes that the sulphur content must not exceed 0.50% m/m (ibid, Annex VI reg 14(1)). The standard for ships operating in the NAECA is much higher at a maximum of 0.10% m/m and must be documented by the supplier (ibid, Annex VI reg 14(4)–(5)). Similarly, a higher standard for emissions of nitrogen oxides (NOx) from diesel engines applies to ships operating in the NAECA (ibid, Annex VI reg 13). The air pollution protection also significantly reduces emission of particulate matter.

Port and harbour authorities must comply with federal pollution regulations designed to protect species and their habitats. Under the Fisheries Act, port and harbour authorities must not discharge any deleterious substances in waters frequented by fish or any other place where such substances may enter such waters, unless in doing so they comply with other regulations, such as the Vessel Pollution and Dangerous Chemicals Regulations (Fisheries Act, 1985, s 36(3); VPDCR, 2012, s 36(4)(a)). They have similar duties under the MBCA not to deposit or permit the deposit of substances (or in combination with other substances) that are harmful to migratory birds or a deposit in waters or areas frequented by migratory birds or in places where such substances may enter such waters or areas (MBCA, 1994, s 5). The CEPA forbids the deposit of prohibited substances in marine areas, unless by permit issued and gazetted by the ECCC Minister (CEPA, 1999, ss 125, 127). This is pertinent for ports and harbours because “disposal” includes the disposal of dredged material (ibid, s 122(1)).

Further habitat protection under the Fisheries Act relates to works and undertakings. The Act provides that no person shall carry on any work, undertaking, or activity, other than fishing, that results in the death of fish, without a permit from the DFO Minister (Fisheries Act, 1985, s 34.4). Similarly, there is a prohibition for the carrying on any work, undertaking, or activity that results in the harmful alteration, disruption, or destruction of fish habitat, unless with ministerial authorization (ibid, s 35). The requirements and procedures for permitting are set out in the Authorizations Concerning Fish and Fish Habitat Protection Regulations (ACF, 2019).

Where marine waters under their jurisdiction overlap with protected areas, ports and harbour activities are expected to comply with regulations under the Oceans Act and its regulations, marine conservation areas under the CNMCA, and marine wildlife areas under the CWA. The Oceans Act provides a framework for the designation of marine protected areas, and regulations under it govern specific areas (Oceans Act, 1996, s 35 et seq.). Several marine protected areas are designated in the Atlantic, Arctic, and Pacific oceans. Each protected area is regulated according to its unique context and circumstances and usually accompanied by a general prohibition of any activity that disturbs, damages, destroys, or removes marine living organisms or its habitat, as in the case of the Banc-des-Américains Marine Protected Area (BAMPAR, 2019). Some fishing activity may be permitted in some cases, and navigation rights are preserved, although there could be restrictions such as no-anchor areas and waste discharge prohibitions. Protected areas and reserves may be designated under the CNMCA, which are subject to several prohibitions. These include restrictions on the disposal of interest in public lands and that no person shall use or occupy those lands, explore or exploit specified minerals, or dispose of any substance without permit (CNMCAA, 2002, ss 12–14). Marine protected areas may be designated by the Governor in Council under the auspices of the CWA, and the ECCC Minister may provide advice relating to them (CWA, 1985, s 4). Regulations under the Act establish a long list of prohibitions that include, among others, any industrial activity; disturbance or removal of any soil, sand, gravel, or other material; and dumping or depositing of wastes or substances that could alter the quality of the environment (WAR, 2023).

Ports and harbours are also expected to observe additional habitat protections in their waters prescribed under other legislation. Regulations under the MBCA provide for the establishment of migratory bird sanctuaries, which could theoretically be in port or harbour areas; however the specified regulatory prohibitions do not appear to include activities that port and harbours would normally undertake (MBSR, 2023, s 3). The Fisheries Act similarly provides for the designation of ecologically significant areas by the Governor in Council on the recommendation of the DFO Minister with the effect that works, undertakings, or activities that affect such areas are screened and permitted by the Minister (Fisheries Act, 1985, s 35.1). SARA provides protections to numerous marine species and enables the competent Minister, based on consultations with the Canadian Endangered Species Conservation Council, to establish codes of practice, national standards, or guidelines with respect to the protection of critical habitat (SARA, 2002, s 56). The critical habitats of listed endangered or threatened aquatic species on federal lands or migratory birds conserved under the MBCA are protected (ibid, s 58). Species subject to recovery plans are legally protected, and critical habitats of numerous marine species are protected by dedicated regulations or orders.

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 harbour 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)). Ports may use this power to fulfil their duties under conservation legislation, such as under SARA. Where the conservation measures extend over a large area, a cooperative approach involving port authorities, other federal authorities, and stakeholders is called for. For example, the critical habitat of the Southern Resident killer whale (SRKW) overlaps with areas of jurisdiction of the VFPA, and in 2014 the VFPA initiated the Enhancing Cetacean Habitat and Observation (ECHO) Program to bring together stakeholders to better understand and manage the risks posed by large commercial vessels to whales. In 2019, this initiative led to the Species at Risk Act section 11 Conservation Agreement to Support the Recovery of the SRKW with the participation of federal authorities (including the VFPA through the Minister of Transport) and major industry associations (SARA Conservation Agreement, 2019).³ The agreement aims “to reduce the acoustic and physical disturbance to SRKW by large commercial vessels in Pacific Canadian waters” through voluntary efforts and threat reduction measures. The VFPA commitments consist of continuing to manage the ECHO Program (including providing an ongoing framework for engagement, collaborative development, and implementation of work plans; advancement of selected research projects; coordination to develop appropriate SRKW threat reduction targets; coordination to develop, implement, and monitor measures to reduce threats; and maintaining education outreach) and to work with TC to develop a strategy “to encourage underwater noise reduction incentives in other ports in Canada and internationally” (ibid, art 5.2.1). The initiatives pursued for specified periods have included the Haro Strait and Boundary Pass voluntary ship slowdown, the Strait of Juan de Fuca voluntary inshore lateral displacement, and the Swiftsure Bank voluntary ship slowdown trial (Port of Vancouver, 2023a).

In discussing ABM roles in shipping, it is useful to distinguish between ports and harbours as special management areas to support shipping and the use of ABM measures concerning the mobility of ships.

First and foremost, ports and harbours themselves are designated areas for the provision of a range of services to shipping and for the location of other industries that rely on shipping for their transportation needs. Major ports are nodal points in road, rail, pipeline, and marine transportation networks and at times also aviation. They have defined boundaries and are placed under the authority of a Crown or other designated body with powers to enable them to manage the allocated space, including through the use of ABM tools within that space. Accordingly, these ABM powers include land use and marine spatial planning, as well as the coordination of the two types of planning. Where aviation is part of the transportation hub, as in the case of the Vancouver flight centre, a port may have terminals dedicated to the safe navigation and berthing of aircraft used for passenger traffic. Rules for safe mobility apply to both ships and aircraft in the vicinity of each other, for example, under the Convention on the International Regulations for Preventing Collision at Sea, 1972 (COLREGs, 1972).

Second, land use planning is one of the most important ABM practices a port undertakes, because ports typically are home to industrial uses as well as human settlements. Their concern is not simply the commercial and competitive operation of port services to ships but also the quality of the living environment shared by urban areas in their vicinity. Hence, land uses require a permit, and land use planning has to ensure port activities are governed by impact assessment that includes consultation processes and that industrial activity is located in appropriate areas so as to minimize adverse impacts on other uses of the port environment. For example, Vancouver has seven land use planning areas (VFPA, 2020). The plans are concerned not only about the allocation of space but also with the traffic of different transportation modes. Some port uses, such as containerized and bulk cargoes (e.g., ores and grain), have their own exclusive terminals and cargo handling equipment. Certain dangerous cargoes may be located at a distance from other cargoes, such as petroleum products in liquid and gaseous form located at bulk terminals in Burrard Inlet and Burnaby in Vancouver. However, a well-diversified port economy may have dangerous goods sites located throughout a port area (TC, 2021).

Given the close relationship between land and marine activities, planning of marine area use in ports tends to be part of or coordinated with land use planning. As discussed above, ports have vessel traffic management powers to ensure safe navigation and the overall safety of port operations. Marine spatial planning includes the allocation of space for port transits, traffic separation schemes, berthing and safe anchorage, other activities supporting shipping operations, and, naturally, other uses of port waters. As in the case of land uses, a marine activity usually requires a permit from port authorities, as in the case of the Port of Vancouver (Port of Vancouver, 2023b, c). Hence, ABM in ports tends to involve multiple land and marine interests and uses that need to be coordinated.

Ports and harbours in Canada are endowed with different governance systems reflecting various extents of power and ministerial oversight. Placed at the top tier, port authorities are substantially autonomous entities and have increasingly seen their powers expanded to enable them to be as commercially competitive as possible while still watching out for the Crown’s interests which they represent as agents in some respects. Public ports and small craft harbours have significantly less autonomy and power, depending largely on ministerial oversight and powers delegated to provinces, municipalities, or not-for-profit organizations. Differently, port authorities are run by boards of directors with substantial commercial and regulatory power to ensure commercial viability, safety, and environment protection in port operations.

Ports run by port authorities, public ports, and small craft harbours are all subject to the same marine environmental law. Their contributions to environmental protection in large part depend on their compliance with the extensive federal law on the prevention of marine pollution and the protection and conservation of marine biological diversity. However, because of their autonomy, port authorities have a special role to play in ensuring sustainable development of port lands and waters based on impact assessment and due consideration and pursuit of Canada’s climate change policies and international obligations. In this regard, it is interesting to observe that, to date, port authorities’ abilities to regulate activities with environmental and climate impacts appear to stem largely and indirectly from their powers concerning land use planning and contracting commercial operations. They can regulate activities on port lands, such as construction and energy use and efficiency standards, in a manner that helps mitigate carbon emissions. However, port authorities’ administration of existing federal law and their ability to regulate shipping are limited to approving mooring and anchoring, directing the movement of ships in waters under their jurisdiction as part of their vessel traffic management powers, and establishing conditions for the provision of services to ships, for example, shore-based power and receipt of wastes. They have corollary enforcement powers, such as taking possession of and removing ships or ordering tugs to move and moor ships to places designated by the port authority.

A critical environmental role played by all ports and harbours, but most especially ports run by port authorities which service international shipping, is the ability to prevent and reduce marine pollution. They help Canada perform its international obligations to provide reception facilities to domestic and international shipping in its ports for wastes generated by ships. They also play a vital role in helping to reduce air pollution by providing bunkering services for low-sulphur fuels. Already, several of the major ports that have developed shore power facilities are able to connect certain classes of ships (cruise ships in particular) to shore power, thereby reducing GHG and other emissions in the port environment and ensuring cleaner air. Eventually, ports will also greatly assist with the decarbonization of shipping by developing bunkering infrastructure to provide renewable fuels, such as ammonia and hydrogen.