Decision No. 23-W-2021

SUMMARY

[1] Under the Act, the Minister of Public Safety and Emergency Preparedness (Minister) may issue a coasting trade licence authorizing a foreign ship or a non-duty paid ship to conduct a commercial activity in Canadian waters for a maximum period of 12 months if the Canadian Transportation Agency (Agency) has determined that there is no suitable Canadian ship or non-duty paid ship available to perform the activity described in the application.

[2] Baffinland applied to the Agency and the Minister for a licence to use the “BOTNICA”, an icebreaking and multipurpose support ship registered in Estonia, to escort ships in ice conditions in order to support the operations of Baffinland’s Mary River Mine in Milne Inlet, Nunavut. The proposed activity would commence on July 1, 2021, and end on November 15, 2021.

[3] Amarok Enterprises Ltd. (Amarok) filed an objection to the application and offered the “POLAR PRINCE”, the “ARCTIC WOLF”, and the “THORBJORN”, all duty-paid Canadian-registered ships, to perform the activity described in the application. Amarok subsequently withdrew its objection.

[4] Canship Innu Marine LP (Canship Innu) filed an objection and offered the “NORTHERN RANGER”, a duty-paid Canadian-registered ship, to perform the activity described in the application.

[5] The Agency finds that, pursuant to subsection 8(1) of the Act, there is no suitable Canadian ship or non-duty paid ship available to perform the activity described in the application.

BACKGROUND

[6] On November 4, 2020, Baffinland filed, through its Canadian representative, an application for temporary admission to the coasting trade of Canada of the “BOTNICA”. This proposed foreign ship is to be used to escort ships in ice conditions to support the operations of Baffinland’s Mary River Mine in Milne Inlet. The activity has a starting date of July 1, 2021, and a completion date of November 15, 2021.

[7] On November 4, 2020, Agency staff gave notice of the application to the Canadian marine industry. On November 17, 2020, both Amarok and Canship Innu filed objections to the application, respectively offering the “POLAR PRINCE” and the “NORTHERN RANGER”, both duty-paid Canadian-registered ships, to perform the activity described in the application.

[8] On November 23, 2020, at the request of Baffinland, the Agency granted Baffinland until December 1, 2020, to file its answers to the objections. Amarok and Canship Innu were to file their respective final replies by December 3, 2020. Baffinland filed its answers to both offers on December 1, 2020. Amarok filed its reply on December 2, 2020, in which it offered the ship “ARCTIC WOLF”.

[9] On December 2, 2020, Canship Innu requested an extension to file its reply. The Agency, in a directive issued on December 3, 2020, granted Canship Innu until December 10, 2020, to file its reply.

[10] On December 4, 2020, Amarok filed a late submission, which the Agency allowed to be placed on the record by way of its directive issued on January 11, 2021. On December 10, 2020, Canship Innu filed its reply.

[11] On January 13, 2021, Amarok withdrew its objection.

[12] On February 3, 2021, Canship Innu filed a supplementary submission, which the Agency accepted. The Agency then gave Baffinland the opportunity to file a reply to Canship Innu’s additional submission. Baffinland filed its reply on February 10, 2021.

ISSUE

[13] Is there a suitable Canadian ship available to perform the activity described in the application?

LEGISLATIVE CONTEXT

[14] When an application is made for a coasting trade licence to authorize a foreign ship or a non-duty paid ship to conduct a commercial activity in Canadian waters, the Agency is responsible under the Act to determine whether there is a suitable Canadian ship or non-duty paid ship available to provide the service or perform the activity described in the application. The Act recognizes the interests of Canadian ship operators by permitting foreign ships to be used in Canadian waters only when no suitable Canadian ships or non-duty paid ships are available to provide the service or perform the proposed activity.

[15] The Agency must determine whether, on a balance of probabilities, there is a suitable Canadian ship or non-duty paid ship available to perform the activity.

[16] The Agency’s process is set out in the Canadian Transportation Agency Guidelines Respecting Coasting Trade Licence Applications (Coasting Trade Guidelines).

PRELIMINARY MATTERS

[17] On December 11, 2020, Baffinland filed a response to Canship Innu’s reply dated December 10, 2020. The Agency determines that Baffinland’s submission will not be placed on the record as it does not raise any new relevant information and, consequently, will not be considered.

[18] On January 13, 2021, Amarok withdrew its offers of the “POLAR PRINCE”, the “ARCTIC WOLF” and the “THORBJORN”, the latter of which was communicated solely to Baffinland and not filed with the Agency by Amarok. Accordingly, these ships and all pleadings related to Amarok’s offer will not be considered in this Decision.

POSITIONS OF THE PARTIES

Baffinland

[19] Baffinland seeks authorization to use the “BOTNICA”, an icebreaking and multipurpose support ship. The “BOTNICA” is a combined icebreaker, tug, and supply ship. Its ice class is ICE-10 Icebreaker/PC 5, and it is designed to break ice up to 1 m thick, without limitations to ramming.

[20] Baffinland indicates that the “BOTNICA” will provide icebreaking and escort services to bulk carriers and resupply ships servicing Baffinland’s Mary River Mine. The Mary River Mine exports up to six million tonnes a year of iron ore from Milne Inlet to ports in Europe.

[21] Baffinland argues that ice conditions have become more variable over the past decade, which affects the opening and closing dates of the shipping period for the Mary River Mine. It states that the services of an icebreaker allow the bulk carriers and resupply ships that service the Mary River Mine to conduct their voyages with greater safety, efficiency and consistency than would otherwise be possible without assistance.

[22] Baffinland states that, at the beginning of the season, it is especially important for the economic well-being of the project that the export ships get access to the Mary River Mine as early as possible given the regulatory restrictions and difficult ice conditions. It further argues that the requirement for the ship to undertake the escort work is very specific in that the ship needs to be an icebreaker rather than just an ice-strengthened ship. As a ship designed to escort other ships in ice conditions and not just as a ship making its own way, an icebreaker is necessarily a specialized ship. Baffinland states in its application that, at the early and later part of the shipping season, the Mary River Mine can only be accessed with bulk ships with, at least, a rating of Ice Class 1A. Baffinland adds that, in order for the ship acting as an icebreaker to provide an effective escort, it must possess an ice class superior to Ice Class 1A. Baffinland also states that the ship must have a wide deck area and an experienced crew.

[23] As for the engines of the two ships, Baffinland draws attention to the greater power of the engines of the “BOTNICA” versus those of the “NORTHERN RANGER”. Baffinland’s application notes that the “BOTNICA” is equipped with an “engine-generator-engine” diesel-electric plant that includes six packages of twin Caterpillar 3512B units, giving a total output for the 12 engines of 12 megawatts, which provide multiple levels of propulsion redundancy. Baffinland further states that the thrusters can be used to create a propeller wave that pushes broken ice away from the hull and creates a wider channel for the following convoy of escorted ships.

[24] Baffinland argues that the ships that the “BOTNICA” is used to escort range from unstrengthened ships in the middle of the season to ice-strengthened ships with Ice Class 1A, 1B or 1C at the beginning and end of the season. It further states that all ice-strengthened ships, except for the highest class, are designed to be escorted by an icebreaker in difficult ice conditions, such as those experienced at the beginning and at the end of the shipping season.

[25] Baffinland submitted technical questions to Canship Innu and, through its agent, argues that the circumstances require an icebreaker as, even though landfast ice might not be broken up at the time of the activity, there would still be a significant number of large drifting icefields in the area, which will have to be tackled by the icebreaker. Baffinland indicates that “[d]rifting ice also causes increased ice pressure – channels close quickly, so the requirement is actually breaking the ice.”

[26] Baffinland states that the beam of the “NORTHERN RANGER” is one-third smaller than the beam of the “BOTNICA” and, with its single screw, will only make a track as wide as its beam. By contrast, it argues that the “BOTNICA”, with its twin ABB Azipod propulsion units and its much wider beam, is far better suited and more efficient to escort low ice-class, wide beam bulk carriers through mobile or fast ice and to maintain channels in fast ice.

[27] With respect to the narrower breadth of the “NORTHERN RANGER” by comparison to that of the “BOTNICA”, Baffinland states that this will require multiple passes having to be made by the “NORTHERN RANGER” to clear the ice. Baffinland argues that multiple passes will not work in the presence of ice pressure and that ice in Milne Inlet can be dynamic due to large floes.

[28] Baffinland places emphasis on the need for the ship to be designated as an icebreaker, stating that the escorted ships will require an icebreaker in order to utilize their own ice class. Baffinland adds that the “NORTHERN RANGER” is technically unsuited to perform this task.

[29] In support of its argument stating that the offered ship is unsuitable to perform the activity described in the application, Baffinland supplied submissions providing the opinions of Captain Raymond Jourdain and Captain Anthony Potts on the ability of the “NORTHERN RANGER” to perform the activity.

[30] Baffinland submits that Captain Jourdain has expertise in ice piloting in the Gulf of St. Lawrence and the Arctic regions dating back to 1984, in a typical year averaging 110 days on bulk carriers, cruise ships and tankers of all sizes, bringing the ships in and out of the St. Lawrence or the Arctic. In the summertime, Captain Jourdain serves as an ice pilot and advisor on board expedition and cruise ships and private yachts throughout the Arctic and Greenland regions, where he provides advice to allow safe transit in ice-infested waters. With respect to Captain Potts, Baffinland submits that he holds numerous professional certificates, including a Master Mariner (Unlimited) Certificate of Competency and a Certificate of Proficiency in Advanced Training for Personnel on Ships Operating in Polar Waters from Transport Canada; a Nautical Institute, Ice Navigator – Level 2 Certificate from The Nautical Institute in London, United Kingdom; and a diploma in nautical science with distinction in academic and navigation subjects from the Canadian Coast Guard College. Baffinland also indicates in its submissions that his expertise in icebreaking goes back to 1994.

[31] The submission from Captain Jourdain placed emphasis on the power of the engines of the “NORTHERN RANGER” and the ship’s inability to break ice more than 70 cm thick under pressure. The submission noted the light draft of the “NORTHERN RANGER”, its breadth and power rendering it unsuitable to act as an icebreaker for the Panamax-sized ships that would be servicing the Mary River Mine.

[32] The submission from Captain Jourdain also highlights the importance of an icebreaker’s weight and speed as elements to break a wide enough path for the ships being escorted to avoid damage at their shoulders.

[33] The submission from Captain Potts places importance on the suitability of the “BOTNICA” for icebreaking operations and states that it possesses more emergency towing capability than the “NORTHERN RANGER”, along with an ability to work in greater ice cover.

[34] The submission from Captain Potts states that the rating of Ice Class 1AS of the “NORTHERN RANGER” is intended for operation in first-year ice only, with sufficient powering only for its own mobility and maneuvering. The submission also expresses concern over the lack of information regarding the crew of the “NORTHERN RANGER”.

[35] In rebuttal to a press clipping supplied by Canship Innu stating that the “NORTHERN RANGER” was performing icebreaking operations for a ferry of the Société des traversiers du Québec between Matane–Baie-Comeau–Godbout, Baffinland describes the “NORTHERN RANGER” as being merely an ice-strengthened passenger ferry and provides a CBC report dated June 20, 2016, which states that the “NORTHERN RANGER” had not commenced ferry operations in Labrador due to sea ice conditions and that an icebreaker was required.

[36] Baffinland also emphasizes the difference in engine power between the 15,000 horsepower of the “BOTNICA” and the 1,500 horsepower of the “NORTHERN RANGER”.

Canship Innu

[37] Canship Innu states, in its offer dated November 12, 2020, that it is a partnership of Canship Ugland Ltd. (Canship Ugland), a ship owner and management company based in St. John’s, Newfoundland and Labrador, and Innu Development Limited Partnership, which is the economic development arm for the Innu of Labrador.

[38] Canship Ugland was established in 1996 in connection with the start of oil production on the Grand Banks, Newfoundland and Labrador, and has 23 years of experience in providing technical and crewing management. Canship Innu submits that Canship Ugland has intimate knowledge and understanding of the industry, including the many associated contractors and the challenges of working in one of the world’s harshest environments. Canship Innu further submits that Canship Ugland is well known and respected within the industry and is also recognized as an industry leader in Canada in regard to safety and operational performance.

[39] Canship Innu offers the “NORTHERN RANGER”, a duty-paid Canadian-registered ship, to perform the activity described in the application. Canship Innu submits that the “NORTHERN RANGER” is a ship with Ice Class 1AS, that it is only slightly older than the “BOTNICA” and that it has a sufficient hull breadth to perform the activity. Further, to emphasize its industry experience, Canship Innu states that Canship Ugland also operates a diverse fleet of 11 ships that include a crude oil shuttle, an icebreaking bulk carrier, tractor tugs, pilot boat launches, and oil and chemical tankers. Canship Innu also indicates that Canship Ugland has supplied crew to the “BOTNICA” in the past and that it has crew with experience in icebreaking and in escorting ships.

[40] Canship Innu states that Baffinland is focused on a comparison of the ships as opposed to the activity described in the application. It argues that Baffinland overstates the icebreaking requirements for the escort ship. Canship Innu also submits that the same ship has been used since 2018, when it was originally described as an ice management and support ship, and that it is now described as an icebreaking and multipurpose support ship. Canship Innu takes the position that Baffinland seeks to justify the continued use of the “BOTNICA”, which it indicates is the subject of a multi-year contract, rather than presenting any change in the work scope.

[41] Canship Innu further submits that the requirements that Baffinland has stated for operation at the Mary River Mine are in excess of those required for the operation. It further submits that the requirements were written in such a way as to prejudice the use of the “NORTHERN RANGER” in favour of their foreign flagged ship.

[42] Canship Innu disputes the necessity of a dedicated icebreaker due to the fact that any ice breaking of landfast ice is not permitted in the area near Milne Inlet. Canship Innu adds that ships can only attend the port after the landfast ice has broken free of its own, which therefore limits the necessary work to escorting ships through already broken ice. Canship Innu further states that its ship has sufficient breadth to maintain a safe channel to allow the bulk carriers to enter the port.

[43] Canship Innu also takes issue with the assertions that the “NORTHERN RANGER” has an inadequate ice rating, stating that the “NORTHERN RANGER” is fully capable of performing this service in the ice conditions provided by the applicant and that it is well within Lloyd’s rating of Ice Class 1AS. Canship Innu holds that the rating of Ice Class 1AS allows its ship to navigate in first-year ice conditions equivalent to unbroken level ice with a thickness of 1 m. It furthers states that Ice Class 1AS is equivalent to Polar Class 6 for summer and autumn operations in medium ice conditions, which constitute the conditions referenced in the application.

[44] Canship Innu further states that towing is not required in the scope of work and that the inclusion of towing as a requirement is an attempt at justifying the use of the “BOTNICA”, as it is already contractually committed to perform the activity described in the application. Canship Innu adds that the tow arrangements on the “BOTNICA” are incompatible with the ice-classed ships that would be calling on Baffinland, as those ships do not use recessed anchors. Canship Innu further argues that, should ice conditions be more extreme, all commercial ships involved in natural resource extraction are subject to the icebreaking services fees of the Canadian Coast Guard (CCG), and that it is within the mandate of the CCG to both maintain shipping routes and support port operations, including freeing ships beset in ice and escorting ships through ice-covered waters.

[45] Canship Innu states that the expert consultants retained by Baffinland are not necessarily impartial, notwithstanding their expertise.

[46] Additionally, while not disputing the knowledge of Baffinland’s consultants, Canship Innu submits that “their assessment of the Northern Ranger’s ability to break landfast ice demonstrates that the full scope of activity was not translated to the Assessors and thus their evaluation is not relevant to the actual work scope.”

[47] Furthermore, Canship Innu takes issue with the assessments provided by Baffinland’s consultants, noting that ice under pressure will quickly close in on any ship, regardless of its icebreaking ability. It further argues that the escort ship must create a channel wide enough to allow the escorted ships to transit. Canship Innu disputes Baffinland’s consultants in their assessments that refer to channel width in landfast ice when in fact, as per local agreements, icebreaking in landfast ice is not permitted.

ANALYSIS AND FINDINGS

[48] The onus is on the applicant to complete the coasting trade application in order to provide information in sufficient detail to permit the Canadian industry to assess and respond to the application. An offering party is responsible for establishing that its ships are suitable and available to perform the activity. The applicant bears the burden of proof, on a balance of probabilities, to demonstrate that the offered ships are not suitable and available. Should the applicant fail to provide sufficient evidence to support its position, the Agency will determine that a suitable Canadian ship is available. However, if the applicant provides sufficient evidence in support of its position, the evidentiary burden will shift to the offering party to prove that it is more likely than not that the Canadian ship is available and suitable to perform the activity.

Availability

[49] Baffinland made no submissions in relation to the availability of the “NORTHERN RANGER”. The Agency therefore finds that the availability of a Canadian ship for the required period is not contested by Baffinland and is therefore not an issue.

Suitability

[50] While the offering party has the responsibility to establish that its ship is suitable to perform the activity, the ultimate burden of proof rests, on a balance of probabilities, with the applicant to demonstrate that the offered Canadian ship is not suitable.

[51] The Act does not define the term “suitable”, nor does it require that an offered Canadian-registered ship be identical to the foreign ship proposed in an application. The Agency assesses the suitability of the Canadian-registered ship in relation to the requirements of the activity described in the application and whether the Canadian-registered ship is capable of performing the activity.

[52] The Agency considers the following suitability factors, if they have been raised and substantiated during the pleadings: technical and operational suitability—which refers to the technical characteristics of the ship and equipment—and the commercial and economic implications of using the foreign ship versus the offered Canadian ship.

[53] Given that the parties have not made arguments with respect to commercial and economic suitability, it will not be considered in this decision.

TECHNICAL AND OPERATIONAL SUITABILITY

[54] The parties do not disagree as to the nature of the ships that will be accompanied to and from Milne Inlet, or with respect to the fact that the breaking of landfast ice is prohibited under agreement with the local community. Rather, the disagreement is focused on the technical suitability of the “NORTHERN RANGER” to perform the activity described in the application, which, in Baffinland’s submission, require a ship that is an icebreaker. Baffinland holds that the “BOTNICA” is a suitable icebreaker as opposed to one that is merely an ice-strengthened ship, which it argues is the case with the “NORTHERN RANGER”.

[55] In its application, Baffinland states that the ship used must be capable of escorting ships travelling to and from Baffinland’s Mary River Mine under ice conditions that can be anticipated in the area, in order to provide support of the operations of the Mary River Mine. Baffinland’s application explicitly states that the ship required to undertake the activity has to be an icebreaker, rather than merely an ice-strengthened ship. An icebreaker is a ship that is designed to escort other ships in ice, not just make its own way. Baffinland also states that an icebreaker allows the bulk carriers and resupply ships that service the Mary River Mine to conduct their voyages more safely, efficiently and consistently than would be possible without assistance. In particular, Baffinland submits that in the early and later part of the shipping season, the Mary River Mine can only be accessed with bulk ships with, at least, Ice Class 1A. In order for the icebreaker to provide an effective escort, the ship must possess an ice class superior to the ice class rating of the escorted ships.

[56] The “NORTHERN RANGER” offered by Canship Innu is an ice-strengthened ship with Ice Class 1AS. Baffinland submits that escorted ships require an icebreaker in order to make use of their own ice class, and for that reason, states that the “NORTHERN RANGER” is technically unsuitable. Baffinland rebuts Canship Innu’s opinion of the suitability of the “NORTHERN RANGER”, noting that ice in Milne Inlet can consist of thick first-year ice with multi-year and glacial ice inclusions, which is an additional and separate concern from landfast ice.

[57] In its application, Baffinland holds that the ships that the “BOTNICA” escorts range from unstrengthened ships in the middle of the season to ice-strengthened ships with Ice Class 1A, 1B or 1C at the beginning or end of the season. Baffinland submits that, with the exception of ships with the highest ice class, ice-strengthened ships are designed to be escorted by an icebreaker in difficult ice conditions, as would be experienced at the beginning and end of the shipping season.

[58] As noted in the Coasting Trade Guidelines, the Agency must assess the suitability of the Canadian-registered ship to perform the work in relation to the requirements of the activity listed in the application. The Agency finds that the evidence provided by Baffinland would appear to indicate that an icebreaker is required in order to perform the proposed activity and notes that Canship Innu did not specifically respond in the affirmative when asked by Baffinland if the “NORTHERN RANGER” has a class designation as an icebreaker. Rather, Canship Innu only responded that its offered ship can maintain a speed of five knots through ice up to 1 m thick. The Agency notes, however, that it is clear from the pleadings that the “NORTHERN RANGER” is not an icebreaker.

[59] The Agency notes Baffinland's argument that the “BOTNICA” can provide for a clear passage for ship travel more efficiently. With its beam of 24.3 m, draft of 7.8 m and deadweight tonnage of 2,850 tonnes, Baffinland submits that the “BOTNICA” is more effective in dealing with ice than the “NORTHERN RANGER” with a beam of 15.6 m, a draft of 4.25 m and a deadweight tonnage of 662 tonnes. It further states that the “NORTHERN RANGER” has only a quarter of the available power of the “BOTNICA”. All of this, in Baffinland’s estimation, shows that the “BOTNICA” can clear sufficient ice to allow the passage of Panamax-sized ships that would be moving ore in one pass, whereas the narrower beam of the “NORTHERN RANGER” necessitates multiple passes to clear the necessary channel to allow passage of escorted ships.

[60] The Agency also takes note that while Canship Innu does not contest the claim that its ship, having a narrower beam, would have to make multiple passes, it does not view this as a significant drawback. Baffinland’s response is that “multiple passes will not work in the presence of any ice pressure, ice in Milne Inlet can be dynamic due to the large floes….” Baffinland’s consultant, Captain Jourdain, states that, as concerns the escorting of Panamax-sized ships, “[t]o avoid damage at the shoulders[,] it is necessary that the icebreaker has enough weight and speed to break up a wide path.”

[61] The parties disagree as to the nature of the ice conditions in which the ship would operate. During the pleadings, Baffinland provided Canship Innu with two consecutive days of historical ice charts for October 20 and 21, 2018, depicting ice coverage for the approaches to Resolute, Nunavut, in the Milne Inlet area. Baffinland sought information from Canship Innu as to whether the “NORTHERN RANGER” would be able to escort a caravan of at least three ships out of Eclipse Sound, Nunavut, if ice conditions are similar to those in the ice chart data. Canship Innu replied that, based on a primary ice thickness of 30 cm in the area and the fact that the “NORTHERN RANGER” has a rating of Ice Class 1AS, it felt confident that its ship could conduct this activity. Canship Innu relies upon the fact that there is no actual breaking of landfast ice permitted and that the Ice Class 1AS rating of the “NORTHERN RANGER” is superior to that of the ships attending the Mary River Mine.

[62] Canship Innu further states that should the ice conditions be more severe than those set out in the ice charts provided by Baffinland, which it believes to be a worst-case scenario, the CCG’s icebreaking assets could be called upon. Baffinland refers to such circumstances where the “NORTHERN RANGER” required the CCG’s assistance in the CBC article dated June 20, 2016, that it cited.

[63] The Agency has considered the submissions made by the parties with respect to ice conditions. Given Baffinland’s submission that the ships that the “BOTNICA” escorts range from unstrengthened ships in the middle of the season to ice-strengthened ships and that ice conditions can change rapidly as depicted in the ice charts provided, the Agency finds that that there is a real risk that the “NORTHERN RANGER” would not, on its own, be capable of providing escort services without relying upon the CCG. Reliance upon the CCG’s assets would appear to undermine the argument as to the suitability of the “NORTHERN RANGER”. The Agency notes that the challenge posed by changing ice conditions in terms of safely escorting ships to and from the Mary River Mine is an important consideration that cannot be overlooked.

[64] In discussions between the parties during the pleadings, Baffinland’s agent requested information from Canship Innu with respect to the means of the “NORTHERN RANGER” to free itself from being beset in ice and whether it can increase the broken channel width behind by any means. Canship Innu responded that the “NORTHERN RANGER” is equipped with bow and stern thrusters, but it declined to comment further, instead submitting that concerns regarding the ability to increase the broken channel width is a commercial matter and not relevant to the application, as the “NORTHERN RANGER” can make multiple passes if required. In light of the importance placed by Baffinland in its pleadings on the issue of ice pressure, the Agency notes that Canship Innu has not provided substantive information to address this concern, nor has it sufficiently addressed concerns regarding the stated ice conditions in Milne Inlet, which Canship Innu has not disputed.

[65] The Agency also notes that in its application, Baffinland submits that an icebreaker is a specialized ship, and the officers and crew are also specialized to perform the work. In that respect, Baffinland’s application specifically states, as a requirement, having a crew well experienced in icebreaking and, in particular, escorting lower ice class cargo ships in areas of consolidated ice.

[66] Canship Innu submits that Canship Ugland has operated icebreaking ships since 2006 and has a large pool of qualified Canadian mariners who would meet all statutory requirements and that Canship Ugland has supplied crew to the “BOTNICA” in the past. Canship Innu adds that such information is not relevant at this time, as it does not contribute to an assessment of a ship’s suitability under the Act.

[67] Baffinland submits in answer to Canship Innu’s offer that handling an icebreaker in close proximity to other ships is a particular skill learned through long experience, adding that in a typical winter, the master and officers of the “BOTNICA” can perform up to 100 escort operations. Baffinland further submits that there is no evidence of any of the officers of the “NORTHERN RANGER” having any experience in handling an icebreaker in close proximity to large cargo ships in heavy ice. Baffinland adds that the crew that Canship Ugland had previously supplied for the “BOTNICA” were not officers, but seamen, engine and galley staff. Baffinland counters Canship Innu’s submissions by stating that one of the attributes required is that of a modern icebreaker and that in order to assess the capabilities of the “NORTHERN RANGER”, Baffinland has to know if the “NORTHERN RANGER” will have officers who are experienced in the task at hand, not officers who just meet the minimum qualification requirements.

[68] The Agency has considered the submissions made regarding experience and notes that due to the requisite expertise and experience in escorting ships and navigating waters with dynamic ice conditions, the experience of the crew is a relevant factor to be considered. The Agency finds that Canship Innu has not provided information to support its claim that it can supply crew with the necessary experience, including biographical information or any specific information, noting that Canship Innu considers such information not to be relevant.

[69] Finally, Canship Innu argues that the applications for use of the “BOTNICA” since 2018 have used essentially the same language in describing the activity without describing the required ship as an icebreaker. Canship Innu indicates that, in the current application, the description of the required ship has changed to an icebreaker once it became apparent that Canadian ships would be offered. Baffinland does not directly address this argument other than to reassert its stated requirements, the capabilities of the “BOTNICA” and the “NORTHERN RANGER”.

[70] The Agency finds that this allegation is not supported by the evidence before it. An offering party is expected to provide evidence, beyond mere assertions, to support its position. Canship Innu has stated that the “NORTHERN RANGER” is fully capable of performing the service in the ice conditions set out in Baffinland’s submissions and has argued that the requirements set out by Baffinland are artificially stringent. However, no evidence of similar work in similar ice conditions with Panamax-sized ships by the “NORTHERN RANGER” has been provided nor any third-party assessments as to suitability, such as those provided by Baffinland.

[71] Therefore, the Agency finds that Canship Innu has failed to provide sufficient evidence to establish that the “NORTHERN RANGER” can perform the proposed work.

[72] In light of the foregoing, the Agency determines that Baffinland has met its legal burden to establish that there is no suitable Canadian ship available to perform the activity.

CONCLUSION

[73] For the above reasons, the Agency, pursuant to subsection 8(1) of the Act, finds that there is no suitable Canadian ship or non-duty paid ship available to perform the activity described in the application.

The Agency is providing this Decision to the Minister.