The ports of Vancouver and Fraser River in British Columbia are currently locked in a battle of wills with the ILWU over background checks for dockworkers. The ports are set to launch the first phase of a Marine Transportation Security Clearance Program on Dec. 15, which will require that ILWU employees entering certain areas and performing certain functions possess a Transport Canada Security Clearance - a kind of north of the border TWIC (Transportation Worker Identification Credential) card.

However, the union has launched constitutional challenges to the
legislation and is refusing to participate in the security clearance application process, saying that the process is invasive and would permit the government-wide release of highly personal information.

On Friday, the Canadian Minister of Transport, Infrastructure and
Communities authorized the marine security director general to issue a temporary exemption from the security clearance regulations for the ports until Feb. 20, 2008.

Protecting our waterfront

*Canadian workers are keen to improve port security but they draw the line at divulging their medical records and the political activities of their in-laws, says Tom Dufresne*

Canada’s maritime industry ­ the operators, carriers and port workers ­ are key partners in building a strong and vibrant Canadian economy. The maritime industry is responsible for over 250,000 direct and indirect jobs, handling US$100 billion worth of goods annually, driving a quarter of all Canadian trade.

As the front-line of defense in port security and a major driver in the Canadian economy, the maritime industry has been protecting Canada’s waterfront for decades and is committed to continuing that role.

Canada’s maritime operators, carriers and port workers are fully supportive and committed to the federal government’s leadership on developing new regulations aimed at increasing port security in Canada. However, the industry is concerned that proposed marine security regulations do not balance the critical importance of national security with the constitutional rights of port workers and economic competitiveness.

The department of transport, Transport Canada, is in the process of
developing draft regulations (The Marine Facilities Restricted Area Access Clearance Program, MFRAACP), as part of its implementation of the International Ship and Port Facility Security (ISPS) Code.

Since late 2003, the maritime industry has been consulting with Transport Canada to develop regulations that will balance national security concerns with individual rights. However, the sweeping MFRAACP regulations propose invasive and arbitrary background screening that goes well beyond assessing national security risk, going against the fundamental rights of all Canadians to privacy and fairness.

The maritime industry is urging the federal government to continue to work with the maritime industry to find a more reasonable and workable solution. This would improve security on Canada’s waterfront without damaging the economic viability of Canada’s ports or unduly compromising the privacy of those in the maritime industry.

*Key concerns*

The maritime industry has identified the following key concerns:

*1. Overly invasive and excessive background checks*

Under the proposed regulations, many categories of port employees will be required to undergo a criminal record check, credit check and top secret security clearance. These categories include: licensed pilots, security personnel or persons having security responsibilities, anyone requiring access to cruise ship terminals and anyone requiring access to designated restricted areas at container terminals. This is in addition to employees who have access to cargo or crew or passenger lists, or who control the movement or handling of cargo at container terminals. The vetting process includes providing information on family members (including in-laws and ex-spouses), all travel history in the previous five years (including dates, places visited and purposes of travel) and work history. This goes against the fundamental right of all Canadians to privacy and fairness.

*2. Subjectivity of criteria*

The regulations as they are currently drafted do not clearly define the criteria to determine approval or denial of security clearance. As indicated in the following examples, Transport Canada officials will assess marine security risk using subjective and arbitrary criteria. Sections 509b iv and v of the regulations state that clearance will be denied if the applicant is known or is reasonably suspected:

(iv) “to be or to have been a member of an organization which is known or reasonably suspected of being involved in or of contributing to activities directed toward or in support of, threat of, or the use of acts of violence against person or property, or to be or to have been involved in, or to contribute to, or have contributed to the activities of such a group…” or

(v) “to be or have been associated with an individual who is known or
reasonably suspected of being involved in or contributing to activities referred to in subparagraph (i) or of being a member of an organization or group referred to in any of subparagraphs ii to iv…”

*3. Lack of assurance on safeguarding information*

The federal government will not say who will view the collected information and what it will be used for, nor will they guarantee that personal information will be safeguarded from abuse.

*4. Lack of transparency and independence in the proposed appeal process*

Not only are there no defined criteria for denial, but anyone who is
rejected in the screening process has no recourse except a written submission to the federal minister of transport and newly established Transport Canada Office of Reconsideration. This office would review the appeal and provide recommendations directly to the minister of transport.

*5. A significant risk to Canadian port competitiveness*

Delays and uncertainty caused by the proposed screening process could
restrict the maritime industry’s ability to meet the demands of Canadian and international customers. The proposed regulations could compound current backlogs and traffic jams in our already over-pressured system, which may lead to business moving to ports south of the border.

*The search for fair solutions*

Port workers in Canada understand that our personal safety and livelihood are dependent on a safe and thriving maritime industry. We welcome the opportunities we have had to engage in discussions with the federal government and employers’ representatives in the hope of finding a consensus. After more than a year and a half of such discussions, no consensus has been reached with the government, though at the time of writing Transport Canada is still said to be reviewing feedback from stakeholders. Meantime unions and employers are agreed on a number of approaches, which we believe will ensure the security of our ports while protecting economic competitiveness and the constitutional rights of workers. These include:

*Enhanced law enforcement*

The maritime industry supports additional law enforcement resources to
strengthen existing joint force operations and to work in partnership with the industry, to be the frontline defence for maritime security.

*Defined criteria for screening*

We are asking Transport Canada to define more clearly the criteria and
rationale for screening process decisions, in order to provide certainty and fairness to port workers.

*An accessible and streamlined appeal process*

The maritime industry supports an accessible and streamlined appeal process using existing mechanisms, such as the transportation appeal tribunal of Canada. This would be implemented through an amendment to the Marine Transportation Security Act, and would provide an independent and transparent appeal process for port workers.

As TI went to press the minister of transport was believed to have decided to put the MFRAACP regulations on hold. The Canadian Maritime Workers Council and employers’ groups requested further input and planned to continue working with all political parties to ensure an acceptable final outcome.

/Tom Dufresne is president of the ILWU, Canada./