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Bill C-115

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PART II

FISH HABITAT CONSERVATION AND PROTECTION, AND POLLUTION PREVENTION

Interpretation

Definitions

42. In this Part,

``deleterious substance''
« substance nocive »

``deleterious substance'' means

      (a) any substance that, if added to any water, would degrade, alter or form part of a process of degradation or alteration of the quality of that water so that the water is rendered or is likely to be rendered deleterious to fish or fish habitat or to the use by humans of fish that frequent it, or

      (b) any water that contains a substance in such quantity or concentration, or that has been so treated, processed or changed, by heat or other means, from a natural state that it would, if added to any other water, degrade, alter or form part of a process of degradation or alteration of the quality of that other water so that the other water is rendered or is likely to be rendered deleterious to fish or fish habitat or to the use by humans of fish that frequent it

    and, without restricting the generality of the foregoing, includes

      (c) any substance or class of substances prescribed pursuant to subparagraph 59(a)(i),

      (d) any water that contains any substance or class of substances in a quantity or concentration that is equal to or in excess of a quantity or concentration prescribed in respect of that substance or class of substances pursuant to subparagraph 59(a)(ii), and

      (e) any water that has been subjected to a treatment, process or change prescribed pursuant to subparagraph 59(a)(iii);

``deposit''
« immersion » ou « rejet »

``deposit'' means any discharging, spraying, releasing, spilling, leaking, seeping, pouring, emitting, emptying, throwing, dumping or placing;

``fish habitat''
« habitat du poisson »

``fish habitat'' means spawning grounds and nursery, rearing, food supply, migration and any other areas on which fish depend directly or indirectly in order to carry out their life processes;

``obstruction''
« obstacle »

``obstruction'' means any slide, dam or other obstruction impeding the free passage of fish;

``waters frequented by fish''
« eaux où vivent des poissons »

``waters frequented by fish'' means all Canadian waters and all waters in the exclusive economic zone of Canada.

Removal of Obstructions

Removal of obstructions

43. (1) Where the Minister determines that the removal of an obstruction or any thing that is detrimental to fish or fish habitat is necessary for the safe passage of fish or the protection of fish or fish habitat, the owner or occupier of the obstruction or thing shall, at the direction of the Minister, remove the obstruction or thing within the period approved by the Minister.

Removal or destruction by Minister

(2) Notwithstanding subsection (1), the Minister may remove or destroy the obstruction or thing, without liability to or indemnification of the owner or occupier if the owner or occupier

    (a) after receiving the direction, fails to remove it within the approved period; or

    (b) is not resident in Canada or the owner's or occupier's exact place of residence is unknown to the Minister.

Recovery of costs

(3) Her Majesty in right of Canada may, in the circumstances referred to in paragraph (2)(a), recover the costs of removal or destruction from the owner or occupier.

Fish-ways and other Structures

Construction of fish-way, etc.

44. (1) Where the Minister determines that, at the site of a proposed or existing obstruction across or in any stream,

    (a) a fish-way or canal is required to provide for the free passage of fish, or

    (b) one or more fish-stops or diverters are required to prevent the destruction of fish or to assist in the ascent or descent of fish,

the owner, occupier or proponent of the obstruction shall, at the direction of the Minister, construct a fish-way or canal, or install fish-stops or diverters, within the period and in accordance with any specifications approved by the Minister.

Maintenance and modifications

(2) The owner, occupier or proponent of an obstruction referred to in subsection (1) shall

    (a) operate and maintain any fish-way, canal, fish-stops or diverters referred to in that subsection in a good and effective condition and in accordance with any specifications approved by the Minister; and

    (b) make any modifications required, at the direction of the Minister, within the period and in accordance with any specifications approved by the Minister.

Fish hatchery

(3) Where the Minister determines that a fish-way or canal around a proposed or existing obstruction is not feasible, the owner, occupier or proponent of the obstruction shall, at the direction of the Minister, construct, operate and maintain a fish hatchery within the period and in accordance with any specifications approved by the Minister.

Prohibitions

(4) No person shall

    (a) damage or obstruct any fish-way or canal used to provide for the free passage of fish; or

    (b) do anything to prevent or impede fish from entering or passing through a fish-way or canal or from surmounting an obstacle or leap.

Fish guards, screens, etc.

45. (1) Where the Minister determines that a fish guard, a screen, a covering or netting is required to prevent the passage of fish into any existing or proposed water intake, ditch, channel or canal, the owner, occupier or proponent of the water intake, ditch, channel or canal shall, at the direction of the Minister, install the fish guard, screen, covering or netting within the period and in accordance with any specifications approved by the Minister.

Maintenance and modifications

(2) An owner or occupier referred to in subsection (1) shall

    (a) maintain the fish guard, screen, covering or netting in a good and effective condition and in accordance with any specifications approved by the Minister; and

    (b) make any modifications required, at the direction of the Minister, within the period and in accordance with any specifications approved by the Minister.

Removal

(3) An owner or occupier referred to in subsection (1) may remove or permit the removal of a fish guard, a screen, a covering or netting if the removal is required for maintenance or modification.

Closure of gate

(4) When removing a fish guard, a screen, a covering or netting, an owner or occupier referred to in subsection (1) shall take measures to prevent fish from entering the water intake, ditch, channel or canal, including closing any sluice or gate at the entrance.

Costs of removal, etc.

46. (1) Any removal, construction, installation, operation, maintenance, modification or repair required pursuant to section 43, 44, 45 or 47 shall be at the cost of the owner, occupier, operator or proponent, as the case may be.

Security

(2) Where the Minister gives a direction under section 44 or 45, the Minister may require the owner, occupier or proponent of an existing or proposed obstruction, water intake, ditch, channel or canal to deposit a sum or sums of money as security for the construction, installation, modification, completion, operation or maintenance of the structure referred to in that section.

Minister performs action

(3) In the event that the owner, occupier or proponent referred to in subsection (2) fails to construct, install, modify, complete, operate or maintain the structure referred to in section 44 or 45 within the period specified, the Minister may perform the action and may authorize any person to enter on the premises with the necessary workers, equipment and materials to perform that action.

Money forfeited

(4) The security deposited under subsection (2) shall be forfeited to Her Majesty in right of Canada to cover any costs that are incurred by the Minister in relation to the performance of the action, and any excess money that is not required to perform the action shall be returned immediately to the owner, occupier or proponent.

Supply of water flow

47. (1) The owner or operator of a fish-way or canal shall keep it open, unobstructed and supplied with a flow of water necessary to provide for the free passage of fish during any period specified by the Minister and, where leaks in a dam cause a fish-way to be inefficient, the Minister may require the owner or occupier of the dam to repair the leaks.

Water flow during construction

(2) During the construction of an obstruction, fish-way or canal, the owner or occupier of the obstruction, fish-way or canal shall, at the direction of the Minister, make any provision that the Minister considers necessary for the free passage of ascending or descending fish.

Water flow

(3) The owner or occupier of every obstruction shall maintain a sufficient flow of water into the river below, and shall maintain such level and flow of water over the spillway or crest with connecting sluices into the river below, as the Minister considers necessary to provide for the safe and unimpeded passage of fish and for sufficient flooding and protection of fish habitat.

Specifications

(4) For the purposes of subsections (1) to (3), the Minister may specify such characteristics of the water and water flow as the Minister considers necessary for the conservation and protection of the fish and fish habitat, including

    (a) the water temperature;

    (b) the quantity of water; and

    (c) the physical characteristics and chemical composition of the water.

Fish Habitat

Alteration, etc., of fish habitat

48. (1) Subject to subsection (2), no person shall carry on any work, activity or undertaking that results in the harmful alteration, disruption or destruction of fish habitat.

Alteration, etc., authorized

(2) No person contravenes subsection (1) by causing the alteration, disruption or destruction of fish habitat by any means or under any conditions authorized by the Minister or under regulations made under this Part.

Pollution

Deposit of deleterious substance prohibited

49. (1) Subject to subsection (2), no person shall deposit or permit the deposit of a deleterious substance of any type in waters frequented by fish or in any place under any conditions where the deleterious substance or any other deleterious substance that results from the deposit of the deleterious substance may enter any such waters.

Deposits authorized by regulation

(2) No person contravenes subsection (1) by depositing or permitting the deposit in any waters or place of

    (a) any waste or pollutant of a type, in a quantity and under conditions authorized by regulations applicable to the waters or place made by the Governor in Council under any Act other than this Act; or

    (b) a deleterious substance of a class, in a quantity or concentration and under conditions authorized by or pursuant to regulations applicable to the waters or place or to any work, activity or undertaking or class thereof, made pursuant to paragraphs 59(b) to (f).

Directions by the Minister

(3) A person authorized to deposit a deleterious substance by or under any regulations made under this Part shall, when directed by the Minister, notwithstanding any regulations made pursuant to paragraph 59(f) or any conditions set out in an authorization made under regulations made pursuant to paragraph 59(g), conduct such sampling, analyses, tests, measurements or monitoring, install or operate such equipment or comply with such procedures, and provide such information, as may be required by the Minister in order to determine whether the person is depositing the deleterious substance in the manner authorized.

Minister may require plans and specifications

50. (1) Where a person carries on or proposes to carry on any work, activity or undertaking that results or is likely to result in the alteration, disruption or destruction of fish habitat, or in the deposit of a deleterious substance in waters frequented by fish or in any place under any conditions where that deleterious substance or any other deleterious substance that results from the deposit of that deleterious substance may enter any such waters, the person shall, on the request of the Minister or without request in the manner and circumstances prescribed by regulations made pursuant to paragraph 59(h), provide the Minister with such plans, specifications, studies, procedures, schedules, analyses, samples or other information relating to the work, activity or undertaking and with such analyses, samples, evaluations, studies or other information relating to the waters, place or fish habitat that is or is likely to be affected by the work, activity or undertaking as will enable the Minister to determine

    (a) whether the work, activity or undertaking results or is likely to result in any alteration, disruption or destruction of fish habitat that constitutes or would constitute an offence under subsection 48(1) and what measures, if any, would prevent that result or mitigate its effects; or

    (b) whether there is or is likely to be a deposit of a deleterious substance by reason of the work, activity or undertaking that constitutes or would constitute an offence under subsection 49(1) and what measures, if any, would prevent that deposit or mitigate its effects.

Powers of Minister

(2) If, after reviewing any information provided under subsection (1) and affording the persons who provided it a reasonable opportunity to make representations, the Minister or a person designated by the Minister is of the opinion that an offence under subsection 48(1) or 49(1) is being or is likely to be committed, the Minister or a person designated by the Minister may, by order, subject to any regulations made pursuant to paragraph 59(i), or, if there are no such regulations in force, with the approval of the Governor in Council,

    (a) require such modifications or additions to the work, activity or undertaking or such modifications to any plans, specifications, procedures or schedules relating thereto as the Minister or a person designated by the Minister considers necessary in the circumstances, or

    (b) restrict the operation of the work, activity or undertaking,

and, with the approval of the Governor in Council in any case, direct the closing or cessation of the work, activity or undertaking for such period as the Minister or a person designated by the Minister considers necessary in the circumstances.

Consultation with provinces

(3) Where the Minister or a person designated by the Minister proposes to make an order pursuant to subsection (2), the Minister or person shall offer to consult with the governments of any provinces that the Minister or person considers to be interested in the proposed order and with any departments or agencies of the Government of Canada that the Minister or person considers appropriate.

Exception

(4) Nothing in subsection (3) prevents the Minister or person from making an interim order pursuant to subsection (2) without the offer of consultation referred to in subsection (3), where the Minister or person considers that immediate action is necessary.

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