Bill C-38
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Related and Consequential Amendments
R.S., c. F-7; 2002, c. 8, s. 14
Federal Courts Act
110. Subsection 28(1) of the Federal Courts Act is amended by adding the following after paragraph (f):
(g) the Governor in Council, when the Governor in Council makes an order under subsection 54(1) of the National Energy Board Act;
R.S., c. F-11
Financial Administration Act
2006, c. 9, s. 270
111. Part III of Schedule VI to the English version of the Financial Administration Act in column II is amended by replacing the reference to “Chairman” opposite the reference to the “National Energy Board” in Column I with a reference to “Chairperson”.
R.S., c. N-26
Northern Pipeline Act
112. Subsection 7(1) of the Northern Pipeline Act is replaced by the following:
Designated officer‘s powers
7. (1) The designated officer may, in respect of the pipeline, exercise and perform any of the powers, duties and functions of the Board under the National Energy Board Act, except those under Part II, sections 47 to 54, 56 and 58, Part IV, section 74, and Parts VI, VIII and IX of that Act, that may be delegated to him or her by order of the Board.
113. Subsection 21(2) of the Act is replaced by the following:
Certificate considered to be issued by Board
(2) A certificate of public convenience and necessity declared to be issued by subsection (1) is considered to be a certificate issued under section 52 of the National Energy Board Act on April 13, 1978.
1990, c. 7
An Act to amend the National Energy Board Act and to repeal certain enactments in consequence thereof
114. Section 46 of the An Act to amend the National Energy Board Act and to repeal certain enactments in consequence thereof is repealed.
Coming into Force
Order in council
115. (1) Sections 68 to 85, 89, 90, 92 to 97 and 99 to 114 come into force on a day to be fixed by order of the Governor in Council.
Order in council
(2) Sections 86 to 88, 91 and 98 come into force on a day or days to be fixed by order of the Governor in Council.
Division 3
R.S., c. O-7; 1992, c. 35, s. 2
Canada Oil and Gas Operations Act
Amendments to the Act
116. Section 2 of the Canada Oil and Gas Operations Act is amended by adding the following in alphabetical order:
“navigable water”
« eaux navigables »
« eaux navigables »
“navigable water” has the same meaning as in section 2 of the Navigable Waters Protection Act;
117. Section 2.1 of the Act is amended by adding the following after paragraph (b):
(b.1) the safety of navigation in navigable waters;
118. Section 4.1 of the Act is renumbered as subsection 4.1(1) and is amended by adding the following:
Navigable waters
(2) The person to whom the power to issue an authorization under paragraph 5(1)(b) is delegated may exercise that power in relation to a section or part of a pipeline that passes in, on, over, under, through or across a navigable water only after having consulted the National Energy Board.
119. The Act is amended by adding the following after section 5.01:
Navigable Waters
Construction or operation
5.011 No person shall construct or operate a pipeline that passes in, on, over, under, through or across a navigable water unless an authorization to construct or operate, as the case may be, the pipeline has been issued under paragraph 5(1)(b).
Effects on navigation
5.012 In addition to any other factor that it considers appropriate, the National Energy Board shall take into account the effects that its decision might have on navigation, including safety of navigation, when deciding whether to issue an authorization under paragraph 5(1)(b) in respect of a pipeline that passes in, on, over, under, through or across a navigable water.
Pipeline not work
5.013 Despite the definition “work” in section 2 of the Navigable Waters Protection Act, a pipeline in respect of which an authorization has been or may be issued under paragraph 5(1)(b) is not a work to which that Act applies.
Regulations
5.014 (1) The Governor in Council may, for purposes related to navigation, on the joint recommendation of the Minister of Indian Affairs and Northern Development and the Minister of Transport, make regulations respecting sections or parts of pipelines that pass in, on, over, under, through or across any navigable water in any area in respect of which the Minister of Indian Affairs and Northern Development has administrative responsibility for natural resources, including regulations respecting the design, construction, operation and abandonment of those pipelines and the issuance of authorizations under paragraph 5(1)(b) in respect of their construction or operation.
Regulations
(2) The Governor in Council may, for purposes related to navigation, on the joint recommendation of the Minister of Natural Resources and the Minister of Transport, make regulations respecting sections or parts of pipelines that pass in, on, over, under, through or across any navigable waters in any area in respect of which the Minister of Natural Resources has administrative responsibility for natural resources, including regulations respecting the design, construction, operation and abandonment of those pipelines and the issuance of authorizations under paragraph 5(1)(b) in respect of their construction or operation.
Existing terms and conditions
5.015 Terms and conditions imposed at any time before the coming into force of this section in relation to an approval given under the Navigable Waters Protection Act in respect of a pipeline, in respect of which an authorization has been issued under paragraph 5(1)(b), apply as if they were requirements determined by the National Energy Board to be requirements to which the authorization is subject.
120. Subsection 5.4(1) of the English version of the Act is amended by replacing “Chairman of the National Energy Board” with “Chairperson of the National Energy Board”.
Coming into Force
Order in council
121. Sections 116 to 119 come into force on a day or days to be fixed by order of the Governor in Council.
Division 4
1997, c. 9
Nuclear Safety and Control Act
Amendments to the Act
122. Section 2 of the Nuclear Safety and Control Act is amended by adding the following in alphabetical order:
“penalty”
« pénalité »
« pénalité »
“penalty” means an administrative monetary penalty imposed under this Act for a violation.
123. Subsection 10(6) of the Act is replaced by the following:
Temporary members
(6) Each temporary member holds office during good behaviour for a term not exceeding three years.
124. (1) The portion of subsection 24(2) of the Act before paragraph (a) is replaced by the following:
Application
(2) The Commission may issue, renew, suspend in whole or in part, amend, revoke or replace a licence, or authorize its transfer, on receipt of an application
(2) The portion of subsection 24(4) of the Act before paragraph (a) is replaced by the following:
Conditions for issuance, etc.
(4) No licence shall be issued, renewed, amended or replaced — and no authorization to transfer one given — unless, in the opinion of the Commission, the applicant or, in the case of an application for an authorization to transfer the licence, the transferee
(3) Subsection 24(8) of the Act is repealed.
125. (1) Paragraph 37(2)(d) of the Act is replaced by the following:
(d) renew, suspend in whole or in part, amend, revoke or replace — or authorize the transfer of — a licence referred to in paragraph (c) on receipt of an application referred to in subsection 24(2);
(2) Subsection 37(4) of the Act is replaced by the following:
Notice
(4) A designated officer who refuses to issue, renew, suspend, amend, revoke or replace a licence, or authorize its transfer, shall notify the applicant of the refusal.
(3) Paragraph 37(5)(a) of the Act is replaced by the following:
(a) a refusal by the designated officer to issue, renew, suspend, amend, revoke or replace a licence or authorize its transfer;
126. Paragraph 39(1)(b) of the Act is replaced by the following:
(a.1) the applicant, before refusing to authorize the transfer under paragraph 37(2)(d);
(b) the licensee, before renewing, suspending, amending, revoking or replacing a licence or authorizing its transfer, under paragraph 37(2)(d), or before refusing to take any of those actions; and
127. (1) Subsection 40(1) of the Act is amended by adding the following after paragraph (a):
(a.1) the applicant, before refusing to authorize its transfer under section 24;
(2) Paragraph 40(1)(e) of the Act is replaced by the following:
(e) the applicant, before confirming a decision not to issue a licence or authorize its transfer — and the licensee, before confirming a decision not to renew, amend, revoke or replace a licence or authorize its transfer — under paragraph 43(4)(a);
128. (1) Paragraphs 43(1)(a) of the Act is replaced by the following:
(a) a refusal of a designated officer to issue, renew, suspend, amend, revoke or replace a licence or authorize its transfer;
(2) Subsection 43(1) of the Act is amended by striking out “or” at the end of paragraph (c) and by adding the following after that paragraph:
(c.1) an authorization granted by a designated officer to transfer a licence; or
(3) Paragraphs 43(2)(a) and (b) of the Act are replaced by the following:
(a) the applicant, a decision of the Commission not to issue a licence or authorize its transfer;
(b) the licensee, a decision of the Commission not to renew, suspend, amend, revoke or replace a licence or authorize its transfer;
(4) Paragraph 43(4)(a) of the Act is replaced by the following:
(a) a decision not to issue, renew, amend, revoke, replace a licence or authorize its transfer, confirm the decision or issue, renew, amend, revoke or replace the licence or authorize its transfer;
129. (1) Subsection 44(1) of the Act is amended by adding the following after paragraph (u):
(u.1) designating as a violation that may be proceeded with in accordance with this Act
(i) the contravention of any specified provision of this Act or of any of its regulations,
(ii) the contravention of any order or decision, or of any order or decision of any specified class of orders or decisions, made under this Act, or
(iii) the failure to comply with any term or condition of a licence, or any term or condition of any specified class of licences;
(u.2) respecting the determination of or the method of determining the amount payable as the penalty, which may be different for individuals and other persons, for each violation;
(u.3) respecting the service of documents required or authorized under section 65.05, 65.1 or 65.13, including the manner and proof of service and the circumstances under which documents are deemed to be served;
(2) Section 44 of the Act is amended by adding the following after subsection (12):
Restriction — amount of penalty
(13) The amount that may be determined under any regulations made under paragraph (1)(u.2) as the penalty for a violation shall not be more than $25,000, in the case of an individual, and $100,000, in the case of any other person.
130. The Act is amended by adding the following after section 65:
ADMINISTRATIVE MONETARY PENALTIES
Commission’s Powers
Powers
65.01 The Commission may
(a) establish the form of notices of violation;
(b) designate inspectors, or designated officers, who are authorized to issue notices of violation;
(c) establish, in respect of each violation, a short-form description to be used in notices of violation; and
(d) designate designated officers to conduct reviews under section 65.13.
Violations
Commission of violation
65.02 (1) Every person who contravenes or fails to comply with a provision, order, decision, term or condition designated under paragraph 44(1)(u.1) commits a violation and is liable to an administrative monetary penalty of an amount to be determined in accordance with the regulations.
Purpose of penalty
(2) The purpose of the penalty is to promote compliance with this Act and not to punish.
Liability of directors, officers, etc.
65.03 If a corporation commits a violation, any director, officer, agent or mandatary of the corporation who directed, authorized, assented to, acquiesced in or participated in the commission of the violation is a party to the violation and is liable to an administrative monetary penalty of an amount to be determined in accordance with the regulations, whether or not the corporation has been proceeded against in accordance with this Act.
Proof of violation
65.04 In any proceedings under this Act against a person in relation to a violation, it is sufficient proof of the violation to establish that it was committed by an employee, or agent or mandatary, of the person whether or not the employee, agent or mandatary is identified or proceeded against in accordance with this Act.
Issuance and service of notice of violation
65.05 (1) If a person designated under paragraph 65.01(b) believes on reasonable grounds that a person has committed a violation, the designated person may issue a notice of violation and cause it to be served on the person.
Contents
(2) The notice of violation must
(a) name the person that is believed to have committed the violation;
(b) set out the relevant facts surrounding the violation;
(c) set out the amount of the penalty for the violation;
(d) inform the person of their right to request a review with respect to the violation or the amount of the penalty, and of the prescribed period within which that right must be exercised;
(e) inform the person of the manner of paying the penalty set out in the notice; and
(f) inform the person that, if they do not pay the penalty or exercise their right referred to in paragraph (d), they will be considered to have committed the violation and that they are liable to the penalty set out in the notice.
Rules About Violations
Certain defences not available
65.06 (1) A person named in a notice of violation does not have a defence by reason that the person
(a) exercised due diligence to prevent the commission of the violation; or
(b) reasonably and honestly believed in the existence of facts that, if true, would exonerate the person.
Common law principles
(2) Every rule and principle of the common law that renders any circumstance a justification or excuse in relation to a charge for an offence under this Act applies in respect of a violation to the extent that it is not inconsistent with this Act.
Continuing violation
65.07 A violation that is committed or continued on more than one day constitutes a separate violation for each day on which it is committed or continued.
Violation or offence
65.08 (1) Proceeding with any act or omission as a violation under this Act precludes proceeding with it as an offence under this Act, and proceeding with it as an offence under this Act precludes proceeding with it as a violation under this Act.
Violations not offences
(2) For greater certainty, a violation is not an offence and, accordingly, section 126 of the Criminal Code does not apply in respect of a violation.
Limitation or prescription period
65.09 No notice of violation in respect of a violation shall be issued more than two years after the day on which the subject matter of the violation arises.
Reviews
Right to request review
65.1 A person who is served with a notice of violation may, within 30 days after the day on which it is served, or within any longer period that the Commission allows, make a request to the Commission for a review of the amount of the penalty or the facts of the violation, or both.
Correction or cancellation of notice of violation
65.11 At any time before a request for a review in respect of a notice of violation is received by the Commission, a person designated under paragraph 65.01(b) may cancel the notice of violation or correct an error in it.
Review
65.12 (1) On receipt of a request made under section 65.1, the Commission shall conduct the review or cause the review to be conducted by a designated officer.
Restriction
(2) If the notice of violation was issued by a designated officer, the Commission shall conduct the review.
Review by designated officer
65.13 (1) If a review is conducted by a designated officer, the designated officer shall determine, as the case may be, whether the amount of the penalty for the violation was determined in accordance with the regulations or whether the person committed the violation, or both.
Determination
(2) The designated officer shall render his or her determination in writing and cause the person who requested the review to be served with a copy of the determination and reasons.
Correction of penalty
(3) If the designated officer determines that the amount of the penalty for the violation was not determined in accordance with the regulations, the designated officer shall correct the amount of the penalty.
Responsibility
(4) If the designated officer determines that the person who requested the review committed the violation, the person is liable to the penalty as set out in the determination.
Request for review by Commission
(5) A person on whom a copy of a determination of a review is served may, within 30 days after the day on which it is served, or within any longer period that the Commission allows, make a request to the Commission for a review by the Commission of the amount of the penalty or the facts of the violation, or both.
Review by Commission
65.14 (1) If a review is conducted by the Commission, the Commission shall determine, as the case may be, whether the amount of the penalty for the violation was determined in accordance with the regulations or whether the person committed the violation, or both.
Determination
(2) The Commission shall render its determination in writing and cause the person who requested the review to be served with a copy of the determination and reasons.
Correction of penalty
(3) If the Commission determines that the amount of the penalty for the violation was not determined in accordance with the regulations, the Commission shall correct the amount of the penalty.
Responsibility
(4) If the Commission determines that the person who requested the review committed the violation, the person is liable to the penalty as set out in the determination.
Determination final
(5) Despite subsection 43(3), a determination made under this section is final and binding and, except for judicial review under the Federal Courts Act, is not subject to appeal or to review by any court.
Burden of proof
65.15 If the facts of a violation are reviewed under section 65.13 or 65.14, the person who issued the notice of violation shall establish, on a balance of probabilities, that the person named in it committed the violation identified in it.
Responsibility
Payment
65.16 If a person pays the penalty set out in a notice of violation, the person is considered to have committed the violation and proceedings in respect of it are ended.
Failure to act
65.17 A person that neither pays the penalty imposed under this Act nor requests a review in the prescribed period is considered to have committed the violation and is liable to the penalty.
Recovery of Penalties
Debts to Her Majesty
65.18 (1) A penalty constitutes a debt due to Her Majesty in right of Canada and may be recovered in the Federal Court or any other court of competent jurisdiction.
Limitation or prescription period
(2) No proceedings to recover the debt shall be instituted more than five years after the day on which the debt becomes payable.
Certificate
65.19 (1) The Commission may issue a certificate certifying the unpaid amount of any debt referred to in subsection 65.18(1).
Registration in Federal Court
(2) Registration in the Federal Court or in any other court of competent jurisdiction of a certificate issued under subsection (1) has the same effect as a judgment of that court for a debt of the amount specified in the certificate and all related registration costs.
General
Admissibility of documents
65.2 In the absence of evidence to the contrary, a document that appears to be a notice issued under subsection 65.05(1) is presumed to be authentic and is proof of its contents in any proceeding in respect of a violation.
Publication
65.21 The Commission may make public the nature of a violation, the name of the person who committed it and the amount of the penalty.
Coming into Force
Order in council
131. Sections 122, 129 and 130 come into force on a day to be fixed by order of the Governor in Council.
Division 5
R.S., c. F-14
Fisheries Act
Amendments to the Act
132. The heading before section 2 of the French version of the Fisheries Act is replaced by the following:
DÉFINITIONS ET INTERPRÉTATION
133. (1) The definition “obstruction” in subsection 2(1) of the Act is replaced by the following:
“obstruction”
« obstacle »
« obstacle »
“obstruction” means any slide, dam or other thing impeding wholly or partially the free passage of fish;
(2) Section 2 of the Act is amended by adding the following in alphabetical order:
“analyst”
« analyste »
« analyste »
“analyst” means a person who is designated under subsection 38(1) to perform the functions of an analyst;
(3) Subsection 2(1) of the Act is amended by adding the following in alphabetical order:
“Aboriginal”
« autochtone »
« autochtone »
“Aboriginal”, in relation to a fishery, means that fish is harvested by an Aboriginal organization or any of its members for the purpose of using the fish as food or for subsistence or for social or ceremonial purposes;
“commercial”
« commerciale »
« commerciale »
“commercial”, in relation to a fishery, means that fish is harvested under the authority of a licence for the purpose of sale, trade or barter;
“fish habitat”
« habitat »
« habitat »
“fish habitat” means spawning grounds and any other areas, including nursery, rearing, food supply and migration areas, on which fish depend directly or indirectly in order to carry out their life processes;
“fishway”
« passe migratoire »
« passe migratoire »
“fishway” means any device, work or other thing that provides for the free passage of fish, including a canal, a fish pump, a fish ladder, a fish elevator and a fish lock;
“recreational”
« récréative »
« récréative »
“recreational”, in relation to a fishery, means that fish is harvested under the authority of a licence for personal use of the fish or for sport;
(4) Section 2 of the Act is renumbered as subsection 2(1) and is amended by adding the following:
Serious harm to fish
(2) For the purposes of this Act, serious harm to fish is the death of fish or any permanent alteration to, or destruction of, fish habitat.
134. The Act is amended by adding the following after section 4:
AGREEMENTS, PROGRAMS AND PROJECTS
Minister may enter into agreements
4.1 (1) The Minister may enter into an agreement with a province to further the purposes of this Act, including an agreement with respect to one or more of the following:
(a) facilitating cooperation between the parties to the agreement, including facilitating joint action in areas of common interest, reducing overlap between their respective programs and otherwise harmonizing those programs;
(b) facilitating enhanced communication between the parties, including the exchange of scientific and other information; and
(c) facilitating public consultation or the entry into arrangements with third-party stakeholders.
Contents of agreement
(2) An agreement may establish
(a) the roles, powers and functions of the parties;
(b) programs and projects;
(c) principles and objectives of the parties’ respective programs and projects;
(d) standards, guidelines and codes of practice to be followed by the parties in the administration of their respective programs and projects;
(e) processes for policy development, operational planning and communication between the parties, including the exchange of scientific and other information;
(f) the administrative structures that will be used to carry out the agreement’s objectives;
(g) the power of the parties to create committees and public panels and to conduct public consultations; and
(h) the circumstances and manner in which the province is to provide information on the administration and enforcement of a provision of its laws that the agreement provides is equivalent in effect to a provision of the regulations.
Regulations
(3) The Governor in Council may make regulations establishing the conditions under which the Minister may enter into or renew an agreement, including procedures for entering into or renewing the agreement.
Agreements to be published
(4) The Minister shall publish an agreement in the manner that he or she considers appropriate.
Declaration of equivalent provisions
4.2 (1) If an agreement entered into under section 4.1 provides that there is in force a provision under the laws of the province that is equivalent in effect to a provision of the regulations, the Governor in Council may, by order, declare that certain provisions of this Act or of the regulations do not apply in the province with respect to the subject matter of the provision under the laws of the province.
Non-application of provisions
(2) Except with respect to Her Majesty in right of Canada, the provisions of this Act or of the regulations that are set out in the order do not apply within that province with respect to the subject matter of the provision under the laws of the province.
Revocation
(3) The Governor in Council may revoke the order if the Governor in Council is satisfied that the provision under the laws of the province is no longer equivalent in effect to the provision of the regulations or is not being adequately administered or enforced.
Notice to province
(4) The Governor in Council may revoke the order only if the Minister has given notice of the proposed revocation to the province.
Order ceases to have effect
(5) The order ceases to have effect either when it is revoked by the Governor in Council or when the agreement to which the order relates terminates or is terminated.
Report to Parliament
4.3 The Minister shall, as soon as feasible after the end of each fiscal year, prepare and cause to be laid before each house of Parliament a report on the administration of sections 4.1 and 4.2 in that fiscal year.
Objectives
4.4 (1) The Minister may implement programs and projects for the purposes of this Act and, to facilitate the implementation of a program or project, may
(a) make grants and contributions;
(b) make loans;
(c) make recoverable expenditures on behalf of any person or body, or any federal or provincial minister, department or agency; and
(d) guarantee the repayment of any financial obligation, or provide loan insurance or credit insurance in respect of such an obligation.
Regulations
(2) The Governor in Council may, on the recommendation of the Minister and the Minister of Finance, make regulations respecting such grants, contributions, loans, guarantees and insurance.
Agreements, etc.
(3) In exercising powers and performing functions under subsection (1), the Minister may
(a) enter into agreements — including an agreement under section 4.1 — or arrangements or transactions with any person or body, or any federal or provincial minister, department or agency; and
(b) with the approval of the Minister of Finance, requisition amounts in respect of such an agreement, arrangement or transaction to be paid out of the Consolidated Revenue Fund.
135. The Act is amended by adding the following after section 5:
FACTORS TO BE TAKEN INTO ACCOUNT
Factors
6. Before recommending to the Governor in Council that a regulation be made in respect of section 35 or under paragraph 37(3)(c) or 43(1)(i.01) or subsection 43(5), and before exercising any power under subsection 20(2) or (3) or 21(1), paragraph 35(2)(b) or (c) or subsection 35(3), or under subsection 37(2) with regard to an offence under subsection 40(1) or with regard to harm to fish, the Minister shall consider the following factors:
(a) the contribution of the relevant fish to the ongoing productivity of commercial, recreational or Aboriginal fisheries;
(b) fisheries management objectives;
(c) whether there are measures and standards to avoid, mitigate or offset serious harm to fish that are part of a commercial, recreational or Aboriginal fishery, or that support such a fishery; and
(d) the public interest.
Purpose
6.1 The purpose of section 6, and of the provisions set out in that section, is to provide for the sustainability and ongoing productivity of commercial, recreational and Aboriginal fisheries.
136. The heading before section 20 and sections 20 to 22 of the Act are replaced by the following:
FISHWAYS
Studies, analyses, samplings and evaluations
20. (1) If the Minister considers that doing so is necessary to ensure the free passage of fish or to prevent harm to fish, the owner or person who has the charge, management or control of an obstruction or any other thing that is harmful to fish shall, on the Minister’s request and within the period specified by the Minister, conduct studies, analyses, samplings and eval-uations, and provide the Minister with any document or other information relating to them, to the obstruction or thing or to the fish or fish habitat that is affected or is likely to be affected by the obstruction or thing.
Minister’s request
(2) If the Minister considers that doing so is necessary to ensure the free passage of fish or to prevent harm to fish, the owner or person who has the charge, management or control of an obstruction or any other thing that is harmful to fish shall, on the Minister’s request, within the period specified by the Minister and in accord-ance with any specifications of the Minister,
(a) remove the obstruction or thing;
(b) construct a fishway;
(c) implement a system of catching fish before the obstruction or thing, transporting them beyond it and releasing them back into the water;
(d) install a fish stop or a diverter;
(e) install a fish guard, a screen, a covering, netting or any other device to prevent the passage of fish into any water intake, ditch, channel or canal;
(f) maintain the flow of water that the Minister considers sufficient to permit the free passage of fish; or
(g) permit the escape, into the water below the obstruction or thing, at all times of the quantity of water that the Minister considers sufficient for the safety of fish or for the flooding of fish habitat to an appropriate depth.
Modification, repair and maintenance
(3) On the Minister’s request, the owner or person referred to in subsection (2) shall
(a) make any provision that the Minister considers necessary for the free passage of fish or to prevent harm to fish during the construction, implementation, installation, modification or repair of anything mentioned in that subsection;
(b) operate and maintain that thing in a good and effective condition and in accordance with any specifications of the Minister; and
(c) modify or repair it in accordance with any specifications of the Minister.
Obstruction of free passage of fish
(4) No person shall
(a) obstruct more than two-thirds of the width of any river or stream or more than one-third of the width of the main channel at low tide of any tidal stream;
(b) use or place any kind of net or other fishing apparatus, logs or any material of any kind in the unobstructed part of a river, stream or tidal stream referred to in paragraph (a);
(c) damage or obstruct any fishway constructed or used to enable fish to pass over or around any obstruction;
(d) damage or obstruct any fishway, fish stop or diverter constructed or installed on the Minister’s request;
(e) stop or hinder fish from entering or passing through any fishway, or from surmounting any obstacle or leap;
(f) damage, remove or authorize the removal of any fish guard, screen, covering, netting or other device installed on the Minister’s request; or
(g) fish in any manner within 23 m downstream from the lower entrance to any fishway, obstruction or leap.
Exception — removal for repairs
(5) Despite paragraph (4)(f), a person may remove or authorize the removal of any fish guard, screen, covering, netting or other device installed on the Minister’s request if the removal is required for modification, repair or maintenance.
Devices to prevent escape of fish
21. (1) The Minister may authorize the installation and maintenance of fish guards, screens, coverings, netting or other devices in waters to prevent fish held for breeding from escaping or for any other purpose that the Minister considers to be in the public interest.
Removal
(2) No person shall damage, remove or authorize the removal of such a fish guard, screen, covering, netting or other device, unless they are authorized to do so by the Minister.
1991, c. 1, s. 7
137. Sections 26 and 27 of the Act are repealed.
138. Section 30 of the Act is repealed.
139. (1) Section 32 of the Act is replaced by the following:
Killing of fish
32. (1) No person shall kill fish by any means other than fishing.
Exception
(2) No person contravenes subsection (1) if the killing of fish
(a) is done as a result of carrying on a prescribed work, undertaking or activity in or around any prescribed Canadian fisheries waters and is done in accordance with any prescribed conditions;
(b) is done in accordance with the regulations;
(c) is authorized by the Minister and is done in accordance with the conditions established by the Minister;
(d) is authorized by a prescribed person or entity and is done in accordance with the prescribed conditions; or
(e) is done as a result of doing anything that is authorized, otherwise permitted or required under this Act.
Failure to comply with conditions
(3) Every person who fails to comply with a condition imposed under any of paragraphs (2)(a) to (d) that applies to them is guilty of an offence punishable on summary conviction and liable, for a first offence, to a fine of not more than $100,000 and, for any subsequent offence, to a fine of not more than $100,000 or to imprisonment for a term of not more than six months, or to both.
(2) Section 32 of the Act is repealed.
140. The heading before section 34 of the Act is replaced by the following:
FISHERIES PROTECTION AND POLLUTION PREVENTION
141. The definition “fish habitat” in subsection 34(1) of the Act is repealed.
142. (1) Section 35 of the Act is replaced by the following:
Alteration, disruption or destruction of fish habitat
35. (1) No person shall carry on any work, undertaking or activity that results in the harmful alteration or disruption, or the destruction, of fish habitat.
Exception
(2) A person may carry on a work, undertaking or activity without contravening subsection (1) if
(a) the work, undertaking or activity is a prescribed work, undertaking or activity, or is carried on in or around prescribed Canadian fisheries waters, and the work, undertaking or activity is carried on in accordance with the prescribed conditions;
(b) the carrying on of the work, undertaking or activity is authorized by the Minister and the work, undertaking or activity is carried on in accordance with the conditions established by the Minister;
(c) the carrying on of the work, undertaking or activity is authorized by a prescribed person or entity and the work, undertaking or activity is carried on in accordance with the prescribed conditions;
(d) the harmful alteration or disruption, or the destruction, of fish habitat is produced as a result of doing anything that is authorized, otherwise permitted or required under this Act; or
(e) the work, undertaking or activity is carried on in accordance with the regulations.
(2) Subsection 35(1) of the Act is replaced by the following:
Serious harm to fish
35. (1) No person shall carry on any work, undertaking or activity that results in serious harm to fish that are part of a commercial, recreational or Aboriginal fishery, or to fish that support such a fishery.
(3) Paragraph 35(2)(d) of the Act is replaced by the following:
(d) the serious harm is produced as a result of doing anything that is authorized, otherwise permitted or required under this Act; or
(4) Section 35 of the Act is amended by adding the following after subsection (2):
Regulations
(3) The Minister may, for the purposes of paragraph (2)(a), make regulations prescribing anything that is authorized to be prescribed.
Statutory Instruments Act
(4) Regulations made under subsection (3) are exempt from section 3 of the Statutory Instruments Act.
143. (1) Subsection 36(4) of the Act is amended by deleting “or” at the end of paragraph (a) and by replacing paragraph (b) with the following:
(b) a deleterious substance of a class and under conditions — which may include conditions with respect to quantity or concentration — authorized under regulations made under subsection (5) applicable to that water or place or to any work or undertaking or class of works or undertakings; or
(c) a deleterious substance the deposit of which is authorized by regulations made under subsection (5.2) and that is deposited in accordance with those regulations.
(2) Subsection 36(6) of the Act is replaced with the following:
Regulations — Governor in Council
(5.1) The Governor in Council may make regulations establishing conditions for the exercise of the Minister’s regulation-making power under subsection (5.2).
Regulations — Minister
(5.2) If regulations have been made under subsection (5.1), the Minister may make regulations
(a) authorizing the deposit of deleterious substances specified in the regulations, or substances falling within a class of deleteri-ous substances specified in the regulations;
(b) authorizing the deposit of deleterious substances into waters or places falling within a class of waters or places;
(c) authorizing the deposit of deleterious substances resulting from a work, undertaking or activity falling within a class of works, undertakings or activities;
(d) establishing conditions, which may include conditions with respect to quantity or concentration, for the deposit of deleterious substances referred to in paragraphs (a) to (c); and
(e) establishing, for the purposes of paragraphs (a) to (c), classes of
(i) deleterious substances,
(ii) waters and places, and
(iii) works, undertakings and activities.
Directions by the Minister
(6) A person authorized to deposit a delete-rious substance by or under regulations made under subsection (5) or (5.2) shall, when directed by the Minister, despite any regulations made under paragraph (5)(e) or (5.2)(d) or any conditions set out in an authorization made under paragraph (5)(f), conduct any sampling, analyses, tests, measurements or monitoring, install or operate any equipment or comply with any procedures, and report any information, that is required by the Minister in order to determine whether the person is depositing the deleterious substance in the manner authorized.
144. (1) Subsections 37(1) and (2) of the Act are replaced by the following:
Minister may require plans and specifications
37. (1) If a person carries on or proposes to carry on any work, undertaking or activity 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 water 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 under paragraph (3)(a) — provide the Minister with any plans, specifications, studies, procedures, schedules, analyses, samples, evaluations and other information relating to the work, undertaking or activity, or to the water, place or fish habitat that is or is likely to be affected by the work, undertaking or activity, that will enable the Minister to determine
(a) whether the work, undertaking or activity results or is likely to result in any alteration, disruption or destruction of fish habitat that constitutes or would constitute an offence under subsection 40(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, undertaking or activity that constitutes or would constitute an offence under subsection 40(2) and what measures, if any, would prevent that deposit or mitigate its effects.
Powers of Minister
(2) If, after reviewing any material or 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 40(1) or (2) is being or is likely to be committed, the Minister or the person designated by the Minister may, by order, subject to regulations made under paragraph (3)(b), or, if there are no such regulations in force, with the approval of the Governor in Council,
(a) require any modifications or additions to the work, undertaking or activity or any modifications to any plans, specifications, procedures or schedules relating to it that the Minister or the designated person considers necessary in the circumstances, or
(b) restrict the carrying on of the work, undertaking or activity.
The Minister or the designated person may also, with the approval of the Governor in Council in any case, direct the closing of the work or undertaking or the ending of the activity for any period that the Minister or the designated person considers necessary in the circumstances.
(2) Subsections 37(1) and (2) of the Act are replaced by the following:
Minister may require plans and specifications
37. (1) If a person carries on or proposes to carry on any work, undertaking or activity that results or is likely to result in serious harm to fish that are part of a commercial, recreational or Aboriginal fishery, or to fish that support such a fishery, or in the deposit of a deleterious substance in water frequented by fish or in any place under any conditions where that delete-rious 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 under paragraph (3)(a) — provide the Minister with any plans, specifications, studies, procedures, schedules, analyses, samples, eval-uations and other information relating to the work, undertaking or activity, or to the water, place or fish habitat that is or is likely to be affected by the work, undertaking or activity, that will enable the Minister to determine
(a) whether the work, undertaking or activity results or is likely to result in any serious harm to fish that are part of a commercial, recreational or Aboriginal fishery, or to fish that support such a fishery, that constitutes or would constitute an offence under subsection 40(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, undertaking or activity that constitutes or would constitute an offence under subsection 40(2) and what measures, if any, would prevent that deposit or mitigate its effects.
Ecologically significant areas
(1.1) If a person proposes to carry on any work, undertaking or activity in any ecologically significant area, the person shall, on the request of the minister — or without request in the manner and circumstances prescribed by regulations made under paragraph (3)(a) — provide the Minister with any prescribed material and other information relating to the work, undertaking or activity, or to the water, place or fish habitat that is or is likely to be affected by the work, undertaking or activity.
Powers of Minister
(2) If, after reviewing any material or information provided under subsection (1) or (1.1) 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 40(1) or (2) is being or is likely to be committed, or that the work, undertaking or activity results or is likely to result in harm to fish in an ecologically significant area, the Minister or the designated person may, by order, subject to regulations made under paragraph (3)(b),
(a) require any modifications or additions to the work, undertaking or activity or any modifications to any plans, specifications, procedures or schedules relating to it that the Minister or the designated person considers necessary in the circumstances, or
(b) restrict the carrying on of the work, undertaking or activity.
The Minister or the designated person may also direct the closing of the work or undertaking or the ending of the activity for any period that the Minister or the designated person considers necessary in the circumstances.
(3) The portion of subsection 37(3) of the French version of the Act before paragraph (a) is replaced by the following:
Règlements
(3) Le gouverneur en conseil peut, par règlement :
(4) Paragraph 37(3)(a) of the Act is replaced by the following:
(a) prescribing the manner and circumstances in which any information or material shall be provided to the Minister without request under subsection (1) or (1.1);
(5) Paragraph 37(3)(b) of the French version of the Act is replaced by the following:
b) prévoir les cas où le ministre ou son délégué peut prendre l’arrêté visé au paragraphe (2), ainsi que les modalités de fond et de forme applicables;
(6) Subsection 37(3) of the Act is amended by adding “and” at the end of paragraph (b) and by adding the following after paragraph (b):
(c) defining “ecologically significant area” for the purposes of subsection (1.1).
R.S., c. 31 (1st Supp.), s. 34; 2001, c. 26, s. 300
145. (1) Subsections 38(1) to (10) of the Act are replaced by the following:
Power to designate
38. (1) The Minister may designate persons or classes of persons as inspectors or analysts for the purposes of the administration and enforcement of this Act.
Certificate to be produced
(2) The Minister shall provide every inspector with a certificate of designation and on entering any place or premises referred to in subsection (3) an inspector shall, if so required, show the certificate to the person in charge.
Authority to enter
(3) An inspector may, for a purpose related to verifying compliance with this Act, enter any place or premises, including a vehicle or vessel — other than a private dwelling-place or any part of any place or premises, including a vehicle or vessel, used as a permanent or temporary private dwelling-place — in which the inspector believes on reasonable grounds that
(a) there is anything that is detrimental to fish habitat; or
(b) there has been carried on, is being carried on or is likely to be carried on any work, undertaking or activity resulting or likely to result in
(i) the alteration or disruption of fish habitat, or
(ii) the deposit of a substance in water frequented by fish or in any place under any conditions where the substance or any other substance that results from the deposit of the substance may enter any such water.
Powers on entry
(3.1) The inspector may, for a purpose related to verifying compliance with this Act, examine any substance or product in the place or premises, take samples of it and conduct tests and measurements.
Duty to notify — alteration, disruption, destruction
(4) Every person shall without delay notify an inspector, a fishery officer or an authority prescribed by the regulations of a harmful alteration or disruption or a destruction of fish habitat that is not authorized under this Act, or of a serious and imminent danger of such an occurrence, if the person at any material time
(a) owns or has the charge, management or control of the work, undertaking or activity that resulted in the alteration, disruption or destruction of fish habitat or the danger of the alteration, disruption or destruction; or
(b) causes or contributes to the occurrence or the danger of the occurrence.
Duty to notify — deleterious substance
(5) If there occurs a deposit of a deleterious substance in water frequented by fish that is not authorized under this Act, or if there is a serious and imminent danger of such an occurrence, and detriment to fish habitat or fish or to the use by humans of fish results or may reasonably be expected to result from the occurrence, then every person shall without delay notify an inspector, a fishery officer or an authority prescribed by the regulations if the person at any material time
(a) owns or has the charge, management or control of
(i) the deleterious substance, or
(ii) the work, undertaking or activity that resulted in the deposit or the danger of the deposit; or
(b) causes or contributes to the occurrence or the danger of the occurrence.
Duty to take corrective measures
(6) Any person described in paragraph (4)(a) or (b) or (5)(a) or (b) shall, as soon as feasible, take all reasonable measures consistent with public safety and with the conservation and protection of fish and fish habitat to prevent the occurrence or to counteract, mitigate or remedy any adverse effects that result from the occurrence or might reasonably be expected to result from it.
Report
(7) As soon as feasible after the occurrence or after learning of the danger of the occurrence, the person shall provide an inspector, fishery officer or an authority prescribed by the regulations with a written report on the occurrence or danger of the occurrence.
Corrective measures
(7.1) If an inspector or fishery officer, whether or not they have been notified under subsection (4) or (5) or provided with a report under subsection (7), is satisfied on reasonable grounds that immediate action is necessary in order to take any measures referred to in subsection (6), the inspector or officer may, subject to subsection (7.2), take any of those measures at the expense of any person described in paragraph (4)(a) or (b) or (5)(a) or (b) or direct such a person to take them at that person’s expense.
Inconsistency
(7.2) Any direction of an inspector or fishery officer under this section that is inconsistent with any direction under the Canada Shipping Act, 2001 is void to the extent of the inconsistency.
Access to property
(8) For the purposes of subsections (4) to (7.1), any inspector or other person may enter and have access through any place or premises, including a vehicle or vessel — other than a private dwelling-place or any part of any place or premises, including a vehicle or vessel, used as a permanent or temporary private dwelling-place — and may take all reasonable measures in order to ensure that those subsections are complied with. However, nothing in this subsection relieves any person from liability at law for illegal or negligent acts or omissions or for loss or damage caused to others by the entry, access or measure.
Regulations
(9) The Governor in Council may make regulations prescribing
(a) the authority for the purposes of subsection (4) or (5), the manner in which the notification under those subsections is to be made, the information to be contained in the notification and the circumstances in which no notification need be made;
(b) the authority for the purposes of subsection (7), the manner in which the report under that subsection is to be made, the information to be contained in the report and the circumstances in which no report need be made;
(c) the manner in which inspectors and fishery officers may take any measures or give any directions under subsection (7.1) and the conditions to which those measures are subject;
(d) the manner and circumstances in which any measures taken or directions given under subsection (7.1) may be reviewed, rescinded or varied; and
(e) any other matters necessary for or incidental to carrying out the purposes and provisions of this section.
Assistance to inspectors
(10) The owner or person in charge of any place or premises entered by an inspector under subsection (3) and every person found there shall give the inspector all reasonable assistance to enable the inspector to carry out their duties and functions under this section and shall provide the inspector with any information with respect to verifying compliance with this Act that the inspector requires.
(2) Subparagraph 38(3)(b)(i) of the Act is replaced by the following:
(i) serious harm to fish that are part of a commercial, recreational or Aboriginal fishery, or to fish that support such a fishery,
(3) The portion of subsection 38(4) of the Act before paragraph (b) is replaced by the following:
Duty to notify — serious harm to fish
(4) Every person shall without delay notify an inspector, a fishery officer or an authority prescribed by the regulations of an occurrence that results in serious harm to fish that are part of a commercial, recreational or Aboriginal fishery, or to fish that support such a fishery, that is not authorized under this Act, or of a serious and imminent danger of such an occurrence, if the person at any material time
(a) owns or has the charge, management or control of the work, undertaking or activity that resulted in the occurrence or the danger of the occurrence; or
(4) Paragraph 38(4)(b) of the French version of the Act is replaced by the following:
b) celle qui est à l’origine des dommages, ou y contribue.
146. The Act is amended by adding the following after section 38:
Search
39. (1) A fishery officer or inspector who has a warrant issued under subsection (2) in which the officer or inspector is named may enter any place or premises, including a vehicle or vessel — other than a private dwelling-place or any part of any place or premises, including a vehicle or vessel, used as a permanent or temporary private dwelling-place — in which the officer or inspector has reasonable grounds to believe that an offence under subsection 40(1), (2) or (3) is being or has been committed and search the place, premises, vehicle or vessel for evidence of the offence.
Authority to issue warrant
(2) On ex parte application, a justice of the peace may issue a warrant authorizing any fishery officer or inspector named in the warrant to enter and search any place or premises referred to in subsection (1), subject to any conditions that are specified in the warrant, if the justice is satisfied by information on oath that there are reasonable grounds to believe that there is in the place or premises
(a) anything on or in respect of which an offence under subsection 40(1), (2) or (3) is being or has been committed; or
(b) anything that there are reasonable grounds to believe will afford evidence with respect to the commission of an offence under subsection 40(1), (2) or (3).
Use of force
(3) In executing a warrant issued under subsection (2), an inspector named in the warrant may use force only if they are accompanied by a peace officer and the use of force has been specifically authorized in the warrant.
When warrant not necessary
(4) A fishery officer or inspector may exercise the powers of entry and search referred to in subsection (1) without a warrant issued under subsection (2) if the conditions for obtaining the warrant exist but by reason of exigent circumstances it would not be practical to obtain the warrant.
Exigent circumstances
(5) For the purposes of subsection (4), exigent circumstances include circumstances in which the delay necessary to obtain a warrant would result in danger to human life or safety or the loss or destruction of evidence.
1991, c. 1, s. 10(1)
147. (1) The portion of subsection 40(1) of the English version of the Act before paragraph (a) is replaced by the following:
Offence and punishment
40. (1) Every person who contravenes subsection 35(1) is guilty of an offence and liable
1991, c. 1, s. 10(1)
(2) Paragraphs 40(1)(a) and (b) of the Act are replaced by the following:
(a) on conviction on indictment,
(i) in the case of an individual,
(A) for a first offence, to a fine of not less than $15,000 and not more than $1,000,000, and
(B) for a second or subsequent offence, to a fine of not less than $30,000 and not more than $2,000,000, or to imprisonment for a term not exceeding three years, or to both,
(ii) in the case of a person, other than an individual or a corporation referred to in subparagraph (iii),
(A) for a first offence, to a fine of not less than $500,000 and not more than $6,000,000, and
(B) for a second or subsequent offence, to a fine of not less than $1,000,000 and not more than $12,000,000, and
(iii) in the case of a corporation that the court has determined to be a small revenue corporation,
(A) for a first offence, to a fine of not less than $75,000 and not more than $4,000,000, and
(B) for a second or subsequent offence, to a fine of not less than $150,000 and not more than $8,000,000; or
(b) on summary conviction,
(i) in the case of an individual,
(A) for a first offence, to a fine of not less than $5,000 and not more than $300,000, and
(B) for a second or subsequent offence, to a fine of not less than $10,000 and not more than $600,000, or to imprisonment for a term not exceeding six months, or to both,
(ii) in the case of a person, other than an individual or a corporation referred to in subparagraph (iii),
(A) for a first offence, to a fine of not less than $100,000 and not more than $4,000,000, and
(B) for a second or subsequent offence, to a fine of not less than $200,000 and not more than $8,000,000, and
(iii) in the case of a corporation that the court has determined to be a small revenue corporation,
(A) for a first offence, to a fine of not less than $25,000 and not more than $2,000,000, and
(B) for a second or subsequent offence, to a fine of not less than $50,000 and not more than $4,000,000.
1991, c. 1, s. 10(1)
(3) The portion of subsection 40(2) of the English version of the Act before paragraph (a) is replaced by the following:
Offence and punishment
(2) Every person who contravenes subsection 36(1) or (3) is guilty of an offence and liable
1991, c. 1, s. 10(1)
(4) Paragraphs 40(2)(a) and (b) of the Act are replaced by the following:
(a) on conviction on indictment,
(i) in the case of an individual,
(A) for a first offence, to a fine of not less than $15,000 and not more than $1,000,000, and
(B) for a second or subsequent offence, to a fine of not less than $30,000 and not more than $2,000,000, or to imprisonment for a term not exceeding three years, or to both,
(ii) in the case of a person, other than an individual or a corporation referred to in subparagraph (iii),
(A) for a first offence, to a fine of not less than $500,000 and not more than $6,000,000, and
(B) for a second or subsequent offence, to a fine of not less than $1,000,000 and not more than $12,000,000, and
(iii) in the case of a corporation that the court has determined to be a small revenue corporation,
(A) for a first offence, to a fine of not less than $75,000 and not more than $4,000,000, and
(B) for a second or subsequent offence, to a fine of not less than $150,000 and not more than $8,000,000; or
(b) on summary conviction,
(i) in the case of an individual,
(A) for a first offence, to a fine of not less than $5,000 and not more than $300,000, and
(B) for a second or subsequent offence, to a fine of not less than $10,000 and not more than $600,000, or to imprisonment for a term not exceeding six months, or to both,
(ii) in the case of a person, other than an individual or a corporation referred to in subparagraph (iii),
(A) for a first offence, to a fine of not less than $100,000 and not more than $4,000,000, and
(B) for a second or subsequent offence, to a fine of not less than $200,000 and not more than $8,000,000, and
(iii) in the case of a corporation that the court has determined to be a small revenue corporation,
(A) for a first offence, to a fine of not less than $25,000 and not more than $2,000,000, and
(B) for a second or subsequent offence, to a fine of not less than $50,000 and not more than $4,000,000.
(5) Section 40 of the Act is amended by adding the following after subsection (2):
Small revenue corporation status
(2.1) For the purpose of subsections (1) and (2), a court may determine a corporation to be a small revenue corporation if the court is satisfied that the corporation’s gross revenues for the 12 months immediately before the day on which the subject matter of the proceedings arose — or, if it arose on more than one day, for the 12 months immediately before the first day on which the subject matter of the proceedings arose — were not more than $5,000,000.
Relief from minimum fine
(2.2) The court may impose a fine that is less than the minimum amount provided for in subsection (1) or (2) if it is satisfied, on the basis of evidence submitted to the court, that the minimum fine would cause undue financial hardship. The court shall provide reasons if it imposes a fine that is less than the minimum amount provided for in either of those subsections.
(6) Paragraph 40(3)(a) of the Act is replaced by the following:
(a) in carrying on a work, undertaking or activity, fails to comply with a prescribed condition of an authorization under paragraph 35(2)(a) or (c), with a condition established by the Minister under paragraph 35(2)(b), or with a condition set out in the regulations or established under any other authorization issued under this Act,
(a.1) fails to provide any material or information as requested by the Minister under subsection 37(1) within a reasonable time after the request is made,
(7) Paragraph 40(3)(a.1) of the Act is replaced by the following:
(a.1) fails to provide any material or information as requested by the Minister under subsection 37(1) or (1.1) within a reasonable time after the request is made,
(8) Paragraphs 40(3)(c) to (f) of the Act are replaced by the following:
(c) fails to provide notification that he or she is required to provide under subsection 38(4) or (5),
(d) carries on any work, undertaking or activity described in subsection 37(1)
(i) otherwise than in accordance with any material or information relating to the work, undertaking or activity that he or she provides to the Minister under subsection 37(1),
(ii) otherwise than in accordance with any such material or information as required to be modified by any order of the Minister under paragraph 37(2)(a), or
(iii) contrary to any order made by the Minister under subsection 37(2),
(e) fails to take any reasonable measures that he or she is required to take under subsection 38(6) or fails to take those measures in the required manner,
(f) fails to provide a report that he or she is required to provide under subsection 38(7), or
(g) fails to comply with the whole or any part of a direction of an inspector or a fishery officer under subsection 38(7.1),
(9) The portion of paragraph 40(3)(d) of the Act before subparagraph (ii) is replaced by the following:
(d) carries on any work, undertaking or activity described in subsection 37(1) or (1.1)
(i) otherwise than in accordance with any material or information relating to the work, undertaking or activity that he or she provides to the Minister under subsection 37(1) or (1.1),
(10) Subsection 40(3) of the Act is amended by striking out “or” at the end of paragraph (f), by adding “or” and the end of paragraph (g) and adding the following after paragraph (g):
(h) fails to comply with a request of the Minister made under section 20,
1991, c. 1, s. 11.1
148. Subsection 42.1(1) of the Act is replaced by the following:
Annual report
42.1 (1) The Minister shall, as soon as feasible after the end of each fiscal year, prepare and cause to be laid before each house of Parliament a report on the administration and enforcement of the provisions of this Act relating to fisheries protection and pollution prevention for that year.
149. (1) Section 43 of the Act is amended by adding the following after paragraph (i):
(i.1) for the purposes of paragraphs 32(2)(a) and 35(2)(a), prescribing anything that is authorized to be prescribed;
(i.2) respecting applications for the authorizations referred to in paragraph 32(2)(c) or (d) or 35(2)(b) or (c);
(i.3) prescribing the conditions under which and requirements subject to which persons or entities referred to in paragraph 32(2)(d) or 35(2)(c) may grant the authorization;
(i.4) respecting time limits for issuing authorizations referred to in paragraph 32(2)(c) or (d) or 35(2)(b) or (c), or for refusing to do so;
(2) Paragraphs 43(1)(i.1) to (i.4) of the Act are replaced by the following:
(i.01) excluding fisheries from the definitions “Aboriginal”, “commercial” and “rec-reational”;
(i.1) for the purposes of paragraph 35(2)(a), prescribing anything that is authorized to be prescribed;
(i.2) respecting applications for the authorizations referred to in paragraph 35(2)(b) or (c);
(i.3) prescribing the conditions under which and requirements subject to which persons or entities referred to in paragraph 35(2)(c) may grant the authorization;
(i.4) respecting time limits for issuing authorizations referred to in paragraph 35(2)(b) or (c), or for refusing to do so;
(3) Section 43 of the Act is amended by deleting “and” at the end of paragraph (l) and by adding the following after paragraph (m):
(n) establishing a list of aquatic invasive species;
(o) respecting the control of aquatic invasive species, including regulations
(i) respecting the prevention of the spread of such species,
(ii) respecting the possession of members of such species, and their import, export and transport,
(iii) respecting the release of members of such species into Canadian fisheries waters,
(iv) respecting the handling of members of such species, or
(v) requiring any person to keep any record, book or other document containing any information relevant to the control of such species, and respecting where, how and how long they are to be kept; and
(p) prescribing anything that is required or authorized by this Act to be prescribed.
(4) Section 43 of the Act is renumbered as subsection 43(1) and is amended by adding the following:
Regulations — Governor in Council
(2) The Governor in Council may make regulations establishing conditions for the exercise of the Minister’s power to make regulations under subsection (3).
Amendments to list of aquatic invasive species
(3) The Minister may, by regulation, add species to the list of aquatic invasive species established by regulations made under paragraph (1)(n) or remove species from that list, and vary the places to which regulations made under paragraph (1)(o) apply.
Statutory Instruments Act
(4) Regulations made under subsection (3) are exempt from section 3 of the Statutory Instruments Act.
(5) Section 43 of the Act is amended by adding the following after subsection (4):
Regulations exempting certain Canadian fisheries waters
(5) The Governor in Council may make regulations exempting any Canadian fisheries waters from the application of sections 20, 21 and 35 and subsection 38(4).
150. The Act is amended by adding the following after section 43:
Recommendation
43.1 Orders and regulations under subsections 4.2(1) and (3), 34(2), 36(5) and (5.1), 37(3) and 38(9) and section 43 are made on the recommendation of the Minister or, if they are made for the purposes of and in relation to the subject matters set out in an order made under section 43.2, on the recommendation of the minister designated under that section.
Designation
43.2 (1) The Governor in Council may, on the recommendation of the Minister and any other federal minister, by order, designate that other minister as the minister responsible for the administration and enforcement of subsections 36(3) to (6) for the purposes and in relation to the subject-matters set out in the order.
Designated minister’s powers, duties and functions
(2) The order may set out any powers, duties or functions of the Minister under this Act that the designated minister may exercise or perform — or any provisions of this Act in which a reference to the Minister is a reference to the designated minister — for the purposes of administering and enforcing subsections 36(3) to (6).
1991, c. 1, s. 18
151. Subsection 63(1) of the Act is replaced by the following:
False statements
63. (1) No person shall make a false or misleading statement, whether orally or in writing, to an inspector, a fishery officer, a fishery guardian, any authority designated by a fishery officer or a fishery guardian or any authority prescribed under paragraph 38(9)(a) or (b) who is carrying out duties or functions under this Act.
1991, c. 1, s. 19
152. The heading before section 66 and sections 66 and 67 of the Act are repealed.
1991, c. 1, s. 21
153. Section 69 of the Act is repealed.
1991, c. 1, s. 26
154. Section 82 of the Act is replaced by the following:
Limitation period
82. A proceeding by way of summary conviction in respect of an offence under this Act may not be commenced later than five years after the day on which the offence was committed.
155. The Act is amended by adding the following after section 88:
INCORPORATION BY REFERENCE
Externally produced material
89. (1) A regulation made under this Act may incorporate by reference material produced by a person or body other than the Minister, including by a government, a government agency or an international body.
Jointly produced material
(2) A regulation made under this Act may incorporate by reference material produced jointly by the Minister and a government or government agency for the purpose of harmonizing the regulation with other laws.
Internally produced standards
(3) A regulation made under this Act may incorporate by reference technical or explanatory material produced by the Minister, such as specifications, test methods, procedures, construction standards, operational standards, safety standards and performance standards of a technical nature.
Incorporation as amended from time to time
(4) Material may be incorporated by reference as it exists on a particular date or as it is amended from time to time.
Transmission and publication
(5) For greater certainty, a document that is incorporated by reference in a regulation is not required to be transmitted for registration or publication in the Canada Gazette by reason only that it is incorporated by reference.
Interpretation
(6) Subsections (1) to (5) do not limit any authority to make regulations incorporating material by reference that exists apart from those subsections.
Defence
90. A person is not liable to be found guilty of an offence for any contravention in respect of which a document that is incorporated by reference in a regulation is relevant unless, at the time of the alleged contravention, it was accessible as required by section 91 or was accessible to the person.
Accessibility of incorporated documents
91. The Minister shall ensure that any document that is incorporated by reference under subsection 89(1) is accessible.
Coming into Force
Order in council
156. Section 132, subsections 133(1), (3) and (4), sections 135 to 138, subsection 139(2), sections 140 and 141, subsections 142(2) to (4), 144(2) to (6), 145(2) to (4) and 147(1) to (5), (7), (9) and (10), section 148, subsections 149(2) and (5) and sections 152 and 153 come into force on a day to be fixed by order of the Governor in Council.
Division 6
1999, c. 33
Canadian Environmental Protection Act, 1999
Amendments to the Act
157. (1) Subsection 127(1) of the Canadian Environmental Protection Act, 1999 is replaced by the following:
Permit
127. (1) The Minister may, on application, issue a permit authorizing the loading for disposal and disposal of waste or other matter and, subject to the regulations, renew it no more than four times.
(2) The portion of subsection 127(2) of the English version of the Act before paragraph (a) is replaced by the following:
Application
(2) The application must
(3) Subsection 127(3) of the Act is replaced by the following:
Factors for consideration
(3) Before issuing a permit under subsection (1) or renewing it, the Minister shall comply with Schedule 6 and shall take into account any factors that the Minister considers necessary.
158. Subsection 129(2) of the Act is replaced by the following:
Duration of permit
(2) A Canadian permit shall specify that it is valid for a particular date or dates or for a particular period that shall not exceed one year. For greater certainty, this subsection applies to each renewal of a permit issued under subsection 127(1).
159. (1) Subsection 133(1) of the Act is replaced by the following:
Publication
133. (1) When issuing a Canadian permit or varying any of its conditions, the Minister shall publish the text of the permit or the varied condition, as the case may be, in the Environmental Registry.
(2) Subsection 133(1) of the Act is replaced by the following:
Publication
133. (1) When issuing a Canadian permit or varying any of its conditions or renewing a permit issued under subsection 127(1), the Minister shall publish the text of the permit, the varied condition or the renewed permit, as the case may be, in the Environmental Registry.
(3) Paragraph 133(2)(b) of the Act is replaced by the following:
(b) in every other case, at least seven days before the effective date of the permit or of the variation of its conditions.
(4) Paragraph 133(2)(b) of the Act is replaced by the following:
(b) in every other case, at least seven days before the effective date of the permit, the variation of its conditions or its renewal.
160. (1) Subsection 134(1) of the Act is amended by striking out “or” at the end of paragraph (a) and by adding the following after that paragraph:
(a.1) renews or refuses to renew a permit issued under subsection 127(1); or
(2) The portion of subsection 134(2) of the Act before paragraph (b) is replaced by the following:
Time for filing notice of objection
(2) The notice of objection shall be filed within seven days after
(a) the date the text of the Canadian permit is published in the Environmental Registry; or
(3) Paragraph 134(2)(a) of the Act is replaced by the following:
(a) the date the text of the Canadian permit or the permit renewed under subsection 127(1), as the case may be, is published in the Environmental Registry; or
(4) Paragraph 134(2)(b) of the English version of the Act is replaced by the following:
(b) the date the person receives a notice from the Minister that the Canadian permit has been refused, suspended or revoked, that its conditions have been varied or that the renewal of a permit issued under subsection 127(1) has been refused.
161. (1) Subsection 135(1) of the Act is amended by adding the following after paragraph (b):
(b.1) respecting time limits for issuing permits under subsection 127(1) or for refusing to issue them, specifying the circumstances under which any of those time limits do not apply and authorizing the Minister to extend any of those time limits or to decide that a time limit does not apply when the Minister considers that it is appropriate to do so;
(2) Subsection 135(1) of the Act is amended by adding the following before paragraph (c):
(b.2) respecting the renewal of permits under subsection 127(1), including regulations respecting time limits for renewing them or for refusing to renew them, specifying the circumstances under which any of those time limits do not apply and authorizing the Minister to extend any of those time limits or to decide that a time limit does not apply when the Minister considers that it is appropriate to do so;
2005, c. 23 s. 26
(3) Paragraph 135(3)(a) of the Act is replaced by the following:
(a) prescribing the form of an application for a Canadian permit or for the renewal of a permit issued under subsection 127(1);
2005, c. 23 s. 26
(4) Paragraph 135(3)(b) of the English version of the Act is replaced by the following:
(b) specifying the information required to be contained in or to accompany an application referred to in paragraph (a);