;

Bill C-38

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C-38

First Session, Forty-first Parliament,

60-61 Elizabeth II, 2011-2012

HOUSE OF COMMONS OF CANADA

BILL C-38

An Act to implement certain provisions of the budget tabled in Parliament on March 29, 2012 and other measures

first reading, April 26, 2012

MINISTER OF FINANCE

90652

RECOMMENDATION

His Excellency the Governor General recommends to the House of Commons the appropriation of public revenue under the circumstances, in the manner and for the purposes set out in a measure entitled “An Act to implement certain provisions of the budget tabled in Parliament on March 29, 2012 and other measures”.

SUMMARY

Part 1 of this enactment implements certain income tax measures and related measures proposed in the March 29, 2012 budget. Most notably, it

(a) expands the list of eligible expenses under the Medical Expense Tax Credit to include blood coagulation monitors and their disposable peripherals;

(b) introduces a temporary measure to allow certain family members to open a Registered Disability Savings Plan for an adult individual who might not be able to enter into a contract;

(d) allows corporations to make split and late eligible dividend designations;

(e) makes the salary of the Governor General taxable and adjusts that salary;

(f) allows a designated partner of a partnership to provide a waiver on behalf of all partners to extend the time limit for issuing a determination in respect of the partnership;

(g) amends the penalty applicable to promoters of charitable donation tax shelters who file false registration information or who fail to register a tax shelter prior to selling interests in the tax shelter;

(h) introduces a new penalty applicable to tax shelter promoters who fail to respond to a demand to file an information return or who file an information return that contains false or misleading sales information;

(i) limits the period for which a tax shelter identification number is valid to one calendar year;

(j) modifies the rules for registering certain foreign charitable organizations as qualified donees;

(k) amends the rules for determining the extent to which a charity has engaged in political activities; and

(l) provides the Minister of National Revenue with the authority to suspend the privileges, with respect to issuing tax receipts, of a registered charity or a registered Canadian amateur athletic association if the charity or association fails to report information that is required to be filed annually in an information return or devotes resources to political activities in excess of the limits set out in the Income Tax Act.

Part 1 also implements other selected income tax measures and related measures. Most notably, it

(a) amends the Income Tax Act consequential on the implementation of the Marketing Freedom for Grain Farmers Act, including the extension of the tax deferral allowed to farmers in a designated area who produce listed grains and receive deferred cash purchase tickets to all Canadian farmers who produce listed grains and receive deferred cash purchase tickets;

(b) provides authority for the Canada Revenue Agency to issue via online notice or regular mail demands to file a return; and

Part 2 amends the Excise Tax Act to implement certain excise tax and goods and services tax/harmonized sales tax (GST/HST) measures proposed in the March 29, 2012 Budget. It expands the list of GST/HST zero-rated medical and assistive devices as well as the list of GST/HST zero-rated non-prescription drugs that are used to treat life-threatening diseases. It also exempts certain pharmacists’ professional services from the GST/HST, other than prescription drug dispensing services that are already zero-rated. It further allows certain literacy organizations to claim a rebate of the GST and the federal component of the HST paid on the acquisition of books to be given away for free by those organizations. It also implements legislative requirements relating to the Government of British Columbia’s decision to exit the harmonized sales tax framework. Additional amendments to that Act and related regulations in respect of foreign-based rental vehicles temporarily imported by Canadian residents provide, in certain circumstances, relief from the GST/HST, the Green Levy on fuel-inefficient vehicles and the automobile air conditioner tax. This Part further amends that Act to ensure that changes to the standardized fuel consumption test method used for the EnerGuide, as announced on February 17, 2012 by the Minister of Natural Resources, do not affect the application of the Green Levy.

Finally, Part 2 amends the Air Travellers Security Charge Act, the Excise Act, 2001 and the Excise Tax Act to provide authority for the Canada Revenue Agency to issue via online notice or regular mail demands to file a return.

Part 3 contains certain measures related to responsible resource development.

Division 1 of Part 3 enacts the Canadian Environmental Assessment Act, 2012, which establishes a new federal environmental assessment regime. Assessments are conducted in relation to projects, designated by regulations or by the Minister of the Environment, to determine whether they are likely to cause significant adverse environmental effects that fall within the legislative authority of Parliament, or that are directly linked or necessarily incidental to a federal authority’s exercise of a power or performance of a duty or function that is required for the carrying out of the project.

The Canadian Environmental Assessment Agency, the Canadian Nuclear Safety Commission, the National Energy Board or a review panel established by the Minister are to conduct assessments within applicable time limits. At the end of an assessment, a decision statement is to be issued to the project proponent who is required to comply with the conditions set out in it.

The enactment provides for cooperation between the federal government and other jurisdictions by enabling the delegation of an environmental assessment, the substitution of the process of another jurisdiction for an environmental assessment under the Act and the exclusion of a project from the application of the Act when there is an equivalent assessment by another jurisdiction. The enactment requires that there be opportunities for public participation during an environmental assessment, that participant funding programs and a public registry be established, and that there be follow-up programs in relation to all environmental assessments. It also provides for powers of inspection and fines.

Finally, the enactment specifies that federal authorities are not to take certain measures regarding the carrying out of projects on federal lands or outside Canada unless they determine that those projects are not likely to cause significant adverse environmental effects.

This Division also makes related amendments to the Environmental Violations Administrative Monetary Penalties Act and consequential amendments to other Acts, and repeals the Canadian Environmental Assessment Act.

Division 2 of Part 3 amends the National Energy Board Act to allow the Governor in Council to make the decision about the issuance of certificates for major pipelines. It amends the Act to establish time limits for regulatory reviews under the Act and to enhance the powers of the National Energy Board Chairperson and the Minister responsible for the Act to ensure that those reviews are conducted in a timely manner. It also amends the Act to permit the National Energy Board to exercise federal jurisdiction over navigation in respect of pipelines and power lines that cross navigable waters and it establishes an administrative monetary penalty system.

Division 3 of Part 3 amends the Canada Oil and Gas Operations Act to authorize the National Energy Board to exercise federal jurisdiction over navigation in respect of pipelines and power lines that cross navigable waters.

Division 4 of Part 3 amends the Nuclear Safety and Control Act to extend the maximum allowable term of temporary members of the Canadian Nuclear Safety Commission from six months to three years. It is also amended to allow for a licence to be transferred with the consent of that Commission and it puts in place an administrative monetary penalty system.

Division 5 of Part 3 amends the Fisheries Act to focus that Act on the protection of fish that support commercial, recreational or Aboriginal fisheries and to more effectively manage those activities that pose the greatest threats to these fisheries. The amendments provide additional clarity for the authorization of serious harm to fish and of deposits of deleterious substances. The amendments allow the Minister to enter into agreements with provinces and with other bodies, provide for the control and management of aquatic invasive species, clarify and expand the powers of inspectors, and permit the Governor in Council to designate another Minister as the Minister responsible for the administration and enforcement of subsections 36(3) to (6) of the Fisheries Act for the purposes of, and in relation to, subject matters set out by order.

Division 6 of Part 3 amends the Canadian Environmental Protection Act, 1999 to provide the Minister of the Environment with the authority to renew disposal at sea permits in prescribed circumstances. It is also amended to change the publication requirements for disposal at sea permits and to provide authority to make regulations respecting time limits for their issuance and renewal.

Division 7 of Part 3 amends the Species at Risk Act to allow for the issuance of authorizations with a longer term, to clarify the authority to renew the authorizations and to make compliance with conditions of permits enforceable. The Act is also amended to provide authority to make regulations respecting time limits for the issuance and renewal of permits under the Act. Furthermore, section 77 is amended to ensure that the National Energy Board will be able to issue a certificate when required to do so by the Governor in Council under subsection 54(1) of the National Energy Board Act.

Part 4 enacts and amends several Acts in order to implement various measures.

Division 1 of Part 4 amends a number of Acts to eliminate the requirement for the Auditor General of Canada to undertake annual financial audits of certain entities and to assess the performance reports of two agencies. This Division also eliminates other related obligations.

Division 2 of Part 4 amends the Trust and Loan Companies Act, the Bank Act and the Cooperative Credit Associations Act to prohibit the issuance of life annuity-like products.

Division 3 of Part 4 provides that PPP Canada Inc. is an agent of Her Majesty for purposes limited to its mandated activities at the federal level, including the provision of advice to federal departments and Crown corporations on public-private partnership projects.

Division 4 of Part 4 amends the Northwest Territories Act, the Nunavut Act and the Yukon Act to provide the authority for the Governor in Council to set, on the recommendation of the Minister of Finance, the maximum amount of territorial borrowings and to make regulations in relation to those maximum amounts, including what constitutes borrowing, the relevant entities and the valuation of the borrowings.

Division 5 of Part 4 amends the Financial Administration Act to modify, for parent Crown corporations, the period to which their quarterly financial reports relate, so that it is aligned with their financial year, and to include in the place of certain annual tabling requirements related to the business and activities of parent Crown corporations a requirement to make public consolidated quarterly reports on their business and activities. It also amends the Alternative Fuels Act and the Public Service Employment Act to eliminate certain reporting requirements.

Division 6 of Part 4 amends the Department of Human Resources and Skills Development Act to establish the Social Security Tribunal and to add provisions authorizing the electronic administration or enforcement of programs, legislation, activities or policies. It also amends the Canada Pension Plan, the Old Age Security Act and the Employment Insurance Act so that appeals from decisions made under those Acts will be heard by the Social Security Tribunal. Finally, it provides for transitional provisions and makes consequential amendments to other Acts.

Division 7 of Part 4 amends the Department of Human Resources and Skills Development Act to add provisions relating to the protection of personal information obtained in the course of administering or enforcing the Canada Pension Plan and the Old Age Security Act and repeals provisions in the Canada Pension Plan and the Old Age Security Act that are the substantially the same as those that are added to the Human Resources and Skills Development Act.

Division 8 of Part 4 amends the Department of Human Resources and Skills Development Act to add provisions relating to the social insurance registers and Social Insurance Numbers. It also amends the Canada Pension Plan in relation to Social Insurance Numbers and the Employment Insurance Act to repeal certain provisions relating to the social insurance registers and Social Insurance Numbers and to maintain the power to charge the costs of those registers to the Employment Insurance Operating Account.

Division 9 of Part 4 amends the Parks Canada Agency Act to provide that the Agency may enter into agreements with other ministers or bodies to assist in the administration and enforcement of legislation in places outside national parks, national historic sites, national marine conservation areas and other protected heritage areas if considerations of geography make it impractical for the other minister or body to administer and enforce that legislation in those places. It also amends that Act to provide that the Chief Executive Officer is to report to the Minister of the Environment under section 31 of that Act every five years. It amends that Act to remove the requirements for annual corporate plans, annual reports and annual audits, and amends that Act, the Canada National Parks Act and the Canada National Marine Conservation Areas Act to provide that that Minister is to review management plans for national parks, national historic sites, national marine conservation areas and other protected heritage areas at least every 10 years and is to have any amendments to a plan tabled in Parliament.

Division 10 of Part 4 amends the Trust and Loan Companies Act, the Bank Act and the Insurance Companies Act in order to allow public sector investment pools that satisfy certain criteria, including pursuing commercial objectives, to directly invest in a Canadian financial institution, subject to approval by the Minister of Finance.

Division 11 of Part 4 amends the National Housing Act, the Canada Mortgage and Housing Corporation Act and the Supporting Vulnerable Seniors and Strengthening Canada’s Economy Act to enhance the governance and oversight framework of the Canada Mortgage and Housing Corporation.

This Division also amends the National Housing Act to establish a registry for institutions that issue covered bonds and for covered bond programs and to provide for the protection of covered bond contracts and covered bond collateral in the event of an issuer’s bankruptcy or insolvency. It also makes amendments to the Trust and Loan Companies Act, the Bank Act, the Insurance Companies Act and the Cooperative Credit Associations Act to prohibit institutions from issuing covered bonds except within the framework established under the National Housing Act. Finally, it includes a coordinating amendment to the Supporting Vulnerable Seniors and Strengthening Canada’s Economy Act.

Division 12 of Part 4 implements the Framework Agreement on Integrated Cross-Border Maritime Law Enforcement Operations between the Government of Canada and the Government of the United States of America signed on May 26, 2009.

Division 13 of Part 4 amends the Bretton Woods and Related Agreements Act to reflect an increase in Canada’s quota subscription, as related to the ratification of the 2010 Quota and Governance reform resolution of the Board of Governors of the International Monetary Fund, and to align the timing of the annual report under that Act to correspond to that of the annual report under the Official Development Assistance Accountability Act.

Division 14 of Part 4 amends the Canada Health Act so that members of the Royal Canadian Mounted Police are included in the definition of “insured person”.

Division 15 of Part 4 amends the Canadian Security Intelligence Service Act to

(a) remove the office of the Inspector General;

(b) require the Security Intelligence Review Committee to submit to the Minister of Public Safety and Emergency Preparedness a certificate on the Director of the Canadian Security Intelligence Service’s annual report; and

Division 16 of Part 4 amends the Currency Act to clarify certain provisions that relate to the calling in and the redemption of coins.

Division 17 of Part 4 amends the Federal-Provincial Fiscal Arrangements Act in order to implement the total transfer protection for the 2012-2013 fiscal year and to give effect to certain elements of major transfer renewal that were announced by the Minister of Finance on December 19, 2011. It also makes certain administrative amendments to that Act and to the Canada Health Act.

Division 18 of Part 4 amends the Fisheries Act to authorize the Minister of Fisheries and Oceans to allocate fish for the purpose of financing scientific and fisheries management activities in the context of joint project agreements.

Division 19 of Part 4 amends the Food and Drugs Act to give the Minister of Health the power to establish a list that sets out prescription drugs or classes of prescription drugs and to provide that the list may be incorporated by reference. It also gives the Minister the power to issue marketing authorizations that exempt a food, or an advertisement with respect to a food, from certain provisions of the Act. The division also provides that a regulation with respect to a food and a marketing authorization may incorporate by reference any document. It also makes consequential amendments to other Acts.

Division 20 of Part 4 amends the Government Employees Compensation Act to allow prescribed entities to be subrogated to the rights of employees to make claims against third parties.

Division 21 of Part 4 amends the International Development Research Centre Act to reduce the maximum number of governors of the Centre to 14, and to consequently change other rules about the number of governors.

Division 22 of Part 4 amends Part I of the Canada Labour Code to require the parties to a collective agreement to file a copy of it with the Minister of Labour, subject to the regulations, as a condition for it to come into force. It amends Part III of that Act to require employers that provide benefits to their employees under long-term disability plans to insure those plans, subject to certain exceptions. The Division also amends that Part to create an offence and to increase maximum fines for offences under that Part.

Division 23 of Part 4 repeals the Fair Wages and Hours of Labour Act.

Division 24 of Part 4 amends the Old Age Security Act to provide the Minister of Human Resources and Skills Development with the authority to waive the requirement for an application for Old Age Security benefits for many eligible seniors, to gradually increase the age of eligibility for the Old Age Security Pension, the Guaranteed Income Supplement, the Allowance and the Allowance for the Survivor and to allow individuals to voluntarily defer their Old Age Security Pension up to five years past the age of eligibility, in exchange for a higher, actuarially adjusted, pension.

Division 25 of Part 4 dissolves the Public Appointments Commission and its secretariat.

Division 26 of Part 4 amends the Seeds Act to give the President of the Canadian Food Inspection Agency the power to issue licences to persons authorizing them to perform activities related to controlling or assuring the quality of seeds or seed crops.

Division 27 of Part 4 amends the Statutory Instruments Act to remove the distribution requirements for the Canada Gazette.

Division 28 of Part 4 amends the Investment Canada Act in order to authorize the Minister of Industry to communicate or disclose certain information relating to investments and to accept security in order to promote compliance with undertakings.

Division 29 of Part 4 amends the Customs Act to allow the Minister of Public Safety and Emergency Preparedness to designate a portion of a roadway or other access way that leads to a customs office and that is used by persons arriving in Canada and by persons travelling within Canada as a mixed-traffic corridor. All persons who are travelling in a mixed-traffic corridor must present themselves to a border services officer and state whether they are arriving from a location outside or within Canada.

Division 30 of Part 4 gives retroactive effect to subsections 39(2) and (3) of the Pension Benefits Standards Act, 1985.

Division 31 of Part 4 amends the Railway Safety Act to limit the apportionment of costs to a road authority when a grant has been made under section 12 of that Act.

Division 32 of Part 4 amends the Canadian International Trade Tribunal Act to replace the two Vice-chairperson positions with two permanent member positions.

Division 33 of Part 4 repeals the International Centre for Human Rights and Democratic Development Act and authorizes the closing out of the affairs of the Centre established by that Act.

Division 34 of Part 4 amends the Health of Animals Act to allow the Minister of Agriculture and Agri-Food to declare certain areas to be control zones in respect of a disease or toxic substance. The enactment also grants the Minister certain powers, including the power to make regulations prohibiting the movement of persons, animals or things in the control zones for the purpose of eliminating a disease or toxic substance or controlling its spread and the power to impose conditions on the movement of animals or things in those zones.

Division 35 of Part 4 amends the Canada School of Public Service Act to abolish the Board of Governors of the Canada School of Public Service and to place certain responsibilities on the Minister designated for the purposes of the Act and on the President of the School.

Division 36 of Part 4 amends the Bank Act by adding a preamble to it.

Division 37 of Part 4 amends the Corrections and Conditional Release Act to eliminate the requirement of a hearing for certain reviews.

Division 38 of Part 4 amends the Coasting Trade Act to add seismic activities to the list of exceptions to the prohibition against foreign ships and non-duty paid ships engaging in the coasting trade.

Division 39 of Part 4 amends the Status of the Artist Act to dissolve the Canadian Artists and Producers Professional Relations Tribunal and transfer its powers and duties to the Canada Industrial Relations Board.

Division 40 of Part 4 amends the National Round Table on the Environment and the Economy Act to give the Round Table the power to sell or otherwise dispose of its assets and satisfy its debts and liabilities and to give the Minister of the Environment the power to direct the Round Table in respect of the exercise of some of its powers. The Division provides for the repeal of the Act and makes consequential amendments to other acts.

Division 41 of Part 4 amends the Telecommunications Act to change the rules relating to foreign ownership of Canadian carriers eligible to operate as telecommunications common carriers and to permit the recovery of costs associated with the administration and enforcement of the national do not call list.

Division 42 of Part 4 amends the Employment Equity Act to remove the requirements that are specific to the Federal Contractors Program for Employment Equity.

Division 43 of Part 4 amends the Employment Insurance Act to permit a person’s benefits to be determined by reference to their highest earnings in a given number of weeks, to permit regulations to be made respecting what constitutes suitable employment, to remove the requirement that a consent to deduction be in writing, to provide a limitation period within which certain repayments of overpayments need to be deducted and paid and to clarify the provisions respecting the refund of premiums to self-employed persons. It also amends that Act to modify the Employment Insurance premium rate-setting mechanism, including requiring that the rate be set on a seven-year break-even basis once the Employment Insurance Operating Account returns to balance. The Division makes consequential amendments to the Canada Employment Insurance Financing Board Act.

Division 44 of Part 4 amends the Customs Tariff to make certain imported fuels duty-free and to increase the travellers’ exemption thresholds.

Division 45 of Part 4 amends the Canada Marine Act to require provisions of a port authority’s letters patent relating to limits on the authority’s power to borrow money to be recommended by the Minister of Transport and the Minister of Finance before they are approved by the Governor in Council.

Division 46 of Part 4 amends the First Nations Land Management Act to implement changes made to the Framework Agreement on First Nation Land Management, including changes relating to the description of land that is to be subject to a land code, and to provide for the coming into force of land codes and the development by First Nations of environmental protection regimes.

Division 47 of Part 4 amends the Canada Travelling Exhibitions Indemnification Act to increase the maximum indemnity in respect of individual travelling exhibitions, as well as the maximum indemnity in respect of all travelling exhibitions.

Division 48 of Part 4 amends the Canadian Air Transport Security Authority Act to provide that the chief executive officer of the Authority is appointed by the Governor in Council and that an employee may not replace the chief executive officer for more than 90 days without the Governor in Council’s approval.

Division 49 of Part 4 amends the First Nations Fiscal and Statistical Management Act to repeal provisions related to the First Nations Statistical Institute and amends that Act and other Acts to remove any reference to that Institute. It authorizes the Minister of Indian Affairs and Northern Development to close out the Institute’s affairs.

Division 50 of Part 4 amends the Canadian Forces Members and Veterans Re-establishment and Compensation Act to provide for the payment or reimbursement of fees for career transition services for veterans or their survivors.

Division 51 of Part 4 amends the Department of Human Resources and Skills Development Act to add powers, duties and functions that are substantially the same as those conferred by the Department of Social Development Act. It repeals the Department of Social Development Act and, in doing so, eliminates the National Council of Welfare.

Division 52 of Part 4 amends the Wage Earner Protection Program Act in order to correct the English version of the definition “eligible wages”.

Division 53 of Part 4 repeals the Kyoto Protocol Implementation Act.

Division 54 of Part 4 amends the Immigration and Refugee Protection Act and the Budget Implementation Act, 2008 to provide for the termination of certain applications for permanent residence that were made before February 27, 2008. This Division also amends the Immigration and Refugee Protection Act to, among other things, authorize the Minister of Citizenship and Immigration to give instructions establishing and governing classes of permanent residents as part of the economic class and to provide that the User Fees Act does not apply in respect of fees set by those instructions. Furthermore, this Division amends the Immigration and Refugee Protection Act to allow for the retrospective application of certain regulations and certain instructions given by the Minister, if those regulations and instructions so provide, and to authorize regulations to be made respecting requirements imposed on employers in relation to authorizations to work in Canada.

Division 55 of Part 4 enacts the Shared Services Canada Act to establish Shared Services Canada to provide certain administrative services specified by the Governor in Council. The Act provides for the Governor in Council to designate a minister to preside over Shared Services Canada.

Division 56 of Part 4 amends the Assisted Human Reproduction Act to respond to the Supreme Court of Canada decision in Reference re Assisted Human Reproduction Act that was rendered in 2010, including by repealing the provisions that were found to be unconstitutional and abolishing the Assisted Human Reproduction Agency of Canada.

Also available on the Parliament of Canada Web Site at the following address:
http://www.parl.gc.ca

TABLE OF PROVISIONS

AN ACT TO IMPLEMENT CERTAIN PROVISIONS OF THE BUDGET TABLED IN PARLIAMENT ON MARCH 29, 2012 AND OTHER MEASURES

SHORT TITLE

1. Jobs, Growth and Long-term Prosperity Act

PART 1

AMENDMENTS TO THE INCOME TAX ACT, A RELATED ACT AND THE INCOME TAX REGULATIONS

2–18.

PART 2

MEASURES RELATING TO SALES AND EXCISE TAXES

19–51.

PART 3

RESPONSIBLE RESOURCE DEVELOPMENT

Division 1

Environmental Assessment

52. Enactment of the Canadian Environmental Assessment Act, 2012

AN ACT RESPECTING THE ENVIRONMENTAL ASSESSMENT OF CERTAIN ACTIVITIES AND THE PREVENTION OF SIGNIFICANT ADVERSE ENVIRONMENTAL EFFECTS

SHORT TITLE

1. Canadian Environmental Assessment Act, 2012

INTERPRETATION

2. Definitions

HER MAJESTY

3. Binding on Her Majesty

PURPOSES

4. Purposes

ENVIRONMENTAL EFFECTS

5. Environmental effects

PROHIBITIONS

6. Proponent

7. Federal authority

SCREENING

8. Proponent’s obligation — description of designated project

9. Posting of description of designated project and public notice on Internet site

10. Screening decision

11. Federal authority’s obligation

12. Posting notice of decision on Internet site

ENVIRONMENTAL ASSESSMENT REQUIRED

13. Activities regulated by regulatory body

14. Designation of physical activity as designated project

ENVIRONMENTAL ASSESSMENT OF DESIGNATED PROJECTS

Responsible Authority

15. Responsible authority

16. Cooperation

Commencement of Environmental Assessment

17. Posting of notice on Internet site

Consultation and Cooperation with Certain Jurisdictions

18. Responsible authority’s or Minister’s obligations

Factors To Be Considered

19. Factors

Federal Authority’s Obligation

20. Specialist or expert information

Environmental Assessment by Responsible Authority

General Rules

21. Application only when no referral to review panel

22. Responsible authority’s obligations

23. Information

24. Public participation

25. Public notice in certain cases — draft report

26. Delegation

27. Responsible authority’s or Minister’s decisions

Section 54 of the National Energy Board Act

28. Participation of interested party

29. Recommendations in environmental assessment report

30. Order to reconsider

31. Governor in Council’s decision

Substitution

32. Minister’s obligation

33. Exceptions

34. Conditions

35. Assessment considered in conformity

36. Responsible authority’s or Minister’s decision

Equivalent Assessment

37. Exemption

Environmental Assessment by a Review Panel

General Rules

38. Referral to review panel

39. Studies and collection of information

40. Agreement to jointly establish review panel

41. Mackenzie Valley Resource Management Act

42. Terms of reference and appointment of members

43. Review panel’s duties

44. Information

45. Power to summon witnesses

46. Public notice

47. Minister’s decisions

48. Excluded periods

Rules in Case of Termination

49. Termination

50. Completion of environmental assessment by Agency

51. Minister’s decisions

Decision Making

52. Decisions of decision maker

53. Conditions — environmental effects referred to in subsection 5(1)

Decision Statement

54. Decision statement issued to proponent

55. Posting of decision statement on Internet site

56. Decision statement considered part of licence under Nuclear Safety and Control Act

Participant Funding Programs

57. Agency’s obligation

58. Responsible authority’s obligation

Cost Recovery

59. Proponent’s obligation to pay costs

60. Services provided during given period

61. Debt due to Her Majesty

Termination of Environmental Assessment

62. Termination by responsible authority or Minister

63. Termination by responsible authority referred to in any of paragraphs 15(a) to (c)

64. Termination by Minister

Confidential Information

65. No disclosure

DUTIES OF CERTAIN AUTHORITIES IN RELATION TO PROJECTS

66. Definitions

67. Project carried out on federal lands

68. Project outside Canada

69. Referral to Governor in Council

70. Non-application — national emergency or emergency

71. Federal authority’s reporting duty

72. Authority’s reporting duty

REGIONAL STUDIES

73. Establishment of committee — region entirely on federal lands

74. Joint establishment of committee — other regions

75. Report to Minister

76. Public notice

77. Application of section 45

CANADIAN ENVIRONMENTAL ASSESSMENT REGISTRY

Establishment of Registry

78. Canadian Environmental Assessment Registry

Internet Site

79. Establishment and maintenance

Project Files

80. Establishment and maintenance

General

81. Categories of available information

82. Protection from civil proceeding or prosecution

ADMINISTRATION

83. Regulations — Governor in Council

84. Regulations — Minister

85. Externally produced documents

86. Minister’s powers

87. Non-application — national security

88. Statutory Instruments Act

ADMINISTRATION AND ENFORCEMENT

Designation

89. Power to designate

Powers

90. Authority to enter

91. Warrant for dwelling-house

92. Entry on private property

93. Use of force

Orders

94. Measures required

95. Measures taken by designated person

Injunctions

96. Court’s power

Prohibitions and Offences

97. Obstruction

98. False statements or information

99. Contravention — section 6

100. Contravention — section 98

101. Limitation period

102. Admissibility of evidence

CANADIAN ENVIRONMENTAL ASSESSMENT AGENCY

103. Agency continued

104. Delegation to Agency

105. Agency’s objects

106. Agency’s duties

107. Using government facilities

108. President

109. Executive Vice-president

110. Remuneration

111. Appointment under Public Service Employment Act

112. Head office

113. Contracts, etc., binding on Her Majesty

ANNUAL REPORT

114. Annual report to Parliament

TRANSITIONAL PROVISIONS

115. Definitions

116. President of former Agency

117. Executive Vice-president of former Agency

118. Employment continued

119. References

120. Transfer of rights and obligations

121. Commencement of legal proceedings

122. Continuation of legal proceedings

123. Appropriations

124. Completion of screenings commenced under former Act

125. Completion of comprehensive studies commenced under former Act

126. Completion of assessment by a review panel commenced under former Act

127. Substitution under former Act

128. Non-application of this Act

129. Privileged evidence, documents or things

53–67.

Division 2

National Energy Board Act

68–115.

Division 3

Canada Oil and Gas Operations Act

116–121.

Division 4

Nuclear Safety and Control Act

122–131.

Division 5

Fisheries Act

132–156.

Division 6

Canadian Environmental Protection Act, 1999

157–162.

Division 7

Species at Risk Act

163–169.

PART 4

VARIOUS MEASURES

Division 1

Measures with Respect to the Auditor General of Canada

170–204.

Division 2

Life Annuity-like Products

205–208.

Division 3

PPP Canada Inc.

209–213.

Division 4

Territorial Borrowing Limits

214–217.

Division 5

Reporting Requirements

218–222.

Division 6

Social Security Tribunal and Service Delivery

223–281.

Division 7

Consolidation of Privacy Codes

282–303.

Division 8

Social Insurance Number Cards

304–314.

Division 9

Amendments Relating to the Parks Canada Agency

315–325.

Division 10

Financial Institutions

326–349.

Division 11

Canada Mortgage and Housing Corporation

350–367.

Division 12

Integrated Cross-border Law Enforcement Operations Act

368. Enactment of Act

AN ACT TO IMPLEMENT A FRAMEWORK AGREEMENT ON INTEGRATED CROSS-BORDER LAW ENFORCEMENT OPERATIONS BETWEEN THE GOVERNMENT OF CANADA AND THE GOVERNMENT OF THE UNITED STATES OF AMERICA

SHORT TITLE

1. Integrated Cross-border Law Enforcement Operations Act

INTERPRETATION

2. Definitions

PURPOSE

3. Purpose

PRINCIPLES

4. Statement

CENTRAL AUTHORITY FOR CANADA

5. Designation

6. Direction and management

7. Appointment of officers from Canada

8. Appointment of officers from United States

9. Suspension or revocation

10. Certificates

11. Recommendation for appointment

POWERS OF DESIGNATED OFFICERS

12. Powers — designated officer

DETENTION OF PERSONS

13. Persons taken into custody

SEIZURE

14. Vessel, etc., seized in Canada

15. Vessel, etc., seized in United States

16. Non-application of certain laws

369–374.

Division 13

Bretton Woods and Related Agreements Act

375–376.

Division 14

Canada Health Act

377.

Division 15

Canadian Security Intelligence Service Act

378–387.

Division 16

Currency Act

388–389.

Division 17

Federal-Provincial Fiscal Arrangements Act

390–410.

Division 18

Fisheries Act

411.

Division 19

Food and Drugs Act

412–419.

Division 20

Government Employees Compensation Act

420–426.

Division 21

International Development Research Centre Act

427–431.

Division 22

Canada Labour Code

432–440.

Division 23

Fair Wages and Hours of Labour Act

441–444.

Division 24

Old Age Security Act

445–467.

Division 25

Salaries Act

468–472.

Division 26

Seeds Act

473–475.

Division 27

Statutory Instruments Act

476-478.

Division 28

Investment Canada Act

479–480.

Division 29

Customs Act

481–482.

Division 30

Pension Benefits Standards Act, 1985

483.

Division 31

Railway Safety Act

484–486.

Division 32

Canadian International Trade Tribunal Act

487–489.

Division 33

International Centre for Human Rights and Democratic Development Act

490–505.

Division 34

Health of Animals Act

506–515.

Division 35

Canada School of Public Service Act

516-524.

Division 36

Bank Act

525.

Division 37

Corrections and Conditional Release Act

526–530.

Division 38

Coasting Trade Act

531.

Division 39

Status of the Artist Act

532–577.

Division 40

National Round Table on the Environment and the Economy Act

578–594.

Division 41

Telecommunications Act

595–601.

Division 42

Employment Equity Act

602.

Division 43

Employment Insurance Act

603–619.

Division 44

Customs Tariff

620–625.

Division 45

Canada Marine Act

626.

Division 46

First Nations Land Management Act

627–652.

Division 47

Canada Travelling Exhibitions Indemnification Act

653.

Division 48

Canadian Air Transport Security Authority Act

654–655.

Division 49

First Nations Fiscal and Statistical Management Act

656–681.

Division 50

Canadian Forces Members and Veterans Re-establishment and Compensation Act

682–684.

Division 51

Repeal of the Department Of Social Development Act

685–696.

Division 52

Wage Earner Protection Program Act

697–698.

Division 53

Kyoto Protocol Implementation Act

699.

Division 54

Immigration and Refugee Protection Act

700–710.

Division 55

Shared Services Canada

711. Enactment of the Shared Services Canada Act

AN ACT TO ESTABLISH SHARED SERVICES CANADA

SHORT TITLE

1. Shared Services Canada Act

INTERPRETATION

2. Definitions

DESIGNATION OF MINISTER

3. Power of Governor in Council

ESTABLISHMENT

4. Establishment

5. Minister

POWERS, DUTIES AND FUNCTIONS

6. Governor in Council

7. Minister

8. Governor in Council’s approval

9. Charging for services

ORGANIZATION AND HEAD OFFICE

10. President

11. President

12. Remuneration

13. Head office

HUMAN RESOURCES

14. Appointment of employees

GENERAL

15. Access to Information Act

16. Privacy Act

TRANSITIONAL PROVISIONS

Definitions

17. Definitions

Former Department

18. President

19. Transfer of appropriations

20. References

712.

Division 56

Assisted Human Reproduction Act

713–753.

SCHEDULE

1st Session, 41st Parliament,

60-61 Elizabeth II, 2011-2012

house of commons of canada

BILL C-38

An Act to implement certain provisions of the budget tabled in Parliament on March 29, 2012 and other measures

Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

SHORT TITLE

Short title

1. This Act may be cited as the Jobs, Growth and Long-term Prosperity Act.

PART 1

AMENDMENTS TO THE INCOME TAX ACT, A RELATED ACT AND THE INCOME TAX REGULATIONS

R.S., c. 1 (5th Supp.)

Income Tax Act

2. (1) Subsection 76(5) of the Income Tax Act is replaced by the following:

Definitions of certain expressions

(5) In subsection (4), the expressions “cash purchase ticket”, “operator”, “primary elevator” and “process elevator” have the meanings assigned by the Canada Grain Act, and “grain” means wheat, oats, barley, rye, flaxseed, rapeseed and canola produced in Canada.

(2) Subsection (1) applies in respect of cash purchase tickets and other forms of settlement issued to a taxpayer after December 14, 2011.

3. (1) Paragraph 81(1)(n) of the Act is replaced by the following:

Governor General

(n) income from the office of Governor General of Canada, other than salary under the Governor General’s Act;

(2) Subsection (1) applies to the 2013 and subsequent taxation years.

4. (1) Paragraph (a) of the definition “eligible dividend” in subsection 89(1) of the Act is replaced by the following:

(a) an amount that is equal to the portion of a taxable dividend that is received by a person resident in Canada, paid by a corporation resident in Canada and designated under subsection (14) to be an eligible dividend, and

(2) Subsection 89(14) of the Act is replaced by the following:

Dividend designation

(14) A corporation designates a portion of a dividend it pays at any time to be an eligible dividend by notifying in writing at that time each person or partnership to whom the dividend is paid that the portion of the dividend is an eligible dividend.

Late designation

(14.1) If, in the opinion of the Minister, the circumstances are such that it would be just and equitable to permit a designation under subsection (14) to be made before the day that is three years after the day on which the designation was required to be made, the designation is deemed to have been made at the time the designation was required to be made.

(3) Subsections (1) and (2) apply to dividends paid after March 28, 2012.

5. (1) Paragraph (a) of the definition “flow-through mining expenditure” in subsection 127(9) of the Act is replaced by the following:

(a) that is a Canadian exploration expense incurred by a corporation after March 2012 and before 2014 (including, for greater certainty, an expense that is deemed by subsection 66(12.66) to be incurred before 2014) in conducting mining exploration activity from or above the surface of the earth for the purpose of determining the existence, location, extent or quality of a mineral resource described in paragraph (a) or (d) of the definition “mineral resource” in subsection 248(1),

(2) Paragraphs (c) and (d) of the definition “flow-through mining expenditure” in subsection 127(9) of the Act are replaced by the following:

(c) an amount in respect of which is renounced in accordance with subsection 66(12.6) by the corporation to the taxpayer (or a partnership of which the taxpayer is a member) under an agreement described in that subsection and made after March 2012 and before April 2013, and

(d) that is not an expense that was renounced under subsection 66(12.6) to the corporation (or a partnership of which the corporation is a member), unless that renunciation was under an agreement described in that subsection and made after March 2012 and before April 2013;

(3) Subsections (1) and (2) apply to expenses renounced under a flow-through share agreement made after March 2012.

6. (1) Clause (a)(ii)(B) of the definition “disability savings plan” in subsection 146.4(1) of the Act is replaced by the following:

(B) an entity that, at the time the arrangement is entered into, is a qualifying person described in paragraph (a) or (b) of the definition “qualifying person” in relation to the beneficiary,

(B.1) if the arrangement is entered into before 2017, a qualifying family member in relation to the beneficiary who, at the time the arrangement is entered into, is a qualifying person in relation to the beneficiary,

(B.2) a qualifying family member in relation to the beneficiary who, at the time the arrangement is entered into, is not a qualifying person in relation to the beneficiary but is a holder of another arrangement that is a registered disability savings plan of the beneficiary, and

(2) The definition “qualifying person” in subsection 146.4(1) of the Act is amended by striking out “and” at the end of paragraph (a), by adding “and” at the end of paragraph (b) and by adding the following after paragraph (b):

(c) other than for the purposes of subparagraph (4)(b)(iv), an individual who is a qualifying family member in relation to the beneficiary if

(i) at or before that time, the beneficiary has attained the age of majority and is not a beneficiary under a disability savings plan,

(ii) at that time, no entity described in subparagraph (a)(ii) or (iii) is legally authorized to act on behalf of the beneficiary, and

(iii) in the issuer’s opinion after reasonable inquiry, the beneficiary’s contractual competence to enter into a disability savings plan at that time is in doubt.

(3) Subsection 146.4(1) of the Act is amended by adding the following in alphabetical order:

“qualifying family member”
« membre de la famille admissible »

“qualifying family member”, in relation to a beneficiary of a disability savings plan, at any time, means an individual who, at that time, is

(a) a legal parent of the beneficiary; or

(b) a spouse or common-law partner of the beneficiary who is not living separate and apart from the beneficiary by reason of a breakdown of their marriage or common-law partnership.

(4) Section 146.4 of the Act is amended by adding the following after subsection (1.4):

Beneficiary replacing holder

(1.5) Any holder of a disability savings plan who is a qualifying person in relation to the beneficiary under the plan solely because of paragraph (c) of the definition “qualifying person” in subsection (1) ceases to be a holder of the plan and the beneficiary becomes the holder of the plan if

(a) the beneficiary is determined to be contractually competent by a competent tribunal or other authority under the laws of a province or, in the issuer’s opinion after reasonable inquiry, the beneficiary’s contractual competence to enter into a disability savings plan is no longer in doubt; and

(b) the beneficiary notifies the issuer that the beneficiary chooses to become the holder of the plan.

Entity replacing holder

(1.6) If an entity described in subparagraph (a)(ii) or (iii) of the definition “qualifying person” in subsection (1) is appointed in respect of a beneficiary of a disability savings plan and a holder of the plan is a qualifying person solely because of paragraph (c) of that definition,

(a) the entity shall notify the issuer without delay of the entity’s appointment;

(b) the holder of the plan ceases to be a holder of the plan; and

Rules applicable in case of dispute

(1.7) If a dispute arises as a result of an issuer’s acceptance of a qualifying family member who is a qualifying person solely because of paragraph (c) of the definition “qualifying person” in subsection (1) as a holder of a disability savings plan, from the time the dispute arises until the time that the dispute is resolved or an entity becomes the holder of the plan under subsection (1.5) or (1.6), the holder of the plan shall use their best efforts to avoid any reduction in the fair market value of the property held by the plan trust, having regard to the reasonable needs of the beneficiary under the plan.

(5) Subsection 146.4(13) of the Act is amended by striking out “and” at the end of paragraph (c), by adding “and” at the end of paragraph (d) and by adding the following after paragraph (d):

(e) if the issuer enters into the plan with a qualifying family member who is a qualifying person solely because of paragraph (c) of the definition “qualifying person” in subsection (1),

(i) so notify the beneficiary under the plan without delay in writing and include in the notification information setting out the circumstances in which the holder of the plan may be replaced under subsection (1.5) or (1.6), and

(ii) collect and use any information provided by the holder of the plan that is relevant to the administration and operation of the plan.

(6) Section 146.4 of the Act is amended by adding the following after subsection (13):

Issuer’s liability

(14) If, after reasonable inquiry, an issuer of a disability savings plan is of the opinion that an individual’s contractual competence to enter into a disability savings plan is in doubt, no action lies against the issuer for entering into a plan, under which the individual is the beneficiary, with a qualifying family member who is a qualifying person in relation to the beneficiary solely because of paragraph (c) of the definition “qualifying person” in subsection (1).

7. (1) The definition “charitable purposes” in subsection 149.1(1) of the Act is replaced by the following:

“charitable purposes”
« fins de bienfaisance »

“charitable purposes” includes the disbursement of funds to a qualified donee, other than a gift the making of which is a political activity;

(2) Subparagraph (a)(v) of the definition “qualified donee” in subsection 149.1(1) of the Act is replaced by the following:

(v) a foreign organization that has applied to the Minister for registration under subsection (26),

(3) Subsection 149.1(1) of the Act is amended by adding the following in alphabetical order:

“political activity”
« activité politique »

“political activity” includes the making of a gift to a qualified donee if it can reasonably be considered that a purpose of the gift is to support the political activities of the qualified donee;

(4) Paragraphs 149.1(6)(b) and (c) of the Act are replaced by the following:

(b) it disburses income to qualified donees, other than income disbursed by way of a gift the making of which is a political activity, if the total amount of the charitable organization’s income that is disbursed to qualified donees in a taxation year does not exceed 50% of its income for the year; or

(c) it disburses income to a registered charity that the Minister has designated in writing as a charity associated with it, other than income disbursed by way of a gift the making of which is a political activity.

(5) Subsection 149.1(10) of the Act is replaced by the following:

Deemed charitable activity

(10) An amount paid by a charitable organization to a qualified donee that is not paid out of the income of the charitable organization is deemed to be a devotion of a resource of the charitable organization to a charitable activity carried on by it, unless the amount paid is a gift the making of which is a political activity.

(6) Section 149.1 of the Act is amended by adding the following after subsection (25):

Foreign charitable organizations

(26) For the purposes of subparagraph (a)(v) of the definition “qualified donee” in subsection (1), the Minister may register, in consultation with the Minister of Finance, a foreign organization for a 24-month period that includes the time at which Her Majesty in right of Canada has made a gift to the foreign organization, if

(a) the foreign organization is a charitable organization that is not resident in Canada; and

(b) the Minister is satisfied that the foreign organization is

(i) carrying on relief activities in response to a disaster,

(ii) providing urgent humanitarian aid, or

(iii) carrying on activities in the national interest of Canada.

(7) Subsections (2) and (6) come into force on the later of the day on which this Act receives royal assent and January 1, 2013, except that subparagraph (a)(v) of the definition “qualified donee” in subsection 149.1(1) of the Act, as enacted by subsection (2), and subsection 149.1(26) of the Act, as enacted by subsection (6), do not apply in respect of registrations of charitable organizations outside Canada made before the later of those days.

8. Subsection 150(2) of the Act is replaced by the following:

Demands for returns

(2) Every person, whether or not the person is liable to pay tax under this Part for a taxation year and whether or not a return has been filed under subsection (1) or (3), shall, on demand sent by the Minister, file, within such reasonable time stipulated in the demand, with the Minister in prescribed form and containing prescribed information a return of the income for the taxation year designated in the demand.

9. (1) Section 150.1 of the Act is amended by adding the following after subsection (2.1):

Definition of “tax preparer”

(2.2) In this section and subsection 162(7.3), “tax preparer”, for a calendar year, means a person or partnership who, in the year, accepts consideration to prepare more than 10 returns of income of corporations or more than 10 returns of income of individuals (other than trusts), but does not include an employee who prepares returns of income in the course of performing their duties of employment.

Electronic filing — tax preparer

(2.3) A tax preparer shall file any return of income prepared by the tax preparer for consideration by way of electronic filing, except that 10 of the returns of corporations and 10 of the returns of individuals may be filed other than by way of electronic filing.

Exceptions

(2.4) Subsection (2.3) does not apply to a tax preparer for a calendar year in respect of a return of income

(a) of a type for which the tax preparer has applied to the Minister for authority to file by way of electronic filing for the year and for which that authority has not been granted because the tax preparer does not meet the criteria referred to in subsection (2);

(b) of a corporation described in any of paragraphs 205.1(2)(a) to (c) of the Income Tax Regulations; or

(2) Subsection (1) applies in respect of returns of income for the 2012 and subsequent taxation years that are filed after 2012.

10. Section 152 of the Act is amended by adding the following after subsection (1.8):

Waiver of determination limitation period

(1.9) A waiver in respect of the period during which the Minister may make a determination under subsection (1.4) in respect of a partnership for a fiscal period may be made by one member of the partnership if that member is

(a) designated for that purpose in the information return made under section 229 of the Income Tax Regulations for the fiscal period; or

(b) otherwise expressly authorized by the partnership to so act.

11. Subsection 161(5) of the Act is repealed.

12. (1) Paragraph 162(2)(b) of the English version of the Act is replaced by the following:

(b) to whom a demand for a return for the year has been sent under subsection 150(2), and

(2) Section 162 of the Act is amended by adding the following after subsection (7.2):

Failure to file in appropriate manner — tax preparer

(7.3) Every tax preparer who fails to file a return of income as required by subsection 150.1(2.3) is liable to a penalty equal to

(a) $25 for each such failure in respect of a return of an individual; and

(b) $100 for each such failure in respect of a return of a corporation.

(3) Subsection 162(8.1) of the Act is replaced by the following:

Rules — partnership liable to a penalty

(8.1) If a partnership is liable to a penalty under any of subsections (5) to (7.1), (7.3), (8) and (10), then sections 152, 158 to 160.1, 161 and 164 to 167 and Division J apply, with any modifications that the circumstances require, to the penalty as if the partnership were a corporation.

(4) Subsections (2) and (3) come into force, or are deemed to have come into force, on January 1, 2013.

13. (1) Subsection 188.2(2) of the Act is amended by striking out “or” at the end of paragraph (c) and by adding the following after paragraph (d):

(e) in the case of a registered charity that is a charitable foundation, if the foundation devotes resources to political activities that are not considered under subsection 149.1(6.1) to be devoted to charitable purposes;

(f) in the case of a registered charity that is a charitable organization, if the organization devotes resources to political activities that are not considered under subsection 149.1(6.2) to be devoted to charitable activities; or

(g) in the case of a registered Canadian amateur athletic association, if the association devotes resources to political activities that are not considered under subsection 149.1(6.201) to be devoted to its exclusive purpose and exclusive function.

(2) Section 188.2 of the Act is amended by adding the following after subsection (2):

Suspension – failure to report

(2.1) If a registered charity or a registered Canadian amateur athletic association fails to report information that is required to be included in a return filed under subsection 149.1(14), the Minister may give notice by registered mail to the charity or association that its authority to issue an official receipt referred to in Part XXXV of the Income Tax Regulations is suspended from the day that is seven days after the day on which the notice is mailed until such time as the Minister notifies the charity or association that the Minister has received the required information in prescribed form.

(3) The portion of subsection 188.2(3) of the Act before paragraph (a) is replaced by the following:

Effect of suspension

(3) If the Minister has issued a notice to a qualified donee under any of subsections (1) to (2.1), subject to subsection (4),

(4) Subsection 188.2(4) of the Act is replaced by the following:

Application for postponement

(4) If a notice of objection to a suspension under any of subsections (1) to (2.1) has been filed by a qualified donee, the qualified donee may file an application to the Tax Court of Canada for a postponement of that portion of the period of suspension that has not elapsed until the time determined by the Court.

14. Paragraph 227(10)(b) of the Act is replaced by the following:

(b) subsection 237.1(7.4) or (7.5) by a person or partnership,

15. (1) Subsection 237.1(4) of the Act is replaced by the following:

Sales prohibited

(4) A person may, at any time, whether as a principal or an agent, sell or issue, or accept consideration in respect of, a tax shelter only if

(a) the Minister has issued before that time an identification number for the tax shelter; and

(b) that time is before 2014.

(2) Paragraph 237.1(4)(b) of the Act, as enacted by subsection (1), is replaced by the following:

(b) that time is during the calendar year designated by the Minister as being applica-ble to the identification number.

(3) Paragraph 237.1(7.4)(b) of the Act is replaced by the following:

(b) 25% of the greater of

(i) the total of all amounts each of which is the consideration received or receivable from a person in respect of the tax shelter before the correct information is filed with the Minister or the identification number is issued, as the case may be, and

(ii) the total of all amounts each of which is an amount stated or represented to be the value of property that a particular person who acquires or otherwise invests in the tax shelter could donate to a qualified donee, if the tax shelter is a gifting arrangement and consideration has been received or is receivable from the particular person in respect of the tax shelter before the correct information is filed with the Minister or the identification number is issued, as the case may be.

(4) Section 237.1 of the Act is amended by adding the following after subsection (7.4):

Penalty

(7.5) Every person who is required under subsection (7) to file an information return and who fails to comply with a demand under section 233 to file the return, or to report in the return information required under paragraph (7)(a) or (b), is liable to a penalty equal to 25% of the greater of

(a) the total of all amounts each of which is the consideration received or receivable by the person in respect of the tax shelter from a particular person in respect of whom information required under paragraph (7)(a) or (b) had not been reported at or before the time that the demand was issued or the return was filed, as the case may be, and

(b) if the tax shelter is a gifting arrangement, the total of all amounts each of which is an amount stated or represented to be the value of property that the particular person could donate to a qualified donee.

(5) Subsection (1) is deemed to have come into force on March 29, 2012.

(6) Subsection (2) applies in respect of any tax shelter for which an application for an identification number has been made after March 28, 2012.

(7) Subsection (3) applies in respect of any application for an identification number made, any sale or issuance of a tax shelter made and any consideration in respect of a tax shelter accepted, on or after the day on which this Act receives royal assent.

(8) Subsection (4) applies in respect of any demand made, and any information return filed, on or after the day on which this Act receives royal assent.

R.S., c. G-9

Governor General’s Act

1990, c. 5, s. 1

16. Subsection 4(1) of the Governor General’s Act is replaced by the following:

Salary

4. (1) There shall be payable to the Governor General for the 12-month period beginning on January 1, 2013 a salary of $270,602.

1990, c. 5, s. 2

17. (1) The portion of subsection 4.1(1) of the Act before paragraph (a) is replaced by the following:

Annual adjustment of salary

4.1 (1) For the 12-month period beginning on January 1, 2014 and for each 12-month period after that, the Governor General’s salary shall be the amount obtained by multiplying

1994, c. 18, s. 8

(2) Subsections 4.1(4) and (5) of the Act are repealed.

C.R.C., c. 945

Income Tax Regulations

18. (1) Section 5700 of the Income Tax Regulations is amended by adding the following after paragraph (s):

(s.1) blood coagulation monitor, including disposable peripherals, for use by an individ-ual who requires anti-coagulation therapy;

(2) Subsection (1) applies to expenses incurred after 2011.

PART 2

MEASURES RELATING TO SALES AND EXCISE TAXES

R.S., c. E-15

Excise Tax Act

2006, c. 4, s. 127(1)

19. Subsection 79(4) of the Excise Tax Act is replaced by the following:

Demand for return

(4) The Minister may, on demand sent by the Minister, require a person to file, within any reasonable time stipulated in the demand, a return under this Act for any period designated in the demand.

2009, c. 32, s. 2(4)

20. (1) Paragraph (b) of the definition “harmonization date” in subsection 123(1) of the Act is replaced by the following:

(b) July 1, 2010 in the case of Ontario, and

(2) Subsection (1) comes into force, or is deemed to have come into force, on April 1, 2013, except that for the purposes of subsection 256.21(7) of the Act paragraph (b) of the definition “harmonization date” in subsection 123(1) of the Act, as enacted by subsection (1), is to be read before July 2, 2014 as follows:

(b) July 1, 2010 in the case of Ontario or British Columbia, and

1997, c.10, s. 198(1)

21. (1) Subsections 212.1(2) to (4) of the Act are replaced by the following:

Tax in participating province

(2) Subject to this Part, every person that is liable under the Customs Act to pay duty on imported goods, or would be so liable if the goods were subject to duty, shall pay to Her Majesty in right of Canada, in addition to the tax imposed by section 212, a tax on the goods calculated at the tax rate for a participating province on the value of the goods if

(a) the goods are prescribed goods imported at a place in the participating province; or

(b) the goods are not prescribed for the purposes of paragraph (a) and the person is resident in the participating province.

Exception

(3) Paragraph (2)(b) does not apply to goods that are accounted for as commercial goods under section 32 of the Customs Act, specified motor vehicles or a mobile home or a floating home that has been used or occupied in Canada by any individual.

Application in offshore areas

(4) Paragraph (2)(b) does not apply to goods imported by or on behalf of a person that is resident in the Nova Scotia offshore area or the Newfoundland offshore area unless the goods are imported for consumption, use or supply in the course of an offshore activity or the person is also resident in a participating province that is not an offshore area.

(2) Subsection (1) applies to goods imported on or after June 1, 2012.

22. (1) Subsection 259.1(1) of the Act is amended by adding the following in alphabetical order:

“specified property”
« bien déterminé »

“specified property” means

(a) a printed book or an update of such a book;

(b) an audio recording all or substantially all of which is a spoken reading of a printed book; or

1997, c. 10, s. 69.1(1)

(2) Subsection 259.1(2) of the Act is replaced by the following:

Rebate for printed books, etc.

(2) The Minister shall, subject to subsection (3), pay a rebate to a person that is, on the last day of a claim period of the person or of the person’s fiscal year that includes that claim period, a specified person equal to the amount of tax under subsection 165(1) or section 212 that became payable in the claim period by the person in respect of the acquisition or importation of specified property if

(a) in the case of a specified person described in paragraph (f) of the definition “specified person” in subsection (1), the person acquires or imports the specified property otherwise than for the purpose of supply by way of sale for consideration; and

(b) in any other case, the person acquires or imports the specified property otherwise than for the purpose of supply by way of sale.

(3) Subsections (1) and (2) apply to acquisitions and importations of property in respect of which tax becomes payable after March 29, 2012.

2009, c. 32, s. 32(1)

23. (1) Section 261.2 of the Act is replaced by the following:

Rebate in respect of goods imported at a place in a province

261.2 If a person that is resident in a particular participating province pays tax under subsection 212.1(2) in respect of property described in paragraph 212.1(2)(b) that the person imports at a place in another province for consumption or use exclusively in any province (other than the particular participating province) and if prescribed conditions are satisfied, the Minister shall, subject to section 261.4, pay a rebate to the person equal to the amount determined in prescribed manner.

(2) Subsection (1) applies to property imported on or after June 1, 2012.

1990, c. 45, s. 12(1)

24. Section 282 of the Act is replaced by the following:

Demand for return

282. The Minister may, on demand sent by the Minister, require any person to file, within any reasonable time stipulated in the demand, a return under this Part for any period or transaction designated in the demand.

25. (1) Schedule I to the Act is amended by adding the following before section 6:

1. The following definitions apply in this Schedule.

“commercial goods” has the same meaning as in subsection 212.1(1) of the Act.

“qualifying data” means fuel consumption data, in respect of automobiles described in the portion of subsection 6(1) before paragraph (a), that is

(a) if the fuel consumption data under the EnerGuide mark is based on a test method composed of two — but not five — test cycles, data published by the Government of Canada under the EnerGuide mark in respect of those automobiles; or

(b) in any other case, data in respect of those automobiles based on a test method composed of only two test cycles and published by the Government of Canada, as specified by the Minister of National Revenue, on the basis of information adjusted and provided by the Minister of Natural Resources.

“qualifying vehicle” means a vehicle (other than a racing car described in heading No. 87.03 of the List of Tariff Provisions set out in the schedule to the Customs Tariff) registered under the laws of a foreign jurisdiction relating to the registration of motor vehicles that

(a) is described in any of heading No. 87.02, subheading Nos. 8703.21 to 8703.90, 8704.21, 8704.31, 8704.90 and 8711.20 to 8711.90 and tariff item Nos. 8716.39.30 and 8716.39.90 of that List;

(b) is described in subheading No. 8704.22 or 8704.32 of that List and has a gross vehicle weight rating (as defined in subsection 2(1) of the Motor Vehicle Safety Regulations) not exceeding 10 tonnes; or

(2) Subsection (1) comes into force, or is deemed to have come into force, on June 1, 2012 or, if this Act receives royal assent before June 1, 2012, on the day on which this Act receives royal assent (in this subsection referred to as “royal assent day”), except that

(a) if royal assent day is before June 1, 2012, section 1 of Schedule I to the Act, as enacted by subsection (1), is to be read, before June 1, 2012, without reference to the definitions “commercial goods” and “qualifying vehicle”; and

(b) if royal assent day is after June 1, 2012, section 1 of Schedule I to the Act, as enacted by subsection (1), is to be read, before royal assent day, without reference to the definition “qualifying data”.

2007, c. 29, s. 44(1)

26. The descriptions of A and B in subsection 6(2) of Schedule I to the Act are replaced by the following:

A is the city fuel consumption rating (based on the number of litres of fuel, other than E85, per 100 kilometres) for automobiles of the same model with the same attributes as the automobile, as determined by reference to qualifying data, or, if no rating can be so determined that would apply to the automobile, by reference to the best available data, which may include the city fuel consumption rating for the most similar model and attributes; and

B is the highway fuel consumption rating (based on the number of litres of fuel, other than E85, per 100 kilometres) for automobiles of the same model with the same attributes as the automobile, as determined by reference to qualifying data, or, if no rating can be so determined that would apply to the automobile, by reference to the best available data, which may include the highway fuel consumption rating for the most similar model and attributes.

27. (1) Section 8 of Schedule I to the Act is amended by striking out “or” at the end of paragraph (b), by adding “or” at the end of paragraph (c) and by adding the following after paragraph (c):

(d) that is included as permanently installed equipment in an automobile, station wagon, van or truck if the automobile, station wagon, van or truck

(i) is a qualifying vehicle,

(ii) is imported temporarily by an individ-ual resident in Canada and not accounted for as a commercial good under section 32 of the Customs Act,

(iii) was last supplied in the course of a vehicle rental business to the individual by way of lease, licence or similar arrangement under which continuous possession or use of the automobile, station wagon, van or truck is provided for a period of less than 180 days, and

(iv) is exported within 30 days after the importation.

(2) Subsection (1) applies to any air conditioner that is included as permanently installed equipment in an automobile, station wagon, van or truck imported into Canada on or after June 1, 2012.

1993, c. 27, s. 146(1)

28. (1) The portion of section 10 of Schedule I to the Act before paragraph (a) is replaced by the following:

10. Section 6 does not apply to an automobile described in that section that is

1993, c. 27, s. 146(1)

(2) Paragraphs 10(a) to (c) of Schedule I to the French version of the Act are replaced by the following:

a) vendue dans des conditions qui feraient de la vente une fourniture détaxée pour l’application de la partie IX de la Loi;

b) achetée ou importée pour servir à la police ou combattre l’incendie;

c) achetée, pour son usage personnel ou officiel, par une personne exempte d’impôts et de taxes visée à l’article 34 de la convention figurant à l’annexe I de la Loi sur les missions étrangères et les organisations internationales ou à l’article 49 de la convention figurant à l’annexe II de cette loi;

(3) Section 10 of Schedule I to the Act is amended by striking out “or” at the end of paragraph (b), by adding “or” at the end of paragraph (c) and by adding the following after paragraph (c):

(d) a qualifying vehicle if the automobile

(i) is imported temporarily by an individ-ual resident in Canada and not accounted for as a commercial good under section 32 of the Customs Act,

(ii) was last supplied in the course of a vehicle rental business to the individual by way of lease, licence or similar arrangement under which continuous possession or use of the automobile is provided for a period of less than 180 days, and

(iii) is exported within 30 days after the importation.

(4) Subsections (1) and (2) come into force, or are deemed to have come into force, on June 1, 2012.

(5) Subsection (3) applies to any automobile imported into Canada on or after June 1, 2012.

29. (1) Part II of Schedule V to the Act is amended by adding the following after section 7.2:

7.3 A supply of a service (other than a service described in section 4 of Part I of Schedule VI) rendered in the practice of the profession of pharmacy by a particular individ-ual who is entitled under the laws of a province to practise that profession if the service is rendered within a pharmacist-patient relationship between the particular individual and another individual and is provided for the promotion of the health of the other individual or for the prevention or treatment of a disease, disorder or dysfunction of the other individual.

(2) Subsection (1) applies to any supply made after March 29, 2012.

30. (1) Section 10 of Part II of Schedule V to the Act is amended by striking out “or” at the end of paragraph (a), by adding “or” at the end of paragraph (b) and by adding the following after paragraph (b):

(c) a person that is entitled under the laws of a province to practise the profession of pharmacy and is authorized under the laws of the province to order such a service, if the order is made within a pharmacist-patient relationship.

(2) Subsection (1) applies to any supply made after March 29, 2012.

31. (1) Paragraph 2(e) of Part I of Sched-ule VI to the Act is amended by adding the following after subparagraph (vi):

(vi.1) Isosorbide-5-mononitrate,

(2) Subsection (1) applies to any supply made

(a) after March 29, 2012; or

(b) on or before March 29, 2012 if no amount was charged, collected or remitted on or before that day as or on account of tax under Part IX of the Act in respect of the supply.

1997, c. 10, s. 121(2)

32. (1) The definition “medical practitioner” in section 1 of Part II of Schedule VI to the Act is repealed.

(2) Section 1 of Part II of Schedule VI to the Act is amended by adding the following in alphabetical order:

“specified professional” means

(a) a person that is entitled under the laws of a province to practise the profession of medicine, physiotherapy or occupational therapy, or

(b) a registered nurse.

(3) Subsections (1) and (2) apply to any supply made after March 29, 2012.

1997, c. 10, s. 122(1)

33. (1) Sections 3 and 4 of Part II of Schedule VI to the Act are replaced by the following:

3. A supply of a heart-monitoring device if the device is supplied on the written order of a specified professional for use by a consumer with heart disease who is named in the order.

4. A supply of a hospital bed, if the bed is supplied to the operator of a health care facility (as defined in section 1 of Part II of Schedule V) or on the written order of a specified professional for use by an incapacitated individual named in the order.

(2) Subsection (1) applies to any supply made after March 29, 2012.

1997, c. 10, s. 124(1)

34. (1) Section 5.1 of Part II of Schedule VI to the Act is replaced by the following:

5.1 A supply of an aerosol chamber or a metered dose inhaler for use in the treatment of asthma if the chamber or inhaler is supplied on the written order of a specified professional for use by a consumer named in the order.

(2) Subsection (1) applies to any supply made after March 29, 2012.

1997, c. 10, s. 125(1)

35. (1) Section 7 of Part II of Schedule VI to the Act is replaced by the following:

7. A supply of a device that is designed to convert sound to light signals if the device is supplied on the written order of a specified professional for use by a consumer with a hearing impairment who is named in the order.

(2) Subsection (1) applies to any supply made after March 29, 2012.

2000, c. 30, s. 124(1)

36. (1) Section 9 of Part II of Schedule VI to the Act is replaced by the following:

9. A supply of eyeglasses or contact lenses if the eyeglasses or contact lenses are, or are to be, supplied under the authority of a prescription prepared, or an assessment record produced, by a person for the treatment or correction of a defect of vision of a consumer named in the prescription or assessment record and the person is entitled under the laws of the province in which the person practises to prescribe eyeglasses or contact lenses, or to produce an assessment record to be used for the dispensing of eyeglasses or contact lenses, for the treatment or correction of the defect of vision of the consumer.

(2) Subsection (1) applies to any supply made

(a) after March 29, 2012; or

(b) on or before March 29, 2012 if no amount was charged, collected or remitted on or before that day as or on account of tax under Part IX of the Act in respect of the supply.

2008, c. 28, s. 90(1)

37. (1) Section 14.1 of Part II of Schedule VI to the Act is replaced by the following:

14.1 A supply of a chair that is specially designed for use by an individual with a disability if the chair is supplied on the written order of a specified professional for use by a consumer named in the order.

(2) Subsection (1) applies to any supply made after March 29, 2012.

1997, c. 10, s. 129(1)

38. (1) Sections 21.1 and 21.2 of Part II of Schedule VI to the Act are replaced by the following:

21.1 A supply of an extremity pump, intermittent pressure pump or similar device for use in the treatment of lymphedema if the pump or device is supplied on the written order of a specified professional for use by a consumer named in the order.

21.2 A supply of a catheter for subcutaneous injections if the catheter is supplied on the written order of a specified professional for use by a consumer named in the order.

(2) Subsection (1) applies to any supply made after March 29, 2012.

1997, c. 10, s. 130(1)

39. (1) Section 23 of Part II of Schedule VI to the Act is replaced by the following:

23. A supply of an orthotic or orthopaedic device that is made to order for an individual or is supplied on the written order of a specified professional for use by a consumer named in the order.

(2) Subsection (1) applies to any supply made after March 29, 2012.

1997, c. 10, s. 132(1)

40. (1) Section 24.1 of Part II of Schedule VI to the Act is replaced by the following:

24.1 A supply of footwear that is specially designed for use by an individual who has a crippled or deformed foot or other similar disability, if the footwear is supplied on the written order of a specified professional.

(2) Subsection (1) applies to any supply made after March 29, 2012.

1997, c. 10, s. 134(1)

41. (1) Section 30 of Part II of Schedule VI to the Act is replaced by the following:

29.1 A supply of

(a) a blood coagulation monitor or meter specially designed for use by an individual requiring blood coagulation monitoring or metering; or

(b) blood coagulation testing strips or reagents compatible with a blood coagulation monitor or meter referred to in paragraph (a).

30. A supply of any article that is specially designed for the use of blind individuals if the article is supplied for use by a blind individual to or by the Canadian National Institute for the Blind or any other bona fide institution or association for blind individuals or on the order or certificate of a specified professional.

(2) Subsection (1) applies to any supply made after March 29, 2012.

1997, c. 10, s. 136(1)

42. (1) Sections 35 and 36 of Part II of Schedule VI to the Act are replaced by the following:

35. A supply of a graduated compression stocking, an anti-embolic stocking or similar article if the stocking or article is supplied on the written order of a specified professional for use by a consumer named in the order.

36. A supply of clothing that is specially designed for use by an individual with a disability if the clothing is supplied on the written order of a specified professional for use by a consumer named in the order.

(2) Subsection (1) applies to any supply made after March 29, 2012.

2008, c. 28, s. 93(1)

43. (1) Section 41 of Part II of Schedule VI to the Act is replaced by the following:

41. A supply of a device that is specially designed for neuromuscular stimulation therapy or standing therapy, if supplied on the written order of a specified professional for use by a consumer with paralysis or a severe mobility impairment who is named in the order.

(2) Subsection (1) applies to any supply made after March 29, 2012.

2009, c. 32, s. 44(1)

44. (1) Item 4 of Schedule VIII to the Act is repealed.

(2) Subsection (1) applies

(a) in respect of any supply (other than a supply deemed to have been made under section 172.1 of the Act) made after March 31, 2013;

(b) for the purposes of applying section 172.1 of the Act in respect of a fiscal year of a person that begins after March 31, 2013;

(c) for the purposes of calculating, under clause 173(1)(d)(vi)(B) of the Act, tax in respect of taxation years of an individual ending after 2013;

(d) for the purposes of applying section 174 of the Act in respect of an allowance paid by a person after March 31, 2013;

(e) for the purpose of calculating, under subsection 218.1(1.2) of the Act, tax for a specified year (as defined in section 217 of the Act) of a person that begins after March 31, 2013;

(f) in respect of goods imported

(i) after March 31, 2013, or

(ii) before April 1, 2013 if those goods are, after March 31, 2013, accounted for under subsection 32(1), paragraph 32(2)(a) or subsection 32(5) of the Customs Act or released in the circumstances set out in paragraph 32(2)(b) of that Act;

(g) in respect of property that is brought into, or removed from, a province after March 31, 2013;

(h) in respect of property that is brought into a province before April 1, 2013 by a carrier if the property is delivered in the province to a consignee after March 31, 2013;

(i) for the purposes of determining the amount for a province that, under subsection 225.2(2) of the Act, is required to be added to, or may be deducted from, the net tax for a reporting period of a financial institution that begins after March 31, 2013; and

(j) for the purposes of the description of C in paragraph (a) of the definition “provincial pension rebate amount” in subsection 261.01(1) of the Act in respect of a claim period of a pension entity that begins after March 31, 2013.

2002, c. 9, s. 5

Air Travellers Security Charge Act

45. Section 26 of the Air Travellers Security Charge Act is replaced by the following:

Demand for return

26. The Minister may, on demand sent by the Minister, require a designated air carrier to file, within any reasonable time stipulated in the demand, a return under this Act for any period designated in the demand.

2002, c. 22

Excise Act, 2001

46. Section 169 of the Excise Act, 2001 is replaced by the following:

Demand for return

169. The Minister may, on demand sent by the Minister, require any person to file, within any reasonable time stipulated in the demand, a return under this Act for any period designated in the demand.

SOR/91-30; SOR/2002-277, s. 8

Value of Imported Goods (GST/HST) Regulations

47. (1) Subsection 2(1) of the Value of Imported Goods (GST/HST) Regulations is amended by adding the following in alphabetical order:

“qualifying vehicle” has the same meaning as in section 2 of the Non-Taxable Imported Goods (GST/HST) Regulations; (véhicule admissible)

(2) Subsection 2(2) of the Regulations is replaced by the following:

(2) For the purposes of these Regulations, the number of months or weeks in a period is the number of months or weeks, as the case may be, included, in whole or in part, in the period, the first day of the first such month or week, as the case may be, being the first day of the period.

(3) Subsections (1) and (2) come into force, or are deemed to have come into force, on June 1, 2012.

48. (1) The Regulations are amended by adding the following after section 14:

15. For the purpose of subsection 215(2) of the Act, the value of a qualifying vehicle that is imported temporarily by an individual resident in Canada and not accounted for as a commercial good (as defined in subsection 212.1(1) of the Act) under section 32 of the Customs Act, that is exported within 30 days after the importation and that was last supplied in the course of a vehicle rental business to the individual by way of lease, licence or similar arrangement under which continuous possession or use of the qualifying vehicle is provided for a period of less than 180 days is determined by the formula

(A × B) + C

where

A is

(a) if the qualifying vehicle is described in any of subheading Nos. 8703.21 to 8703.90 and 8711.20 to 8711.90 of the List of Tariff Provisions set out in the schedule to the Customs Tariff,

(i) in the case of a truck, sport utility vehicle, minivan or van, $300,

(ii) in the case of a motorhome or similar vehicle, $1,000, and

(iii) in any other case, $200, and

(b) in any other case, $300;

B is the number of weeks during which the qualifying vehicle remains in Canada; and

C is the remaining duties payable in respect of the qualifying vehicle.

(2) Subsection (1) applies to any qualifying vehicle imported on or after June 1, 2012.

SOR/91-31; SOR/2002-277, s. 11

Non-Taxable Imported Goods (GST/HST) Regulations

49. (1) Section 2 of the Non-Taxable Imported Goods (GST/HST) Regulations is amended by adding the following in alphabetical order:

(a) is described in any of heading No. 87.02, subheading Nos. 8703.21 to 8703.90, 8704.21, 8704.31, 8704.90 and 8711.20 to 8711.90 and tariff item Nos. 8716.39.30 and 8716.39.90 of that List,

(2) Subsection (1) comes into force, or is deemed to have come into force, on June 1, 2012.

50. (1) Section 3 of the Regulations is amended by striking out “and” at the end of paragraph (k), by adding “and” at the end of paragraph (l) and by adding the following after paragraph (l):

(m) a qualifying vehicle that is imported temporarily by an individual resident in Canada and not accounted for as a commercial good (as defined in subsection 212.1(1) of the Act) under section 32 of the Customs Act if

(i) the qualifying vehicle was last supplied in the course of a vehicle rental business to the individual by way of lease, licence or similar arrangement under which continuous possession or use of the qualifying vehicle is provided for a period of less than 180 days,

(ii) immediately before the importation, the individual was outside Canada for an uninterrupted period of at least 48 hours, and

(iii) the qualifying vehicle is exported within 30 days after the importation.

(2) Subsection (1) applies to any qualifying vehicle imported on or after June 1, 2012.

SOR/2010-151

New Harmonized Value-added Tax System Regulations, No. 2

51. (1) The New Harmonized Value-added Tax System Regulations, No. 2 are amended by adding the following after section 6:

Division 1.1

Tax on Importation of Goods

Prescribed goods — paragraph 212.1(2)(a)

6.1 For the purpose of paragraph 212.1(2)(a) of the Act, goods the value of which is determined for the purposes of Division III of Part IX of the Act under section 15 of the Value of Imported Goods (GST/HST) Regulations are prescribed.

(2) Subsection (1) applies to goods imported on or after June 1, 2012.

PART 3

RESPONSIBLE RESOURCE DEVELOPMENT

Division 1

Environmental Assessment

Enactment of the Canadian Environmental Assessment Act, 2012

Enactment

52. The Canadian Environmental Assessment Act, 2012, whose Schedules 1 to 3 are set out in the schedule to this Act, is enacted as follows:

An Act respecting the environmental assessment of certain activities and the prevention of significant adverse environmental effects

SHORT TITLE

Short title

1. This Act may be cited as the Canadian Environmental Assessment Act, 2012.

INTERPRETATION

Definitions

2. (1) The following definitions apply in this Act.

“Agency”
« Agence »

“Agency” means the Canadian Environmental Assessment Agency continued under section 103.

“assessment by a review panel”
« examen par une commission »

“assessment by a review panel” means an environmental assessment that is conducted by a review panel.

“Canadian Nuclear Safety Commission”
« Commission canadienne de sûreté nucléaire »

“Canadian Nuclear Safety Commission” means the Canadian Nuclear Safety Commission established by section 8 of the Nuclear Safety and Control Act.

“designated project”
« projet désigné »

“designated project” means one or more physical activities that

(a) are carried out in Canada or on federal lands;

(b) are designated by regulations made under paragraph 84(a) or designated in an order made by the Minister under subsection 14(2); and

It includes any physical activity that is incidental to those physical activities.

“environment”
« environnement »

“environment” means the components of the Earth, and includes

(a) land, water and air, including all layers of the atmosphere;

(b) all organic and inorganic matter and living organisms; and

“environmental assessment”
« évaluation environnementale »

“environmental assessment” means an assessment of the environmental effects of a designated project that is conducted in accordance with this Act.

“environmental effects”
« effets environnementaux »

“environmental effects” means the environmental effects described in section 5.

“federal authority”
« autorité fédérale »

“federal authority” means

(a) a Minister of the Crown in right of Canada;

(b) an agency of the Government of Canada or a parent Crown corporation, as defined in subsection 83(1) of the Financial Administration Act, or any other body established by or under an Act of Parliament that is ultimately accountable through a Minister of the Crown in right of Canada to Parliament for the conduct of its affairs;

(c) any department or departmental corporation that is set out in Schedule I or II to the Financial Administration Act; and

(d) any other body that is set out in Schedule 1.

It does not include the Executive Council of — or a minister, department, agency or body of the government of — Yukon, the Northwest Territories or Nunavut, a council of the band within the meaning of the Indian Act, Export Development Canada or the Canada Pension Plan Investment Board. It also does not include a Crown corporation that is a wholly-owned subsidiary, as defined in subsection 83(1) of the Financial Administration Act, a harbour commission established under the Harbour Commissions Act or a not-for-profit corporation that enters into an agreement under subsection 80(5) of the Canada Marine Act, that is not set out in Schedule 1.

“federal lands”
« territoire domanial »

“federal lands” means

(a) lands that belong to Her Majesty in right of Canada, or that Her Majesty in right of Canada has the power to dispose of, and all waters on and airspace above those lands, other than lands under the administration and control of the Commissioner of Yukon, the Northwest Territories or Nunavut;

(b) the following lands and areas:

(i) the internal waters of Canada, in any area of the sea not within a province,

(ii) the territorial sea of Canada, in any area of the sea not within a province,

(iii) the exclusive economic zone of Canada, and

(iv) the continental shelf of Canada; and

(c) reserves, surrendered lands and any other lands that are set apart for the use and benefit of a band and that are subject to the Indian Act, and all waters on and airspace above those reserves or lands.

“follow-up program”
« programme de suivi »

“follow-up program” means a program for

(a) verifying the accuracy of the environmental assessment of a designated project; and

(b) determining the effectiveness of any mitigation measures.

“interested party”
« partie intéressée »

“interested party”, with respect to a designated project, means any person who is determined, under subsection (2), to be an “interested party”.

“Internet site”
« site Internet »

“Internet site” means the Internet site that is established under section 79.

“jurisdiction”
« instance »

“jurisdiction” means

(a) a federal authority;

(b) any agency or body that is established under an Act of Parliament and that has powers, duties or functions in relation to an assessment of the environmental effects of a designated project;

(d) any agency or body that is established under an Act of the legislature of a province and that has powers, duties or functions in relation to an assessment of the environmental effects of a designated project;

(e) any body that is established under a land claims agreement referred to in section 35 of the Constitution Act, 1982 and that has powers, duties or functions in relation to an assessment of the environmental effects of a designated project;

(f) a governing body that is established under legislation that relates to the self-government of Indians and that has powers, duties or functions in relation to an assessment of the environmental effects of a designated project;

(g) a government of a foreign state or of a subdivision of a foreign state, or any institution of such a government; and

(h) an international organization of states or any institution of such an organization.

“Minister”
« ministre »

“Minister” means the Minister of the Environment.

“mitigation measures”
« mesures d’atténuation »

“mitigation measures” means measures for the elimination, reduction or control of the adverse environmental effects of a designated project, and includes restitution for any damage to the environment caused by those effects through replacement, restoration, compensation or any other means.

“National Energy Board”
« Office national de l’énergie »

“National Energy Board” means the National Energy Board established by section 3 of the National Energy Board Act.

“prescribed”
Version anglaise seulement

“prescribed” means prescribed by the regulations.

“proponent”
« promoteur »

“proponent” means the person, body, federal authority or government that proposes the carrying out of a designated project.

“record”
« document »

“record” includes any correspondence, memo-randum, book, plan, map, drawing, diagram, pictorial or graphic work, photograph, film, microform, sound recording, videotape and machine readable record, and any other documentary material, regardless of physical form or characteristics, and any copy of it.

“Registry”
« registre »

“Registry” means the Canadian Environmental Assessment Registry established under section 78.

“responsible authority”
« autorité responsable »

“responsible authority” means the authority that is referred to in section 15 with respect to a designated project that is subject to an environmental assessment.

“review panel”
« commission »

“review panel” means a review panel established under subsection 42(1) or under an agreement or arrangement entered into under subsection 40(1) or (2) or by document referred to in subsection 41(2).

“sustainable development”
« développement durable »

“sustainable development” means development that meets the needs of the present, without compromising the ability of future generations to meet their own needs.

Interested party

(2) One of the following entities determines, with respect to a designated project, that a person is an interested party if, in its opinion, the person is directly affected by the carrying out of the designated project or if, in its opinion, the person has relevant information or expertise:

(a) in the case of a designated project for which the responsible authority is referred to in paragraph 15(b), that responsible authority; or

(b) in the case of a designated project in relation to which the environmental assessment has been referred to a review panel under section 38, that review panel.

HER MAJESTY

Binding on Her Majesty

3. This Act is binding on Her Majesty in right of Canada or a province.

PURPOSES

Purposes

4. (1) The purposes of this Act are

(a) to protect the components of the environment that are within the legislative authority of Parliament from significant adverse envi-ronmental effects caused by a designated project;

(b) to ensure that designated projects that require the exercise of a power or perform-ance of a duty or function by a federal authority under any Act of Parliament other than this Act to be carried out, are considered in a careful and precautionary manner to avoid significant adverse environmental effects;

(c) to promote cooperation and coordinated action between federal and provincial governments with respect to environmental assessments;

(d) to promote communication and cooperation with aboriginal peoples with respect to environmental assessments;

(e) to ensure that opportunities are provided for meaningful public participation during an environmental assessment;

(f) to ensure that an environmental assessment is completed in a timely manner;

(g) to ensure that projects, as defined in section 66, that are to be carried out on federal lands, or those that are outside Canada and that are to be carried out or financially supported by a federal authority, are considered in a careful and precautionary manner to avoid significant adverse environmental effects;

(h) to encourage federal authorities to take actions that promote sustainable development in order to achieve or maintain a healthy environment and a healthy economy; and

(i) to encourage the study of the cumulative effects of physical activities in a region and the consideration of those study results in environmental assessments.

Mandate

(2) The Government of Canada, the Minister, the Agency, federal authorities and responsible authorities, in the administration of this Act, must exercise their powers in a manner that protects the environment and human health and applies the precautionary principle.

ENVIRONMENTAL EFFECTS

Environmental effects

5. (1) For the purposes of this Act, the environmental effects that are to be taken into account in relation to an act or thing, a physical activity, a designated project or a project are

(a) a change that may be caused to the following components of the environment that are within the legislative authority of Parliament:

(i) fish as defined in section 2 of the Fisheries Act and fish habitat as defined in subsection 34(1) of that Act,

(ii) aquatic species as defined in subsection 2(1) of the Species at Risk Act,

(iii) migratory birds as defined in subsection 2(1) of the Migratory Birds Convention Act, 1994, and

(iv) any other component of the environment that is set out in Schedule 2;

(b) a change that may be caused to the environment that would occur

(i) on federal lands,

(ii) in a province other than the one in which the act or thing is done or where the physical activity, the designated project or the project is being carried out, or

(iii) outside Canada; and

(c) with respect to aboriginal peoples, an effect occurring in Canada of any change that may be caused to the environment on

(i) health and socio-economic conditions,

(ii) physical and cultural heritage,

(iii) the current use of lands and resources for traditional purposes, or

(iv) any structure, site or thing that is of historical, archaeological, paleontological or architectural significance.

Exercise of power or performance of duty or function by federal authority

(2) However, if the carrying out of the physical activity, the designated project or the project requires a federal authority to exercise a power or perform a duty or function conferred on it under any Act of Parliament other than this Act, the following environmental effects are also to be taken into account:

(a) a change, other than those referred to in paragraphs (1)(a) and (b), that may be caused to the environment and that is directly linked or necessarily incidental to a federal authority’s exercise of a power or performance of a duty or function that would permit the carrying out, in whole or in part, of the physical activity, the designated project or the project; and

(b) an effect, other than those referred to in paragraph (1)(c), of any change referred to in paragraph (a) on

(i) health and socio-economic conditions,

(ii) physical and cultural heritage, or

(iii) any structure, site or thing that is of historical, archaeological, paleontological or architectural significance.

Schedule 2

(3) The Governor in Council may, by order, amend Schedule 2 to add or remove a component of the environment.

PROHIBITIONS

Proponent

6. The proponent of a designated project must not do any act or thing in connection with the carrying out of the designated project, in whole or in part, if that act or thing may cause an environmental effect referred to in subsection 5(1) unless

(a) the Agency makes a decision under paragraph 10(b) that no environmental assessment of the designated project is required and posts that decision on the Internet site; or

(b) the proponent complies with the conditions included in the decision statement that is issued under subsection 31(3) or section 54 to the proponent with respect to that designated project.

Federal authority

7. A federal authority must not exercise any power or perform any duty or function conferred on it under any Act of Parliament other than this Act that would permit a designated project to be carried out in whole or in part unless

(a) the Agency makes a decision under paragraph 10(b) that no environmental assessment of the designated project is required and posts that decision on the Internet site; or

(b) the decision statement with respect to the designated project that is issued under subsection 31(3) or section 54 to the proponent of the designated project indicates that the designated project is not likely to cause significant adverse environmental effects or that the significant adverse environmental effects that it is likely to cause are justified in the circumstances.

SCREENING

Proponent’s obligation — description of designated project

8. (1) The proponent of a designated project — other than one that is subject to an environmental assessment under section 13 or subsection 14(1) — must provide the Agency with a description of the designated project that includes the information prescribed by regulations made under paragraph 84(b).

Additional information

(2) If the Agency is of the opinion, after receiving the description of the designated project from the proponent, that a decision cannot be made under paragraph 10(b) because the description is incomplete or does not contain sufficient details, the Agency may, within 10 days after receiving it, require the proponent to provide an amended description that includes the information and details that the Agency specifies.

Posting of description of designated project and public notice on Internet site

9. When the Agency is satisfied that the description of the designated project includes all of the required information, it must post the following on the Internet site:

(a) a summary of the description;

(b) an indication of how a copy of the description may be obtained; and

(c) a notice that indicates that the designated project is the subject of a screening, invites the public to provide comments respecting the designated project within 20 days after the posting of the notice and indicates the address for filing those comments.

Screening decision

10. Within 45 days after the posting of the notice on the Internet site, the Agency must

(a) conduct the screening, which must include a consideration of the following factors:

(i) the description of the designated proj-ect provided by the proponent,

(ii) the possibility that the carrying out of the designated project may cause adverse environmental effects,

(iii) any comments received from the public within 20 days after the posting of the notice, and

(iv) the results of any relevant study conducted by a committee established under section 73 or 74; and

(b) on completion of the screening, decide if an environmental assessment of the designated project is required.

Federal authority’s obligation

11. Every federal authority that is in possession of specialist or expert information or knowledge with respect to a designated project that is subject to a screening must, on request, make that information or knowledge available to the Agency within the specified period.

Posting notice of decision on Internet site

12. The Agency must post a notice of its decision made under paragraph 10(b) on the Internet site.

ENVIRONMENTAL ASSESSMENT REQUIRED

Activities regulated by regulatory body

13. A designated project for which the responsible authority is referred to in any of paragraphs 15(a) to (c) is subject to an environmental assessment.

Designation of physical activity as designated project

14. (1) A designated project that includes a physical activity designated under subsection (2) is subject to an environmental assessment.

Minister’s power to designate

(2) The Minister may, by order, designate a physical activity that is not prescribed by regulations made under paragraph 84(a) if, in the Minister’s opinion, either the carrying out of that physical activity may cause adverse envi-ronmental effects or public concerns related to those effects may warrant the designation.

Minister’s power to require that information be provided

(3) The Minister may require any person to provide information with respect to any physical activity that can be designated under subsection (2).

Federal authority

(4) The Minister must specify in the order made under subsection (2) for each designated physical activity one of the following federal authorities to which the physical activity is linked:

(a) the Canadian Nuclear Safety Commission;

(b) the National Energy Board;

(c) any federal authority that performs regulatory functions, that may hold public hearings and that is specified in regulations made under paragraph 83(b); or

(d) the Agency.

Limitation

(5) The Minister must not make the designation referred to in subsection (2) if

(a) the carrying out of the physical activity has begun and, as a result, the environment has been altered; or

(b) a federal authority has exercised a power or performed a duty or function conferred on it under any Act of Parliament other than this Act that would permit the physical activity to be carried out, in whole or in part.

Posting of notice of order on Internet site

(6) The Agency must post on the Internet site a notice of any order made under subsection (2).

ENVIRONMENTAL ASSESSMENT OF DESIGNATED PROJECTS

Responsible Authority

Responsible authority

15. For the purposes of this Act, the responsible authority with respect to a designated project that is subject to an environmental assessment is

(a) the Canadian Nuclear Safety Commission, in the case of a designated project that includes activities that are regulated under the Nuclear Safety and Control Act and that are linked to the Canadian Nuclear Safety Commission as specified in the regulations made under paragraph 84(a) or the order made under subsection 14(2);

(b) the National Energy Board, in the case of a designated project that includes activities that are regulated under the National Energy Board Act or the Canada Oil and Gas Operations Act and that are linked to the National Energy Board as specified in the regulations made under paragraph 84(a) or the order made under subsection 14(2);

(c) the federal authority that performs regulatory functions, that may hold public hearings and that is prescribed by regulations made under paragraph 83(b), in the case of a designated project that includes activities that are linked to that federal authority as specified in the regulations made under paragraph 84(a) or the order made under subsection 14(2); or

(d) the Agency, in the case of a designated project that includes activities that are linked to the Agency as specified in the regulations made under paragraph 84(a) or the order made under subsection 14(2).

Cooperation

16. If two designated projects are closely related and the responsible authority with respect to each of them is different, each responsible authority must cooperate with the other with respect to the exercise of their respective powers and the performance of their respective duties and functions under this Act in relation to the projects.

Commencement of Environmental Assessment

Posting of notice on Internet site

17. The responsible authority with respect to a designated project must ensure that a notice of the commencement of the environmental assessment of a designated project is posted on the Internet site.

Consultation and Cooperation with Certain Jurisdictions

Responsible authority’s or Minister’s obligations

18. The responsible authority with respect to a designated project — or the Minister if the environmental assessment of the designated project has been referred to a review panel under section 38 — must offer to consult and cooperate with respect to the environmental assessment of the designated project with any jurisdiction referred to in paragraphs (c) to (h) of the definition “jurisdiction” in subsection 2(1) if that jurisdiction has powers, duties or functions in relation to an assessment of the environmental effects of the designated project.

Factors To Be Considered

Factors

19. (1) The environmental assessment of a designated project must take into account the following factors:

(a) the environmental effects of the designated project, including the environmental effects of malfunctions or accidents that may occur in connection with the designated project and any cumulative environmental effects that are likely to result from the designated project in combination with other physical activities that have been or will be carried out;

(b) the significance of the effects referred to in paragraph (a);

(c) comments from the public — or, with respect to a designated project that requires that a certificate be issued in accordance with an order made under section 54 of the National Energy Board Act, any interested party — that are received in accordance with this Act;

(d) mitigation measures that are technically and economically feasible and that would mitigate any significant adverse environmental effects of the designated project;

(e) the requirements of the follow-up program in respect of the designated project;

(f) the purpose of the designated project;

(g) alternative means of carrying out the designated project that are technically and economically feasible and the environmental effects of any such alternative means;

(h) any change to the designated project that may be caused by the environment;

(i) the results of any relevant study conducted by a committee established under section 73 or 74; and

(j) any other matter relevant to the environmental assessment that the responsible authority, or — if the environmental assessment is referred to a review panel — the Minister, requires to be taken into account.

Scope of factors

(2) The scope of the factors to be taken into account under paragraphs (1)(a), (b), (d), (e), (g), (h) and (j) is determined by

(a) the responsible authority; or

(b) the Minister, if the environmental assessment is referred to a review panel.

Community knowledge and Aboriginal traditional knowledge

(3) The environmental assessment of a designated project may take into account community knowledge and Aboriginal traditional knowledge.

Federal Authority’s Obligation

Specialist or expert information

20. Every federal authority that is in possession of specialist or expert information or knowledge with respect to a designated project that is subject to an environmental assessment must, on request, make that information or knowledge available, within the specified peri-od, to

(a) the responsible authority;

(b) the review panel;

(c) a government, an agency or body, or a jurisdiction that conducts an assessment of the designated project under a substituted process authorized by section 32; and

(d) a jurisdiction that conducts an assessment, in the case of a designated project that is exempted under subsection 37(1).

Environmental Assessment by Responsible Authority

General Rules

Application only when no referral to review panel

21. Sections 22 to 27 cease to apply to a designated project if it is referred by the Minister to a review panel under section 38.

Responsible authority’s obligations

22. The responsible authority with respect to a designated project must ensure that

(a) an environmental assessment of the designated project is conducted; and

(b) a report is prepared with respect to that environmental assessment.

Information

23. (1) The responsible authority may, when conducting the environmental assessment of a designated project and preparing the report with respect to the environmental assessment of the designated project, use any information that is available to it.

Studies and collection of information

(2) However, if the responsible authority is of the opinion that there is not sufficient information available to it for the purpose of conducting the environmental assessment or preparing the report with respect to the environmental assessment of the designated project, it may require the collection of any information or the undertaking of any study that, in the opinion of the responsible authority, is necessary for that purpose, including requiring the proponent to collect that information or undertake that study.

Public participation

24. Subject to section 28, the responsible authority must ensure that the public is provided with an opportunity to participate in the environmental assessment of a designated project.

Public notice in certain cases — draft report

25. (1) When the responsible authority is the Agency, it must ensure that a draft report with respect to the environmental assessment of a designated project is prepared, and must ensure that the following are posted on the Internet site:

(a) a copy of the draft report or an indication of how a copy may be obtained; and

(b) a notice that invites the public to provide comments on the draft report within the period specified and provides the address for filing those comments.

Final report submitted to Minister

(2) After taking into account any comments received from the public, the Agency must finalize the report with respect to the environmental assessment of the designated project and submit it to the Minister.

Delegation

26. (1) The responsible authority with respect to a designated project may delegate to any person, body or jurisdiction referred to in paragraphs (a) to (f) of the definition “jurisdiction” in subsection 2(1) the carrying out of any part of the environmental assessment of the designated project and the preparation of the report with respect to the environmental assessment of the designated project, but must not delegate the duty to make decisions under subsection 27(1).

For greater certainty

(2) For greater certainty, the responsible authority must not make decisions under subsection 27(1) unless it is satisfied that any delegated duty or function has been performed in accordance with this Act.

Responsible authority’s or Minister’s decisions

27. (1) The responsible authority or, when the Agency is the responsible authority, the Minister, after taking into account the report with respect to the environmental assessment of the designated project, must make decisions under subsection 52(1).

Time limit for Minister’s decisions

(2) The Minister’s decisions must be made no later than 365 days after the day on which the notice of the commencement of the environmental assessment of the designated project is posted on the Internet site.

Extension of time limit by Minister

(3) The Minister may extend that time limit by any further period — up to a maximum of three months — that is necessary to permit the Agency to cooperate with a jurisdiction referred to in section 18 with respect to the environmental assessment of the designated project or to take into account circumstances that are specific to the project.

Extension of time limit by Governor in Council

(4) The Governor in Council may, on the recommendation of the Minister, extend the time limit extended under subsection (3).

Posting notice of extension on Internet site

(5) The Agency must post on the Internet site a notice of any extension granted under subsection (3) or (4).

Excluded period

(6) If, under subsection 23(2), the Agency requires the proponent of a designated project to collect information or undertake a study with respect to the designated project, then the period that is taken by the proponent, in the Agency’s opinion, to comply with the requirement is not included in the calculation of the time limit within which the Minister’s decisions must be made.

Non application — section 54 of the National Energy Board Act

(7) Subsection (1) does not apply if the carrying out of the designated project requires that a certificate be issued in accordance with an order made under section 54 of the National Energy Board Act.

Section 54 of the National Energy Board Act

Participation of interested party

28. If the carrying out of a designated project requires that a certificate be issued in accord-ance with an order made under section 54 of the National Energy Board Act, the responsible authority with respect to the designated project must ensure that any interested party is provided with an opportunity to participate in the environmental assessment of the designated project.

Recommendations in environmental assessment report

29. (1) If the carrying out of a designated project requires that a certificate be issued in accordance with an order made under section 54 of the National Energy Board Act, the responsible authority with respect to the designated project must ensure that the report concerning the environmental assessment of the designated project sets out

(a) its recommendation with respect to the decision that may be made under paragraph 31(1)(a) in relation to the designated project, taking into account the implementation of any mitigation measures that it set out in the report; and

(b) its recommendation with respect to the follow-up program that is to be implemented in respect of the designated project.

Submission of report to Minister

(2) The responsible authority submits its report to the Minister within the meaning of section 2 of the National Energy Board Act at the same time as it submits the report referred to in subsection 52(1) of that Act.

Report is final and conclusive

(3) Subject to sections 30 and 31, the report with respect to the environmental assessment is final and conclusive.

Order to reconsider

30. (1) After the responsible authority with respect to a designated project has submitted its report with respect to the environmental assessment under section 29, the Governor in Council may, by order made under section 53 of the National Energy Board Act, refer any of the responsible authority’s recommendations set out in the report back to the responsible authority for reconsideration.

Factors and time limit

(2) The order may direct the responsible authority to conduct the reconsideration taking into account any factor specified in the order and it may specify a time limit within which the responsible authority must complete its reconsideration.

Responsible authority’s obligation

(3) The responsible authority must, before the expiry of the time limit specified in the order, if one was specified, reconsider any recommendation specified in the order and prepare and submit to the Minister within the meaning of section 2 of the National Energy Board Act a report on its reconsideration.

Content of reconsideration report

(4) In the reconsideration report, the responsible authority must

(a) if the order refers to the recommendation referred to in paragraph 29(1)(a)

(i) confirm the recommendation or set out a different one with respect to the decision that may be made under paragraph 31(1)(a) in relation to the designated project, and

(ii) confirm, modify or replace the mitigation measures set out in the report with respect to the environmental assessment; and

(b) if the order refers to the recommendation referred to in paragraph 29(1)(b), confirm the recommendation or set out a different one with respect to the follow-up program that is to be implemented in respect of the designated project.

Report is final and conclusive

(5) Subject to section 31, the responsible authority reconsideration report is final and conclusive.

Reconsideration of report under this section

(6) After the responsible authority has submitted its report under subsection (3), the Governor in Council may, by order made under section 53 of the National Energy Board Act, refer any of the responsible authority’s recommendations set out in the report back to the responsible authority for reconsideration. If it does so, subsections (2) to (5) apply. However, in subparagraph (4)(a)(ii), the reference to the mitigation measures set out in the report with respect to the environmental assessment is to be read as a reference to the mitigation measures set out in the reconsideration report.

Governor in Council’s decision

31. (1) After the responsible authority with respect to a designated project has submitted its report with respect to the environmental assessment or its reconsideration report under section 29 or 30, the Governor in Council may, by order made under subsection 54(1) of the National Energy Board Act

(a) decide, taking into account the implementation of any mitigation measures specified in the report with respect to the environmental assessment or in the reconsideration report, if there is one, that the designated project

(i) is not likely to cause significant adverse environmental effects,

(ii) is likely to cause significant adverse environmental effects that can be justified in the circumstances, or

(iii) is likely to cause significant adverse environmental effects that cannot be justified in the circumstances; and

(b) direct the responsible authority to issue a decision statement to the proponent of the designated project that

(i) informs the proponent of the decision made under paragraph (a) with respect to the designated project and,

(ii) if the decision is referred to in subparagraph (a)(i) or (ii), sets out conditions — which are the implementation of the mitigation measures and the follow-up program set out in the report with respect to the environmental assessment or the reconsideration report, if there is one — that must be complied with by the proponent in relation to the designated project.

Certain conditions subject to exercise of power or performance of duty or function

(2) The conditions that are included in the decision statement regarding the environmental effects referred to in subsection 5(2), that are directly linked or necessarily incidental to the exercise of a power or performance of a duty or function by a federal authority and that would permit the designated project to be carried out, in whole or in part, take effect only if the federal authority exercises the power or performs the duty or function.

Responsible authority’s obligation

(3) The responsible authority must issue to the proponent of the designated project the decision statement that is required in accordance with the order relating to the designated project within seven days after the day on which that order is made.

Posting of decision statement on Internet site

(4) The responsible authority must ensure that the decision statement is posted on the Internet site.

Decision statement considered part of certificate

(5) The decision statement issued in relation to the designated project under subsection (3) is considered to be a part of the certificate issued in accordance with the order made under section 54 of the National Energy Board Act in relation to the designated project.

Substitution

Minister’s obligation

32. (1) Subject to sections 33 and 34, if the Minister is of the opinion that a process for assessing the environmental effects of designated projects that is followed by the government of a province — or any agency or body that is established under an Act of the legislature of a province — that has powers, duties or functions in relation to an assessment of the environmental effects of a designated project would be an appropriate substitute, the Minister must, on request of the province, approve the substitution of that process for an environmental assessment.

Minister’s power

(2) Subject to sections 33 and 34, if the Minister is of the opinion that a process for assessing the environmental effects of designated projects that is followed by any jurisdiction referred to in paragraph (e) or (f) of the definition “jurisdiction” in subsection 2(1) that has powers, duties or functions in relation to an assessment of the environmental effects of a designated project would be an appropriate substitute, the Minister may approve the substitution of that process for the environmental assessment.

Manner of approval

(3) An approval must be in writing and may be given in respect of a designated project or a class of designated projects.

Posting of notice of approval on Internet site

(4) The Agency must post a notice of the approval on the Internet site.

Exceptions

33. The Minister must not approve the substitution of a process in relation to a designated project

(a) for which the responsible authority is referred to in paragraph 15(a) or (b); or

(b) in relation to which the environmental assessment has been referred by the Minister to a review panel under section 38.

Conditions

34. (1) The Minister may only approve a substitution if he or she is satisfied that

(a) the process to be substituted will include a consideration of the factors set out in subsection 19(1);

(b) the public will be given an opportunity to participate in the assessment;

(d) at the end of the assessment, a report will be submitted to the responsible authority;

(e) the report will be made available to the public; and

(f) any other conditions that the Minister establishes are or will be met.

Approval

(2) The Minister may also approve the substitution of a process that has already been completed for an environmental assessment if he or she is satisfied that the conditions under subsection (1) have been met.

Availability

(3) The conditions referred to in paragraph (1)(f) must be made available to the public.

Assessment considered in conformity

35. If the Minister approves the substitution of a process under section 32, the assessment that results from the substitution is considered to be an environmental assessment under this Act and to satisfy any requirements of this Act and the regulations in respect of an environmental assessment.

Responsible authority’s or Minister’s decision

36. After taking into account the report with respect to the environmental assessment of the designated project that is received by the responsible authority at the end of the assessment under the process authorized by section 32, the responsible authority or, when the Agency is the responsible authority, the Minister must make decisions under subsection 52(1).

Equivalent Assessment

Exemption

37. (1) When the Minister must, under subsection 32(1), on request, approve the substitution of a process that is followed by the government of a province or any agency or body that is established under an Act of the legislature of a province for an environmental assessment of a designated project, the Governor in Council may, by order and on the Minister’s recommendation, exempt the designated project from the application of this Act, if the Governor in Council is satisfied that

(a) after the completion of the assessment process, the government or the agency or body determines whether, taking into account the implementation of any mitigation meas-ures that it considers appropriate, the designated project is likely to cause significant adverse environmental effects;

(b) the government or the agency or body ensures the implementation of the mitigation measures that are taken into account in making the determination and the implementation of a follow-up program; and

Availability

(2) The conditions referred to in paragraph (1)(c) must be made available to the public.

Posting of notice of order on Internet site

(3) The Agency must post a notice of any order made under subsection (1) on the Internet site.

Environmental Assessment by a Review Panel

General Rules

Referral to review panel

38. (1) Subject to subsection (6), within 60 days after the notice of the commencement of the environmental assessment of a designated project is posted on the Internet site, the Minister may, if he or she is of the opinion that it is in the public interest, refer the environmental assessment to a review panel.

Public interest

(2) The Minister’s determination regarding whether the referral of the environmental assessment of the designated project to a review panel is in the public interest must include a consideration of the following factors:

(a) whether the designated project may cause significant adverse environmental effects;

(b) public concerns related to the significant adverse environmental effects that the designated project may cause; and

(c) opportunities for cooperation with any jurisdiction that has powers, duties or functions in relation to an assessment of the environmental effects of the designated project or any part of it.

Time limits

(3) If the Minister refers the environmental assessment of the designated project to a review panel, the Minister must establish the following time limits — which combined are not to exceed 24 months — within which

(a) the review panel is to be established after the referral;

(b) the review panel must submit the report with respect to the environmental assessment of the designated project to the Minister; and

(c) the Minister must, after receiving the review panel’s report, issue a decision statement under section 54 in relation to the designated project.

Modified time limits

(4) Subject to section 54, the Minister may, as required, modify those time limits.

Posting of notices on Internet site

(5) The Agency must post on the Internet site a notice of any decision made by the Minister to refer the environmental assessment of the designated project to a review panel, and a notice of any time limits that the Minister establishes in relation to the designated project and any changes that he or she may make to those time limits.

Exception

(6) The Minister must not refer to a review panel the environmental assessment of a designated project for which the responsible authority is referred to in paragraph 15(a) or (b).

Studies and collection of information

39. When the Minister refers the environmental assessment of a designated project to a review panel under section 38, the Agency may, from the day on which the referral is made and until the day on which the panel is established, require the proponent of the designated project to collect any information or undertake any studies that, in the opinion of the Agency, are necessary for the environmental assessment by the review panel.

Agreement to jointly establish review panel

40. (1) When the Minister refers the envi-ronmental assessment of a designated project to a review panel under section 38, he or she may enter into an agreement or arrangement with any jurisdiction referred to in paragraphs (a) to (f) of the definition “jurisdiction” in subsection 2(1) that has powers, duties or functions in relation to the assessment of the environmental effects of the designated project, respecting the joint establishment of a review panel and the manner in which the environmental assessment of the designated project is to be conducted by that panel.

Other jurisdiction

(2) When the Minister refers the environmental assessment of a designated project to a review panel under section 38, the Minister and the Minister of Foreign Affairs may enter into an agreement or arrangement with any jurisdiction referred to in paragraph (g) or (h) of the definition “jurisdiction” in subsection 2(1) that has powers, duties or functions in relation to an assessment of the environmental effects of the designated project respecting the joint establishment of a review panel and the manner in which the environmental assessment of the designated project is to be conducted by that panel.

Posting on Internet site

(3) Any agreement or arrangement referred to in subsection (1) or (2) must be posted on the Internet site before the commencement of the hearings conducted by the jointly established review panel.

Mackenzie Valley Resource Management Act

41. (1) When a proposal is referred to the Minister under paragraph 130(1)(c) of the Mackenzie Valley Resource Management Act, the Minister must refer the proposal to a review panel.

Document establishing review panel

(2) When the Minister is required to refer the proposal to a review panel, he or she and the Mackenzie Valley Environmental Impact Review Board must, in writing, jointly establish a review panel and prescribe the manner of its examination of the impact of the proposal on the environment.

If no agreement

(3) Despite subsection (2), if, in respect of a proposal referred to in subsection 138.1(1) of the Mackenzie Valley Resource Management Act, no agreement is entered into under that subsection within the period fixed by the regulations referred to in subsection 138.1(4) of that Act, an assessment by a review panel of the proposal must be conducted.

Coordination with environmental impact review

(4) The Minister must to the extent possible ensure that any assessment of the proposal required by subsection (3) is coordinated with any environmental impact review of the proposal under the Mackenzie Valley Resource Management Act.

Consultations

(5) Before making decisions under section 47 in relation to the proposal referred to in subsection (4), the Minister must take into account any report concerning the proposal that is issued under subsection 134(2) of the Mackenzie Valley Resource Management Act and must consult the persons and bodies to whom the report is submitted or distributed under subsection 134(3) of that Act.

Posting on Internet site

(6) Any document establishing a review panel under subsection (2) must be posted on the Internet site before the commencement of the hearings conducted by the jointly established review panel.

Terms of reference and appointment of members

42. (1) Subject to subsection (2), if the environmental assessment of a designated project is referred to a review panel, the Minister must establish the panel’s terms of reference and appoint as a member one or more persons who are unbiased and free from any conflict of interest relative to the designated project and who have knowledge or experience relevant to its anticipated environmental effects.

Provisions of agreement

(2) When there is an agreement or arrangement to jointly establish a review panel under subsection 40(1) or (2), or when there is a document jointly establishing a review panel under subsection 41(2), the agreement, arrangement or document must provide that the environmental assessment of the designated project includes a consideration of the factors set out in subsection 19(1) and is conducted in accordance with any additional requirements and procedures set out in it and provide that

(a) the Minister must establish — or approve — the review panel’s terms of reference;

(b) subject to section 54, the Minister establishes or approves the period within which the panel must submit its report with respect to the environmental assessment of the designated project and may, at any time, modify the terms of reference in order to extend the period;

(c) the Minister must appoint — or approve the appointment of — the chairperson or appoint a co-chairperson and must appoint at least one other member of the review panel; and

(d) the members of the panel are to be unbiased and free from any conflict of interest relative to the designated project and are to have knowledge or experience relevant to its anticipated environmental effects.

Establishment of roster

(3) The Minister must establish a roster of persons who may be appointed as members of a review panel established under subsection (1) or under an agreement, arrangement or document referred to in subsection (2).

Review panel’s duties

43. (1) A review panel must, in accordance with its terms of reference,

(a) conduct an environmental assessment of the designated project;

(b) ensure that the information that it uses when conducting the environmental assessment is made available to the public;

(c) hold hearings in a manner that offers any interested party an opportunity to participate in the environmental assessment;

(d) prepare a report with respect to the environmental assessment that sets out

(i) the review panel’s rationale, conclusions and recommendations, including any mitigation measures and follow-up program, and

(ii) a summary of any comments received from the public, including interested parties;

(e) submit the report with respect to the environmental assessment to the Minister; and

(f) on the Minister’s request, clarify any of the conclusions and recommendations set out in its report with respect to the environmental assessment.

Time limit

(2) Subject to section 54, when a review panel is not jointly established under an agreement, arrangement or document referred to in subsection 42(2), the Minister must, in the terms of reference, set out the period within which the panel must submit the report with respect to the environmental assessment of the designated project to the Minister and may, at any time, modify the terms of reference in order to extend the period.

Information

44. (1) A review panel may, when conducting the environmental assessment of a designated project and preparing the report with respect to the environmental assessment of the designated project, use any information that is available to it.

Studies and collection of information

(2) However, if the review panel is of the opinion that there is not sufficient information available for the purpose of conducting the environmental assessment or preparing the report with respect to the environmental assessment of the designated project, it may require the collection of any information or the undertaking of any study that, in the opinion of the review panel, is necessary for that purpose, including requiring the proponent to collect that information or undertake that study.

Power to summon witnesses

45. (1) A review panel has the power to summon any person to appear as a witness before it and to order the witness to

(a) give evidence, orally or in writing; and

(b) produce any records and things that the panel considers necessary for conducting its environmental assessment of the designated project.

Enforcement powers

(2) A review panel has the same power to enforce the attendance of witnesses and to compel them to give evidence and produce records and other things as is vested in a court of record.

Hearings to be public

(3) A hearing by a review panel must be public unless the panel is satisfied after representations made by a witness that specific, direct and substantial harm would be caused to the witness or specific harm would be caused to the environment by the disclosure of the evidence, records or other things that the witness is ordered to give or produce under subsection (1).

Non-disclosure

(4) If a review panel is satisfied that the disclosure of evidence, records or other things would cause specific, direct and substantial harm to a witness, the evidence, records or things are privileged and must not, without the witness’s authorization, knowingly be or be permitted to be communicated, disclosed or made available by any person who has obtained the evidence, records or other things under this Act.

Non-disclosure

(5) If a review panel is satisfied that the disclosure of evidence, records or other things would cause specific harm to the environment, the evidence, records or things are privileged and must not, without the review panel’s authorization, knowingly be or be permitted to be communicated, disclosed or made available by any person who has obtained the evidence, records or other things under this Act.

Enforcement of summonses and orders

(6) Any summons issued or order made by a review panel under subsection (1) must, for the purposes of enforcement, be made a summons or order of the Federal Court by following the usual practice and procedure.

Immunity

(7) No action or other proceeding lies or is to be commenced against a member of a review panel for or in respect of anything done or omitted to be done during the course of and for the purposes of the assessment by the review panel.

Public notice

46. On receiving a report with respect to the environmental assessment of the designated project by a review panel, the Minister must make the report available to the public in any manner he or she considers appropriate to facilitate public access to the report, and must advise the public that it is available.

Minister’s decisions

47. (1) The Minister, after taking into account the review panel’s report with respect to the environmental assessment, must make decisions under subsection 52(1).

Studies and collection of information

(2) The Minister may, before making decisions referred to in subsection 52(1), require the proponent of the designated project to collect any information or undertake any studies that, in the opinion of the Minister, are necessary for the Minister to make decisions.

Excluded periods

48. If the Agency, the review panel or the Minister, under section 39 or subsection 44(2) or 47(2), respectively, requires the proponent of a designated project to collect information or undertake a study with respect to the designated project, then

(a) the period that is taken by the proponent, in the opinion of the Agency, to comply with the requirement under section 39 is not included in the calculation of the period referred to in paragraph 38(3)(a);

(b) the period that is taken by the proponent, in the opinion of the review panel, to comply with the requirement under subsection 44(2) is not included in the calculation of the period referred to in paragraph 38(3)(b) or 42(2)(b) or subsection 43(2); and

(c) the period that is taken by the proponent, in the opinion of the Minister, to comply with the requirement under subsection 47(2) is not included in the calculation of the period referred to in paragraph 38(3)(c).

Rules in Case of Termination

Termination

49. (1) The Minister must terminate the assessment by a review panel of a designated project if the review panel fails to submit its report within the specified period including any extension of time limits.

Power to terminate

(2) The Minister may terminate the assessment by a review panel of a designated project if he or she is of the opinion that the review panel will not be able to submit its report within the specified period including any extension of time limits.

Preliminary consultations

(3) However, before the Minister exercises the power referred to in subsection (2) with respect to a review panel that is jointly established under one of the following agreements, arrangements or documents, he or she must

(a) in the case of an agreement or arrangement referred to in subsection 40(1), consult the jurisdiction with which the agreement or arrangement was entered into;

(b) in the case of an agreement or arrangement referred to in subsection 40(2), obtain the approval of the Minister of Foreign Affairs and consult the jurisdiction with which the agreement or arrangement was entered into; and

(c) in the case of a document referred to in subsection 41(2), consult the Mackenzie Valley Environmental Impact Review Board.

Completion of environmental assessment by Agency

50. When the assessment by a review panel of a designated project is terminated under section 49, the Agency must, in accordance with directives provided by the Minister, complete the environmental assessment of the designated project and prepare a report and submit it to the Minister.

Minister’s decisions

51. The Minister, after taking into account the report with respect to the environmental assessment of the designated project that was submitted by the Agency, must make decisions under subsection 52(1).

Decision Making

Decisions of decision maker

52. (1) For the purposes of sections 27, 36, 47 and 51, the decision maker referred to in those sections must decide if, taking into account the implementation of any mitigation measures that the decision maker considers appropriate, the designated project

(a) is likely to cause significant adverse environmental effects referred to in subsection 5(1); and

(b) is likely to cause significant adverse environmental effects referred to in subsection 5(2).

Referral if significant adverse environmental effects

(2) If the decision maker decides that the designated project is likely to cause significant adverse environmental effects referred to in subsection 5(1) or (2), the decision maker must refer to the Governor in Council the matter of whether those effects are justified in the circumstances.

Referral through Minister

(3) If the decision maker is a responsible authority referred to in any of paragraphs 15(a) to (c), the referral to the Governor in Council is made through the Minister responsible before Parliament for the responsible authority.

Governor in Council’s decision

(4) When a matter has been referred to the Governor in Council, the Governor in Council may decide

(a) that the significant adverse environmental effects that the designated project is likely to cause are justified in the circumstances; or

(b) that the significant adverse environmental effects that the designated project is likely to cause are not justified in the circumstances.

Conditions — environmental effects referred to in subsection 5(1)

53. (1) If the decision maker decides under paragraph 52(1)(a) that the designated project is not likely to cause significant adverse environmental effects referred to in subsection 5(1), or the Governor in Council decides under paragraph 52(4)(a) that the significant adverse environmental effects referred to in that subsection that the designated project is likely to cause are justified in the circumstances, the decision maker must establish the conditions in relation to the environmental effects referred to in that subsection with which the proponent of the designated project must comply.

Conditions — environmental effects referred to in subsection 5(2)

(2) If the decision maker decides under paragraph 52(1)(b) that the designated project is not likely to cause significant adverse environmental effects referred to in subsection 5(2), or the Governor in Council decides under paragraph 52(4)(a) that the significant adverse environmental effects referred to in that subsection that the designated project is likely to cause are justified in the circumstances, the decision maker must establish the conditions — that are directly linked or necessarily incidental to the exercise of a power or performance of a duty or function by a federal authority that would permit a designated project to be carried out, in whole or in part — in relation to the environmental effects referred to in that subsection with which the proponent of the designated project must comply.

Conditions subject to exercise of power or performance of duty or function

(3) The conditions referred to in subsection (2) take effect only if the federal authority exercises the power or performs the duty or function.

Mitigation measures and follow-up program

(4) The conditions referred to in subsections (1) and (2) are

(a) the implementation of the mitigation measures that were taken into account in making the decisions under subsection 52(1); and

(b) the implementation of a follow-up program.

Decision Statement

Decision statement issued to proponent

54. (1) The decision maker must issue a decision statement to the proponent of a designated project that

(a) informs the proponent of the designated project of the decisions made under paragraphs 52(1)(a) and (b) in relation to the designated project and, if a matter was referred to the Governor in Council, of the decision made under subsection 52(4) in relation to the designated project; and

(b) includes any conditions that are established under section 53 in relation to the designated project and that must be complied with by the proponent.

Time limit of decision statement

(2) When the decision maker has made a decision under paragraphs 52(1)(a) and (b) in relation to the designated project for the purpose of section 47, the decision maker must issue the decision statement no later than 24 months after the day on which the environmental assessment of the designated project was referred to a review panel under section 38.

Extension of time limit by Minister

(3) The decision maker may extend that time limit by any further period – up to a maximum of three months – that is necessary to permit cooperation with any jurisdiction with respect to the environmental assessment of the designated project or to take into account circumstances that are specific to the project.

Extension of time limit by Governor in Council

(4) The Governor in Council may, on the recommendation of the Minister, extend the time limit extended under subsection (3).

Posting notice of extension on Internet site

(5) The Agency must post a notice of any extension granted under subsection (3) or (4) on the Internet site.

Excluded period

(6) If the Agency, the review panel or the Minister, under section 39 or subsection 44(2) or 47(2), respectively, requires the proponent of the designated project to collect information or undertake a study with respect to the designated project, the calculation of the time limit within which the decision maker must issue the decision statement does not include:

(a) the period that is taken by the proponent, in the opinion of the Agency, to comply with the requirement under section 39;

(b) the period that is taken by the proponent, in the opinion of the review panel, to comply with the requirement under subsection 44(2); and

(c) the period that is taken by the proponent, in the opinion of the Minister, to comply with the requirement under subsection 47(2).

Posting of decision statement on Internet site

55. The responsible authority referred to in any of paragraphs 15(a) to (c) must ensure that any decision statement that it issues under section 54 is posted on the Internet site, and the Agency must post on the Internet site any decision statement that the Minister issues under that section.

Decision statement considered part of licence under Nuclear Safety and Control Act

56. (1) A decision statement issued in relation to a designated project by the responsible authority referred to in paragraph 15(a) is considered to be a part of the licence issued under section 24 of the Nuclear Safety and Control Act in relation to the designated project.

Decision statement considered part of certificate, etc., under National Energy Board Act and Canada Oil and Gas Operations Act

(2) A decision statement issued in relation to a designated project by the responsible authority referred to in paragraph 15(b) is considered to be a part of

(a) the certificate, order, permit or licence issued, the leave or exemption granted or the direction or approval given under the National Energy Board Act in relation to the designated project; or

(b) the authorization or licence issued, the approval granted or the leave given under the Canada Oil and Gas Operations Act in relation to the designated project.

Participant Funding Programs

Agency’s obligation

57. The Agency must establish a participant funding program to facilitate the participation of the public in the environmental assessment of designated projects that have been referred to a review panel under section 38.

Responsible authority’s obligation

58. (1) A responsible authority must establish a participant funding program to facilitate the participation of the public in the environmental assessment of any designated project, for which it is the responsible authority, that meets the following conditions:

(a) it includes physical activities that are designated by regulations made under paragraph 84(e) or that are part of a class of activities designated by those regulations; and

(b) the environmental assessment of the designated project was not referred to a review panel under section 38.

Exception

(2) The obligation does not apply with respect to any designated project for which the Minister has approved a substitution under section 32.

Cost Recovery

Proponent’s obligation to pay costs

59. (1) For the Agency to recover its costs in relation to the environmental assessment of a designated project, the proponent of the designated project must pay to the Agency

(a) if the environmental assessment is conducted by the Agency, any costs that the Agency incurs for prescribed services provided by a third party in the course of the environmental assessment and any prescribed amounts that are related to the exercise of its responsibilities in relation to the environmental assessment; and

(b) if the environmental assessment is referred to a review panel under section 38, any costs that the review panel and the Agency incur for prescribed services provided by a third party in the course of the environmental assessment and any prescribed amounts that are related to the exercise of its responsibilities or to those of the members of the review panel, in relation to the environmental assessment.

User Fees Act

(2) The User Fees Act does not apply to the costs and amounts referred to in subsection (1) that are fixed at the time of the coming into force of this Act.

Services provided during given period

60. For the purposes of section 59, the services or responsibilities are limited to those provided or exercised during the period that begins when the notice of the commencement of the environmental assessment of the designated project is posted on the Internet site under section 17 and that ends when the decision statement is issued to the proponent under section 54.

Debt due to Her Majesty

61. The costs and amounts that the proponent must pay under section 59 constitute a debt due to Her Majesty in right of Canada and may be recovered as such in any court of competent jurisdiction.

Termination of Environmental Assessment

Termination by responsible authority or Minister

62. The responsible authority with respect to a designated project — or the Minister if the environmental assessment of the designated project has been referred to a review panel under section 38 — may terminate the environmental assessment if the proponent advises the responsible authority or the Minister in writing that the proponent does not intend to carry out the designated project.

Termination by responsible authority referred to in any of paragraphs 15(a) to (c)

63. The responsible authority referred to in any of paragraphs 15(a) to (c) may terminate the environmental assessment of a designated project for which it is the responsible authority if it decides not to exercise any power or perform any duty or function conferred on it under any Act of Parliament other than this Act that would permit the designated project to be carried out in whole or in part and, if the responsible authority is referred to in paragraph 15(c), the environmental assessment of a designated project was not referred to a review panel under section 38.

Termination by Minister

64. The Minister may terminate the environmental assessment by a review panel of a designated project for which the responsible authority is referred to in paragraph 15(c) if it decides not to exercise any power or perform any duty or function conferred on it under any Act of Parliament other than this Act that would permit the designated project to be carried out in whole or in part.

Confidential Information

No disclosure

65. Despite any other provision of this Act, no confidence of the Queen’s Privy Council for Canada in respect of which subsection 39(1) of the Canada Evidence Act applies is to be disclosed or made available under this Act to any person.

DUTIES OF CERTAIN AUTHORITIES IN RELATION TO PROJECTS

Definitions

66. The following definitions apply in sections 5 and 67 to 72.

“authority”
« autorité »

“authority” means

(a) a federal authority; and

(b) any other body that is set out in Schedule 3.

“project”
« projet »

“project” means a physical activity that is carried out in relation to a physical work and is not a designated project.

Project carried out on federal lands

67. An authority must not carry out a project on federal lands, or exercise any power or perform any duty or function conferred on it under any Act of Parliament other than this Act that would permit a project to be carried out, in whole or in part, on federal lands, unless

(a) the authority determines that the carrying out of the project is not likely to cause significant adverse environmental effects; or

(b) the authority determines that the carrying out of the project is likely to cause significant adverse environmental effects and the Governor in Council decides that those effects are justified in the circumstances under subsection 69(3).

Project outside Canada

68. A federal authority must not carry out a project outside Canada, or provide financial assistance to any person for the purpose of enabling, in whole or in part, a project to be carried out outside Canada, unless

(a) the federal authority determines that the carrying out of the project is not likely to cause significant adverse environmental effects; or

(b) the federal authority determines that the carrying out of the project is likely to cause significant adverse environmental effects and the Governor in Council decides that those effects are justified in the circumstances under subsection 69(3).

Referral to Governor in Council

69. (1) If the authority determines that the carrying out of a project on federal lands or outside Canada is likely to cause significant adverse environmental effects, the authority may refer to the Governor in Council the matter of whether those effects are justified in the circumstances.

Referral through Minister

(2) When the determination is made by an authority other than a federal Minister, then the referral to the Governor in Council is made through the Minister responsible before Parliament for that authority.

Governor in Council’s decision

(3) When a matter has been referred to the Governor in Council, the Governor in Council must decide whether the significant adverse environmental effects are justified in the circumstances and must inform the authority of its decision.

Non-application — national emergency or emergency

70. Sections 67 and 68 do not apply to an authority in respect of a project

(a) in relation to which there are matters of national security;

(b) that is to be carried out in response to a national emergency for which special temporary measures are being taken under the Emergencies Act; or

(c) that is to be carried out in response to an emergency, and carrying out of the project without delay is in the interest of preventing damage to property or the environment or is in the interest of public health or safety.

Federal authority’s reporting duty

71. (1) The federal authority must, at the end of each fiscal year, report on its activities under sections 67 to 69 during the previous fiscal year.

Tabling in Parliament

(2) The information on its activities must be laid before each House of Parliament during the fiscal year after the fiscal year to which the information relates.

Authority’s reporting duty

72. (1) The authority referred to in paragraph (b) of the definition “authority” in section 66 must, each year, report on its activities during the previous year under sections 67 and 69.

Availability

(2) The authority must make the information on its activities available to the public.

REGIONAL STUDIES

Establishment of committee — region entirely on federal lands

73. (1) The Minister may establish a committee to conduct a study of the effects of existing or future physical activities carried out in a region that is entirely on federal lands.

Mandate and appointment of members

(2) If the Minister establishes a committee, he or she must establish its terms of reference and appoint as a member of the committee one or more persons.

Joint establishment of committee — other regions

74. (1) If the Minister is of the opinion that it is appropriate to conduct a study of the effects of existing or future physical activities carried out in a region that is composed in part of federal lands or in a region that is entirely outside federal lands,

(a) the Minister may enter into an agreement or arrangement with any jurisdiction referred to in paragraphs (a) to (f) of the definition “jurisdiction” in subsection 2(1) respecting the joint establishment of a committee to conduct the study and the manner in which the study is to be conducted; and

(b) the Minister and the Minister of Foreign Affairs may enter into an agreement or arrangement with any jurisdiction referred to in paragraph (g) or (h) of that definition respecting the joint establishment of a committee to conduct the study and the manner in which the study is to be conducted.

Mandate and appointment of members

(2) If an agreement or arrangement referred to in subsection (1) is entered into, the Minister must establish — or approve — the committee’s terms of reference and appoint one or more persons as a member of the committee — or approve their appointment.

Report to Minister

75. On completion of the study that it conducts, the committee established under section 73 or under an agreement or arrangement entered into under paragraph 74(1)(a) or (b) must provide a report to the Minister.

Public notice

76. On receiving the committee’s report, the Minister must make the report available to the public in any manner he or she considers appropriate to facilitate public access to the report and must advise the public that it is available.

Application of section 45

77. Section 45 applies, with any necessary modifications, to a committee referred to in section 75 and, for the purpose of applying section 45 to a committee, a reference in that section to a review panel is a reference to a committee.

CANADIAN ENVIRONMENTAL ASSESSMENT REGISTRY

Establishment of Registry

Canadian Environmental Assessment Registry

78. (1) For the purpose of facilitating public access to records relating to environmental assessments and providing notice in a timely manner of those assessments, there is to be a registry called the Canadian Environmental Assessment Registry, consisting of an Internet site and project files.

Right of access

(2) The Registry must be operated in a manner that ensures convenient public access to it. That right of access to the Registry is in addition to any right of access provided under any other Act of Parliament.

Copy

(3) For the purpose of facilitating public access to records included in the Registry, the responsible authority must ensure that a copy of any of those records is provided in a timely manner on request.

Internet Site

Establishment and maintenance

79. (1) The Agency must establish and maintain an Internet site that is available to the public.

Contents — responsible authority

(2) The responsible authority with respect to a designated project must ensure that the following records and information, relating to the environmental assessment of the designated project that it conducts, are posted on the Internet site:

(a) any public notice that is issued by the responsible authority to request participation of the public — or, with respect to a designated project that requires that a certif-icate be issued in accordance with an order made under section 54 of the National Energy Board Act, of any interested party — in the environmental assessment;

(b) a description of the factors to be taken into account in the environmental assessment and of the scope of those factors or an indication of how such a description may be obtained;

(c) the report with respect to the environmental assessment that is taken into account by the responsible authority or the Minister for the purpose of making decisions under section 27 or 36, or a summary of the report and an indication of how a copy of the report may be obtained;

(d) the report with respect to the environmental assessment or the reconsideration report that is taken into account by the Governor in Council for the purpose of making a decision under section 31, or a summary of that report and an indication of how a copy of that report may be obtained;

(e) notice of the responsible authority’s decision to terminate the environmental assessment under section 62 or 63;

(f) any other information that the responsible authority considers appropriate, including information in the form of a list of relevant records and an indication of how a copy of them may be obtained; and

(g) any other record or information prescribed by regulations made under paragraph 84(f).

Contents — Agency

(3) The Agency must ensure that, in the case of an assessment conducted by a review panel or an environmental assessment completed under section 50, the following records or information are posted on the Internet site:

(a) the review panel’s terms of reference;

(b) any public notice that is issued by the review panel to request public participation in an environmental assessment;

(c) the report with respect to the environmental assessment that is taken into account by the Minister for the purpose of making decisions under section 47 or 51, or a summary of the report and an indication of how a copy of the report may be obtained;

(d) notice of the termination of an assessment conducted by the review panel under section 49;

(e) notice of the Minister’s decision to terminate an environmental assessment under section 62 or 64;

(f) any other information that the Agency considers appropriate, including information in the form of a list of relevant documents and an indication of how a copy of them may be obtained; and

(g) any other record or information prescribed by regulations made under paragraph 84(f).

Management of Internet site

(4) The Agency must determine

(a) what the form of the Internet site is to be and how it is to be kept;

(b) what information must be contained in any record required to be posted on the Internet site under this Act; and

Project Files

Establishment and maintenance

80. (1) In respect of every designated project for which a screening or an environmental assessment is conducted, a project file must be established and maintained

(a) by the Agency when there is a screening of the designated project, during the screening; and

(b) by the responsible authority from the commencement of the environmental assessment until any follow-up program in respect of the designated project is completed.

Contents of project file

(2) A project file must contain all records produced, collected or received for the purpose of conducting the screening and the environmental assessment of the designated project, including

(a) all records posted on the Internet site;

(b) the description of the designated project;

(d) any comments that are received from the public in relation to the screening and the environmental assessment;

(e) any records relating to the design or implementation of any follow-up program; and

(f) any records relating to mitigation meas-ures to be implemented.

General

Categories of available information

81. (1) Despite any other provision of this Act, the Registry must contain a record, part of a record or information only if

(a) it has otherwise been made publicly available; or

(b) the responsible authority, in the case of a record under its control, or the Minister, in the case of a record under the Agency’s control,

(i) determines that it would have been disclosed to the public in accordance with the Access to Information Act if a request had been made in respect of that record under that Act at the time the record came under the control of the responsible authority or the Agency, including any record that would be disclosed in the public interest under subsection 20(6) of that Act, or

(ii) believes on reasonable grounds that it would be in the public interest to disclose it because it is required for the public to participate effectively in the environmental assessment — other than any record the disclosure of which would be prohibited under section 20 of the Access to Information Act.

Applicability of sections 27, 28 and 44 of Access to Information Act

(2) Sections 27, 28 and 44 of the Access to Information Act apply to any information described in subsection 27(1) of that Act that the Agency or a responsible authority intends to be included in the Registry with any necessary modifications, including the following:

(a) the information is deemed to be a record that the head of a government institution intends to disclose; and

(b) any reference to the person who requested access must be disregarded.

Protection from civil proceeding or prosecution

82. Despite any other Act of Parliament, no civil or criminal proceedings lie against a responsible authority, the Agency or the Minister, or against any person acting on behalf of, or under the direction of, any one of them and no proceedings lie against the Crown, the Agency or any responsible authority, for the disclosure in good faith of any record or any part of a record under this Act or for any consequences that flow from that disclosure or for the failure to give any notice required under section 27 or 28 of the Access to Information Act if reasonable care is taken to give the required notice.

ADMINISTRATION

Regulations — Governor in Council

83. The Governor in Council may make regulations

(a) amending Schedule 1 or 3 by adding or deleting a body or a class of bodies;

(b) prescribing, for the purposes of paragraph 15(c), the federal authority that performs regulatory functions and that may hold public hearings;

(d) varying or excluding any requirement set out in this Act or the regulations as it applies to physical activities to be carried out

(i) on reserves, surrendered lands or other lands that are vested in Her Majesty and subject to the Indian Act,

(ii) on lands covered by land claim agreements referred to in section 35 of the Constitution Act, 1982,

(iii) under international agreements or arrangements entered into by the Government of Canada, or

(iv) in relation to which there are matters of national security;

(e) prescribing anything that, by this Act, is to be prescribed;

(f) prescribing the way in which anything that is required or authorized by this Act to be prescribed is to be determined; and

(g) generally, for carrying out the purposes and provisions of this Act.

Regulations — Minister

84. The Minister may make regulations

(a) for the purpose of the definition “designated project” in subsection 2(1), designating a physical activity or class of physical activities and specifying for each designated physical activity or class of physical activities one of the following federal authorities to which the physical activity is linked:

(i) the Canadian Nuclear Safety Commission,

(ii) the National Energy Board,

(iii) any federal authority that performs regulatory functions, that may hold public hearings and that is prescribed in regulations made under paragraph 83(b), or

(iv) the Agency;

(b) prescribing the information that must be contained in a description of a designated project;

(c) respecting the procedures, requirements and time periods relating to environmental assessments, including the manner of designing a follow-up program;

(d) respecting a participant funding program established under section 57 or established under section 58 by the responsible authority referred to in paragraph 15(d);

(e) designating, for the purposes of section 58, a physical activity or class of physical activities;

(f) respecting the Registry, including the identification of records or information to be posted on the Internet site and the establishment and maintenance of project files referred to in section 80; and

(g) respecting the charging of fees for providing copies of documents contained in the Registry.

Externally produced documents

85. (1) A regulation made under this Act may incorporate by reference documents that are produced by a person or body other than the Agency, including a federal authority referred to in any of paragraphs (a) to (d) of the definition “federal authority” in subsection 2(1).

Ambulatory incorporation by reference

(2) A document may be incorporated by reference either as it exists on a particular date or as amended from time to time.

Accessibility of incorporated document

(3) The Minister must ensure that any document incorporated by reference in a regulation is accessible.

No registration or publication

(4) For greater certainty, a document that is incorporated by reference into a regulation is not required to be transmitted for registration or published in the Canada Gazette by reason only that it is incorporated by reference.

Minister’s powers

86. (1) For the purposes of this Act, the Minister may

(a) issue guidelines and codes of practice respecting the application of this Act and, without limiting the generality of the foregoing, establish criteria to determine whether a designated project, taking into account the implementation of any appropriate mitigation measures, is likely to cause significant adverse environmental effects or whether such effects are justified in the circumstances;

(b) establish research and advisory bodies in the area of environmental assessment;

(c) enter into agreements or arrangements with any jurisdiction referred to in paragraphs (a) to (f) of the definition “jurisdiction” in subsection 2(1) respecting assessments of environmental effects;

(d) enter into agreements or arrangements with any jurisdiction for the purposes of coordination, consultation, exchange of information and the determination of factors to be considered in relation to the assessment of the environmental effects of designated projects of common interest;

(e) establish criteria for the appointment of members of review panels; and

(f) establish criteria for the appointment of members of committees established under section 73 or 74.

Power to enter into international agreements

(2) The Minister and the Minister of Foreign Affairs may enter into agreements or arrangements with any jurisdiction referred to in paragraphs (g) and (h) of the definition “jurisdiction” in subsection 2(1) respecting assessments of environmental effects, including, without limiting the generality of the foregoing, for the purposes of implementing the provisions of any international agreement or arrangement to which the Government of Canada is a party respecting the assessment of environmental effects.

Opportunity for public to comment

(3) The Minister must provide reasonable public notice of and a reasonable opportunity for anyone to comment on draft guidelines, codes of practice, agreements, arrangements or criteria under this section.

Availability to public

(4) Any guidelines, codes of practice, agreements, arrangements or criteria must be made available to the public.

Non-application — national security

87. (1) The Governor in Council may, by order, exclude a designated project from the application of this Act if, in the Governor in Council’s opinion, the designated project is one in relation to which there are matters of national security.

Non-application — national emergency or emergency

(2) The Minister may, by order, exclude a designated project from the application of this Act if, in the Minister’s opinion, the designated project is one to be carried out in response to

(a) a national emergency for which special temporary measures are being taken under the Emergencies Act; or

(b) an emergency, and carrying out the designated project without delay is in the interest of preventing damage to property or the environment or is in the interest of public health or safety.

Posting of notice of order on Internet site

(3) The Agency must post on the Internet site a notice of any order made under subsection (2).

Statutory Instruments Act

88. An order made under subsection 14(2), 37(1), 87(1) or (2), 125(7) or 128(2) is not a statutory instrument for the purposes of the Statutory Instruments Act.

ADMINISTRATION AND ENFORCEMENT

Designation

Power to designate

89. (1) The Minister may designate persons or classes of persons for the purposes of the administration and enforcement of this Act.

Certificate

(2) The Minister must provide every person designated under subsection (1) with a certificate of designation. That person must, if so requested, produce the certificate to the occupant or person in charge of a place referred to in subsection 90(1).

Powers

Authority to enter

90. (1) A person who is designated to verify compliance or prevent non-compliance with this Act or orders made under section 94 may, for those purposes, enter a place in which they have reasonable grounds to believe a designated project is being carried out or a record or anything relating to a designated project is located.

Powers on entry

(2) The designated person may, for those purposes,

(a) examine anything in the place;

(b) use any means of communication in the place or cause it to be used;

(d) prepare a document, or cause one to be prepared, based on the data;

(e) use any copying equipment in the place, or cause it to be used;

(f) remove anything from the place for examination or copying;

(g) take photographs and make recordings or sketches;

(h) order the owner or person in charge of the place or a person at the place to establish their identity to the designated person’s satisfaction or to stop or start an activity;

(i) order the owner or a person having possession, care or control of anything in the place to not move it, or to restrict its movement, for as long as, in the designated person’s opinion, is necessary;

(j) direct any person to put any machinery, vehicle or equipment in the place into operation or to cease operating it; and

(k) prohibit or limit access to all or part of the place.

Duty to assist

(3) The owner or person in charge of the place and every person in the place must give all assistance that is reasonably required to enable the designated person to exercise a power or perform a duty or function under this section and must provide any documents, data or information that are reasonably required for that purpose.

Warrant for dwelling-house

91. (1) If the place is a dwelling-house, the designated person must not enter it without the occupant’s consent except under the authority of a warrant issued under subsection (2).

Authority to issue warrant

(2) On ex parte application, a justice may issue a warrant authorizing a designated person who is named in it to enter a dwelling-house, subject to any conditions specified in the warrant, if the justice is satisfied by information on oath that

(a) the dwelling-house is a place referred to in subsection 90(1);

(b) entry to the dwelling-house is necessary for any of the purposes of that subsection; and

(c) entry was refused by the occupant or there are reasonable grounds to believe that entry will be refused or that consent to entry cannot be obtained from the occupant.

Entry on private property

92. (1) For the purpose of gaining entry to a place referred to in subsection 90(1), a designated person may enter private property and pass through it, and is not liable for doing so. For greater certainty, no person has a right to object to that use of the property and no warrant is required for the entry, unless the property is a dwelling-house.

Person accompanying designated person

(2) A person may, at the designated person’s request, accompany the designated person to assist them to gain entry to the place referred to in subsection 90(1) and is not liable for doing so.

Use of force

93. In executing a warrant to enter a dwelling-house, a designated person must not use force unless the use of force has been specifically authorized in the warrant and the designated person is accompanied by a peace officer.

Orders

Measures required

94. (1) If a person designated to verify compliance with this Act believes on reasonable grounds that there is a contravention of this Act, they may, among other things, order a person to

(a) stop doing something that is in contravention of this Act or cause it to be stopped; or

(b) take any measure that is necessary in order to comply with this Act or to mitigate the effects of non-compliance.

Notice

(2) The order must be provided in the form of a written notice and must include

(a) a statement of the reasons for the order; and

(b) the time and manner in which the order must be carried out.

Duty to comply with order

(3) Any person to whom an order is given under subsection (1) must comply with the order given.

Measures taken by designated person

95. If a person does not comply with an order made under subsection 94(1) within the time specified, the designated person may, on their own initiative and at that person’s expense, carry out the measure required.

Injunctions

Court’s power

96. (1) If, on the Minister’s application, it appears to a court of competent jurisdiction that a person has done, is about to do or is likely to do any act constituting or directed toward the commission of an offence under section 99, the court may issue an injunction ordering the person who is named in the application to

(a) refrain from doing an act that, in the court’s opinion, may constitute or be directed toward the commission of the offence; or

(b) do an act that, in the opinion of the court, may prevent the commission of the offence.

Notice

(2) At least 48 hours before the injunction is issued, notice of the application must be given to persons named in the application, unless the urgency of the situation is such that the delay involved in giving the notice would not be in the public interest.

Prohibitions and Offences

Obstruction

97. It is prohibited to obstruct or hinder a designated person who is exercising their powers or performing their duties and functions under this Act.

False statements or information

98. It is prohibited to knowingly make a false or misleading statement or knowingly provide false or misleading information in connection with any matter under this Act to any person who is exercising their powers or performing their duties and functions under this Act.

Contravention — section 6

99. (1) Any proponent who contravenes section 6 is guilty of an offence punishable on summary conviction and is liable, for a first offence, to a fine of not more than $200,000 and, for any subsequent offence, to a fine of not more than $400,000.

Contravention — subsection 94(3)

(2) A person who contravenes subsection 94(3) is guilty of an offence punishable on summary conviction and is liable, for a first offence, to a fine of not more than $200,000 and, for any subsequent offence, to a fine of not more than $400,000.

Contravention — section 97

(3) Any person who contravenes section 97 is guilty of an offence punishable on summary conviction and is 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 $300,000.

Continuing offences

(4) If an offence under subsection (1) or (2) is committed or continued on more than one day, it constitutes a separate offence for each day on which it is committed or continued.

Due diligence defence

(5) A person must not be found guilty of an offence under subsection (1), (2) or (3) if they establish that they exercised due diligence to prevent the commission of the offence.

Contravention — section 98

100. Any person who contravenes section 98 is guilty of an offence punishable on summary conviction and is liable to a fine of not more than $300,000.

Limitation period

101. Proceedings by way of summary conviction in respect of an offence under this Act may be instituted at any time within two years after the day on which the Minister becomes aware of the acts or omissions that constitute the alleged offence.

Admissibility of evidence

102. (1) In proceedings for an offence under this Act, a statement, certificate, report or other document of the Minister, the responsible authority or the designated person that is purported to have been signed by that person or authority is admissible in evidence without proof of the signature or official character of the person appearing to have signed it and, in the absence of evidence to the contrary, is proof of the matters asserted in it.

Copies and extracts

(2) In proceedings for an offence under this Act, a copy of or an extract from any document that is made by the Minister, the responsible authority or the designated person that appears to have been certified under the signature of that person or authority as a true copy or extract is admissible in evidence without proof of the signature or official character of the person appearing to have signed it and, in the absence of evidence to the contrary, has the same probative force as the original would have if it were proved in the ordinary way.

Presumed date of issue

(3) A document referred to in this section is, in the absence of evidence to the contrary, presumed to have been issued on the date that it bears.

Notice

(4) No document referred to in this section may be received in evidence unless the party intending to produce it has provided reasonable notice of that intention to the party against whom it is intended to be produced together with a copy of the document.

CANADIAN ENVIRONMENTAL ASSESSMENT AGENCY

Agency continued

103. (1) The Canadian Environmental Assessment Agency is continued and must advise and assist the Minister in exercising the powers and performing the duties and functions conferred on him or her by this Act.

Minister’s responsibility

(2) The Minister is responsible for the Agency.

Delegation to Agency

104. (1) The Minister may, subject to any terms and conditions that the Minister specifies, delegate to an officer or employee of the Agency any of the powers, duties and functions that the Minister is authorized to exercise or perform under this Act.

Restriction

(2) However, the Minister is not authorized to delegate a power to make regulations nor a power to delegate under subsection (1).

Agency’s objects

105. The Agency’s objects are

(a) to conduct or administer environmental assessments and administer any other requirements and procedures established by this Act and the regulations;

(b) to promote uniformity and harmonization in relation to the assessment of environmental effects across Canada at all levels of government;

(c) to promote or conduct research in matters of environmental assessment and to encour-age the development of environmental assessment techniques and practices, including testing programs, alone or in cooperation with other agencies or organizations;

(d) to promote environmental assessment in a manner that is consistent with the purposes of this Act;

(e) to promote, monitor and facilitate compliance with this Act;

(f) to promote and monitor the quality of environmental assessments conducted under this Act; and

(g) to engage in consultation with Aboriginal peoples on policy issues related to this Act.

Agency’s duties

106. (1) In carrying out its objects, the Agency must

(a) provide support for review panels and any committees established under section 73 or under an agreement or arrangement entered into under paragraph 74(1)(a) or (b);

(b) provide, on the Minister’s request, administrative support for any research and advisory body established under paragraph 86(1)(b); and

Agency’s powers

(2) In carrying out its objects, the Agency may

(a) undertake studies or activities or conduct research relating to environmental assessment;

(b) advise persons and organizations on matters relating to the assessment of environmental effects; and

Using government facilities

107. In exercising its powers and performing its duties and functions under this Act, the Agency must, when appropriate, make use of the services and facilities of departments, boards and agencies of the Government of Canada.

President

108. (1) The Governor in Council appoints an officer to be the President of the Agency, to hold office during pleasure, who is, for the purposes of this Act, a deputy of the Minister.

President — chief executive officer

(2) The President is the Agency’s chief executive officer, and may exercise all of the Minister’s powers under this Act as authorized by the Minister.

Acting President — Executive Vice-president

(3) Subject to subsection (5), in the event of the absence or incapacity of the President or a vacancy in that office, the Executive Vice-president acts as, and exercises the powers of, the President in the interim.

Acting President — other person

(4) Subject to subsection (5), the Minister may appoint a person other than the Executive Vice-president to act as the President in the interim.

Governor in Council’s approval required

(5) The Executive Vice-president, or a person appointed under subsection (4), must not act as the President for a period exceeding 90 days without the Governor in Council’s approval.

Executive Vice-president

109. (1) The Governor in Council may appoint an officer to be the Executive Vice-president of the Agency and to hold office during pleasure.

Powers, duties and functions

(2) The Executive Vice-president must exercise any powers and perform any duties and functions that the President may assign.

Remuneration

110. The President and the Executive Vice-president are to be paid any remuneration that the Governor in Council may fix.

Appointment under Public Service Employment Act

111. The employees who are necessary to carry out the Agency’s work are to be appointed in accordance with the Public Service Employment Act.

Head office

112. The head office of the Agency is to be in the National Capital Region as described in the schedule to the National Capital Act.

Contracts, etc., binding on Her Majesty

113. (1) Every contract, memorandum of understanding and arrangement entered into by the Agency in its own name is binding on Her Majesty in right of Canada to the same extent as it is binding on the Agency.

Legal proceedings

(2) Actions, suits or other legal proceedings in respect of any right or obligation acquired or incurred by the Agency, whether in its own name or in the name of Her Majesty in right of Canada, may be brought or taken by or against the Agency in its own name in any court that would have jurisdiction if the Agency were a corporation that is not an agent of Her Majesty.

ANNUAL REPORT

Annual report to Parliament

114. (1) The Minister must, at the end of each fiscal year, prepare a report on the Agency’s activities and the administration and implementation of this Act during the previous fiscal year.

Tabling in Parliament

(2) The Minister must, during the fiscal year after the fiscal year for which the report is prepared, cause the report to be laid before each House of Parliament.

TRANSITIONAL PROVISIONS

Definitions

115. The following definitions apply in this section and sections 116 to 129.

“former Act”
« ancienne loi »

“former Act” means the Canadian Environmental Assessment Act, chapter 37 of the Statutes of Canada, 1992.

“former Agency”
« ancienne Agence »

“former Agency” means the Canadian Environmental Assessment Agency established by section 61 of the former Act.

President of former Agency

116. The person who holds the office of President of the former Agency immediately before the day on which this Act comes into force continues in office as the President of the Agency until the expiry or revocation of the appointment.

Executive Vice-president of former Agency

117. The person who holds the office of Executive Vice-president of the former Agency immediately before the day on which this Act comes into force continues in office as the Executive Vice-president of the Agency until the expiry or revocation of the appointment.

Employment continued

118. (1) Nothing in this Act is to be construed to affect the status of an employee who, immediately before the day on which this Act comes into force, occupied a position in the former Agency, except that the employee is to, on that day, occupy their position in the Agency.

Definition of “employee”

(2) For the purposes of this section, “employee” has the same meaning as in subsection 2(1) of the Public Service Employment Act.

References

119. Every reference to the former Agency in any deed, contract, agreement or other document executed by the former Agency in its own name is, unless the context otherwise requires, to be read as a reference to the Agency.

Transfer of rights and obligations

120. All rights and property of the former Agency and of Her Majesty in right of Canada that are under the administration and control of the former Agency and all obligations of the former Agency are transferred to the Agency.

Commencement of legal proceedings

121. Any action, suit or other legal proceeding in respect of an obligation or liability incurred by the former Agency may be brought against the Agency in any court that would have had jurisdiction if the action, suit or other legal proceeding had been brought against the former Agency.

Continuation of legal proceedings

122. Any action, suit or other legal proceeding to which the former Agency is party that is pending in any court immediately before the day on which this Act comes into force may be continued by or against the Agency in like manner and to the same extent as it could have been continued by or against the former Agency.

Appropriations

123. Any amount appropriated, for the fiscal year in which this Act comes into force, by an appropriation Act based on the Estimates for that year for defraying the charges and expenses of the former Agency and that, on the day on which this Act comes into force, is unexpended is considered, on that day, to be an amount appropriated for defraying the charges and expenses of the Agency.

Completion of screenings commenced under former Act

124. (1) Subject to subsections (3) to (5), any screening of a project commenced under the former Act before the day on which this Act comes into force must, if the project is a designated project, be continued and completed as if the former Act had not been repealed.

Minister’s power

(2) The Minister may, only on the day on which this Act comes into force, exercise the power conferred by subsection 14(2) with respect to a physical activity that is included in a project that was the subject of a screening commenced under the former Act before the day on which this Act comes into force, and that is not completed on that day and that is not, on that day, a designated project.

Time limit

(3) The responsible authority with respect to the project to which subsection (1) applies must take a course of action under section 20 of the former Act no later than 365 days after the day on which this Act comes into force.

Exclusion

(4) If the responsible authority under subsection 18(2) of the former Act requires the proponent of the project to collect information or undertake a study with respect to the project, the period that is taken by the proponent, in the opinion of the responsible authority, to comply with the requirement, is not included in the calculation of the 365-day time limit.

Project requiring assessment by review panel

(5) If, during the screening or once the screening is completed, the Minister is of the opinion that the project must be referred to a review panel, the environmental assessment of the project is continued under the process established under this Act. The project is considered to be a designated project and the Minister must refer the environmental assessment of the project to a review panel under section 38.

Completion of comprehensive studies commenced under former Act

125. (1) Subject to subsections (2) to (6), any comprehensive study of a project commenced under the former Act before the day on which this Act comes into force is continued and completed as if the former Act had not been repealed.

Establishing Timelines for Comprehensive Studies Regulations

(2) The Establishing Timelines for Comprehensive Studies Regulations are deemed to have come into force on July 12, 2010 with respect to a comprehensive study to which subsection (1) applies.

Six-month time limit

(3) With respect to any comprehensive study commenced before July 12, 2010 to which subsection (1) applies with respect to a project for which the responsible authority is not the Canadian Nuclear Safety Commission, the responsible authority must ensure that the Minister and the Agency are provided with the comprehensive study report no later than six months after the day on which this Act comes into force.

Six-month time limit

(4) With respect to any comprehensive study to which subsection (1) applies and which was commenced before July 12, 2010 by a port authority established under section 8 of the Canada Marine Act, the port authority must ensure that the comprehensive study report is provided to the Minister of Transport and the Agency no later than six months after the day on which this Act comes into force.

Excluded periods

(5) If, under the former Act, the responsible authority or the port authority requires the proponent to collect information or undertake a study with respect to the project, then

(a) the period that is taken by the proponent, in the opinion of the responsible authority, to comply with the requirement, is not included in the calculation of the six-month time limit referred to in subsection (3); and

(b) the period that is taken by the proponent, in the opinion of the port authority, to comply with the requirement, is not included in the calculation of the six-month time limit referred to in subsection (4).

Project requiring assessment by review panel

(6) If, during the comprehensive study, the Minister is of the opinion that the project must be referred to a review panel, the environmental assessment of the project is continued under the process established under this Act. The project is considered to be a designated project and the Minister must refer the environmental assessment of the project to a review panel under section 38.

Minister’s powers

(7) The Minister may, by order, exclude any comprehensive study of a project from the application of subsection (1) and provide that the environmental assessment of the project is continued under the process established under this Act. In such a case, the project is considered to be a designated project and, despite subsection 27(2), when the Minister must make decisions under section 27 with respect to the designated project, he or she must specify in the order the time limit for the decisions to be made. Subsections 27(3), (4) and (6) apply with respect to the time limit.

Posting of notice of order on Internet site

(8) The Agency must post a notice of any order made under subsection (7) on the Internet site.

Completion of assessment by a review panel commenced under former Act

126. (1) Despite subsection 38(6) and subject to subsections (2) to (6), any assessment by a review panel, in respect of a project, commenced under the process established under the former Act before the day on which this Act comes into force is continued under the process established under this Act as if the environmental assessment had been referred by the Minister to a review panel under section 38. The project is considered to be a designated project for the purposes of this Act and Part 3 of the Jobs, Growth and Long-term Prosperity Act, and

(a) if, before that day, a review panel was established under section 33 of the former Act, in respect of the project, that review panel is considered to have been established — and its members are considered to have been appointed — under subsection 42(1) of this Act;

(b) if, before that day, an agreement or arrangement was entered into under subsection 40(2) of the former Act, in respect of the project, that agreement or arrangement is considered to have been entered into under section 40 of this Act; and

(c) if, before that day, a review panel was established by an agreement or arrangement entered into under subsection 40(2) of the former Act or by document referred to in subsection 40(2.1) of the former Act, in respect of the project, it is considered to have been established by — and its members are considered to have been appointed under — an agreement or arrangement entered into under section 40 of this Act or by document referred to in subsection 41(2) of this Act.

Time limit for issuing decision statement under section 54

(2) The Minister must establish the time limit within which, from the day on which this Act comes into force, the decision statement that is required under section 54 in respect of the project must be issued. Subsection 54(3) applies with respect to the time limit.

Other time limits

(3) The Minister must, in respect of the project, also establish any of the time limits set out in paragraphs 38(3)(a) to (c) — which combined are not to exceed the time limit referred to in subsection (2) — that are necessary, depending on whether, on the day on which this Act comes into force, the review panel has or has not been established or the report with respect to the environmental assessment of the project has or has not been submitted to the Minister.

Certain time limits established jointly

(4) In respect of a project to which paragraph (1)(b) applies and for which the responsible authority is referred to in paragraph 15(a) or (b), the Minister jointly establishes the time limits under subsections (2) and (3) with the responsible authority with respect to the project.

Posting time limits on Internet site

(5) The Agency must post on the Internet site a notice of any time limits established under subsection (2) or (3) in respect of the project.

Excluded periods

(6) If the Agency, the review panel or the Minister, under section 39 or subsection 44(2) or 47(2), respectively, requires the proponent of the project to collect information or undertake a study with respect to the designated project, the following periods are not included in the calculation of the time limit within which the Minister must issue the decision statement in respect of the project nor in the calculation of any of the time limits that are established under subsection (3):

(a) the period that is taken by the proponent, in the opinion of the Agency, to comply with the requirement under section 39;

(b) the period that is taken by the proponent, in the opinion of the review panel, to comply with the requirement under subsection 44(2); and

(c) the period that is taken by the proponent, in the opinion of the Minister, to comply with the requirement under subsection 47(2).

Substitution under former Act

127. The environmental assessment of a project commenced under the former Act before the day on which this Act comes into force for which the Minister has, before that date, approved the substitution of a process under section 43 of the former Act is continued and completed as if the former Act had not been repealed.

Non-application of this Act

128. (1) This Act does not apply to a project, as defined in the former Act, that is a designated project as defined in this Act, if one of the following conditions applies:

(a) the proponent of the project has, before the day on which this Act comes into force, initiated the construction of the project;

(b) it was determined by the Agency or a federal authority under the former Act that an environmental assessment of the project was likely not required;

(c) the responsible authority has taken a course of action under paragraph 20(1)(a) or (b) or subsection 37(1) of the former Act in relation to the project; or

(d) an order issued under subsection (2) applies to the project.

Minister’s powers

(2) On the day on which this Act comes into force, the Minister may, by order, exclude from the application of this Act a project, as defined in the former Act, that is a designated project under this Act, if the Minister is of the opinion that the project was not subject to the former Act and that another jurisdiction that has powers, duties or functions in relation to the assessment of the environmental effects of the project has commenced that assessment.

Posting of notice of order on Internet site

(3) The Agency must post a notice of any order made under subsection (2) on the Internet site.

Privileged evidence, documents or things

129. The evidence, documents or things that, before the day on which this Act comes into force, are privileged under subsection 35(4) or (4.1) of the former Act are considered to be privileged under subsection 45(4) or (5), respectively, of this Act.

2009, c. 14, s. 126

Related Amendments to the Environmental Violations Administrative Monetary Penalties Act

53. (1) The definition “Environmental Act” in section 2 of the Environmental Violations Administrative Monetary Penalties Act is replaced by the following:

“Environmental Act”
« loi environne-mentale »

“Environmental Act” means the Antarctic Environmental Protection Act, the Canada National Marine Conservation Areas Act, the Canada National Parks Act, the Canada Water Act, the Canada Wildlife Act, the Canadian Environmental Assessment Act, 2012, the Canadian Environmental Protection Act, 1999, the International River Improvements Act, the Migratory Birds Convention Act, 1994, the Saguenay-St. Lawrence Marine Park Act or the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act.

(2) Paragraph (a) of the definition “Minister” in section 2 of the Act is replaced by the following:

(a) with respect to violations that relate to the Antarctic Environmental Protection Act, the Canada Water Act, the Canada Wildlife Act, the Canadian Environmental Assessment Act, 2012, the Canadian Environmental Protection Act, 1999, the International River Improvements Act, the Migratory Birds Convention Act, 1994 or the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act, the Minister of the Environment; and

54. Section 5 of the Act is amended by adding the following after subsection (3):

Restriction — Canadian Environmental Assessment Act, 2012

(3.1) With respect to the Canadian Environmental Assessment Act, 2012, only a contravention or a failure to comply arising out of section 6, subsection 94(3) or section 97 or 98 of that Act may be designated under paragraph (1)(a).

Consequential Amendments

R.S., c. A-1

Access to Information Act

1992, c. 37, s. 76

55. Schedule II to the Access to Information Act is amended by striking out the reference to

Canadian Environmental Assessment Act

Loi canadienne sur l’évaluation environnementale

and the corresponding reference to “subsection 35(4)”.

56. Schedule II to the Act is amended by adding, in alphabetical order, a reference to

Canadian Environmental Assessment Act, 2012

Loi canadienne sur l’évaluation environnementale (2012)

and a corresponding reference to “subsections 45(4) and (5)”.

R.S., c. E-20; 2001, c. 33, s. 2(F)

Export Development Act

2001, c. 33, s. 12

57. Section 24.1 of the Export Development Act is replaced by the following:

Canadian Environmental Assessment Act, 2012

24.1 Section 68 of the Canadian Environmental Assessment Act, 2012 does not apply when the Minister or the Minister of Finance exercises a power or performs a duty or function under this Act or any regulation made under it, or exercises a power of authorization or approval with respect to the Corporation under any other Act of Parliament or any regulation made under it.

1999, c. 24

First Nations Land Management Act

58. Section 41 of the First Nations Land Management Act is repealed.

2002, c. 29

Species at Risk Act

59. (1) Subsection 79(1) of the Species at Risk Act is replaced by the following:

Notification of Minister

79. (1) Every person who is required by or under an Act of Parliament to ensure that an assessment of the environmental effects of a project is conducted, and every authority who makes a determination under paragraph 67(a) or (b) of the Canadian Environmental Assessment Act, 2012 in relation to a project, must, without delay, notify the competent minister or ministers in writing of the project if it is likely to affect a listed wildlife species or its critical habitat.

(2) Subsection 79(3) of the Act is replaced by the following:

Definitions

(3) The following definitions apply in this section.

“person”
« personne »

“person” includes an association, an organization, a federal authority as defined in subsection 2(1) of the Canadian Environmental Assessment Act, 2012, and any body that is set out in Schedule 3 to that Act.

“project”
« projet »

“project” means

(a) a designated project as defined in subsection 2(1) of the Canadian Environmental Assessment Act, 2012 or a project as defined in section 66 of that Act;

(b) a project as defined in subsection 2(1) of the Yukon Environmental and Socio-economic Assessment Act; or

2003, c. 20

Antarctic Environmental Protection Act

60. Section 6 of the Antarctic Environmental Protection Act is repealed.

2005, c. 48

First Nations Oil and Gas and Moneys Management Act

61. Subsection 2(2) of the First Nations Oil and Gas and Moneys Management Act is replaced by the following:

Expressions in Canadian Environmental Assessment Act, 2012

(2) In this Act, “environment” and “environmental effects” have the same meaning as in subsection 2(1) of the Canadian Environmental Assessment Act, 2012.

62. Subsection 63(3) of the Act is replaced by the following:

Comparable standards

(3) The requirements of any regulations made under subsection (1) must be generally comparable with those applicable in similar circumstances under the Canadian Environmental Assessment Act, 2012.

2005, c. 53

First Nations Commercial and Industrial Development Act

63. Paragraph 3(2)(n) of the First Nations Commercial and Industrial Development Act is replaced by the following:

(n) require that an assessment of the envi-ronmental effects of the undertakings be undertaken in circumstances where the Canadian Environmental Assessment Act, 2012 does not apply, and establish a procedure to be followed in such an assessment;

Coordinating Amendments

This Act

64. On the first day on which both sections 52 and 141 of this Act are in force, subparagraph 5(1)(a)(i) of the Canadian Environmental Assessment Act, 2012 is replaced by the following:

(i) fish and fish habitat as defined in subsection 2(1) of the Fisheries Act,

Bill S-8

65. If Bill S-8, introduced in the 1st session of the 41st Parliament and entitled the Safe Drinking Water for First Nations Act, receives royal assent, then, on the first day on which both paragraph 5(1)(r) of that Act and section 52 of this Act are in force, that paragraph 5(1)(r) is replaced by the following:

(r) require that an assessment of the environmental effects of drinking water systems or waste water systems be undertaken in circumstances where the Canadian Environmental Assessment Act, 2012 does not apply, and establish a procedure to be followed in such assessments.

Repeal

66. The Canadian Environmental Assessment Act, chapter 37 of the Statutes of Canada, 1992, is repealed.

Coming into Force

Order in council

67. Sections 52 to 63 and 66 come into force on a day to be fixed by order of the Governor in Council.

Division 2

R.S., c. N-7

National Energy Board Act

Amendments to the Act

68. The heading before section 2 of the French version of the National Energy Board Act is replaced by the following:

DÉFINITIONS ET INTERPRÉTATION

69. Section 2 of the Act is amended by adding the following in alphabetical order:

“navigable water”
« eaux navigables »

“navigable water” has the same meaning as in section 2 of the Navigable Waters Protection Act;

“penalty”
« pénalité »

“penalty” means an administrative monetary penalty imposed under this Act for a violation;

70. Subsection 4(2) of the Act is repealed.

1990, c. 7, s. 4(1)

71. (1) Subsection 6(1) of the English version of the Act is replaced by the following:

Chairperson and Vice-chairperson

6. (1) The Governor in Council shall designate one of the members to be Chairperson of the Board and another of the members to be Vice-chairperson of the Board.

(2) Subsection 6(2) of the Act is replaced by the following:

Chairperson’s duties

(2) The Chairperson is the chief executive officer of the Board. The Chairperson apportions work among the members and, if the Board sits in a panel, assigns members to the panel and a member to preside over it. The Chairperson also has supervision over and direction of the work of the Board’s staff.

Directives regarding timeliness

(2.1) To ensure that an application before the Board is dealt with in a timely manner, the Chairperson may issue directives to the members authorized to deal with the application regarding the manner in which they are to do so.

Measures to meet time limit

(2.2) If the Chairperson is of the opinion that a time limit imposed under any of sections 52, 58 and 58.16 is not likely to be met in respect of an application, the Chairperson may take any measure that the Chairperson considers appropriate to ensure that the time limit is met, including

(a) removing any or all members of the panel authorized to deal with the application;

(b) authorizing one or more members to deal with the application;

(d) specifying the manner in which section 55.2 is to be applied in respect of the application.

Clarification

(2.3) For greater certainty, the power referred to in subsection (2.2) includes the power to designate a single member, including the Chairperson, as the sole member who is authorized to deal with the application.

Effects of measure

(2.4) If the composition of the panel dealing with an application is changed as a result of any measure taken under subsection (2.2),

(a) evidence and representations received by the Board in relation to the application before the taking of the measure are considered to have been received after the taking of the measure; and

(b) the Board is bound by every decision made by the Board in relation to the application before the taking of the measure unless the Board elects to review, vary or rescind it.

Inconsistencies

(2.5) In the event of any inconsistency between any directive issued under subsection (2.1) or measure taken under subsection (2.2) and any rule made under section 8, the directive or measure prevails to the extent of the inconsistency.

1990, c. 7, s. 4(2)

(3) Subsections 6(3) and (4) of the English version of the Act are replaced by the following:

Vice-chairperson’s duties

(3) If the Chairperson is absent or unable to act or if the office is vacant, the Vice-chairperson has all the Chairperson’s powers and functions.

Acting Chairperson

(4) The Board may authorize one or more of its members to act as Chairperson for the time being in the event that the Chairperson and Vice-chairperson are absent or unable to act or if the offices are vacant.

72. Section 7 of the Act is amended by adding the following after subsection (2):

Exception

(2.1) Despite subsection (2), if the number of members authorized to deal with an application as a result of any measure taken by the Chairperson under subsection 6(2.2) is less than three, the number of members authorized by the Chairperson to deal with the application constitutes a quorum of the Board.

73. Section 8 of the Act is amended by adding “and” at the end of paragraph (b) and by repealing paragraph (c).

74. Section 11 of the Act is amended by adding the following after subsection (3):

Expeditious proceedings

(4) Subject to subsections 6(2.1) and (2.2), all applications and proceedings before the Board are to be dealt with as expeditiously as the circumstances and considerations of fairness permit, but, in any case, within the time limit provided for under this Act, if there is one.

1990, c. 7, s. 6

75. Section 14 of the Act is replaced by the following:

Authorization regarding Board’s powers, duties and functions

14. (1) The Chairperson may authorize one or more members, either jointly or severally, to exercise any of the Board’s powers or to perform any of the Board’s duties and functions under this Act, except those under subsection 45(3), sections 46, 47, 48, 52 to 54, 56, 58, 58.11, 58.14, 58.16, 58.32, 58.35, 58.37 and 129 and under Parts IV, VI, VII and IX.

Presumption

(2) Any power exercised or any duty or function performed by a member or members under the authorization is considered to have been exercised or performed by the Board.

1990, c. 7, s. 7

76. Subsection 15(1) of the Act is replaced by the following:

Powers of members authorized to report

15. (1) The Chairperson may authorize one or more of the members to report to the Board on any question or matter arising in connection with the business of or any application or proceeding before the Board, and the member or members so authorized have all the powers of the Board for the purpose of taking evidence or acquiring the necessary information for the purpose of making the report and the recommendations contained in it as to the decision or order of the Board to be made on the question or matter.

1990, c. 7, s. 8

77. Section 16 of the Act is replaced by the following:

Incapacity of single member

16. (1) If a member who is conducting a hearing under an authorization under section 14 or 15 becomes incapacitated, resigns or dies during the hearing or after the conclusion of the hearing but before making a decision or report, the Chairperson may authorize another member

(a) to continue the hearing and to make a decision or report to the Board, if the incapacity, resignation or death occurs during the hearing; or

(b) to examine all the evidence presented at the hearing and to make a decision, or report to the Board, based on the evidence, if the incapacity, resignation or death occurs after the conclusion of the hearing but before a decision is given or a report to the Board is made.

Incapacity of member of quorum

(2) If a hearing is being conducted by three members and one member becomes incapacitated, resigns or dies during the hearing or after the conclusion of it but before a decision is given,

(a) the Chairperson may authorize another member to replace the incapacitated or deceased member, or the member who resigned, for the rest of the hearing and to participate in the decision, if the incapacity, resignation or death occurs during the hearing; or

(b) if the incapacity, resignation or death occurs after the conclusion of the hearing but before a decision is given, the remaining members may, if unanimous, give a decision as if the incapacitated or deceased member, or the member who resigned, were present and participating in the decision.

Incapacity of member — Part III certificate

(3) If a hearing in relation to an application for a certificate under Part III is being conducted by three members and one member becomes incapacitated, resigns or dies during the hearing or after its conclusion but before the report that is required to be prepared under subsection 52(1) is finalized,

(a) the Chairperson may authorize another member to replace the incapacitated or deceased member, or the member who resigned, for the rest of the hearing and to participate in the finalizing of the report, if the incapacity, resignation or death occurs during the hearing; or

(b) if the incapacity, resignation or death occurs after the conclusion of the hearing but before the report is finalized, the remaining members may, if unanimous, finalize the report as if the incapacitated or deceased member, or the member who resigned, were present and participating in its finalization.

Effects of authorization

(4) If a member is authorized under paragraph (2)(a) or (3)(a) to replace a member,

(a) evidence and representations received by the Board in the course of the hearing before the replacement are considered to have been received after the replacement; and

(b) the Board is bound by every decision made by the Board in the course of the hearing before the replacement unless the Board elects to review, vary or rescind a decision.

Chairperson’s powers

(5) Nothing in subsections (1) to (3) precludes the Chairperson from taking a measure under subsection 6(2.2).

Member ceasing to hold office

(6) A person who resigns or otherwise ceases to hold office as a member may, if authorized to do so by the Chairperson and on any terms and conditions that the Chairperson prescribes, continue to inquire into, hear and conclude any proceeding to which that person was assigned while that person was a member and the person shall for that purpose be considered to continue to be a member.

78. Section 19 of the Act is amended by adding the following after subsection (1):

Non-application

(1.1) Subsection (1) does not apply in respect of an application for a certificate under Part III.

79. Section 20 of the Act is renumbered as subsection 20(1) and is amended by adding the following:

Non-application

(2) Subsection (1) does not apply in respect of an application for a certificate under Part III.

80. Section 22 of the Act is amended by adding the following after subsection (3):

Report not decision or order

(4) For greater certainty, for the purpose of this section, no report submitted by the Board under section 52 or 53 — or under section 29 or 30 of the Canadian Environmental Assessment Act, 2012 — and no part of any such report, is a decision or order of the Board.

1990, c. 7, s. 12

81. Subsections 24(1) and (2) of the Act are replaced by the following:

Public hearings

24. (1) Subject to subsection (2), hearings before the Board with respect to the issuance, revocation or suspension of certificates or for leave to abandon the operation of a pipeline shall be public.

Exception

(2) A public hearing need not be held where the Board, on the application or with the consent of the holder, revokes or suspends

(a) a certificate issued in respect of an international or interprovincial power line, regardless of whether the power line has been brought into commercial operation under that certificate; or

(b) a certificate issued in respect of a pipeline, if the pipeline has not been brought into commercial operation under that certificate.

82. Subsection 48(3) of the Act is replaced by the following:

Offence

(3) Every person who contravenes an order made under subsection (1) or (1.1) or a regulation made under subsection (2) is guilty of an offence and liable

(a) on summary conviction, to a fine not exceeding one hundred thousand dollars or to imprisonment for a term not exceeding one year or to both; or

(b) on conviction on indictment, to a fine not exceeding one million dollars or to imprisonment for a term not exceeding five years or to both.

Application of subsections 121(2) to (5)

(4) Subsections 121(2) to (5) apply, with any modifications that the circumstances require, to an offence referred to in subsection (3).

1990, c. 7, ss. 18 and 19; 1996, c. 10, s. 238

83. Sections 52 to 54 of the Act are replaced by the following:

Report

52. (1) If the Board is of the opinion that an application for a certificate in respect of a pipeline is complete, it shall prepare and submit to the Minister, and make public, a report setting out

(a) its recommendation as to whether or not the certificate should be issued for all or any portion of the pipeline, taking into account whether the pipeline is and will be required by the present and future public convenience and necessity, and the reasons for that recommendation; and

(b) regardless of the recommendation that the Board makes, all the terms and conditions that it considers necessary or desirable in the public interest to which the certificate will be subject if the Governor in Council were to direct the Board to issue the certificate, including terms or conditions relating to when the certificate or portions or provisions of it are to come into force.

Factors to consider

(2) In making its recommendation, the Board shall have regard to all considerations that appear to it to be directly related to the pipeline and to be relevant, and may have regard to the following:

(a) the availability of oil, gas or any other commodity to the pipeline;

(b) the existence of markets, actual or potential;

(d) the financial responsibility and financial structure of the applicant, the methods of financing the pipeline and the extent to which Canadians will have an opportunity to participate in the financing, engineering and construction of the pipeline; and

(e) any public interest that in the Board’s opinion may be affected by the issuance of the certificate or the dismissal of the application.

Environmental assessment

(3) If the application relates to a designated project within the meaning of section 2 of the Canadian Environmental Assessment Act, 2012, the report must also set out the Board’s environmental assessment prepared under that Act in respect of that project.

Time limit

(4) The report must be submitted to the Minister within the time limit specified by the Chairperson. The specified time limit must be no longer than 15 months after the day on which the applicant has, in the Board’s opinion, provided a complete application. The Board shall make the time limit public.

Excluded period

(5) If the Board requires the applicant to provide information or undertake a study with respect to the pipeline and the Board, with the Chairperson’s approval, states publicly that this subsection applies, the period that is taken by the applicant to comply with the requirement is not included in the calculation of the time limit.

Public notice of excluded period

(6) The Board shall make public the dates of the beginning and ending of the period referred to in subsection (5) as soon as each of them is known.

Extension

(7) The Minister may, by order, extend the time limit by a maximum of three months. The Governor in Council may, on the recommendation of the Minister, by order, further extend the time limit by any additional period or periods of time.

Minister’s directives

(8) To ensure that the report is prepared and submitted in a timely manner, the Minister may, by order, issue a directive to the Chairperson that requires the Chairperson to

(a) specify under subsection (4) a time limit that is the same as the one specified by the Minister in the order;

(b) issue a directive under subsection 6(2.1), or take any measure under subsection 6(2.2), that is set out in the order; or

Order binding

(9) Orders made under subsection (7) are binding on the Board and those made under subsection (8) are binding on the Chairperson.

Publication

(10) A copy of each order made under subsection (8) must be published in the Canada Gazette within 15 days after it is made.

Report is final and conclusive

(11) Subject to sections 53 and 54, the Board’s report is final and conclusive.

Order to reconsider

53. (1) After the Board has submitted its report under section 52, the Governor in Council may, by order, refer the recommendation, or any of the terms and conditions, set out in the report back to the Board for reconsideration.

Factors and time limit

(2) The order may direct the Board to conduct the reconsideration taking into account any factor specified in the order and it may specify a time limit within which the Board shall complete its reconsideration.

Order binding

(3) The order is binding on the Board.

Publication

(4) A copy of the order must be published in the Canada Gazette within 15 days after it is made.

Obligation of Board

(5) The Board shall, before the expiry of the time limit specified in the order, if one was specified, reconsider its recommendation or any term or condition referred back to it, as the case may be, and prepare and submit to the Minister a report on its reconsideration.

Contents of report

(6) In the reconsideration report, the Board shall

(a) if its recommendation was referred back, either confirm the recommendation or set out a different recommendation; and

(b) if a term or condition was referred back, confirm the term or condition, state that it no longer supports it or replace it with another one.

Terms and conditions

(7) Regardless of what the Board sets out in the reconsideration report, the Board shall also set out in the report all the terms and conditions, that it considers necessary or desirable in the public interest, to which the certificate would be subject if the Governor in Council were to direct the Board to issue the certificate.

Report is final and conclusive

(8) Subject to section 54, the Board’s reconsideration report is final and conclusive.

Reconsideration of report under this section

(9) After the Board has submitted its report under subsection (5), the Governor in Council may, by order, refer the Board’s recommendation, or any of the terms or conditions, set out in the report, back to the Board for reconsideration. If it does so, subsections (2) to (8) apply.

Order regarding issuance or non-issuance

54. (1) After the Board has submitted its report under section 52 or 53, the Governor in Council may, by order,

(a) direct the Board to issue a certificate in respect of the pipeline or any part of it and to make the certificate subject to the terms and conditions set out in the report; or

(b) direct the Board to dismiss the application for a certificate.

Reasons

(2) The order must set out the reasons for making the order.

Time limit

(3) The order must be made within three months after the Board’s report under section 52 is submitted to the Minister. The Governor in Council may, on the recommendation of the Minister, by order, extend that time limit by any additional period or periods of time. If the Governor in Council makes an order under subsection 53(1) or (9), the period that is taken by the Board to complete its reconsideration and to report to the Minister is not to be included in the calculation of the time limit.

Order is final and conclusive

(4) Every order made under subsection (1) or (3) is final and conclusive and is binding on the Board.

Obligation of Board

(5) The Board shall comply with the order made under subsection (1) within seven days after the day on which it is made.

Publication

(6) A copy of the order made under subsection (1) must be published in the Canada Gazette within 15 days after it is made.

Application for judicial review

55. (1) Judicial review by the Federal Court of Appeal with respect to any order made under subsection 54(1) is commenced by making an application for leave to the Court.

Application

(2) The following rules govern an application under subsection (1):

(a) the application must be filed in the Registry of the Federal Court of Appeal (“the Court”) within 15 days after the day on which the order is published in the Canada Gazette;

(b) a judge of the Court may, for special reasons, allow an extended time for filing and serving the application or notice; and

(c) a judge of the Court shall dispose of the application without delay and in a summary way and, unless a judge of the Court directs otherwise, without personal appearance.

Continuation of jurisdiction and obligation

55.1 (1) A failure by the Board to comply with subsection 52(1) or 53(5) within the required time limit does not affect its jurisdiction to deal with the application or its obligation to submit the report, and anything done by it in relation to the application remains valid.

Governor in Council’s powers

(2) Despite subsection 54(3), the Governor in Council may make an order under subsection 54(1) after the expiry of the time limit for doing so.

Representations

55.2 On an application for a certificate, the Board shall consider the representations of any person who, in the Board’s opinion, is directly affected by the granting or refusing of the application, and it may consider the representations of any person who, in its opinion, has relevant information or expertise. A decision of the Board as to whether it will consider the representations of any person is conclusive.

84. Section 58 of the Act is amended by adding the following after subsection (3):

Time limit

(4) If an application for an order under subsection (1) is made, the Board shall, within the time limit specified by the Chairperson, either make an order under that subsection or dismiss the application.

Maximum time limit and obligation to make it public

(5) The time limit specified by the Chairperson must be no longer than 15 months after the day on which the applicant has, in the opinion of the Board, provided a complete application. The Board shall make the time limit public.

Environmental assessment

(6) If the application relates to a designated project within the meaning of section 2 of the Canadian Environmental Assessment Act, 2012, the Board shall also, within the time limit,

(a) prepare a report, as required by paragraph 22(b) of that Act, with respect to its environmental assessment of the designated project; and

(b) comply with subsections 27(1) and 54(1) of that Act with respect to that assessment.

Excluded period — applicant

(7) If the Board requires the applicant to provide information or undertake a study with respect to the pipeline or anything referred to in paragraph (1)(b) to which the application relates and the Board, with the Chairperson’s approval, states publicly that this subsection applies, the period that is taken by the applicant to comply with the requirement is not included in the calculation of the time limit.

Public notice of excluded period

(8) The Board shall make public the dates of the beginning and ending of the period referred to in subsection (7) as soon as each of them is known.

Excluded period — Governor in Council

(9) If the Board has referred a matter to the Governor in Council under subsection 52(2) of the Canadian Environmental Assessment Act, 2012, the period that begins on the day on which the reference is made and ends on the day on which the Governor in Council makes a decision in relation to the matter is not included in the calculation of the time limit.

Extension

(10) The Minister may, by order, extend the time limit by a maximum of three months. The Governor in Council may, on the recommendation of the Minister, by order, further extend the time limit by any additional period or periods of time.

Continuation of jurisdiction and obligation

(11) A failure by the Board to comply with subsection (4) within the required time limit does not affect its jurisdiction to deal with the application or its obligation to make the order or to dismiss the application, and anything done by it in relation to the application remains valid.

1990, c. 7, s. 23

85. (1) Subsection 58.16(2) of the Act is replaced by the following:

Criteria

(2) In deciding whether to issue a certificate, the Board shall have regard to all considerations that appear to it to be directly related to the line and relevant.

(2) Section 58.16 of the Act is amended by adding the following after subsection (3):

Time limit

(4) The Board shall, within the time limit specified by the Chairperson,

(a) decide that the certificate should be issued and recommend to the Minister that the Governor in Council approve the issuance of the certificate; or

(b) decide that no certificate is to be issued and dismiss the application in respect of the line.

Maximum time limit and obligation to make it public

(5) The time limit specified by the Chairperson must be no longer than 15 months after the day on which the applicant has, in the Board’s opinion, provided a complete application. The Board shall make the time limit public.

Environmental assessment

(6) If the application relates to a designated project within the meaning of section 2 of the Canadian Environmental Assessment Act, 2012, the Board shall also, within the time limit,

(a) prepare a report, as required by paragraph 22(b) of that Act, with respect to its environmental assessment of the designated project; and

(b) comply with subsection 27(1) of that Act with respect to that assessment.

Excluded period

(7) If the Board requires the applicant to provide information or undertake a study with respect to the line and the Board, with the Chairperson’s approval, states publicly that this subsection applies, the period that is taken by the applicant to comply with the requirement is not included in the calculation of the time limit.

Public notice of excluded period

(8) The Board shall make public the dates of the beginning and ending of the period referred to in subsection (7) as soon as each of them is known.

Extension

(9) The Minister may, by order, extend the time limit by a maximum of three months. The Governor in Council may, on the recommendation of the Minister, by order, further extend the time limit by any additional period or periods of time.

Time limit — Governor in Council

(10) If the Board makes the recommendation referred to in paragraph (4)(a), the Governor in Council may, within three months after the making of that recommendation, either approve the issuance of the certificate or refuse to approve its issuance. The Governor in Council may extend the time limit for doing so for any additional period or periods of time.

Obligation of Board

(11) If the Governor in Council approves the issuance of the certificate, the Board shall, within seven days after the day on which the approval was given, issue the certificate and comply with subsection 54(1) of the Canadian Environmental Assessment Act, 2012.

Continuation of jurisdiction and obligation

(12) A failure by the Board to comply with subsection (4) within the required time limit does not affect its jurisdiction to deal with the application or its obligation to make a decision as to whether a certificate should be issued or to dismiss the application, and anything done by it in relation to the application remains valid.

Governor in Council’s power

(13) Despite subsection (10), the Governor in Council may approve the issuance of the certificate or refuse to approve its issuance after the expiry of the time limit for doing so.

1990, c. 7, s. 23

86. Section 58.27 of the Act is replaced by the following:

Application of certain provisions

58.27 (1) Sections 32 to 45 and 48 and Part V, except sections 74, 76 to 78, 108 to 111.3, 114 and 115, apply in respect of international and interprovincial power lines referred to in section 58.24 as if each reference in any of those provisions to

(a) a “company” were a reference to the applicant for or holder of the certificate issued in respect of the line;

(b) a “pipeline” or “line” were a reference to the international or interprovincial power line; and

Application of section 45 — navigable waters

(2) If a deviation, change or alteration is required to be made to a portion of an international power line by the holder of a permit or certificate issued in respect of the power line and the deviation, change or alteration passes in, on, over, under, through or across a navigable water, section 45 also applies to that portion of the power line as if each reference in that section to

(a) a “company” were a reference to the holder of the permit or certificate; and

(b) a “pipeline” were a reference to the international power line.

Application of certain provisions

58.271 Sections 32 to 45 and 48 and Part V, except sections 74, 76 to 78, 108 to 111.3, 114 and 115, apply in respect of international power lines in respect of which a certificate was issued, or an order made under subsection 58(2), before June 1, 1990 as if each reference in any of those provisions to

(a) a “company” were a reference to the applicant for or holder of the certificate issued in respect of the line;

(b) a “pipeline” or “line” were a reference to the international power line; and

1990, c. 7, s. 23; 1996, c. 10, ss. 239 and 240

87. Sections 58.28 to 58.3 of the Act are replaced by the following:

Construction — facility

58.28 (1) Subject to subsection (4), no person shall construct an international or interprovincial power line that passes on, over, along or under a facility unless a permit referred to in section 58.11, or a certificate, has been issued in respect of the power line and

(a) the permit or certificate contains a term or condition relating to that facility;

(b) the person has been granted leave under subsection (2); or

(c) the person is constructing the power line in circumstances specified in an order or regulation made under subsection (4).

Authority to grant leave

(2) The Board may, by order, on application, grant a person leave to construct an international or interprovincial power line that passes on, over, along or under a facility. It may require from the applicant any plans, profiles and other information that it considers necessary to consider the application.

Terms and conditions

(3) The leave may be granted in whole or in part and be subject to terms and conditions.

Circumstances

(4) The Board may make orders or regulations specifying circumstances for the purposes of paragraph (1)(c).

Leave in emergency cases

(5) The Board may grant leave under subsection (2) after construction of the proposed work has commenced if it is satisfied that the work was urgently required and, before the commencement of construction, it was notified of the person’s intention to proceed with the proposed work.

Construction or operation — navigable water

58.29 No person shall construct or operate an interprovincial power line in respect of which an order made under section 58.4 is in force — or an international power line — that passes in, on, over, under, through or across a navigable water unless a permit referred to in section 58.11 or a certificate has been issued in respect of the power line.

Effects on navigation

58.3 In addition to any other factor that it considers appropriate, the Board shall take into account the effects that its decision might have on navigation, including safety of navigation, when deciding whether to issue a certificate or permit, make an order, give a direction or grant a leave, approval or exemption in respect of an interprovincial power line in respect of which an order made under section 58.4 is in force — or an international power line — that passes in, on, over, under, through or across a navigable water.

Power lines not works

58.301 Despite the definition “work” in section 2 of the Navigable Waters Protection Act, neither an interprovincial power line in respect of which an order made under section 58.4 is in force nor an international power line is a work to which that Act applies.

Regulations

58.302 (1) The Governor in Council may, for purposes related to navigation, on the joint recommendation of the Minister and the Minister of Transport, make regulations respecting sections or parts of interprovincial power lines in respect of which orders made under section 58.4 are in force — or sections or parts of international power lines — that pass in, on, over, under, through or across a navigable water, including regulations respecting

(a) their design, construction or operation;

(b) the making of deviations, changes or alterations to them;

(d) the safety and security of their operation; and

(e) the abandonment of their operation.

Offence

(2) Every person who contravenes a regulation made under subsection (1) is guilty of an offence punishable on summary conviction.

Application

58.303 (1) Sections 58.28, 58.31 and 58.32 apply only in respect of

(a) international power lines in respect of which an election is filed under section 58.23;

(b) those portions of international power lines that are within a province in which no provincial regulatory agency is designated under section 58.17;

(d) interprovincial power lines in respect of which an order made under section 58.4 is in force.

Application of section 58.31 — navigable waters

(2) Section 58.31 also applies in respect of the portion of an international power line for which a permit or certificate is in force that passes in, on, over, under, through or across a navigable water.

Application of section 58.32 — navigable waters

(3) Section 58.32 also applies in respect of an international power line for which a permit or certificate is in force if the Board is of the opinion that the diversion or relocation of the power line in, on, over, under, through or across a navigable water is necessary to facilitate the construction, reconstruction or relocation of a facility.

Existing terms and conditions

58.304 (1) Terms and conditions in respect of any international or interprovincial power line that were, at any time before the coming into force of this section, imposed under section 58.29 or 108, as that section read from time to time before the coming into force of this section — or imposed by the Minister of Transport under the Navigable Waters Protection Act — apply as if they were terms and conditions set out in the certificate or permit, as the case may be, issued in respect of the power line.

Construction without leave

(2) If, at any time before the coming into force of this section, the Minister of Transport had provided, under section 58.3 or 108, as that section read from time to time before the coming into force of this section, that leave under that section 58.3 or 108, as the case may be, was not necessary because the power line was to be constructed in accordance with certain orders, regulations, plans and specifications, no person shall construct the power line otherwise than in accordance with those orders, regulations, plans and specifications or as specified by the Board.

Construction without leave

(3) If, at any time before the coming into force of this section, the Board had provided, under section 58.33 or 108, as that section read from time to time before the coming into force of this section, that leave under section 58.29 or 108, as the case may be, as that section read from time to time before the coming into force of this section, was not necessary because the power line was to be constructed in accordance with certain orders or regulations, no person shall construct the power line otherwise than in accordance with those orders or regulations or as specified by the Board.

Offence and punishment

58.305 (1) Every person who contravenes subsection 58.28(1), section 58.29 or subsection 58.304(2) or (3) is guilty of an offence and is liable

(a) on summary conviction, to a fine not exceeding one hundred thousand dollars or to imprisonment for a term not exceeding one year or to both; or

(b) on conviction on indictment, to a fine not exceeding one million dollars or to imprisonment for a term not exceeding five years or to both.

Application of subsections 121(2) to (5)

(2) Subsections 121(2) to (5) apply, with any modifications that the circumstances require, in respect of an offence under this section.

1990, c. 7, s. 23

88. Paragraph 58.33(c) of the Act is replaced by the following:

1996, c. 10, s. 243.1

89. (1) Paragraph 71(2)(b) of the Act is replaced by the following:

(b) a company that has been issued a certificate under Part III authorizing the transmission of a commodity other than oil.

1996, c. 10, s. 243.1

(2) The portion of subsection 71(3) of the Act before paragraph (a) is replaced by the following:

Extension of facilities

(3) The Board may, if it considers it necessary or desirable to do so in the public interest, require a company operating a pipeline for the transmission of hydrocarbons, or for the transmission of any other commodity authorized by a certificate issued under Part III, to provide adequate and suitable facilities for

90. Subsection 77(4) of the Act is replaced by the following:

Exceptions

(4) Subsections (1) to (3) do not apply to any of the following:

(a) in the case of a pipeline:

(i) anything done under leave obtained under subsection 108(2) or (5) in respect of the pipeline,

(ii) any section or part of the pipeline that passes on, over, along or under a utility, as defined in subsection 108(6), if a certificate has been issued, or an order has been made under section 58, in respect of the pipeline and the certificate or order contains a term or condition relating to that utility,

(iii) any section or part of the pipeline that passes in, on, over, under, through or across a navigable water if a certificate has been issued, or an order has been made under section 58, in respect of the pipeline, and

(iv) anything done under any leave obtained under section 108 at any time before the coming into force of this subsection, as that section read from time to time before the coming into force of this subsection; and

(b) in the case of a power line to which this section applies by reason of section 58.38:

(i) anything done under leave obtained under subsection 58.28(2) or (5) in respect of the power line,

(ii) in the case of a power line that is an interprovincial power line in respect of which an order made under section 58.4 is in force,

(A) any section or part of the power line that passes on, over, along or under a facility if a certificate has been issued in respect of the power line and the certificate contains a term or condition relating to that facility, or

(B) any section or part of the power line that passes in, on, over, under, through or across a navigable water if a certificate has been issued in respect of the power line,

(iii) in the case of a power line that is an international power line,

(A) any section or part of the power line that passes on, over, along or under a facility if a permit referred to in section 58.11, or a certificate, has been issued in respect of the power line and the permit or certificate contains a term or condition relating to that facility, or

(B) any section or part of the power line that passes in, on, over, under, through or across a navigable water if a permit referred to in section 58.11, or a certificate, has been issued in respect of the power line, and

1990, c. 7, s. 26(2) and s. 27; 1996, c. 10, s. 244; 2001, c. 4, s. 105; 2004, c. 25, s. 161

91. Sections 108 to 111 of the Act are replaced by the following:

Construction — utility

108. (1) Subject to subsection (4), no company shall construct a pipeline that passes on, over, along or under a utility unless a certificate has been issued, or an order has been made under section 58, in respect of the pipeline, and

(a) the certificate or order contains a term or condition relating to that utility;

(b) the company has been granted leave under subsection (2); or

(c) the company is constructing the pipeline in circumstances specified in an order or regulation made under subsection (4).

Authority to grant leave

(2) The Board may, by order, on application, grant a company leave to construct a pipeline that passes on, over, along or under a utility. It may require from the applicant any plans, profiles and other information that it considers necessary to deal with the application.

Terms and conditions

(3) The leave may be granted in whole or in part and be subject to terms and conditions.

Circumstances

(4) The Board may make orders or regulations specifying circumstances for the purposes of paragraph (1)(c).

Leave in emergency cases

(5) The Board may grant leave under subsection (2) after construction of the proposed work has commenced if is satisfied that the work was urgently required and, before the commencement of construction, it was notified of the company’s intention to proceed with the proposed work.

Definition of “utility”

(6) In this section, “utility” means a highway, an irrigation ditch, a publicly owned or operated drainage system, sewer or dike, an underground telegraph or telephone line or a line for the transmission of hydrocarbons, electricity or any other substance.

Construction or operation — navigable water

109. No person shall construct or operate a pipeline that passes in, on, over, under through or across a navigable water unless a certificate has been issued, or an order has been made under section 58, in respect of the pipeline.

Effects of recommendation on navigation

110. (1) In addition to any other factor that it considers appropriate, the Board shall take into account the effects that the issuance of a certificate in respect of a pipeline that passes in, on, over, under, through or across a navigable water might have on navigation, including safety of navigation, when making its recommendation in a report prepared under subsection 52(1).

Effects of decision on navigation

(2) In addition to any other factor that it considers appropriate, the Board shall take into account the effects that its decision might have on navigation, including safety of navigation, when deciding whether to make an order, give a direction or grant a leave, approval or exemption in respect of a pipeline that passes in, on, over, under, through or across a navigable water.

Pipeline not work

111. Despite the definition “work” in section 2 of the Navigable Waters Protection Act, a pipeline is not a work to which that Act applies.

Regulations

111.1 (1) The Governor in Council may, for purposes related to navigation, on the joint recommendation of the Minister and the Minister of Transport, make regulations respecting sections or parts of pipelines that pass in, on, over, under, through or across a navigable water, including regulations respecting

(a) their design, construction or operation;

(b) the making of deviations, changes or alterations to them;

(d) the safety and security of their operation; and

(e) the abandonment of their operation.

Offence

(2) Every person who contravenes a regulation made under subsection (1) is guilty of an offence punishable on summary conviction.

Existing terms and conditions

111.2 (1) Terms and conditions in respect of a pipeline that were, at any time before the coming into force of this section, imposed under section 108, as that section read from time to time before the coming into force of this section, are considered to be terms and conditions set out in the certificate issued, or order made under section 58, as the case may be, in respect of the pipeline.

Construction without leave

(2) If, at any time before the coming into force of this section, the Minister of Transport or the Board had provided, under section 108, as that section read from time to time before the coming into force of this section, that leave under that section was not necessary because the pipeline was to be constructed in accordance with certain orders, regulations, plans and specifications, no company shall construct the pipeline otherwise than in accordance with those orders, regulations, plans and specifications or as specified by the Board.

Offence and punishment

111.3 (1) Every person who contravenes subsection 108(1), section 109 or subsection 111.2(2) is guilty of an offence and is liable

(a) on summary conviction, to a fine not exceeding one hundred thousand dollars or to imprisonment for a term not exceeding one year or to both; or

(b) on conviction on indictment, to a fine not exceeding one million dollars or to imprisonment for a term not exceeding five years or to both.

Application of subsections 121(2) to (5)

(2) Subsections 121(2) to (5) apply, with any modifications that the circumstances require, in respect of an offence under this section.

If pipeline affixed to any real property or immovables

111.4 (1) Despite this Act or any other general or Special Act or law to the contrary, if any section or part of a pipeline passes on, over, along or under a utility, as defined in subsection 108(6) — or passes in, on, over or under a navigable water — and that section or part of the pipeline has been affixed to any real property or immovable in any of the circumstances referred to in subsection (2),

(a) that section or part of the pipeline remains subject to the rights of the company and remains the property of the company as fully as it was before being so affixed and does not become part of the real property or immovable of any person other than the company unless otherwise agreed by the company in writing and unless notice of the agreement in writing has been filed with the Secretary; and

(b) subject to the provisions of this Act, the company may create a lien, mortgage, charge or other security, or the company may constitute a hypothec, on that section or part of the pipeline.

Circumstances

(2) The following are the circumstances for the purposes of subsection (1):

(a) in the case of the pipeline:

(i) leave has been obtained under subsection 108(2) or (5) in respect of the pipeline,

(ii) the certificate issued, or the order made under section 58, in respect of the pipeline contains a term or condition relating to the utility,

(iii) the pipeline has been constructed in circumstances specified in an order or regulation made under subsection 108(4),

(iv) a certificate has been issued, or an order has been made under section 58, in respect of the pipeline and the pipeline passes in, on, over or under a navigable water, and

(v) leave has been obtained under section 108 in respect of the pipeline at any time before the coming into force of this subsection, as that section read from time to time before the coming into force of this subsection; and

(b) in the case of the power line to which this section applies by reason of section 58.27,

(i) leave has been obtained under subsection 58.28(2) or (5) in respect of the power line,

(ii) the permit referred to in section 58.11, or the certificate, issued in respect of the power line contains a term or condition relating to that utility,

(iii) the power line has been constructed in circumstances specified in an order or regulation made under subsection 58.28(4),

(iv) a permit referred to in section 58.11, or a certificate, has been issued in respect of the power line and the power line passes in, on, over or under a navigable water, and

(v) leave has been obtained under section 108 in respect of the power line at any time before the coming into force of this subsection, as that section read from time to time before the coming into force of this subsection.

1990, c. 7, s. 28

92. (1) Paragraph 112(5)(c) of the Act is replaced by the following:

(2) Section 112 of the Act is amended by adding the following after subsection (7):

Offence

(8) Every person who contravenes subsection (1) or (2), a direction made under subsection (4) or an order or regulation made under subsection (5) is guilty of an offence and liable

(a) on summary conviction, to a fine not exceeding one hundred thousand dollars or to imprisonment for a term not exceeding one year or to both; or

(b) on conviction on indictment, to a fine not exceeding one million dollars or to imprisonment for a term not exceeding five years or to both.

Application of subsections 121(2) to (5)

(9) Subsections 121(2) to (5) apply, with any modifications that the circumstances require, to an offence under subsection (8).

1990, c. 7, s. 32

93. Section 118 of the Act is replaced by the following:

Criteria

118. On an application for a licence to export oil or gas, the Board shall satisfy itself that the quantity of oil or gas to be exported does not exceed the surplus remaining after due allowance has been made for the reasonably foreseeable requirements for use in Canada, having regard to the trends in the discovery of oil or gas in Canada.

1990, c. 7, s. 34

94. (1) The portion of subsection 119.06(2) of the Act before paragraph (a) is replaced by the following:

Criteria

(2) In determining whether to make a recommendation, the Board shall seek to avoid the duplication of measures taken in respect of the exportation by the applicant and the government of the province from which the electricity is exported, and shall have regard to

1990, c. 7, s. 34

(2) Paragraph 119.06(2)(b) of the Act is repealed.

1990, c. 7, s. 34

95. Subsections 119.08(1) and (2) of the Act are replaced by the following:

Issuance

119.08 (1) The Board may, subject to the approval of the Governor in Council, issue a licence for the exportation of electricity in relation to which an order made under section 119.07 is in force.

Criteria

(2) In deciding whether to issue a licence, the Board shall have regard to

(a) the effect of the exportation of the electricity on provinces other than from which the electricity is to be exported;

(b) whether the applicant has

(i) informed those who have declared an interest in buying electricity for consumption in Canada of the quantities and classes of service available for sale, and

(ii) given an opportunity to purchase electricity on terms and conditions as favourable as the terms and conditions specified in the application to those who, within a reasonable time after being so informed, demonstrate an intention to buy electricity for consumption in Canada; and

96. Section 119.094 of the Act is amended by striking out “and” at the end of paragraph (b), by adding “and” at the end of paragraph (c) and by adding the following after paragraph (c):

(d) specifying considerations to which the Board shall have regard in deciding whether to issue a licence for the exportation of electricity in relation to which an order made under section 119.07 is in force.

2001, c. 28, s. 59

97. The portion of section 120.5 of the Act before paragraph (a) is replaced by the following:

Where no declaration made

120.5 The Board may, despite its not being satisfied in accordance with section 118, issue a licence for the exportation to the United States, Chile or Costa Rica of such energy goods as were, or of such quality, kind or class of energy goods as was, referred to in a request made under section 120.3 if

98. The Act is amended by adding the following after section 133:

PART IX

ADMINISTRATIVE MONETARY PENALTIES

Board’s Powers

Regulations

134. (1) The Board may, with the approval of the Governor in Council, make regulations

(a) 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) any certificate, licence or permit or of any specified class of certificate, licence or permit, or

(B) any leave or exemption granted under this Act or of any specified class of leave or exemption granted under this Act;

(b) 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; and

(c) respecting the service of documents required or authorized under section 139, 144 or 147, including the manner and proof of service and the circumstances under which documents are considered to be served.

Maximum

(2) The amount that may be determined under any regulations made under paragraph (1)(b) as the penalty for a violation must not be more than twenty-five thousand dollars, in the case of an individual, and one hundred thousand dollars in the case of any other person.

Powers

135. The Board may

(a) establish the form of notices of violation;

(b) designate persons or classes of persons who are authorized to issue notices of violation;

(d) designate persons or classes of persons to conduct reviews under section 147.

Violations

Commission of violation

136. (1) Every person who contravenes or fails to comply with a provision, order, decision, term or condition designated under paragraph 134(1)(a) commits a violation and is liable to a 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.

137. 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 a 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

138. 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

139. (1) If a person designated under paragraph 135(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;

(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

140. (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

141. 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

142. (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

143. No notice of violation in respect of a violation may be issued more than two years after the day on which the subject matter of the violation arises.

Reviews

Right to request review

144. 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 Board allows, make a request to the Board for a review of the amount of the penalty or the facts of the violation, or both.

Correction or cancellation of notice of violation

145. At any time before a request for a review in respect of a notice of violation is received by the Board, a person designated under paragraph 135(b) may cancel the notice of violation or correct an error in it.

Review

146. (1) On receipt of a request made under section 144, the Board shall conduct the review or cause the review to be conducted by a person designated under paragraph 135(d).

Restriction

(2) The Board shall conduct the review if the notice of violation was issued by a person designated under paragraph 135(d).

Object of review

147. (1) The Board or the person conducting the review 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 Board or the person conducting the review shall render a determination in writing and cause the person who requested the review to be served with a copy of the determination and the reasons for it.

Correction of penalty

(3) If the Board or the person conducting the review determines that the amount of the penalty for the violation was not determined in accordance with the regulations, the Board or the person, as the case may be, shall correct the amount of the penalty.

Responsibility

(4) If the Board or the person conducting the review determines that the person who requested the review committed the violation, the person who requested the review is liable to the penalty as set out in the determination.

Determination final

(5) Despite subsection 21(1), 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.

Federal Court

(6) Despite section 28 of the Federal Courts Act, the Federal Court has exclusive original jurisdiction to hear and determine an application for judicial review of a determination made under this section by the Board.

Burden of proof

148. If the facts of a violation are reviewed, 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

149. 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

150. 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

151. (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 period

(2) No proceedings to recover the debt may be instituted more than five years after the day on which the debt becomes payable.

Certificate

152. (1) The Board may issue a certificate of non-payment certifying the unpaid amount of any debt referred to in subsection 151(1).

Registration in Federal Court

(2) Registration in the Federal Court or in any other court of competent jurisdiction of a certificate of non-payment 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

153. In the absence of evidence to the contrary, a document that appears to be a notice issued under subsection 139(1) is presumed to be authentic and is proof of its contents in any proceeding in respect of a violation.

Publication

154. The Board may make public the nature of a violation, the name of the person who committed it and the amount of the penalty.

Terminology — Chairman

99. The English version of the Act is amended by replacing “Chairman” with “Chairperson” in the following provisions:

(a) subsection 4(1);

(b) subsection 15(1);

(d) subsection 93(2).

Transitional Provisions

Definitions

100. The following definitions apply in this section and sections 101 to 109.

“Board”
« Office »

“Board” means the National Energy Board established by section 3 of the other Act.

“Chairperson”
Version anglaise seulement

“Chairperson” means the Chairperson of the National Energy Board.

“commencement day”
« entrée en vigueur »

“commencement day” means the day on which this section and sections 68 to 85, 89, 90, 92 to 97, 99 and 101 to 114 come into force.

“designated project”
« projet désigné »

“designated project” means a project that is considered to be a designated project under subsection 126(1) of the Canadian Environmental Assessment Act, 2012.

“Minister responsible for the other Act”
« ministre responsable de l’autre loi »

“Minister responsible for the other Act” means the member of the Queen’s Privy Council for Canada that is designated by the Governor in Council as the Minister for the purposes of the other Act.

“other Act”
« autre loi »

“other Act” means the National Energy Board Act.

Application of subsections 6(2) and (2.1) and 11(4) and section 16

101. Subsections 6(2) and (2.1) of the other Act, as enacted by subsection 71(2), subsection 11(4) of the other Act, as enacted by section 74, and section 16 of the other Act, as amended by section 77, also apply in respect of proceedings that were before the Board immediately before the commencement day and that continue after that day.

Section 52 application — no agreement

102. If an application for a certificate under section 52 of the other Act was before the Board immediately before the commencement day and no final decision in respect of the application had been made before that day and no agreement had been entered into with the Board under section 40 of the Canadian Environmental Assessment Act before that day in respect of the pipeline to which the application relates, sections 52 to 55.2 of the other Act, as enacted by section 83, apply in respect of the application, as though the application had been made on that day.

Section 52 application — substitution

103. If an application for a certificate under section 52 of the other Act was before the Board immediately before the commencement day and no final decision in respect of the application had been made before that day and, before that day, the Board’s process for assessing environmental effects had been approved as a substitute under subsection 43(1) of the Canadian Environmental Assessment Act, sections 52 to 55.2 of the other Act, as enacted by section 83, apply in respect of the application, as though the application had been made on that day.

Section 52 application — review panel

104. (1) Subsections (2) to (9) apply in respect of an application for a certificate under section 52 of the other Act if

(a) the application was made before the commencement day;

(b) a review panel had been jointly established before that day under an agreement entered into under subsection 40(2) of the Canadian Environmental Assessment Act in relation to the pipeline to which the application relates; and

Sections 52 to 55.2

(2) Subject to subsection (3) and (5) to (9), sections 52 to 55.2 of the other Act, as enacted by section 83, apply in respect of the application, as though it had been made on the commencement day.

Subsection 52(3)

(3) Unless subsection (8) or (9) applies, the reference in subsection 52(3) of the other Act, as enacted by section 83, to the Board is to be read as a reference to the review panel.

Canadian Environmental Assessment Act, 2012

(4) For the purposes of the environmental assessment under the Canadian Environmental Assessment Act, 2012 of the designated project to which the application relates,

(a) sections 47 and 48 of that Act are to be read as follows:

Governor in Council’s decision

47. (1) The Governor in Council, after taking into account the review panel’s report with respect to the environmental assessment, must make decisions under subsection 52(1).

Studies and collection of information

(2) Before making decisions referred to in subsection 52(1), the Governor in Council may, by order, direct the National Energy Board to require the proponent of the designated project to collect any information or undertake any studies that, in the Governor in Council’s opinion, are necessary for the Governor in Council to make decisions.

Publication

(3) A copy of the order must be published in the Canada Gazette within 15 days after it is made.

Excluded periods

48. (1) If the review panel under subsection 44(2) requires the proponent of the designated project to collect information or undertake a study with respect to the designated project and the review panel, with the approval of the Chairperson of the National Energy Board, states publicly that this subsection applies, the period that is taken by the proponent, in the opinion of the review panel, to comply with the requirement under subsection 44(2) is not included in the calculation of the period referred to in paragraph 38(3)(b) that is established under subsection 126(4).

Excluded periods

(2) If the National Energy Board, acting under an order made under subsection 47(2), requires a proponent of the designated project to collect information or undertake a study with respect to the designated project, the period that is taken by the proponent, in the opinion of the National Energy Board, to comply with the requirement is not included in the calculation of the period referred to in paragraph 38(3)(c) that is established under subsection 126(4).

(b) section 54 of that Act is to be read as follows:

Decision statement

54. (1) The National Energy Board must issue a decision statement to the proponent of a designated project that

(a) informs the proponent of the designated project of the decisions made under paragraphs 52(1)(a) and (b), and under subsection 52(4), if that subsection applies, in relation to the designated project; and

(b) includes any conditions that are established under section 53 in relation to the designated project and that must be complied with by the proponent.

Extension of time limit

(2) The Governor in Council may extend the time limits established under subsection 126(4) by any further period.

Public notice of extension

(3) The National Energy Board must make public any extension granted under subsection (2).

Excluded period

(4) If the National Energy Board, acting under an order made under subsection 47(2), requires a proponent of the designated project to collect information or undertake a study with respect to the designated project, the period that is taken by the proponent, in the opinion of the National Energy Board, to comply with the requirement is not included in the calculation of the period referred to in subsection 126(2) that is established under subsection 126(4).

Time limit

(5) The time limit established under subsection 126(4) of the Canadian Environmental Assessment Act, 2012 for the submission of the review panel’s report with respect to the environmental assessment of the designated project to which the application relates is to be considered, despite the period of 15 months referred to in subsection 52(4) of the other Act, as enacted by section 83, to be the time limit specified by the Chairperson under that subsection 52(4).

Extension

(6) If a time limit is extended under subsection 52(7) of the other Act, as enacted by section 83, the same extension is considered to have been made under subsection 54(2) of the Canadian Environmental Assessment Act, 2012, as that subsection reads by reason of paragraph (4)(b).

Extension

(7) If a time limit is extended under subsection 54(4) of the Canadian Environmental Assessment Act, 2012, as that subsection reads by reason of paragraph (4)(b), the same extension is considered to have been made under subsection 52(7) of the other Act, as enacted by section 83.

Exercise of Chairperson’s powers

(8) If a time limit is considered by virtue of subsection (5) to have been specified by the Chairperson under subsection 52(4) of the other Act, as enacted by section 83, and the Minister of the Environment and the Chairperson are of the opinion that the time limit is not likely to be met, the Chairperson may exercise any of the Chairperson’s powers under subsection 6(2.2) of the other Act, as enacted by subsection 71(2). If any of those powers are exercised,

(a) for greater certainty, subsections 6(2.3) to (2.5), as enacted by that subsection 71(2), apply; and

(b) the Minister of the Environment is considered to have terminated, under subsection 49(2) of the Canadian Environmental Assessment Act, 2012, the review panel’s environmental assessment of the designated project to which the application relates.

Exercise of Minister’s powers

(9) If the review panel’s environmental assessment of the designated project to which the application relates is terminated by the Minister of the Environment under subsection 49(1) or (2) of the Canadian Environmental Assessment Act, 2012, or is considered to have been terminated under subsection (8),

(a) despite section 50 of that Act, the Board shall complete the environmental assessment of the designated project and prepare a report with respect to the environmental assessment; and

(b) section 51 of that Act is to be read as follows in respect of that designated project:

Governor in Council’s decision

51. The Governor in Council, after taking into account the report with respect to the environmental assessment of the designated project, must make decisions under subsection 52(1).

Application before Board — section 58

105. Subsections 58(4) to (11) of the other Act, as enacted by section 84, apply in respect of each application for an order under section 58 of the other Act that was before the Board immediately before the commencement day and in respect of which no final decision had been made before that day, as though the application had been made on that day.

Application before Board — section 58.16

106. Subsections 58.16(4) to (13) of the other Act, as enacted by subsection 85(2), apply in respect of each application to which subsection 58.16(1) of the other Act applies that was before the Board immediately before the commencement day and in respect of which no final decision had been made before that day, as though the application had been made on that day.

Time limit

107. (1) Within 14 days after the commencement day, in respect of each application to which any of sections 102, 103, 105 and 106 applies that the Chairperson considers to have been complete before that day, specify a time limit for the Board to comply with subsection 52(1), 58(4) or 58.16(4) of the other Act, as the case may be, as enacted, respectively, by sections 83 and 84 and subsection 85(2). The Board shall also make that time limit public.

Clarification

(2) The time limit specified under subsection (1) may be longer than the 15-month period referred to in subsection 52(4), 58(5) or 58.16(4) of the other Act, as the case may be, as enacted, respectively, by sections 83 and 84 and subsection 85(2), if the Chairperson considers it appropriate in the circumstances, but it must be no longer than 15 months after the commencement day.

Chairperson’s powers

(3) To ensure that a time limit specified under subsection (1) is met, the Chairperson may exercise any of the Chairperson’s powers under subsection 6(2.2) of the other Act, as enacted by subsection 71(2). For greater certainty, subsections 6(2.3) to (2.5) of the other Act, as enacted by that subsection 71(2), apply if any of those powers are exercised.

Chairman

108. The person who holds the office of Chairman of the Board immediately before the commencement day continues in office as the Chairperson of the Board until the earlier of the expiry of the person’s term as a member of the Board and the designation of another member of the Board as its Chairperson.

Vice-Chairman

109. The person who holds the office of Vice-Chairman of the Board immediately before the commencement day continues in office as the Vice-chairperson of the Board until the earlier of the expiry of the person’s term as a member of the Board and the designation of another member of the Board as its Vice-chairperson.

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 »

“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 »

“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;

(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;

(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

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

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 »

“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 »

“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 »

“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 »

“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 »

“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 »

“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 »

“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

Contents of agreement

(2) An agreement may establish

(a) the roles, powers and functions of the parties;

(b) 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

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);

(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;

(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

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),

(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):

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:

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: