Law:Canada National Marine Conservation Areas Act

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S.c. 2002, c. 18

Assented to 2002-06-13

An Act respecting the national marine conservation areas of Canada

Preamble

Whereas the protection of natural, self-regulating marine ecosystems is important for the maintenance of biological diversity;

Whereas the Government of Canada is committed to adopting the precautionary principle in the conservation and management of the marine environment so that, where there are threats of environmental damage, lack of scientific certainty is not used as a reason for postponing preventive measures;

And whereas Parliament wishes to affirm the need to

establish a system of marine conservation areas that are representative of the Atlantic, Arctic and Pacific Oceans and the Great Lakes and are of sufficient extent and such configuration as to maintain healthy marine ecosystems,

ensure that Canada contributes to international efforts for the establishment of a worldwide network of representative marine protected areas,

consider implications for ecosystems in the planning and management of marine conservation areas so established,

provide opportunities for the people of Canada and of the world to appreciate and enjoy Canada’s natural and cultural marine heritage,

recognize that the marine environment is fundamental to the social, cultural and economic well-being of people living in coastal communities,

provide opportunities, through the zoning of marine conservation areas, for the ecologically sustainable use of marine resources for the lasting benefit of coastal communities,

promote an understanding of the marine environment and provide opportunities for research and monitoring,

consider traditional ecological knowledge in the planning and management of marine conservation areas, and

involve federal and provincial ministers and agencies, affected coastal communities, aboriginal organizations, aboriginal governments, bodies established under land claims agreements and other appropriate persons and bodies in the effort to establish and maintain the representative system of marine conservation areas;

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


Contents

Short Title

Short title

1. This Act may be cited as the Canada National Marine Conservation Areas Act.


Interpretation

Definitions

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

“disposal”

« immersion »

“disposal” has the same meaning as in section 122 of the Canadian Environmental Protection Act, 1999, read without reference to the sea.

“ecosystem”

« écosystème »

“ecosystem” means a dynamic complex of animal, plant and microorganism communities and their non-living environment interacting as a functional unit.

“enforcement officer”

« agent de l’autorité »

“enforcement officer” means a person designated under section 19 or belonging to a class of persons so designated.

“fishing”

« pêche »

“fishing” has the meaning given to that expression in the Fisheries Act.

“marine conservation area”

« aire marine de conservation »

“marine conservation area” means a national marine conservation area of Canada named and described in Schedule 1.

“marine conservation area warden”

« garde d’aire marine de conservation »

“marine conservation area warden” means a person designated under section 18.

“Minister”

« ministre »

“Minister” means the Minister responsible for the Parks Canada Agency.

“public lands”

« terres domaniales »

“public lands” means lands, including submerged lands, that belong to Her Majesty in right of Canada or that the Government of Canada has the power to dispose of, whether or not subject to the terms of any agreement between the Government of Canada and the government of a province.

“reserve”

« réserve »

“reserve” means a national marine conservation area reserve of Canada named and described in Schedule 2.

“supeintendent”

« directeur »

“superintendent” means a person appointed under the Parks Canada Agency Act who holds the office of superintendent of a marine conservation area, and includes any other person appointed under that Act who is authorized by that person to act on that person’s behalf.

“waste or other matter”

« déchets ou autres matières »

“waste or other matter” means waste or other matter listed in Schedule 5 to the Canadian Environmental Protection Act, 1999.

Aboriginal rights

(2) For greater certainty, nothing in this Act shall be construed so as to abrogate or derogate from the protection provided for existing aboriginal or treaty rights of the aboriginal peoples of Canada by the recognition and affirmation of those rights in section 35 of the Constitution Act, 1982.

Exclusive economic zone

(3) The establishment of a marine conservation area within the exclusive economic zone of Canada does not constitute a claim to any rights, jurisdiction or duties beyond those set out in section 14 of the Oceans Act.

Application of Act to reserves

(4) This Act applies to a reserve as if it were a marine conservation area.

2002, c. 18, s. 2; 2005, c. 2, s. 6.

Previous Version

Her Majesty

Binding on Her Majesty

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


Marine Conservation Areas

Purpose

4. (1) Marine conservation areas are established in accordance with this Act for the purpose of protecting and conserving representative marine areas for the benefit, education and enjoyment of the people of Canada and the world.

Purpose of reserves

(2) Reserves are established in accordance with this Act for the purpose referred to in subsection (1) where an area or a portion of an area proposed for a marine conservation area is subject to a claim in respect of aboriginal rights that has been accepted for negotiation by the Government of Canada.

Management and use

(3) Marine conservation areas shall be managed and used in a sustainable manner that meets the needs of present and future generations without compromising the structure and function of the ecosystems, including the submerged lands and water column, with which they are associated.

Zones

(4) Each marine conservation area shall be divided into zones, which must include at least one zone that fosters and encourages ecologically sustainable use of marine resources and at least one zone that fully protects special features or sensitive elements of ecosystems, and may include other types of zones.

Establishment or enlargement

5. (1) Subject to section 7, for the purpose of establishing or enlarging a marine conservation area, consisting of submerged lands and waters within the internal waters, territorial sea or exclusive economic zone of Canada and any coastal lands or islands within Canada, the Governor in Council may, by order, amend Schedule 1 by adding the name and a description of the area or by altering the description of the area.

Title to lands

(2) An amendment to Schedule 1 under this section or subsection 6(2) may be made only if

(a) the Governor in Council is satisfied that Her Majesty in right of Canada has clear title to or an unencumbered right of ownership in the lands to be included in the marine conservation area, other than such lands situated within the exclusive economic zone of Canada;

(b) in a case where Her Majesty in right of a province had the administration and control of any of the lands to be included in the marine conservation area, the government of the province agreed to the use of those lands as a marine conservation area and transferred their administration and control to Her Majesty in right of Canada for that purpose; and

(c) the requirements of any applicable land claim agreement respecting the establishment of the marine conservation area have been fulfilled.

Judicial finding as to title

(3) If a court of competent jurisdiction finds that Her Majesty in right of Canada does not have clear title to or an unencumbered right of ownership in lands within a marine conservation area, the Governor in Council may, by order, amend Schedule 1 by removing the name and description of the area or by altering the description of the area.

No reduction of area

(4) Except as provided by subsection (3), no amendment may be made by the Governor in Council to Schedule 1 for the purpose of removing any portion of a marine conservation area.

Establishment or enlargement of reserves

6. (1) Subject to section 7, for the purpose of establishing or enlarging a reserve, consisting of submerged lands and waters within the internal waters or territorial sea of Canada and any coastal lands or islands within Canada, the Governor in Council may, by order, amend Schedule 2 by adding the name and a description of the reserve or by altering the description of the reserve.

Reserve becoming marine conservation area

(2) Where a claim described in subsection 4(2) is settled, the Governor in Council may, by order,

(a) amend Schedule 2 by removing the name and description of the reserve or by altering the description of the reserve; and

(b) if the settlement provides that the reserve or part of it is to become a marine conservation area or part of one, amend Schedule 1 by adding the name and a description of the area or by altering the description of the area.

Judicial finding as to title

(3) If a court of competent jurisdiction finds that Her Majesty in right of Canada does not have clear title to or an unencumbered right of ownership in lands within a reserve, the Governor in Council may, by order, amend Schedule 2 by removing the name and description of the reserve or by altering the description of the reserve.

No reduction of area

(4) Except as provided by subsections (2) and (3), no amendment may be made by the Governor in Council to Schedule 2 for the purpose of removing any portion of a reserve.

Amendment to be tabled in Parliament

7. (1) Before an amendment is made to Schedule 1 or 2 for a purpose referred to in subsection 5(1) or 6(1), respectively, the proposed amendment shall be laid before each House of Parliament together with a report on the proposed marine conservation area or reserve, which report shall include

(a) information on consultations undertaken, including a list of the names of organizations and persons consulted, the dates of the consultation and a summary of their comments,

(b) any agreements reached respecting the establishment of the area or reserve,

(c) the results of any assessments of mineral and energy resources undertaken, and

(d) an interim management plan that sets out management objectives and a zoning plan,

and an amendment so laid stands referred to the standing committee of each House that normally considers matters relating to marine conservation areas or to such other committee as that House may designate for the purposes of this section.

Disapproval by committee

(2) The committee of each House may, within 30 sitting days after the amendment is tabled, report to the House that it disapproves the amendment, in which case a motion to concur in the report shall be put to the House in accordance with its procedures.

Amendment allowed

(3) A proposed amendment to Schedule 1 or 2 may be made if 31 sitting days have elapsed after the tabling of the amendment in both Houses and no motion referred to in subsection (2) has been proposed in either House.

Amendment not allowed

(4) A proposed amendment to Schedule 1 or 2 may not be made if either House passes a motion referred to in subsection (2).


Administration

Management by Minister

8. (1) The Minister is responsible for the administration, management and control of marine conservation areas in relation to matters not assigned by law to any other Minister of the Crown.

Administration of lands

(2) The Minister has the administration of public lands in marine conservation areas.

Facilities and research

(3) The Minister may maintain and operate facilities and carry out operations and activities to achieve the purposes of this Act, and may conduct scientific research and monitoring and carry out studies based on traditional ecological knowledge, including traditional aboriginal ecological knowledge, in relation to marine conservation areas.

Agreements

(4) The Minister may enter into agreements with other federal and provincial ministers and agencies, local and aboriginal governments, bodies established under land claims agreements and other persons and organizations for carrying out the purposes of this Act.

Management plans

9. (1) The Minister shall, within five years after a marine conservation area is established, in consultation with relevant federal and provincial ministers and agencies, with affected coastal communities, aboriginal organizations, aboriginal governments and bodies established under land claims agreements, and with other persons and bodies that the Minister considers appropriate, prepare a management plan for the marine conservation area that includes a long-term ecological vision for the marine conservation area and provision for ecosystem protection, human use, zoning, public awareness and performance evaluation, which shall be tabled in each House of Parliament.

Review of management plans by Minister

(2) The Minister shall review the management plan of a marine conservation area at least every five years, and any amendments to the plan shall be tabled with the plan in each House of Parliament.

Primary considerations

(3) In order to protect marine ecosystems and maintain marine biodiversity, the primary considerations in the development and modification of management plans and interim management plans shall be principles of ecosystem management and the precautionary principle.

Minister of Fisheries and Oceans

(4) Provisions of a management plan or an interim management plan respecting fishing, aquaculture and fisheries management are subject to an agreement between the Minister and the Minister of Fisheries and Oceans.

Minister of Transport and Minister of Fisheries and Oceans

(4.1) Provisions of a management plan or an interim management plan respecting marine navigation and marine safety are subject to an agreement between the Minister, the Minister of Transport and the Minister of Fisheries and Oceans.

Land claims agreements

(5) If a marine conservation area includes an area that is the subject of a land claims agreement, the management plan or interim management plan for the marine conservation area and any amendments to it shall be prepared in a manner consistent with any applicable provisions of the agreement.

2002, c. 18, s. 9; 2005, c. 29, s. 34.

Previous VersionConsultation

10. (1) The Minister shall consult with relevant federal and provincial ministers and agencies, with affected coastal communities, aboriginal organizations, aboriginal governments and bodies established under land claims agreements, and with other persons and bodies that the Minister considers appropriate in the development of marine conservation area policy and regulations, the establishment of any proposed marine conservation area and the modification of any marine conservation area, and any other matters that the Minister considers appropriate.

Progress reports

(2) At least every two years, the Minister shall cause to be tabled in each House of Parliament a report on the state of marine conservation areas and on progress towards completion of a representative system of marine conservation areas.

Area advisory committees

11. (1) The Minister shall, for each marine conservation area, establish a management advisory committee to advise the Minister on the formulation, review and implementation of the management plan for the area.

Other advisory committees

(2) The Minister may establish other advisory committees to review and evaluate any aspect of marine conservation area policy or administration.

Composition

(3) The Minister shall consult with relevant federal and provincial ministers and agencies, with affected coastal communities, aboriginal organizations, aboriginal governments and bodies established under land claims agreements, and with other persons and bodies that the Minister considers appropriate with respect to the composition of advisory committees.


Prohibitions

No disposition or use without authority

12. Except as permitted by this Act or the regulations,

(a) no interest in public lands in a marine conservation area may be disposed of; and

(b) no person shall use or occupy public lands in a marine conservation area.

Exploration and exploitation

13. No person shall explore for or exploit hydrocarbons, minerals, aggregates or any other inorganic matter within a marine conservation area.

Disposal of substances

14. (1) No person shall dispose of any substance in waters within a marine conservation area except as authorized by a permit issued by a superintendent pursuant to this Act or, in the case of waters to which subsection 125(1) of the Canadian Environmental Protection Act, 1999 applies, authorized by section 130 of that Act or by a permit issued by the Minister of the Environment pursuant to section 127 or 128 of that Act.

Permits under Cepa, 1999

(2) No permit may be issued under section 127 or 128 of the Canadian Environmental Protection Act, 1999 for disposal in the waters of a marine conservation area except with the concurrence of the Minister.

Permits and authorizations

15. (1) To the extent authorized by the regulations, the superintendent of a marine conservation area may issue, amend, suspend and revoke permits and other authorizing instruments for activities that are consistent with the management plan or interim management plan in the marine conservation area.

Fishing licences

(2) A fishing licence issued under the Fisheries Act is deemed to be a permit issued under this Act to carry out the activities permitted by the licence, subject to regulations made under subsection 16(1) on the recommendation of the Minister and the Minister of Fisheries and Oceans.

Superintendent may not amend

(3) For greater certainty, the superintendent of a marine conservation area may not amend, suspend or revoke a fishing licence issued under the Fisheries Act.


Regulations

Regulations

16. (1) The Governor in Council may make regulations, consistent with international law, for the control and management of any or all marine conservation areas, including regulations

(a) for the protection of ecosystems and the elements of ecosystems;

(b) for the protection of cultural, historical and archaeological resources;

(c) for the management and control of renewable resource harvesting activities;

(d) respecting the delimitation of zones within marine conservation areas;

(e) restricting or prohibiting activities or regulating the use of facilities in marine conservation areas or in any zones;

(f) respecting the issuance, amendment, suspension and revocation of permits and other authorizing instruments pursuant to section 15, including the number of persons who may hold any class of permits or other instruments and the authority of superintendents to impose conditions on holders of permits or other instruments;

(g) respecting the determination of fees, rates, rents and other charges for the use of resources, facilities and services and the issuance and amendment of permits and other authorizing instruments;

(h) authorizing the granting, and the surrender or relinquishment, of leases, licences, easements or servitudes, of or over public lands in marine conservation areas for uses compatible with section 4;

(i) respecting the safety of the public;

(j) for the control of the flight of aircraft to prevent danger or disturbances to wildlife and wildlife habitat, and respecting the takeoff, landing and taxiing of aircraft;

(k) for the control of scientific research activities;

(l) authorizing the disposal of waste or other matter by persons holding permits for that purpose, in the manner and to the extent specified in the regulations, in waters of a marine conservation area to which subsection 125(1) of the Canadian Environmental Protection Act, 1999 does not apply;

(m) exercising, in relation to marine conservation areas, any of the powers to make regulations conferred on the Governor in Council by the Canada National Parks Act; and

(n) designating provisions of the regulations for the purpose of subsection 24(1).

Search and rescue operations

(1.1) Regulations made under this section do not apply in respect of search and rescue operations carried out by any federal authority.

Fisheries and aquaculture

(2) Regulations under this section respecting fisheries management and conservation or restricting or prohibiting fishing or aquaculture may be made only on the recommendation of the Minister and the Minister of Fisheries and Oceans.

Marine matters

(3) Regulations under this section that restrict or prohibit marine navigation or activities related to marine safety, to the extent that such regulations can be made on the recommendation of the Minister of Transport under the Canada Shipping Act, 2001 or the Arctic Waters Pollution Prevention Act, may only be made on the recommendation of the Minister and the Minister of Tansport.

Air navigation

(4) Regulations under paragraph (1)(j) that restrict or prohibit air navigation may be made only on the recommendation of the Minister and the Minister of Transport.

Conflicts

(5) Regulations referred to in subsection (2), (3) or (4) prevail over regulations made under the Fisheries Act, the Coastal Fisheries Protection Act, the Canada Shipping Act, 2001, the Arctic Waters Pollution Prevention Act, the Navigable Waters Protection Act or the Aeronautics Act to the extent of any conflict between them.

2002, c. 18, s. 16; 2001, c. 26, s. 322; 2005, c. 29, s. 35; 2009, c. 14, s. 20.

Previous VersionExemption of ship and air movements and activities

17. The Governor in Council may, by regulation, exempt from any regulation made under section 16 or from any provision thereof, subject to any conditions that the Governor in Council considers appropriate, movements or activities of a ship or aircraft, or of a class of ships or aircraft, owned by or operated by or on behalf of Her Majesty in right of Canada, or owned or operated by Her Majesty in right of a province or by a foreign state, if so recommended by the Minister and any other minister of the Crown having responsibility in relation to the movement or activity and if the Governor in Council is satisfied that the exemption is necessary

(a) in the interests of Canadian sovereignty or security; or

(b) for the conduct of any maritime activity by Canada, a province or a foreign state that is consistent with the purposes of this Act.


Enforcement

Designation of marine conservation area wardens

18. The Minister may designate persons appointed under the Parks Canada Agency Act whose duties include the enforcement of this Act to be marine conservation area wardens

(a) for the enforcement of this Act and the regulations in any part of Canada or the exclusive economic zone of Canada, and

(b) for the preservation and maintenance of the public peace in marine conservation areas, except in any portion of them situated within the exclusive economic zone of Canada,

and marine conservation area wardens are, for those purposes, peace officers within the meaning of the Criminal Code.

Designation of enforcement officers

19. The Minister may designate persons or classes of persons employed in the public service of Canada or by a provincial, municipal or local authority or an aboriginal government, whose duties include law enforcement, to be enforcement officers for the purpose of the enforcement of specified provisions of this Act or the regulations in specified marine conservation areas, and for that purpose enforcement officers have the powers and are entitled to the protection provided by law to peace officers within the meaning of the Criminal Code.

Contraventions Act

19.1 (1) The Minister may designate persons or classes of persons employed in the federal public administration or by a provincial, municipal or local authority or by an aboriginal government for the purpose of the enforcement of this Act or the regulations with respect to offences that have been designated as contraventions under the Contraventions Act.

Limitations regarding designations

(2) The Minister may specify that a designation is in respect of one or more marine conservation areas or in respect of all or specified offences under this Act that have been designated as contraventions under the Contraventions Act.

2009, c. 14, s. 21.

Certificate of designation and oath

20. (1) Every marine conservation area warden, enforcement officer and person designated under section 19.1 shall be provided with a certificate of designation in a form approved by the Minister and shall take and subscribe an oath prescribed by the Minister.

Limitations must be specified

(2) The certificate must specify the limitations, if any, to which the designation is subject.

2002, c. 18, s. 20; 2009, c. 14, s. 21.

Previous VersionRight of passage

20.1 In the discharge of their duties, marine conservation area wardens and enforcement officers and any persons accompanying them may enter on and pass through or over private property without being liable for doing so and without any person having the right to object to that use of the property.

2009, c. 14, s. 21.

Immunity

20.2 Marine conservation area wardens and enforcement officers are not personally liable for anything they do or omit to do in good faith under this Act.

2009, c. 14, s. 21.

Arrest without warrant

21. A marine conservation area warden or enforcement officer may, in accordance with the Criminal Code, arrest without warrant any person

(a) whom the warden or officer finds committing an offence under this Act; or

(b) who the warden or officer believes, on reasonable grounds, has committed or is about to commit an offence under this Act.

2002, c. 18, s. 21; 2009, c. 14, s. 21.

Previous VersionSearch and seizure

22. (1) A marine conservation area warden or enforcement officer may

(a) enter and search any place and open and examine any package or receptacle in accordance with a warrant issued under subsection (2) at any time during the day or, if so specified in the warrant, during the night; and

(b) seize any thing that the warden or officer believes on reasonable grounds is a thing described in subsection (2).

Authority to issue warrant

(2) If a justice of the peace, on ex parte application, is satisfied by information on oath that there are reasonable grounds to believe that there is in any place, including any building, boat or other conveyance, or in any package or receptacle,

(a) any thing in relation to which there are reasonable grounds to believe an offence under this Act or the regulations has been committed, or

(b) any thing that there are reasonable grounds to believe will afford evidence with respect to the commission of such an offence,

the justice of the peace may issue a warrant authorizing a marine conservation area warden or enforcement officer named in the warrant to enter and search the place or to open and examine the package or receptacle, subject to any conditions specified in the warrant.

Where warrant not necessary

(3) A marine conservation area warden or enforcement officer may exercise any powers under subsection (1) without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would not be practical to obtain one.

Custody of things seized

23. (1) Subject to subsections (2) and (3) and sections 25 and 26, where a marine conservation area warden or enforcement officer seizes a thing under this Act or under a warrant issued pursuant to the Criminal Code,

(a) sections 489.1 and 490 of the Criminal Code apply; and

(b) the warden or officer, or any person that the warden or officer may designate, shall retain custody of the thing subject to any order made under section 490 of the Criminal Code.

Forfeiture where ownership not ascertainable

(2) If the lawful ownership of or entitlement to a seized thing cannot be ascertained within 30 days after its seizure, the thing, or any proceeds of its disposition, are forfeited to Her Majesty in right of Canada, if the thing was seized by a marine conservation area warden or enforcement officer employed in the public service of Canada, or to Her Majesty in right of a province, if the thing was seized by an enforcement officer employed by a provincial, municipal or local authority or an aboriginal government.

Perishable things

(3) Where a seized thing is perishable, the marine conservation area warden or enforcement officer may dispose of it or destroy it, and any proceeds of its disposition shall be paid to the lawful owner or person lawfully entitled to possession of the thing, unless proceedings under this Act are commenced within 90 days after its seizure, or shall be retained by the warden or officer pending the outcome of those proceedings.

2002, c. 18, s. 23; 2009, c. 14, s. 22(F).

Previous VersionLiability for costs

23.1 If a thing is seized under this Act, the person who owned the thing at the time that it was seized, the person who had charge or control of the thing immediately before it was seized and the person who possessed it immediately before it was seized are jointly and severally, or solidarily, liable for all the costs of seizure, detention, maintenance and forfeiture, including any destruction or disposal costs, incurred by Her Majesty in right of Canada in relation to the thing in excess of any proceeds of its disposition, if any.

2009, c. 14, s. 23.


Offences And Punishment

Offence

24. (1) Every person who contravenes any provision of this Act or any provision of the regulations designated by regulations made under paragraph 16(1)(n) is guilty of an offence and liable

(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,

(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 under section 24.1 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,

(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 under section 24.1 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.

Contravention of other provisions of regulations or of conditions of permits, etc.

(1.1) Every person who contravenes any provision of the regulations, other than a provision designated by regulations made under paragraph 16(1)(n), or any condition of a permit or other authorizing instrument issued under this Act is guilty of an offence and liable

(a) on conviction on indictment,

(i) in the case of an individual,

(A) for a first offence, to a fine of not more than $100,000, and

(B) for a second or subsequent offence, to a fine of not more than $200,000,

(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 more than $500,000, and

(B) for a second or subsequent offence, to a fine of not more than $1,000,000, and

(iii) in the case of a corporation that the court has determined under section 24.1 to be a small revenue corporation,

(A) for a first offence, to a fine of not more than $250,000, and

(B) for a second or subsequent offence, to a fine of not more than $500000; or

(b) on summary conviction,

(i) in the case of an individual,

(A) for a first offence, to a fine of not more than $25,000, and

(B) for a second or subsequent offence, to a fine of not more than $50,000,

(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 more than $250,000, and

(B) for a second or subsequent offence, to a fine of not more than $500,000, and

(iii) in the case of a corporation that the court has determined under section 24.1 to be a small revenue corporation,

(A) for a first offence, to a fine of not more than $50,000, and

(B) for a second or subsequent offence, to a fine of not more than $100,000.

Continuing offences

(2) If a contravention of this Act or the regulations is committed or continued on more than one day, it constitutes a separate offence for each day on which it is committed or continued.

Offences involving more than one animal, plant or object

(2.1) If an offence involves more than one animal, plant or object, the fine to be imposed in respect of that offence may, despite subsections (1) and (1.1), be the total of the fines that would have been imposed if each of the animals, plants or objects had been the subject of a separate information.

Deeming — second and subsequent offence

(2.2) For the purposes of this section, a conviction for a particular offence under this Act is deemed to be a conviction for a second or subsequent offence if the court is satisfied that the offender has been previously convicted — under any Act of Parliament, or any Act of the legislature of a province, that relates to environmental or wildlife protection or conservation, or the protection of cultural, historical or archaeological resources — of a substantially similar offence.

Application

(2.3) Subsection (2.2) applies only to previous convictions on indictment and to previous convictions on summary conviction, and to previous convictions under any similar procedure under any Act of the legislature of a province.

Injunction

(3) Whether or not proceedings have been commenced with respect to an offence under this Act, Her Majesty in right of Canada may undertake or continue proceedings to prevent conduct that constitutes such an offence.

2002, c. 18, s. 24; 2009, c. 14, s. 24.

Previous VersionDetermination of small revenue corporation status

24.1 For the purpose of section 24, a court may determine a corporation to be a small revenue corporation if the court is satisfied that the corporation’s gross revenues for the 12 months immediately before the day on which the subject matter of the proceedings arose — or, if it arose on more than one day, for the 12 months immediately before the first day on which the subject matter of the proceedings arose — were not more than $5,000,000.

2009, c. 14, s. 25.

Relief from minimum fine

24.2 The court may impose a fine that is less than the minimum amount provided for in subsection 24(1) if it is satisfied, on the basis of evidence submitted to the court, that the minimum fine would cause undue financial hardship. The court shall provide reasons if it imposes a fine that is less than the minimum amount provided for in that subsection.

2009, c. 14, s. 25.

Additional fine

24.3 If a person is convicted of an offence under this Act and the court is satisfied that, as a result of the commission of the offence, the person acquired any property, benefit or advantage, the court shall order the person to pay an additional fine in an amount equal to the court’s estimation of the value of that property, benefit or advantage. The additional fine may exceed the maximum amount of any fine that may otherwise be imposed under this Act.

2009, c. 14, s. 25.

Notice to shareholders

24.4 If a corporation that has shareholders is convicted of an offence under this Act, the court shall make an order directing the corporation to notify its shareholders, in the manner and within the time directed by the court, of the facts relating to the commission of the offence and of the details of the punishment imposed.

2009, c. 14, s. 25.

Liability of directors, officers, etc., of corporations

24.5 (1) If a corporation commits an offence under this Act, any director, officer, agent or mandatary of the corporation who directed, authorized, assented to, acquiesced in or participated in the commission of the offence is a party to and guilty of the offence and is liable on conviction to the penalty provided for by this Act for an individual in respect of the offence committed by the corporation, whether or not the corporation has been prosecuted or convicted.

Duties of directors and officers of corporations

(2) Every director and officer of a corporation shall take all reasonable care to ensure that the corporation complies with

(a) this Act and the regulations;

(b) orders made by a court, the Minister or the superintendent under this Act; and

(c) directions of the superintendent, a marine conservation area warden or an enforcement officer made under this Act.

2009, c. 14, s. 25.

Fundamental purpose of sentencing

24.6 The fundamental purpose of sentencing for offences under this Act is to contribute to respect for the law establishing and protecting marine conservation areas through the imposition of just sanctions that have as their objectives

(a) to deter the offender and any other person from committing offences under this Act;

(b) to denounce unlawful conduct that damages or creates a risk of damage to marine conservation areas; and

(c) to restore marine conservation area resources.

2009, c. 14, s. 25.

Sentencing principles

24.7 (1) In addition to the principles and factors that the court is otherwise required to consider, including those set out in sections 718.1 to 718.21 of the Criminal Code, the court shall consider the following principles when sentencing a person who is convicted of an offence under this Act:

(a) the amount of the fine should be increased to account for every aggravating factor associated with the offence, including the aggravating factors set out in subsection (2); and

(b) the amount of the fine should reflect the gravity of each aggravating factor associated with the offence.

Aggravating factors

(2) The aggravating factors are the following:

(a) the offence caused damage or risk of damage to any marine conservation area resources;

(b) the offence caused damage or risk of damage to any unique, rare, particularly important or vulnerable marine conservation area resources;

(c) the damage caused by the offence is extensive, persistent or irreparable;

(d) the offender committed the offence intentionally or recklessly;

(e) the offender failed to take reasonable steps to prevent the commission of the offence despite having the financial means to do so;

(f) by committing the offence or failing to take action to prevent its commission, the offender increased revenue or decreased costs or intended to increase revenue or decrease costs;

(g) the offender committed the offence despite having been warned by the superintendent, a marine conservation area warden or an enforcement officer of the circumstances that subsequently became the subject of the offence;

(h) the offender has a history of non-compliance with federal or provincial legislation that relates to environmental or wildlife protection or conservation or the protection of cultural, historical or archaeological resources; and

(i) after the commission of the offence, the offender

(i) attempted to conceal its commission,

(ii) failed to take prompt action to prevent, mitigate or remediate its effects, or

(iii) failed to take prompt action to reduce the risk of committing similar offences in the future.

Absence of aggravating factor

(3) The absence of an aggravating factor set out in subsection (2) is not a mitigating factor.

Meaning of “damage”

(4) For the purposes of paragraphs (2)(a) to (c), “damage” includes loss of use value and non-use value.

Reasons

(5) If the court is satisfied of the existence of one or more of the aggravating factors set out in subsection (2) but decides not to increase the amount of the fine because of that factor, the court shall give reasons for that decision.

2009, c. 14, s. 25.

Forfeiture of things seized

25. (1) When a person is convicted of an offence under this Act, the convicting court may, in addition to any punishment imposed, order that any seized thing by means of or in relation to which the offence was committed, or any proceeds of its disposition, be forfeited to Her Majesty in right of Canada.

Return where no forfeiture ordered

(2) If the convicting court does not order the forfeiture, a seized thing or the proceeds of its disposition shall be returned to its lawful owner or the person lawfully entitled to it.

Retention or sale

(3) If a fine is imposed on a person convicted of an offence under this Act, any seized thing or any proceeds of its disposition may be retained until the fine is paid or the thing may be sold in satisfaction of the fine and the proceeds applied, in whole or in part, in payment of the fine.

Disposition by Minister

26. Any seized thing that has been forfeited under this Act to Her Majesty in right of Canada or abandoned by its owner may be dealt with and disposed of as the Minister may direct.

Application of fines

26.1 (1) All fines received by the Receiver General in respect of the commission of an offence under this Act, other than fines collected under the Contraventions Act, are to be credited to the Environmental Damages Fund, an account in the accounts of Canada, and used for purposes related to protecting, conserving or restoring marine conservation areas or for administering that Fund.

Recommendations of court

(2) The court imposing the fine may recommend to the Minister that all or a portion of the fine credited to the Environmental Damages Fund be paid to a person or an organization specified by the court for a purpose referred to in subsection (1).

2009, c. 14, s. 26.

Orders of court

27. (1) If a person is convicted of an offence under this Act, in addition to any punishment imposed, the court may, having regard to the nature of the offence and the circumstances surrounding its commission, make an order containing one or more of the following prohibitions, directions or requirements:

(a) prohibiting the person from doing any act or engaging in any activity that may, in the court’s opinion, result in the continuation or repetition of the offence;

(b) directing the person to take any action that the court considers appropriate to remedy or avoid any damage to any marine conservation area resources that resulted or may result from the commission of the offence;

(c) directing the person to post a bond, provide surety or pay into court an amount of money that the court considers appropriate for the purpose of ensuring compliance with any prohibition, direction or requirement mentioned in this section;

(d) directing the person to prepare and implement a pollution prevention plan or an environmental emergency plan;

(e) directing the person to carry out, in the manner established by the Minister, monitoring of the environmental effects of any activity or undertaking on the resources of a marine conservation area or directing the person to pay, in the manner specified by the court, an amount for that purpose;

(f) directing the person to implement an environmental management system approved by the Minister;

(g) directing the person to have an environmental audit conducted by a person of a class and at the times specified by the Minister and directing the person to remedy any deficiencies revealed during the audit;

(h) directing the person to pay to Her Majesty in right of Canada an amount of money that the court considers appropriate for the purpose of promoting the protection, conservation or restoration of marine conservation areas;

(i) directing the person to publish, in the manner specified by the court, the facts relating to the commission of the offence and the details of the punishment imposed, including any orders made under this subsection;

(j) directing the person to notify, at the person’s own cost and in the manner specified by the court, any person aggrieved or affected by the person’s conduct of the facts relating to the commission of the offence and of the details of the punishment imposed, including any orders made under this subsection;

(k) directing the person to submit to the Minister, when requested to do so by the Minister at any time within three years after the date of conviction, any information with respect to the person’s activities that the court considers appropriate in the circumstances;

(l) directing the person to compensate any person, monetarily or otherwise, in whole or in part, for the cost of any remedial or preventive action taken, caused to be taken or to be taken as a result of the act or omission that constituted the offence, including any costs of assessing appropriate remedial or preventive action;

(m) directing the person to perform community service, subject to any reasonable conditions that may be imposed in the order;

(n) directing the person to pay, in a manner specified by the court, an amount to enable research to be conducted into the protection, conservation or restoration of marine conservation areas;

(o) requiring the person to surrender to the Minister any permit or other authorizing instrument issued under this Act tohe person;

(p) prohibiting the person from applying for any new permit or other authorizing instrument under this Act during any period that the court considers appropriate;

(q) directing the person to pay, in the manner prescribed by the court, an amount to environmental or other groups to assist in their work related to the marine conservation area where the offence was committed;

(r) directing the person to pay, in the manner prescribed by the court, an amount to an educational institution including for scholarships for students enrolled in studies related to the environment; and

(s) requiring the person to comply with any other conditions that the court considers appropriate.

Publication

(1.1) If a person fails to comply with an order made under paragraph (1)(i), the Minister may, in the manner that the court directed the person to do so, publish the facts relating to the commission of the offence and the details of the punishment imposed and recover the costs of publication from the person.

Debt due to Her Majesty

(1.2) If the court makes an order under paragraph (1)(h) or (l) directing a person to pay an amount to Her Majesty in right of Canada, or if the Minister incurs publication costs under subsection (1.1), the amount or the costs, as the case may be, constitute a debt due to Her Majesty in right of Canada and may be recovered in any court of competent jurisdiction.

Enforcement

(1.3) If the court makes an order under paragraph (1)(l) directing a person to pay an amount to another person, other than to Her Majesty in right of Canada, and the amount is not paid without delay, that other person may, by filing the order, enter as a judgment, in the superior court of the province in which the trial was held, the amount ordered to be paid, and that judgment is enforceable against the person who was directed to pay the amount in the same manner as if it were a judgment rendered against the offender in that court in civil proceedings.

Cancellation or suspension of permit, etc.

(1.4) If the court makes an order under paragraph (1)(o), any permit or other authorizing instrument to which the order relates is cancelled unless the court makes an order suspending it for any period that the court considers appropriate.

Suspended sentence

(2) Where a person is convicted of an offence under this Act and the court suspends the passing of sentence under paragraph 731(1)(a) of the Criminal Code, the court may, in addition to any probation order made under that paragraph, make an order referred to in subsection (1).

Imposition of sentence

(3) If the person does not comply with the order or is convicted of another offence, the court may, within three years after the order was made, on the application of the prosecution, impose any sentence that could have been imposed if the passing of sentence had not been suspended.

Coming into force and duration of order

(4) An order made under subsection (1) comes into force on the day on which it is made or on any other day that the court may determine and shall not continue in force for more than three years after that day unless the court provides otherwise in the order.

2002, c. 18, s. 27; 2009, c. 14, s. 27.

Previous VersionCompensation for loss of property

28. (1) If a person has been convicted of an offence under this Act, the court may, at the time sentence is imposed and on the application of the person aggrieved, order the offender to pay to the aggrieved person an amount by way of satisfaction or compensation for loss of or damage to property suffered by that person as a result of the commission of the offence.

Enforcement

(2) If the amount ordered to be paid under subsection (1) is not paid without delay, the aggrieved person may, by filing the order, enter as a judgment, in the superior court of the province in which the trial was held, the amount ordered to be paid, and that judgment is enforceable against the offender in the same manner as if it were a judgment rendered against the offender in that court in civil proceedings.

2002, c. 18, s. 28; 2009, c. 14, s. 28.

Previous VersionCompensation for cost of remedial or preventive action

28.01 (1) A court shall not, under paragraph 27(1)(l), order a person to compensate another person for the cost of any remedial or preventive action referred to in that paragraph if the other person is entitled to make a claim for compensation for that cost under the Marine Liability Act or the Arctic Waters Pollution Prevention Act.

Compensation for loss or damage — property

(2) A court shall not, under subsection 28(1), order a person to pay to another person an amount by way of satisfaction or compensation for loss of or damage to property if the other person is entitled to make a claim for compensation for that loss or damage under the Marine Liability Act or the Arctic Waters Pollution Prevention Act.

2009, c. 14, s. 28.

Limitation period

28.1 No proceedings by way of summary conviction in respect of an offence under this Act may be instituted more than five years after the day on which the subject matter of the proceedings arose, unless the prosecutor and the defendant agree that they may be instituted after the five years.

2009, c. 14, s. 28.

Contraventions Act

28.2 If an offence under this Act is designated as a contravention under the Contraventions Act, subsection 8(5) of that Act does not apply in respect of the fine that may be established for that contravention.

2009, c. 14, s. 28.

Publication of information about contraventions

28.3 (1) For the purpose of encouraging compliance with this Act and the regulations, the Minister shall maintain, in a registry accessible to the public, information about all convictions of corporations for offences under this Act.

Retention

(2) Information in the registry is to be maintained for a minimum of five years.

2009, c. 14, s. 28.

Review

28.4 (1) The Minister shall, 10 years after the day on which this section comes into force and every 10 years after that, undertake a review of sections 24 to 28.3.

Report to Parliament

(2) The Minister shall, no later than one year after the day on which the review is undertaken, cause a report on the review to be tabled in each House of Parliament.

2009, c. 14, s. 28.


Mitigation Of Environmental Damage

Pollution clean-up

29. (1) Where a substance that is capable of degrading the environment or injuring any animal, fish or plant is discharged or deposited within a marine conservation area, any person who has charge, management or control of the substance or who causes or contributes to the discharge or deposit shall take reasonable measures to prevent or mitigate such degradation or injury.

Powers of Minister

(2) If the Minister is of the opinion that a person is not taking measures required by subsection (1), the Minister shall direct the person to take those measures and, if the person fails to do so, the Minister may direct those measures to be taken on behalf of Her Majesty in right of Canada.

Expenses of clean-up

(3) A person who fails to comply with a direction given by the Minister under subsection (2) is liable for the expenses reasonably incurred by Her Majesty in right of Canada in taking the measures directed and those expenses may be recovered from that person, with costs, in proceedings brought in the name of Her Majesty in any court of competent jurisdiction.

Exception

(4) No measures may be directed to be taken under subsection (2) to prevent or mitigate any degradation or injury if action may be taken under the Canada Shipping Act, 2001, the Arctic Waters Pollution Prevention Act or the Canadian Environmental Protection Act, 1999, to prevent or mitigate the same degradation or injury.

2002, c. 18, s. 29; 2001, c. 26, s. 322.

Previous Version

Consequential Amendments

30. to 41. (Amendments)

Schedule 1

(Sections 2, 5 and 6)

Marine Conservation Areas

Schedule 2

(Sections 2 and 6)

Reserves


Gwaii Haanas National Marine Conservation Area Reserve And Haida Heritage Site

In the Pacific Ocean;

Offshore of the shores of Moresby Island and Kunghit Island, said Islands being in the Queen Charlotte Islands and in the Queen Charlotte Land District;

All that part of the Pacific Ocean and Hecate Strait, the bays, the inlets, the sounds, the coves, Burnaby Strait, the harbours, the passages and Houston Stewart Channel being the foreshore and land covered by water lying below the ordinary high water mark (O.H.W.M.) of the Queen Charlotte Islands and more particularly described as follows:

Commencing at the most westerly point of Tasu Head, Moresby Island, on the O.H.W.M. of the Pacific Ocean, said point being at approximate latitude 52°44′03″ and approximate longitude 132°06′35″;

Thence southwesterly in a straight line to a point at latitude 52°40′36″ and longitude 132°13′16″, said point being in the Pacific Ocean approximately 10 km southwesterly from the point on the O.H.W.M. at Tasu Head;

Thence southeasterly in a straight line to a point at latitude 52°00′00″ and longitude 131°18′00″, said point being in the Pacific Ocean approximately 10 km southwesterly of the unnamed islets situated southerly of Anthony Island;

Thence southeasterly in a straight line to a point at latitude 51°47′58″ and longitude 130°53′31″;

Thence northerly in a straight line to a point at latitude 52°12′29″ and longitude 130°49′00″, said point being in Hecate Strait approximately 10 km east of Garcin Rocks;

Thence northwesterly in a straight line to a point at latitude 52°26′49″ and longitude 131°05′19″, said point being in Hecate Strait approximately 10 km east of Scudder Point;

Thence northwesterly in a straight line to a point at latitude 52°50′05″ and longitude 131°20′10″, said point being in Hecate Strait approximately 10 km northeasterly of Lost Islands;

Thence westerly in a straight line to the O.H.W.M. of Hecate Strait at the most northeasterly point of Tangil Peninsula at Porter Head at approximate latitude 52°48′35″ and approximate longitude 131°39′20″, said line passing approximately 2 km north of Lost Islands;

Thence generally southerly and westerly along the O.H.W.M. of Tangil Peninsula following Laskeek Bay, Logan Inlet and Crescent Inlet to the straight line running from the northeast corner of District Lot 663 to the peak at the intersection of the northerly boundary of the watershed of Crescent Inlet with the watershed boundary separating those waters that flow into Dana Inlet from those that flow into Logan Inlet, said peak being at approximate latitude 52°46′37″ and approximate longitude 131°49′09″;

Thence southwesterly across Crescent Inlet, along the above-mentioned straight line running from the northeast corner of District Lot 663 to said peak at approximate latitude 52°46′37″ and approximate longitude 131°49′09″, to the O.H.W.M. of Moresby Island on the southerly shore of Crescent Inlet;

Thence generally southeasterly, southerly, westerly and northwesterly along the O.H.W.M. of Moresby Island to the point of commencement.

Save and except the following described parcels:

All that foreshore or land covered by water lying below the O.H.W.M. of the Queen Charlotte Islans and more particularly described as follows:


Area 1

Commencing at Poole Point, being a point on the easterly O.H.W.M. of Burnaby Island at approximate latitude 52°22′23″ and approximate longitude 131°14′35″;

Thence in general southwesterly and westerly directions along the O.H.W.M. of Burnaby Island to the most northerly point at Swan Bay at approximate latitude 52°21′00″ and approximate longitude 131°18′10″;

Thence southeasterly in a straight line to the intersection of the 52°20′15″ parallel of north latitude with the 131°17′00″ meridian of west longitude;

Thence due east to a point lying due south of Poole Point, being a point on the easterly O.H.W.M. of Burnaby Island and the point of commencement;

Thence due north to Poole Point, being the point of commencement.


Area 2

Commencing at the most easterly point of Ikeda Point, being a point on the O.H.W.M. of Moresby Island at the entrance of Ikeda Cove at approximate latitude 52°18′55″ and approximate longitude 131°08′10″;

Thence in general southwesterly, easterly and northeasterly directions along the O.H.W.M. of Moresby Island (Ikeda Cove) to the most northerly point of Awaya Point at approximate latitude 52°18′40″ and approximate longitude 131°08′10″;

Thence northerly in a straight line to Ikeda Point, being the point of commencement.

Explanatory Note: All latitudes and longitudes described in the preceding description are referred to the North American Datum of 1927; all topographic features are according to the Gazetteer of Canada (British Columbia), Third Edition, Ottawa 1985, and to the following National Topographic Series (NTS) maps: Edition 2 of Moresby Island (103 BC) produced at a scale of 1:250,000 by the Army Survey Establishment at Ottawa, Edition 3 of Tasu Head (103 C/9), Louise Island (103 B/13 & 103 B/14), Darwin Sound (103 B/12), Ramsay Island (103 B/11), Gowgaia Bay (103 B/5), Burnaby Island (103 B/6), Kunghit Island (103 B/3), Cape St. James (102 O/14 & 102 O/15) and Edition 2 of Lyman Point (103 B/2W) produced at a scale of 1:50,000 by the Department of Energy, Mines and Resources at Ottawa; and to Canadian Hydrographic Service (CHS) Chart LC 3853 produced at a scale of 1:150,000 by the Department of Fisheries and Oceans at Ottawa.

2002, c. 18, Sch. 2; SOR/2010-153.

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