An Act to amend the International Boundary Waters Treaty Act (S.C. 2001, c. 40)

Assented to 2001-12-18

An Act to amend the International Boundary Waters Treaty Act

S.C. 2001, c. 40

Assented to 2001-12-18

An Act to amend the International Boundary Waters Treaty Act

SUMMARY

The purpose of this enactment is to better implement the Treaty relating to Boundary Waters and Questions arising along the Boundary between Canada and the United States by prohibiting the removal of boundary water from the water basins in which the boundary waters are located and requiring persons to obtain licences from the Minister of Foreign Affairs for water-related projects that affect the natural level or flow of waters on the United States side of the border.

R.S., c. I-17

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

 The International Boundary Waters Treaty Act is amended by adding the following after section 9:

LICENCES AND PROHIBITIONS

Interpretation

Marginal note:Definitions

10. The definitions in this section apply in sections 11 to 26.

“boundary waters”

« eaux limitrophes »

“boundary waters” means boundary waters as defined in the treaty.

“licence”

« licence »

“licence” means a licence issued under section 16.

“Minister”

« ministre »

“Minister” means the Minister of Foreign Affairs.

Licences

Marginal note:Boundary waters
  • 11. (1) Except in accordance with a licence, no person shall use, obstruct or divert boundary waters, either temporarily or permanently, in a manner that affects, or is likely to affect, in any way the natural level or flow of the boundary waters on the other side of the international boundary.

  • Marginal note:Exceptions

    (2) Subsection (1) does not apply in respect of the ordinary use of waters for domestic or sanitary purposes, or the exceptions specified in the regulations.

Marginal note:Other waters
  • 12. (1) Except in accordance with a licence, no person shall construct or maintain, either temporarily or permanently, any remedial or protective work or any dam or other obstruction in waters flowing from boundary waters, or in downstream waters of rivers flowing across the international boundary, the effect of which is or is likely to raise in any way the natural level of waters on the other side of the international boundary.

  • Marginal note:Exceptions

    (2) Subsection (1) does not apply in respect of the exceptions specified in the regulations.

Prohibition

Marginal note:Prohibition — water removal
  • 13. (1) Despite section 11, no person shall use or divert boundary waters by removing water from the boundary waters and taking it outside the water basin in which the boundary waters are located.

  • Marginal note:Deeming

    (2) For the purpose of subsection (1) and the application of the treaty, removing water from boundary waters and taking it outside the water basin in which the boundary waters are located is deemed, given the cumulative effect of removals of boundary waters outside their water basins, to affect the natural level or flow of the boundary waters on the other side of the international boundary.

  • Marginal note:Water basins

    (3) Subsection (1) applies only in respect of the water basins described in the regulations.

  • Marginal note:Exceptions

    (4) Subsection (1) does not apply in respect of the exceptions specified in the regulations.

General

Marginal note:Binding on Her Majesty

14. Sections 11 to 13 are binding on Her Majesty in right of Canada or a province.

Marginal note:Application

15. Sections 11, 12 and 13 do not apply in respect of uses, obstructions or diversions in existence immediately before the respective coming into force of those sections, but those sections do apply in respect of such uses, obstructions or diversions if significant changes occur to them after their respective coming into force.

Powers of Minister

Marginal note:Licence

16. Subject to the regulations, the Minister may, on application, issue, renew or amend a licence to do any activity referred to in subsection 11(1) or 12(1), subject to any terms or conditions the Minister considers appropriate.

Marginal note:Transfer

17. A licence is not transferable except with the consent of the Minister.

Marginal note:Suspension and revocation of licence
  • 18. (1) The Minister may suspend or revoke a licence whenever the Minister believes on reasonable grounds that the licensee has contravened this Act or a condition of the licence, but the licensee must first be given notice in writing by the Minister of the reasons for the suspension or revocation and a reasonable opportunity to make representations to the Minister.

  • Marginal note:Consent of licensee

    (2) The Minister may also suspend or revoke a licence with the consent of, or on application by, the licensee.

Marginal note:Ministerial orders
  • 19. (1) If a person contravenes subsection 11(1), 12(1) or 13(1), the Minister may

    • (a) order the person to remove or alter any obstruction or work to which the contravention relates; or

    • (b) order the person to refrain from proceeding with any construction or other work, or to cease the use or diversion, to which the contravention relates.

  • Marginal note:Powers of Minister

    (2) If the person fails to comply with an order made under paragraph (1)(a) or (b), the Minister may remove or alter anything referred to in paragraph (1)(a) or used in relation to any activity referred to in paragraph (1)(b) or order it to be forfeited to Her Majesty in right of Canada.

  • Marginal note:Disposition

    (3) Anything forfeited under subsection (2) may be removed, destroyed or otherwise disposed of as the Minister directs.

  • Marginal note:Costs recoverable

    (4) The Minister’s cost of removing or altering anything under subsection (2) and the costs of and incidental to the removal, destruction or disposition under subsection (3) of anything forfeited, less any sum that may be realized from its disposition, are recoverable by Her Majesty in right of Canada from the person who contravened the order made under subsection (1) as a debt due to Her Majesty in any court of competent jurisdiction.

Marginal note:Agreements with provinces

20. The Minister may, with the approval of the Governor in Council, enter into an agreement or arrangement with the government of one or more provinces respecting the activities referred to in sections 11 to 13.

Regulations

Marginal note:Regulations
  • 21. (1) The Governor in Council may, on the recommendation of the Minister, make regulations

    • (a) specifying what constitutes a use, obstruction, diversion or work for the purposes of this Act;

    • (b) defining, for the purposes of this Act, any word or expression used in sections 11 to 26 that is not defined in this Act;

    • (c) describing the water basins to which section 13 applies;

    • (d) specifying exceptions to the application of subsections 11(1), 12(1) and 13(1);

    • (e) prescribing classes of licences and determining the persons who are eligible to hold licences of any particular class;

    • (f) respecting applications for licences, including the form of the applications, the information to be provided in respect of the applications and the manner in which the applications are to be filed, processed and disposed of;

    • (g) respecting the form of licences and the information they must include and requiring licensees to publish or otherwise make them available for public inspection;

    • (h) prescribing fees, or the manner of calculating fees, in respect of licences and prescribing the manner in which the fees are to be paid;

    • (i) prescribing the duration of licences;

    • (j) respecting the renewal and amendment of licences;

    • (k) prescribing uses, obstructions, diversions and works for which a licence may not be issued;

    • (l) providing for inspections in respect of activities to which sections 11, 12 and 13 relate; and

    • (m) generally for carrying out the purposes and provisions of this Act.

  • Marginal note:Ordinary meaning applies

    (2) For greater certainty, regulations made under paragraph (1)(a) do not restrict the ordinary meaning of the words “use”, “obstruction”, “diversion” or “work”.

Aboriginal and Treaty Rights

Marginal note:Rights of aboriginal peoples

21.1 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 these rights in section 35 of the Constitution Act, 1982.

Offences and Punishment

Marginal note:Offences
  • 22. (1) Every person who contravenes subsection 11(1), 12(1) or 13(1) is guilty of an offence and liable

    • (a) on conviction on indictment, to a fine of not more than $1,000,000 or to imprisonment for a term of not more than three years, or to both; or

    • (b) on summary conviction, to a fine of not more than $300,000 or to imprisonment for a term of not more than six months, or to both.

  • Marginal note:Continuing offences

    (2) A contravention of subsection 11(1), 12(1) or 13(1) that is committed or continued on more than one day is deemed to constitute a separate offence for each day on which the contravention is committed or continued.

Marginal note:Additional fine

23. If a person is convicted of an offence of having contravened subsection 11(1), 12(1) or 13(1), the convicting court may, if satisfied that the person acquired monetary benefits or that monetary benefits accrued to the person as a result of committing the offence, order the person to pay an additional fine above the maximum amount of any fine that may otherwise be imposed under section 22, in an amount equal to the court’s finding of the amount of those monetary benefits.

Marginal note:Offences by corporate officers, etc.

24. If a corporation commits an offence under this Act, an officer, director, 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 punishment provided for the offence, whether or not the corporation has been prosecuted.

Marginal note:Offences by employees, agents or mandataries

25. In any prosecution for an offence under this Act, it is sufficient proof of the offence to establish that it was committed by an employee, agent or mandatary of the accused, whether or not the employee, agent or mandatary is identified or has been prosecuted for the offence, unless the accused establishes that the accused exercised all due diligence to prevent the commission of the offence.

Injunctions

Marginal note:Injunctions
  • 26. (1) When, on the application of the Minister, it appears to a court of competent jurisdiction that a person has done or is about to do or is likely to do any act or thing constituting or directed toward the commission of an offence under this Act, the court may issue an injunction ordering any person named in the application

    • (a) to refrain from doing any act or thing that it appears to the court may constitute or be directed toward the commission of the offence; or

    • (b) to do any act or thing that it appears to the court may prevent the commission of the offence.

  • Marginal note:Notice

    (2) No injunction shall issue under subsection (1) unless 48 hours notice is given to the party or parties named in the application or the urgency of the situation is such that service of notice would not be in the public interest.