Antarctic Environmental Protection Act (S.C. 2003, c. 20)

Direction of Vessels

Marginal note:Power to direct

37.01 An enforcement officer may direct a Canadian vessel, or any other vessel in Canada, to proceed, by the route and in the manner that the enforcement officer may specify, to any place specified by the enforcement officer if the officer has reasonable grounds to believe that

• (a) the vessel is committing, has committed or is about to commit an offence under this Act; or

• (b) a person on board the vessel is committing, has committed or is about to commit such an offence and the vessel was, is being or is about to be used in connection with the commission of the offence.

Environmental Protection Compliance Orders

Meaning of order

37.02 For the purpose of sections 37.03 to 37.12, order means an environmental protection compliance order issued under section 37.03.

Marginal note:Order

• 37.03 (1) Whenever, during the course of an inspection or a search, an enforcement officer has reasonable grounds to believe that any provision of this Act or the regulations has been contravened by a person who is continuing the commission of the offence, or that any of those provisions are likely to be contravened, the enforcement officer may issue an environmental protection compliance order directing any person described in subsection (2) to take any of the measures referred to in subsection (3) that are reasonable in the circumstances and consistent with the protection of the Antarctic environment and dependent and associated ecosystems, and with public safety, in order to cease or refrain from committing the alleged contravention.

• Marginal note:Persons subject to order

  (2) Subsection (1) applies to

  • (a) any person who causes or contributes to the alleged contravention;

  • (b) any person who is likely to cause or contribute to the alleged contravention; or

  • (c) in the case of an alleged contravention by a person to whom a permit applies, any person to whom that permit applies.

• Marginal note:Specific measures

  (3) The order may specify that the person to whom the order is directed take one or more of the following measures:

  • (a) refrain from doing anything in contravention of this Act or the regulations, or do anything to comply with this Act or the regulations;

  • (b) stop or shut down any activity, work, undertaking or thing for a specified period;

  • (c) cease the operation of any activity or any part of a work, undertaking or thing until the enforcement officer is satisfied that the activity, work, undertaking or thing will be operated in accordance with this Act and the regulations;

  • (d) move any conveyance to another location including, in the case of a Canadian vessel, moving the vessel into port or, in the case of an aircraft, landing the aircraft;

  • (e) unload or reload the contents of any conveyance; and

  • (f) take any other measure that the enforcement officer considers necessary to facilitate compliance with the order — or to restore the components of the environment damaged by the alleged contravention or to protect the components of the environment put at risk by the alleged contravention — including

    • (i) maintaining records on any relevant matter,

    • (ii) reporting periodically to the enforcement officer, and

    • (iii) submitting to the enforcement officer any information, proposal or plan specified by the enforcement officer that sets out any action to be taken by the person with respect to the subject matter of the order.

• Marginal note:Contents of order

  (4) Subject to section 37.04, an order must be made in writing and must set out

  • (a) the name of the person or persons to whom it is directed;

  • (b) the provision of this Act or the regulations that is alleged to have been or that is likely to be contravened;

  • (c) the relevant facts surrounding the alleged contravention;

  • (d) the measures to be taken;

  • (e) the time or the day when each measure is to begin or the period during which it is to be carried out;

  • (f) subject to subsection (5), the duration of the order;

  • (g) a statement that a request for a review may be made to the Chief Review Officer; and

  • (h) the period within which a request for a review may be made.

• Marginal note:Duration of order

  (5) An order may not be in force for a period of more than 180 days.

• Marginal note:Failing to file report

  (6) For the purposes of subsection (1), a person who commits an offence by failing to file a report required by this Act or the regulations is deemed to be continuing the commission of the offence each day that the report is not filed.

• Marginal note:Statutory Instruments Act

  (7) An order is not a statutory instrument for the purposes of the Statutory Instruments Act.

Marginal note:Exigent circumstances

• 37.04 (1) In the case of exigent circumstances, an order may be given orally on the condition that it is followed, within seven days, by a written order issued in accordance with section 37.03.

• Meaning of exigent circumstances

  (2) For greater certainty, exigent circumstances includes circumstances in which the delay necessary to issue a written order that meets the requirements of subsection 37.03(4) would result in danger to human life or the environment.

Marginal note:Notice of intent

• 37.05 (1) Except in exigent circumstances, an enforcement officer shall, whenever practicable, before issuing an order,

  • (a) provide every person who will be subject to the order with an oral or written notice of the officer’s intention to issue it; and

  • (b) allow a reasonable opportunity in the circumstances for the person to make oral representations.

• Marginal note:Contents of notice of intent

  (2) The notice of intent to issue the order must include

  • (a) a statement of the purpose of the notice;

  • (b) a reference to the statutory authority under which the order is to be issued; and

  • (c) a statement that the party notified may make oral representations to the enforcement officer within the period stated in the notice.

Marginal note:Compliance with order

• 37.06 (1) A person to whom an order is directed shall, immediately on receipt of the order or a copy of it or on being directed by an enforcement officer in an order given orally under subsection 37.04(1), comply with the order.

• Marginal note:No bar to proceedings

  (2) The issuance of or compliance with an order in respect of a person’s alleged contravention of this Act or the regulations is not a bar to any proceedings against the person under this or any other Act in relation to the alleged contravention.

Marginal note:Intervention by enforcement officer

• 37.07 (1) If a person to whom an order is directed fails to take any measures specified in the order, an enforcement officer may take the measures or cause them to be taken.

• Marginal note:Access to property

  (2) An enforcement officer or other person authorized or required by an enforcement officer to take measures under subsection (1) may enter and have access to any place or property and may do any reasonable thing that may be necessary in the circumstances.

• Marginal note:Personal liability

  (3) Any person, other than a person described in paragraph 37.03(2)(a) or (b), who provides assistance or advice in taking the measures specified in an order or who takes any measures authorized or required by an enforcement officer under subsection (1) is not personally liable either civilly or criminally in respect of any act or omission in the course of providing assistance or advice or taking any measures under that subsection unless it is established that the person acted in bad faith.

Marginal note:Recovery of reasonable costs and expenses by Her Majesty

• 37.08 (1) Her Majesty in right of Canada may recover the costs and expenses of and incidental to any measures taken under subsection 37.07(1) from any person referred to in paragraph 37.03(2)(a) to the extent of the person’s negligence in causing or contributing to the alleged contravention.

• Marginal note:Costs must have been reasonably incurred

  (2) The costs and expenses may only be recovered to the extent that they can be established to have been reasonably incurred in the circumstances.

• Marginal note:Liability

  (3) The persons referred to in subsection (1) are jointly and severally, or solidarily, liable for the costs and expenses referred to in that subsection.

• Marginal note:Procedure

  (4) A claim under this section may be sued for and recovered by Her Majesty in right of Canada with costs in proceedings brought or taken in the name of Her Majesty in right of Canada in any court of competent jurisdiction.

• Marginal note:Recourse or indemnity

  (5) This section does not limit or restrict any right of recourse or indemnity that a person may have against any other person.

• Marginal note:Limitation period

  (6) If events giving rise to a claim under this section occur, no proceedings in respect of the claim may be instituted more than five years after the day on which the events occur or become evident to the Minister, whichever is later.

• Marginal note:Minister’s certificate

  (7) A document purporting to have been issued by the Minister certifying the day on which the events giving rise to a claim under this section came to the knowledge of the Minister shall be received in evidence and, in the absence of any evidence to the contrary, the document is to be considered as proof of that fact without proof of the signature or of the official character of the person appearing to have signed the document and without further proof.

Marginal note:Request for review

• 37.09 (1) Any person to whom an order is directed may, by notice in writing given to the Chief Review Officer within 30 days after the day on which the person receives a copy of the written order or after the oral order is given, make a request to the Chief Review Officer for a review of the order.

• Marginal note:Extension of period for request

  (2) The Chief Review Officer may extend the period within which a request for a review may be made if, in his or her opinion, it is in the public interest to do so.

Marginal note:Variation or cancellation of order

• 37.1 (1) At any time before a notice requesting a review of an order is received by the Chief Review Officer, the enforcement officer may, after giving reasonable notice,

  • (a) amend or suspend a term or condition of the order, or add a term or condition to, or delete a term or condition from, the order;

  • (b) cancel the order;

  • (c) correct a clerical error in the order; or

  • (d) extend the duration of the order for a period of not more than 180 days less the number of days that have passed since the day on which the order was received by the person who is subject to it.

• Marginal note:Notice of intent

  (2) Except in exigent circumstances, an enforcement officer shall, whenever practicable, before exercising a power under paragraph (1)(a) or (d),

  • (a) provide every person who will be subject to the order with an oral or written notice of the officer’s intention to exercise the power; and

  • (b) allow a reasonable opportunity in the circumstances for the person to make oral representations.

• Marginal note:Contents of notice of intent

  (3) The notice of intent to exercise a power under paragraph (1)(a) must include

  • (a) a statement of the purpose of the notice;

  • (b) a reference to the statutory authority under which the power is to be exercised; and

  • (c) a statement that the party notified may make oral representations to the enforcement officer within the period stated in the notice.