Fish and Fish Habitat Protection and Pollution Prevention (continued)
Marginal note:Action to enjoin not prejudiced by prosecution
(4) Notwithstanding that a prosecution has been instituted in respect of an offence under section 40, the Attorney General of Canada may commence and maintain proceedings to enjoin anything punishable as an offence under that section.
- R.S., 1985, c. F-14, s. 41
- 1991, c. 1, s. 11
Marginal note:Civil liability to Her Majesty
42 (1) Where there occurs a deposit of a deleterious substance in water frequented by fish that is not authorized under section 36 or a serious and imminent danger thereof by reason of any condition, the persons who at any material time
(a) own the deleterious substance or have the charge, management or control thereof, or
(b) are persons other than those described in paragraph (a) who cause or contribute to the causation of the deposit or danger thereof,
are, subject to subsection (4) in the case of the persons referred to in paragraph (a) and to the extent determined according to their respective degrees of fault or negligence in the case of the persons referred to in paragraph (b), jointly and severally liable for all costs and expenses incurred by Her Majesty in right of Canada or a province, to the extent that those costs and expenses can be established to have been reasonably incurred in the circumstances, of and incidental to the taking of any measures to prevent any such deposit or condition or to counteract, mitigate or remedy any adverse effects that result or may reasonably be expected to result therefrom.
(2) All the costs and expenses referred to in subsection (1) are recoverable by Her Majesty in right of Canada or a province with costs in proceedings brought or taken therefor in the name of Her Majesty in any such right in any court of competent jurisdiction.
Marginal note:Liability to fishermen
(3) Where, as a result of a deposit that is not authorized under section 36, a deleterious substance enters water frequented by fish, the persons described in paragraphs (1)(a) and (b) are, subject to subsection (4) in the case of the persons described in paragraph (1)(a) and to the extent determined according to their respective degrees of fault or negligence in the case of the persons described in paragraph (1)(b), jointly and severally liable for all loss of income incurred by any licensed commercial fisherman, to the extent that the loss can be established to have been incurred as a result of the deposit or of a prohibition to fish resulting therefrom, and all such loss is recoverable with costs in proceedings brought or taken therefor in any court of competent jurisdiction.
Marginal note:Defences to liability
(4) The liability of any person described in paragraph (1)(a) is absolute and does not depend on proof of fault or negligence but no such person is liable for any costs and expenses pursuant to subsection (1) or loss of income pursuant to subsection (3) if he establishes that the occurrence giving rise to the liability was wholly caused by
(5) Nothing in this section limits or restricts any right of recourse that any person who is liable pursuant to this section may have against any other person.
(6) No proceedings may be commenced under subsections (1) to (3) at any time later than two years after the occurrence to which the proceedings relate could reasonably be expected to have become known to Her Majesty in right of Canada or a province or to any licensed commercial fisherman, as the case may be.
(7) Subsections (1) to (3) do not apply in respect of any deposit of a deleterious substance that, within the meaning of Part 8 or 9 of the Canada Shipping Act, 2001, constitutes a discharge of a pollutant caused by or otherwise attributable to a vessel.
Marginal note:Other civil remedies not affected
(8) No civil remedy for any act or omission is suspended or affected by reason only that the act or omission is authorized under this Act, is an offence under this Act or gives rise to civil liability under this Act.
- R.S., 1985, c. F-14, s. 42
- 2001, c. 26, s. 301
42.01 The following definitions apply in this section and sections 42.02 to 42.04.
- conservation project
conservation project means a work, undertaking or activity that is carried on by a proponent for the purpose of creating, restoring or enhancing fish habitat within a service area in order to acquire habitat credits. (projet de conservation)
- fish habitat bank
fish habitat bank means an area of a fish habitat that has been created, restored or enhanced by the carrying on of one or more conservation projects within a service area and in respect of which area the Minister has certified any habitat credit under paragraph 42.02(1)(b). (réserve d’habitats)
- habitat credit
habitat credit means a unit of measure that is agreed to between any proponent and the Minister under section 42.02 that quantifies the benefits of a conservation project. (crédit d’habitat)
proponent means a person who proposes the carrying on of a conservation project and any other work, undertaking or activity within a proposed service area. (promoteur)
- service area
service area means the geographical area that encompasses a fish habitat bank and one or more conservation projects and within which area a proponent carries on a work, undertaking or activity. (zone de service)
- 2019, c. 14, s. 28
Marginal note:Arrangements respecting fish habitat banks
(2) In exercising the powers referred to in subsection (1), the Minister may enter into arrangements with any proponent.
(3) An arrangement referred to in subsection (2) shall include, among other things,
(a) any document and other information that describes the proposed fish habitat bank, conservation project and service area;
(b) a written confirmation that the Department of Fisheries and Oceans and anyone authorized to act on the Department’s behalf is authorized to access the site of the conservation project for the term of the arrangement;
(c) a description of the administration, management and general operation of the arrangement by the parties, including
(i) a procedure for proposing a conservation project and an approval process,
(ii) a habitat credit certification process,
(iii) a process for habitat credit evaluation and any re-evaluation that may be required by the Minister,
(iv) habitat credit accounting procedures respecting the habitat credit ledger,
(v) progress reports on the conservation project, and
(vi) any other relevant matters respecting the administration of the arrangement;
(d) reports on the performance of the arrangement;
(e) the form and manner in which the arrangement may be amended;
(f) the date on which the arrangement comes into force; and
(g) the signatures of the parties.
- 2019, c. 14, s. 28
Marginal note:Use of habitat credit within service area
42.03 A proponent may only use their certified habitat credits in respect of a fish habitat bank within a service area to offset the adverse effects on fish or fish habitat from the carrying on of a work, undertaking or activity authorized or permitted to be carried on in that service area.
- 2019, c. 14, s. 28
42.04 The Governor in Council may make regulations
(a) respecting the establishment of a system for the creation, allocation and management of habitat credits referred to in paragraph 42.02(1)(a);
(b) respecting the issuance of a certificate of validity of any habitat credit referred to in paragraph 42.02(1)(b); and
(c) respecting an arrangement with any proponent.
- 2019, c. 14, s. 28
- Date modified: