Fish and Fish Habitat Protection and Pollution Prevention (continued)
41 (1) to (3) [Repealed, 1991, c. 1, s. 11]
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
(a) an act of war, hostilities, civil war, insurrection or a natural phenomenon of an exceptional, inevitable and irresistible character; or
(b) an act or omission with intent to cause damage by a person other than a person for whose wrongful act or omission he is by law responsible.
(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)
Marginal note:Arrangements respecting fish habitat banks
42.02 (1) For the purposes of sections 42.01 to 42.04, the Minister may
(a) establish a system for the creation, allocation and management of a proponent’s habitat credits in relation to a conservation project; and
(b) issue a certificate to the proponent respecting the validity of any habitat credit acquired from the carrying on of a conservation project.
(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.
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.
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.
Marginal note:Annual report
42.1 (1) 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 and enforcement of the provisions of this Act relating to fish and fish habitat protection and pollution prevention for that year.
Marginal note:Statistical summary
(2) The annual report shall include a statistical summary of convictions under section 40 for that year.
- 1991, c. 1, s. 11.1
- 2012, c. 19, s. 148
- 2019, c. 14, s. 29
43 (1) The Governor in Council may make regulations for carrying out the purposes and provisions of this Act and in particular, but without restricting the generality of the foregoing, may make regulations
(a) respecting the proper management and control of the seacoast and inland fisheries, including for social, economic or cultural purposes;
(b) respecting the conservation and protection of fish;
(b.1) respecting the rebuilding of fish stocks;
(b.2) respecting the restoration of fish habitat;
(c) respecting the catching, loading, landing, handling, transporting, possession and disposal of fish;
(d) respecting the operation of fishing vessels;
(d.1) respecting the circumstances when the holder of a licence or the operator named in the licence is required to personally carry on the activity authorized by the licence and the exceptions to that requirement;
(e) respecting the use of fishing gear and equipment;
(e.1) respecting the marking, identification and tracking of fishing vessels;
(e.2) respecting the designation of persons as observers, their duties and their carriage on board fishing vessels;
(f) respecting the issuance, suspension and cancellation of licences and leases, including
(i) if the lease or licence holder or the applicant for that lease or licence is a party to an agreement in respect of the lease or licence that contravenes any provision of this Act or of the regulations, or
(ii) if the applicant for the lease or licence is a corporation;
(g) respecting the terms and conditions under which a licence and lease may be issued;
(g.01) respecting the use and control of the rights and privileges under a lease or licence issued under this Act, including the prohibition on the transfer of the use and control of those rights and privileges except under prescribed conditions;
(g.02) in the case of a licence issued to an organization, respecting the designation of persons who may fish and the fishing vessels that may be used under the licence and any other matter relating to designations, including the method of designation and who may designate those persons and vessels;
(g.1) respecting any records, books of account or other documents to be kept under this Act and the manner and form in which and the period for which they shall be kept;
(g.2) respecting the manner in which records, books of account or other documents shall be produced and information shall be provided under this Act;
(h) respecting the obstruction and pollution of any waters frequented by fish;
(i) respecting the conservation and protection of fish habitat;
(i.01) [Repealed, 2019, c. 14, s. 31]
(i.1) for the purposes of paragraphs 34.4(2)(a) and 35(2)(a), prescribing anything that is authorized to be prescribed under those paragraphs;
(i.11) respecting the process relating to the issuance of the authorizations referred to in paragraph 34.4(2)(b) or (c) or 35(2)(b) or (c) or the permits referred to in subsection 35.1(3);
(i.2) prescribing the documents or other information that are to be provided for the obtaining of the authorizations referred to in paragraph 34.4(2)(b) or (c) or 35(2)(b) or (c) or the permits referred to in subsection 35.1(3), or for the amendment, suspension or cancellation of those authorizations or permits;
(i.21) prescribing persons or entities who may authorize the carrying on of works, undertakings or activities under paragraphs 34.4(2)(c) and 35(2)(c) and respecting the requirements that these persons or entities may be subject to;
(i.3) prescribing the conditions and requirements under which a person or entity referred to in paragraph 34.4(2)(c) or 35(2)(c) may issue the authorization;
(i.31) with respect to an authorization issued under 34.4(2)(c) or 35(2)(c), prescribing the classes of conditions that the prescribed person or entity
(i) shall include in the authorization,
(ii) may include in it, or
(iii) shall not include in it;
(i.4) respecting time limits for issuing authorizations referred to in paragraph 34.4(2)(b) or (c) or 35(2)(b) or (c) or for issuing permits under subsection 35.1(3), or for refusing to do so;
(i.5) for the purposes of the definition designated project in subsection 34(1), designating projects or classes of projects that are likely to affect fish or fish habitat;
(i.6) respecting the time, manner and circumstances in which the Minister may amend, suspend or cancel an authorization referred to in subsection 34.4(5) or 35(5), or a permit referred to in subsection 35.1(5), as the case may be;
(i.7) respecting the time, manner and circumstances in which the prescribed person or prescribed entity may amend, suspend or cancel an authorization referred to in subsection 34.4(6) or 35(6);
(i.8) respecting the process by which a person may request an amendment, suspension or cancellation of an authorization under subsection 34.4(5) or (6) or 35(5) or (6), or a permit under subsection 35.1(5), as the case may be;
(j) respecting the import or export of fish;
(j.1) prescribing the circumstances in which the Indigenous knowledge of the Indigenous peoples of Canada that is provided to the Minister under this Act in confidence may be disclosed without written consent;
(k) respecting the taking or carrying of fish or any part thereof from one province to any other province;
(l) prescribing the powers and duties of persons engaged or employed in the administration or enforcement of this Act and providing for the carrying out of those powers and duties;
(m) if a close time, fishing quota or limit on the size or weight of fish or fishing gear or equipment has been fixed in respect of an area under the regulations, authorizing persons referred to in paragraph (l) to vary the close time, fishing quota or limit or fishing gear or equipment in respect of that area or any portion of that area;
(n) establishing a list of aquatic invasive species;
(n.1) defining aquatic invasive species for the purposes of the regulations;
(o) respecting the management and control of aquatic invasive species, including regulations
(i) respecting the prevention of the introduction and spread of those species,
(ii) respecting the possession of members of such species, and their import, export and transport,
(iii) respecting the release of members of such species into Canadian fisheries waters,
(iv) respecting the handling of members of such species,
(v) respecting the treatment and destruction of members of those species,
(vi) respecting the eradication of those species in a specified geographical area,
(vii) respecting the powers of a fishery officer and fishery guardian to manage and control those species,
(viii) authorizing a fishery officer and fishery guardian to exercise their powers with respect to a species that the officer or guardian, as the case may be, has reasonable grounds to believe is an aquatic invasive species, or
(ix) requiring any person to keep any record, book or other document containing any information relevant to the control of those species, and respecting where, how and how long it is to be kept; and
(p) prescribing anything that is required or authorized by this Act to be prescribed.
Marginal note:Regulations — Governor in Council
(2) The Governor in Council may make regulations establishing conditions for the exercise of the Minister’s power to make regulations under subsection (3).
Marginal note:Amendments to list of aquatic invasive species
(3) The Minister may, by regulation, add species to the list of aquatic invasive species established by regulations made under paragraph (1)(n) or remove species from that list, and vary the places to which regulations made under paragraph (1)(o) apply.
Marginal note:Paragraph 43(1)(i.5)
(4) Regulations made under paragraph (1)(i.5) may include as a criterion for designation the fact that a decision has been made under an Act of Parliament to subject the project to an impact assessment.
Marginal note:Regulations exempting certain Canadian fisheries waters
(5) The Governor in Council may make regulations exempting any Canadian fisheries waters from the application of sections 34.3, 34.4 and 35 and subsections 38(4) and (4.1).
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