Canada National Marine Conservation Areas Act (S.C. 2002, c. 18)

Short Title

Marginal note:Short title

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

Interpretation

Marginal note:Definitions

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

  disposal

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

  ecosystem

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

  enforcement officer

  enforcement officer means a person designated under section 19 or belonging to a class of persons so designated. (agent de l’autorité)

  fishing

  fishing has the meaning given to that expression in the Fisheries Act. (pêche)

  marine conservation area

  marine conservation area means a national marine conservation area of Canada named and described in Schedule 1. (aire marine de conservation)

  marine conservation area warden

  marine conservation area warden means a person designated under section 18. (garde d’aire marine de conservation)

  Minister

  Minister means the Minister responsible for the Parks Canada Agency. (ministre)

  public lands

  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. (terres domaniales)

  reserve

  reserve means a national marine conservation area reserve of Canada named and described in Schedule 2. (réserve)

  superintendent

  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. (directeur)

  waste or other matter

  waste or other matter means waste or other matter listed in Schedule 5 to the Canadian Environmental Protection Act, 1999. (déchets ou autres matières)

• Marginal note: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.

• Marginal note: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.

• Marginal note:Application of Act to reserves

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

Her Majesty

Marginal note:Binding on Her Majesty

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

Marine Conservation Areas

Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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).

Marine Conservation Areas in Ontario

Marginal note:Definitions

• 7.1 (1) The following definitions apply in this section.

  Ontario Water Resources Act

  Ontario Water Resources Act means the Ontario Water Resources Act, R.S.O. 1990, c. O.40, as amended from time to time. (Loi sur les ressources en eau de l’Ontario)

  water taking

  water taking means the taking of water within the meaning of the Ontario Water Resources Act or any regulations made under it, as those regulations are amended from time to time, however the reference to the taking of water is expressed grammatically in that Act or those regulations. (prélèvement d’eau)

  water transfer

  water transfer means the transfer of water within the meaning of the Ontario Water Resources Act or any regulations made under it, as those regulations are amended from time to time, however the reference to the transfer of water is expressed grammatically in that Act or those regulations. (transfert d’eau)

• Marginal note:Marine conservation areas in Ontario

  (2) The provisions concerning water taking and water transfer of the laws of Ontario, as those provisions are amended from time to time, apply within a marine conservation area in Ontario.

• Marginal note:Laws of Ontario

  (3) For greater certainty, the laws of Ontario whose provisions concerning water taking and water transfer apply within a marine conservation area in Ontario include the Ontario Water Resources Act, the Environmental Bill of Rights, 1993, S.O. 1993, c. 28, as amended from time to time, and any regulations made under either of them, as those regulations are amended from time to time.

• Marginal note:Application

  (4) The provisions of the laws of Ontario that relate to the following matters, as those provisions are amended from time to time, apply within a marine conservation area in Ontario with regard to water taking and water transfer:

  • (a) the administration and enforcement of the laws referred to in subsections (2) and (3);

  • (b) orders by provincial officers, as defined in the Ontario Water Resources Act, and the review of those orders;

  • (c) orders by Directors, as defined in the Ontario Water Resources Act; and

  • (d) hearings held by the Environmental Review Tribunal, within the meaning assigned by the definition Tribunal” in the Ontario Water Resources Act, and appeals from its decisions.

• Marginal note:Sections 18 and 19

  (5) Despite sections 18 and 19, the duties of marine conservation area wardens and enforcement officers do not include the administration or enforcement of the provisions of the laws of Ontario referred to in subsections (2) to (4).

• Marginal note:Administration and enforcement

  (6) Persons who are authorized under the laws of Ontario to administer and enforce the provisions of the laws of Ontario referred to in subsections (2) to (4) outside a marine conservation area in Ontario are authorized to administer and enforce those provisions within a marine conservation area in Ontario.

• Marginal note:Ontario Provincial Offences Act

  (7) The Provincial Offences Act, R.S.O. 1990, c. P.33, as amended from time to time, applies to contraventions of the provisions of the laws of Ontario referred to in subsections (2) to (4).

• Marginal note:Statutory Instruments Act

  (8) The Statutory Instruments Act does not apply to any instrument that is made or issued under any of the provisions of the laws of Ontario referred to in subsections (2) to (4).

• Marginal note:Permits and authorizations

  (9) The superintendent of a marine conservation area in Ontario shall not issue a permit or other authorizing instrument relating to water taking or water transfer within the marine conservation area, or amend a permit or other authorizing instrument so as to allow water taking or water transfer within the area.

• Marginal note:Section 12

  (10) Section 12 does not apply in respect of any activity that is carried out in conformity with a permit or other authorizing instrument relating to water taking or water transfer within a marine conservation area in Ontario that is made or issued under any of the laws of Ontario referred to in subsections (2) to (4).

Administration

Marginal note: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.

• Marginal note:Administration of lands

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

• Marginal note: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.

• Marginal note: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.

Marginal note: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.

• Marginal note:Review of management plans by Minister

  (2) The Minister shall review the management plan for each marine conservation area at least every 10 years and shall cause any amendments to the plan to be tabled in each House of Parliament.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

Marginal note:Consultation

• 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.

• Marginal note: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.

Marginal note: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.

• Marginal note:Other advisory committees

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

• Marginal note: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

Marginal note: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.

Marginal note:Exploration and exploitation

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

Marginal note: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.

• Marginal note: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.

Marginal note:Permits and authorizations

• 15 (1) Subject to section 7.1, the superintendent of a marine conservation area may, to the extent authorized by the regulations, 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.

• Marginal note: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.

• Marginal note: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

Marginal note: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).

• Marginal note: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.

• Marginal note: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.

• Marginal note: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 Transport.

• Marginal note: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.

• Marginal note: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 Canadian Navigable Waters Act, the Aeronautics Act or the Wrecked, Abandoned or Hazardous Vessels Act to the extent of any conflict between them.

Marginal note:Exemption 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

Marginal note: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.

Marginal note: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.

Marginal note: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.

• Marginal note: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.

Marginal note: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.

• Marginal note:Limitations must be specified

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

Marginal note:Right 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.

Marginal note: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.

Marginal note: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.

Marginal note:Search 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).

• Marginal note: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.

• Marginal note: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.

Marginal note: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.

• Marginal note: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.

• Marginal note: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.

Marginal note:Liability 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.

Offences and Punishment

Marginal note: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.

• Marginal note: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 $500,000; 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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

Marginal note:Determination 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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

• Marginal note: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.

Marginal note: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.

Marginal note: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.

• Marginal note: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.

• Marginal note:Absence of aggravating factor

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

• Marginal note:Meaning of damage

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

• Marginal note: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.

Marginal note: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.

• Marginal note: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.

• Marginal note: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.

Marginal note: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.

Marginal note: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.

• Marginal note: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).

Marginal note: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 to the 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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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).

• Marginal note: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.

• Marginal note: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.

Marginal note:Compensation 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.

• Marginal note: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.

Marginal note:Compensation 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.

• Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

• Marginal note:Retention

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

Marginal note: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.

• Marginal note: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.

Mitigation of Environmental Damage

Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

Consequential Amendments

30 to 41 [Amendments]