Marginal note:1991, c. 1, s. 7

137. Sections 26 and 27 of the Act are repealed.

138. Section 30 of the Act is repealed.

• 139. (1) Section 32 of the Act is replaced by the following:

  Marginal note:Killing of fish

  • 32. (1) No person shall kill fish by any means other than fishing.

  • Marginal note:Exception

    (2) No person contravenes subsection (1) if the killing of fish

    • (a) is done as a result of carrying on a prescribed work, undertaking or activity in or around any prescribed Canadian fisheries waters and is done in accordance with any prescribed conditions;

    • (b) is done in accordance with the regulations;

    • (c) is authorized by the Minister and is done in accordance with the conditions established by the Minister;

    • (d) is authorized by a prescribed person or entity and is done in accordance with the prescribed conditions; or

    • (e) is done as a result of doing anything that is authorized, otherwise permitted or required under this Act.

  • Marginal note:Failure to comply with conditions

    (3) Every person who fails to comply with a condition imposed under any of paragraphs (2)(a) to (d) that applies to them is guilty of an offence punishable on summary conviction and liable, for a first offence, to a fine of not more than $100,000 and, for any subsequent offence, to a fine of not more than $100,000 or to imprisonment for a term of not more than six months, or to both.

• (2) Section 32 of the Act is repealed.

140. The heading before section 34 of the Act is replaced by the following:

141. The definition “fish habitat” in subsection 34(1) of the Act is repealed.

• 142. (1) Section 35 of the Act is replaced by the following:

  Marginal note:Alteration, disruption or destruction of fish habitat

  • 35. (1) No person shall carry on any work, undertaking or activity that results in the harmful alteration or disruption, or the destruction, of fish habitat.

  • Marginal note:Exception

    (2) A person may carry on a work, undertaking or activity without contravening subsection (1) if

    • (a) the work, undertaking or activity is a prescribed work, undertaking or activity, or is carried on in or around prescribed Canadian fisheries waters, and the work, undertaking or activity is carried on in accordance with the prescribed conditions;

    • (b) the carrying on of the work, undertaking or activity is authorized by the Minister and the work, undertaking or activity is carried on in accordance with the conditions established by the Minister;

    • (c) the carrying on of the work, undertaking or activity is authorized by a prescribed person or entity and the work, undertaking or activity is carried on in accordance with the prescribed conditions;

    • (d) the harmful alteration or disruption, or the destruction, of fish habitat is produced as a result of doing anything that is authorized, otherwise permitted or required under this Act; or

    • (e) the work, undertaking or activity is carried on in accordance with the regulations.

• (2) Subsection 35(1) of the Act is replaced by the following:

  Marginal note:Serious harm to fish

  • 35. (1) No person shall carry on any work, undertaking or activity that results in serious harm to fish that are part of a commercial, recreational or Aboriginal fishery, or to fish that support such a fishery.

• (3) Paragraph 35(2)(d) of the Act is replaced by the following:

  • (d) the serious harm is produced as a result of doing anything that is authorized, otherwise permitted or required under this Act; or

• (4) Section 35 of the Act is amended by adding the following after subsection (2):

  • Marginal note:Regulations

    (3) The Minister may, for the purposes of paragraph (2)(a), make regulations prescribing anything that is authorized to be prescribed.

  • Marginal note:Statutory Instruments Act

    (4) Regulations made under subsection (3) are exempt from section 3 of the Statutory Instruments Act.

• 143. (1) Subsection 36(4) of the Act is amended by deleting “or” at the end of paragraph (a) and by replacing paragraph (b) with the following:

  • (b) a deleterious substance of a class and under conditions — which may include conditions with respect to quantity or concentration — authorized under regulations made under subsection (5) applicable to that water or place or to any work or undertaking or class of works or undertakings; or

  • (c) a deleterious substance the deposit of which is authorized by regulations made under subsection (5.2) and that is deposited in accordance with those regulations.

• (2) Subsection 36(6) of the Act is replaced with the following:

  • Marginal note:Regulations — Governor in Council

    (5.1) The Governor in Council may make regulations establishing conditions for the exercise of the Minister’s regulation-making power under subsection (5.2).

  • Marginal note:Regulations — Minister

    (5.2) If regulations have been made under subsection (5.1), the Minister may make regulations

    • (a) authorizing the deposit of deleterious substances specified in the regulations, or substances falling within a class of deleterious substances specified in the regulations;

    • (b) authorizing the deposit of deleterious substances into waters or places falling within a class of waters or places;

    • (c) authorizing the deposit of deleterious substances resulting from a work, undertaking or activity falling within a class of works, undertakings or activities;

    • (d) establishing conditions, which may include conditions with respect to quantity or concentration, for the deposit of deleterious substances referred to in paragraphs (a) to (c); and

    • (e) establishing, for the purposes of paragraphs (a) to (c), classes of

      • (i) deleterious substances,

      • (ii) waters and places, and

      • (iii) works, undertakings and activities.

  • Marginal note:Directions by the Minister

    (6) A person authorized to deposit a deleterious substance by or under regulations made under subsection (5) or (5.2) shall, when directed by the Minister, despite any regulations made under paragraph (5)(e) or (5.2)(d) or any conditions set out in an authorization made under paragraph (5)(f), conduct any sampling, analyses, tests, measurements or monitoring, install or operate any equipment or comply with any procedures, and report any information, that is required by the Minister in order to determine whether the person is depositing the deleterious substance in the manner authorized.

• 144. (1) Subsections 37(1) and (2) of the Act are replaced by the following:

  Marginal note:Minister may require plans and specifications

  • 37. (1) If a person carries on or proposes to carry on any work, undertaking or activity that results or is likely to result in the alteration, disruption or destruction of fish habitat, or in the deposit of a deleterious substance in water frequented by fish or in any place under any conditions where that deleterious substance or any other deleterious substance that results from the deposit of that deleterious substance may enter any such waters, the person shall, on the request of the Minister — or without request in the manner and circumstances prescribed by regulations made under paragraph (3)(a) — provide the Minister with any plans, specifications, studies, procedures, schedules, analyses, samples, evaluations and other information relating to the work, undertaking or activity, or to the water, place or fish habitat that is or is likely to be affected by the work, undertaking or activity, that will enable the Minister to determine

    • (a) whether the work, undertaking or activity results or is likely to result in any alteration, disruption or destruction of fish habitat that constitutes or would constitute an offence under subsection 40(1) and what measures, if any, would prevent that result or mitigate its effects; or

    • (b) whether there is or is likely to be a deposit of a deleterious substance by reason of the work, undertaking or activity that constitutes or would constitute an offence under subsection 40(2) and what measures, if any, would prevent that deposit or mitigate its effects.

  • Marginal note:Powers of Minister

    (2) If, after reviewing any material or information provided under subsection (1) and affording the persons who provided it a reasonable opportunity to make representations, the Minister or a person designated by the Minister is of the opinion that an offence under subsection 40(1) or (2) is being or is likely to be committed, the Minister or the person designated by the Minister may, by order, subject to regulations made under paragraph (3)(b), or, if there are no such regulations in force, with the approval of the Governor in Council,

    • (a) require any modifications or additions to the work, undertaking or activity or any modifications to any plans, specifications, procedures or schedules relating to it that the Minister or the designated person considers necessary in the circumstances, or

    • (b) restrict the carrying on of the work, undertaking or activity.

    The Minister or the designated person may also, with the approval of the Governor in Council in any case, direct the closing of the work or undertaking or the ending of the activity for any period that the Minister or the designated person considers necessary in the circumstances.

• (2) Subsections 37(1) and (2) of the Act are replaced by the following:

  Marginal note:Minister may require plans and specifications

  • 37. (1) If a person carries on or proposes to carry on any work, undertaking or activity that results or is likely to result in serious harm to fish that are part of a commercial, recreational or Aboriginal fishery, or to fish that support such a fishery, or in the deposit of a deleterious substance in water frequented by fish or in any place under any conditions where that deleterious substance or any other deleterious substance that results from the deposit of that deleterious substance may enter any such waters, the person shall, on the request of the Minister — or without request in the manner and circumstances prescribed by regulations made under paragraph (3)(a) — provide the Minister with any plans, specifications, studies, procedures, schedules, analyses, samples, evaluations and other information relating to the work, undertaking or activity, or to the water, place or fish habitat that is or is likely to be affected by the work, undertaking or activity, that will enable the Minister to determine

    • (a) whether the work, undertaking or activity results or is likely to result in any serious harm to fish that are part of a commercial, recreational or Aboriginal fishery, or to fish that support such a fishery, that constitutes or would constitute an offence under subsection 40(1) and what measures, if any, would prevent that result or mitigate its effects; or

    • (b) whether there is or is likely to be a deposit of a deleterious substance by reason of the work, undertaking or activity that constitutes or would constitute an offence under subsection 40(2) and what measures, if any, would prevent that deposit or mitigate its effects.

  • Marginal note:Ecologically significant areas

    (1.1) If a person proposes to carry on any work, undertaking or activity in any ecologically significant area, the person shall, on the request of the minister — or without request in the manner and circumstances prescribed by regulations made under paragraph (3)(a) — provide the Minister with any prescribed material and other information relating to the work, undertaking or activity, or to the water, place or fish habitat that is or is likely to be affected by the work, undertaking or activity.

  • Marginal note:Powers of Minister

    (2) If, after reviewing any material or information provided under subsection (1) or (1.1) and affording the persons who provided it a reasonable opportunity to make representations, the Minister or a person designated by the Minister is of the opinion that an offence under subsection 40(1) or (2) is being or is likely to be committed, or that the work, undertaking or activity results or is likely to result in harm to fish in an ecologically significant area, the Minister or the designated person may, by order, subject to regulations made under paragraph (3)(b),

    • (a) require any modifications or additions to the work, undertaking or activity or any modifications to any plans, specifications, procedures or schedules relating to it that the Minister or the designated person considers necessary in the circumstances, or

    • (b) restrict the carrying on of the work, undertaking or activity.

    The Minister or the designated person may also direct the closing of the work or undertaking or the ending of the activity for any period that the Minister or the designated person considers necessary in the circumstances.

• (3) The portion of subsection 37(3) of the French version of the Act before paragraph (a) is replaced by the following:

  • Marginal note:Règlements

    (3) Le gouverneur en conseil peut, par règlement :

• (4) Paragraph 37(3)(a) of the Act is replaced by the following:

  • (a) prescribing the manner and circumstances in which any information or material shall be provided to the Minister without request under subsection (1) or (1.1);

• (5) Paragraph 37(3)(b) of the French version of the Act is replaced by the following:

  • b) prévoir les cas où le ministre ou son délégué peut prendre l’arrêté visé au paragraphe (2), ainsi que les modalités de fond et de forme applicables;

• (6) Subsection 37(3) of the Act is amended by adding “and” at the end of paragraph (b) and by adding the following after paragraph (b):

  • (c) defining “ecologically significant area” for the purposes of subsection (1.1).