An Act to amend the Oceans Act and the Canada Petroleum Resources Act (S.C. 2019, c. 8)
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Assented to 2019-05-27
An Act to amend the Oceans Act and the Canada Petroleum Resources Act
S.C. 2019, c. 8
Assented to 2019-05-27
An Act to amend the Oceans Act and the Canada Petroleum Resources Act
SUMMARY
This enactment amends the Oceans Act to, among other things,
(a) clarify the responsibility of the Minister of Fisheries and Oceans to establish a national network of marine protected areas;
(b) empower the Minister to designate marine protected areas by order and prohibit certain activities in those areas;
(c) provide that, within five years after the day on which the order of the Minister designating a marine protected area comes into force, the Minister is to make a recommendation to the Governor in Council to make regulations to replace that order or is to repeal it;
(d) provide that the Governor in Council and Minister cannot use the lack of scientific certainty regarding the risks posed by any activity as a reason to postpone or refrain from exercising their powers or performing their duties and functions under subsection 35(3) or 35.1(2);
(e) update and strengthen the powers of enforcement officers;
(f) update the Act’s offence provisions, in particular to increase the amount of fines and to provide that ships may be subject to the offence provisions; and
(g) create new offences for a person or ship that engages in prohibited activities within a marine protected area designated by an order or that contravenes certain orders.
This enactment also makes amendments to the Canada Petroleum Resources Act to, among other things,
(a) expand the Governor in Council’s authority to prohibit an interest owner from commencing or continuing a work or activity in a marine protected area that is designated under the Oceans Act;
(b) empower the competent Minister under the Canada Petroleum Resources Act to cancel an interest that is located in a marine protected area that is designated under the Oceans Act or in an area of the sea that may be so designated; and
(c) provide for compensation to the interest owner for the cancellation or surrender of such an interest.
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
1996, c. 31Oceans Act
Amendments to the Act
1 The Oceans Act is amended by adding the following before section 28:
Application
2 The Act is amended by adding the following before section 29:
National Strategy
3 The Act is amended by adding the following before section 35:
Designation of Marine Protected Areas
4 (1) The portion of subsection 35(1) of the Act before paragraph (a) is replaced by the following:
Marginal note:Marine protected areas
35 (1) A marine protected area is an area of the sea that forms part of the internal waters of Canada, the territorial sea of Canada or the exclusive economic zone of Canada and has been designated under this section or section 35.1 for special protection for one or more of the following reasons:
(1.1) Section 35(1) of the Act is amended by striking out “and” at the end of paragraph (d), by adding “and” at the end of paragraph (e) and by adding the following after paragraph (e):
(f) the conservation and protection of marine areas for the purpose of maintaining ecological integrity.
(1.2) Section 35 of the Act is amended by adding the following after subsection (1):
Marginal note:Definition of ecological integrity
(1.1) For the purpose of paragraph (1)(f), ecological integrity means a condition in which
(a) the structure, composition and function of ecosystems are undisturbed by any human activity;
(b) natural ecological processes are intact and self-sustaining;
(c) ecosystems evolve naturally; and
(d) an ecosystem’s capacity for self-renewal and its biodiversity are maintained.
(2) Subsection 35(2) of the Act is replaced by the following:
Marginal note:Network of marine protected areas
(2) For the purposes of integrated management plans referred to in sections 31 and 32, the Minister shall lead and coordinate the development and implementation of a national network of marine protected areas on behalf of the Government of Canada.
Marginal note:Performance of duties and functions
(2.1) In performing his or her duties and functions under subsection (2), the Minister shall ensure that:
(a) clearly identified objectives are set with regard to each marine protected area; and
(b) the network of marine protected areas covers diverse habitat types, biogeographic regions and environmental conditions.
(3) Subsection 35(3) of the Act is amended by striking out “and” at the end of paragraph (a) and by replacing paragraph (b) with the following:
(b) delineating zones within marine protected areas;
(c) prohibiting classes of activities within marine protected areas; and
(d) respecting any other matter consistent with the purpose of the designation.
5 The Act is amended by adding the following after section 35:
Marginal note:Definitions
35.1 (1) The following definitions apply in this section.
- foreign national
foreign national has the same meaning as in subsection 2(1) of the Immigration and Refugee Protection Act. (étranger)
- foreign ship
foreign ship means a ship that is a foreign vessel, as defined in section 2 of the Canada Shipping Act, 2001. (navire étranger)
- ongoing
ongoing means, with respect to an activity in the area of the sea that is designated by an order made under subsection (2) as a marine protected area, that the activity
(a) was lawfully carried out in the year immediately before the day on which the order comes into force and does not require an authorization, including a permit or licence, under any applicable federal laws or laws of a province;
(b) was lawfully carried out in the year immediately before the day on which the order comes into force and was authorized, including by a permit or licence, under any applicable federal laws or laws of a province; or
(c) was not carried out before the day on which the order comes into force, but was authorized and continues to be authorized, including by a permit or licence, under any applicable federal laws or laws of a province. (en cours)
Marginal note:Designation of marine protected area — Minister’s order
(2) The Minister may, by order, designate a marine protected area in any area of the sea that is not designated as a marine protected area under paragraph 35(3)(a), in a manner that is not inconsistent with a land claims agreement that has been given effect and has been ratified or approved by an Act of Parliament and, in that order, the Minister
(a) shall list the classes of activities that are ongoing activities in the marine protected area;
(b) shall prohibit, in the marine protected area, any activity that is not part of a class of activities set out in paragraph (a) and that disturbs, damages, destroys or removes from that marine protected area any unique geological or archeological features or any living marine organism or any part of its habitat or is likely to do so;
(c) may prohibit, in the marine protected area, any activity that is part of a class of activities set out in paragraph (a) and that is governed by an Act of Parliament under which the Minister is responsible for the management, conservation or protection of fisheries resources; and
(d) may exempt from the prohibition in paragraph (b) or (c), subject to any conditions that the Minister considers appropriate, any activity referred to in those paragraphs in the marine protected area by a foreign national, an entity incorporated or formed by or under the laws of a country other than Canada, a foreign ship or a foreign state.
Marginal note:Exceptions
(3) The prohibitions set out in an order made under subsection (2) do not apply to the following activities:
(a) activities that are carried out in response to an emergency situation or that are carried out by or on behalf of Her Majesty for the purpose of public safety, national defence, national security or law enforcement; and
(b) marine scientific research activities that are consistent with the purpose of the designation of the marine protected area and that are authorized under federal laws or laws of a province, if required to be so authorized.
Marginal note:Publication of report
(4) If an order is made under subsection (2), the Minister shall publish, in any manner that the Minister considers appropriate, a report
(a) indicating the area of the sea designated in the order;
(b) summarizing the consultations undertaken prior to making the order; and
(c) summarizing the information that the Minister considered when making the order, which may include environmental, social, cultural or economic information.
Marginal note:Powers, duties and functions
35.2 The Governor in Council and the Minister shall not use lack of scientific certainty regarding the risks posed by any activity that may be carried out in certain areas of the sea as a reason to postpone or refrain from exercising their powers or performing their duties and functions under subsection 35(3) or 35.1(2).
Marginal note:Recommendation of Minister
35.3 (1) The Minister shall, not later than the fifth anniversary of the day on which an order under subsection 35.1(2) comes into force,
(a) recommend to the Governor in Council that the Governor in Council make a regulation under subsection 35(3) to designate a marine protected area covering at least part of the area of the sea that is designated by the order made under subsection 35.1(2); or
(b) repeal the order.
Marginal note:Repeal of Minister’s order
(2) The Governor in Council may repeal the order if the Governor in Council makes a regulation referred to in paragraph (1)(a).
6 Section 36 of the Act is amended by adding the following after subsection (3):
Marginal note:Inconsistency
(4) In the event of any inconsistency between an order made under subsection (1) and an order made under subsection 35.1(2), the order made under subsection (1) prevails to the extent of the inconsistency.
7 Sections 37 and 38 of the Act are replaced by the following:
Administration and Enforcement
Designation
8 Subsection 39(1) of the Act is replaced by the following:
Marginal note:Enforcement officers
39 (1) The Minister may designate persons or classes of persons as enforcement officers for the purposes of the administration and enforcement of this Act and the regulations.
9 The Act is amended by adding the following after section 39:
Enforcement Officer’s Powers
10 (1) The portion of subsection 39.1(1) of the Act before paragraph (b) is replaced by the following:
Marginal note:Inspections
39.1 (1) For a purpose related to verifying compliance or preventing non-compliance with this Act and the regulations, an enforcement officer may enter and inspect any place, including any conveyance, in which the enforcement officer has reasonable grounds to believe, that there is any thing to which this Act or the regulations apply or any book, record, electronic data or other document relating to the application of this Act or the regulations, and the enforcement officer may, for that purpose,
(a) open or cause to be opened any container that the enforcement officer has reasonable grounds to believe contains that thing, book, record, electronic data or other document;
(2) Paragraph 39.1(1)(b) of the English version of the Act is replaced by the following:
(b) examine the thing and take samples free of charge;
(3) The portion of subsection 39.1(1) of the Act after paragraph (b) is replaced by the following:
(c) require any person to produce the book, record, electronic data or other document for examination or copying, in whole or in part;
(d) use or cause to be used any computer system or data processing system at the place being inspected to examine any data contained in, or available to, the system;
(e) reproduce any record or cause it to be reproduced from the data in the form of a printout or other intelligible output and remove the printout or other output for examination or copying; and
(f) use or cause to be used any copying equipment at the place being inspected to make copies of any book, record, electronic data or other document.
(4) Subsection 39.1(2) of the Act is replaced by the following:
Marginal note:Disposition of samples
(1.1) An enforcement officer may dispose of a sample taken under paragraph (1)(b) in any manner that the officer considers appropriate.
Marginal note:Seizure
(1.2) For the purposes of subsection (1), the enforcement officer may seize any thing that the enforcement officer has reasonable grounds to believe
(a) was used in the contravention of this Act or the regulations;
(b) is something in relation to which this Act or the regulations have been contravened; or
(c) was obtained by the contravention of this Act or the regulations.
Marginal note:Assistance
(1.3) The owner or the person in charge of the place, and every person found in the place, shall
(a) give the enforcement officer all assistance that is reasonably required to enable the officer to exercise their powers or to perform their duties or functions under this section; and
(b) provide the enforcement officer with any information or any book, record, electronic data or other document, and access to any data, that are reasonably required for that purpose.
Marginal note:Conveyance
(2) For the purposes of carrying out the inspection, the enforcement officer may stop a conveyance or direct that it be moved to any place, including in Canadian waters or the exclusive economic zone of Canada, where the inspection can be carried out.
Marginal note:Passage through private property
(2.1) An enforcement officer and any person accompanying them may enter and pass through private property, other than a dwelling-place, in order to gain entry to a place referred to in subsection (1). For greater certainty, neither person is liable for doing so.
Marginal note:Passage through private property by authorized person
(2.2) A person acting under the direction and control of an enforcement officer may, for the purposes of exercising the officer’s powers or performing the officer’s duties and functions under this section, enter and pass through private property, other than a dwelling-place, in order to gain entry to a marine protected area. For greater certainty, the person is not liable for doing so.
11 Section 39.2 of the Act is replaced by the following:
Direction and Detention of Ships
Marginal note:Direction of ship to place
39.2 An enforcement officer may direct a ship to move to any place in Canadian waters or the exclusive economic zone of Canada if they have reasonable grounds to believe that the ship or a person on board the ship has committed, is committing or is about to commit an offence under this Act in Canadian waters or the exclusive economic zone of Canada and that the ship was, is being or is about to be used in connection with the commission of the offence.
Marginal note:Detention order to ship
39.21 (1) An enforcement officer may make a detention order in relation to a ship if they have reasonable grounds to believe that the ship or a person on board the ship has committed an offence under this Act in Canadian waters or the exclusive economic zone of Canada and that the ship was used in connection with the commission of the offence.
Marginal note:Order in writing
(2) The detention order shall be in writing and addressed to all persons, at any port in Canada where the ship to which the order relates is or will be located, who are empowered to give a clearance in respect of the ship.
Marginal note:Service of order
(3) Notice of the detention order shall be served by delivering a copy of the notice personally to the master or another officer, the authorized representative, the owner or the operator of the ship, or if service cannot reasonably be effected personally, by posting a copy of the notice on any conspicuous part of the ship.
Marginal note:Duty after service of order
(4) Once notice of the detention order is served on any person referred to in subsection (3), the ship shall not move, other than in accordance with any conditions specified in the order, until the order has been rescinded.
Marginal note:No clearance after receiving order
(5) Subject to subsection (6), a person who has received the detention order shall not give clearance to the ship to which the order relates.
Marginal note:When clearance may be given
(6) A person who has received the detention order may give clearance to the ship to which the order relates if
(a) neither the ship nor any person is charged with the offence that gave rise to the making of the order within 30 days after the day on which the order is made;
(b) within 30 days after the day on which the order is made, the ship or a person is charged with the offence and every accused has appeared in Canada to answer to the charge;
(c) Her Majesty in right of Canada is given security, in a form determined by the Minister, for payment of the maximum fine that may be imposed as a result of a conviction of every accused and costs that might be incurred in proceedings in connection with the charge or charges, or payment of any lesser amount that is approved by the Minister;
(d) all proceedings in respect of the offence that gave rise to the making of the order are discontinued; or
(e) the order is rescinded by an enforcement officer.
Compliance Orders
Marginal note:Compliance order
39.22 (1) If an enforcement officer has reasonable grounds to believe that a person is committing an offence under this Act — or is about to commit an offence under this Act — the enforcement officer may issue a compliance order directing any person described in subsection (3) to take, at their own expense, any of the measures referred to in subsection (4) that the enforcement officer believes are reasonable in the circumstances, and consistent with the protection and preservation of the marine environment and with public safety, in order to cease the commission of the offence or to refrain from committing it.
Marginal note:Order to ship
(2) For the purposes of subsection (1), an order is deemed to have been given to the ship and is binding on it, if
(a) the order is given to the master or another officer, the authorized representative, the owner or the operator of the ship; or
(b) in the case of an order that cannot be given to any person referred to in paragraph (a) despite reasonable efforts having been made to do so, the order is posted on any conspicuous part of the ship.
Marginal note:Persons subject to compliance order
(3) Subsection (1) applies to any person who causes or contributes to, or is likely to cause or contribute to, the offence.
Marginal note:Specific measures
(4) The compliance order may require that the person to whom it is directed take one or more of the following measures:
(a) do anything to comply with this Act or the regulations;
(b) refrain from doing anything in contravention of this Act or the regulations;
(c) cease any activity for a specified period or until the enforcement officer is satisfied that the activity is in compliance with this Act and the regulations;
(d) move any conveyance to a location by the route and in the manner that the enforcement officer specifies;
(e) unload or reload the contents of any conveyance; and
(f) take any other reasonable measure that the enforcement officer considers necessary to facilitate compliance with the order — or to restore the components of the marine environment damaged by the offence or to protect the components of the marine environment that would be put at risk if the offence were committed — including
(i) maintaining records on any relevant matter,
(ii) reporting periodically to the enforcement officer, and
(iii) submitting to the enforcement officer any information, proposal or plan specified by the enforcement officer that sets out any action to be taken by the person with respect to the subject-matter of the order.
Marginal note:Contents of compliance order
(5) Subject to section 39.23, the compliance order shall be made in writing and shall set out
(a) the name of the person or persons to whom it is directed;
(b) the provisions of this Act or the regulations, or the order made under subsection 35.1(2) or 36(1), that has been or that is about to be contravened;
(c) the relevant facts surrounding the offence described in subsection (1);
(d) the measures to be taken; and
(e) the time or the day when each measure is to begin or the period during which it is to be carried out.
Marginal note:Statutory Instruments Act
(6) A compliance order is not a statutory instrument for the purposes of the Statutory Instruments Act.
Marginal note:Order given orally
39.23 (1) In the case of exigent circumstances, a compliance order may be given orally on the condition that it is followed, within seven days after the day on which the oral order was issued, by a written order issued in accordance with section 39.22.
Marginal note:Exigent circumstances
(2) For the purposes of subsection (1), exigent circumstances include circumstances in which the delay necessary to issue a written order that meets the requirements of subsection 39.22(5) would result in danger to human life or the marine environment.
Marginal note:Compliance with compliance order
39.24 (1) A person to whom a compliance order is issued shall, immediately on receipt of the order or a copy of it, or on being given an order orally under subsection 39.23(1), comply with the order.
Marginal note:No bar to proceedings
(2) The issuance of, or compliance with, a compliance order is not a bar to any proceedings against the person under this or any other Act in relation to the offence described in subsection 39.22(1).
Marginal note:Intervention by enforcement officer
39.25 (1) If a person to whom a compliance order is issued fails to take any measures specified in the order, an enforcement officer may take the measures or cause them to be taken.
Marginal note:Access to property
(2) An enforcement officer or other person authorized by an enforcement officer to take measures under subsection (1) may enter and have access to any place, other than a dwelling-place, and may do any reasonable thing that may be necessary in the circumstances.
Marginal note:Personal liability
(3) A person, other than a person described in subsection 39.22(3), who provides assistance or advice to the enforcement officer in taking the measures specified in an order or who takes any measures authorized or required by an enforcement officer under subsection (1) is not personally liable either civilly or criminally in respect of any act or omission in the course of providing assistance or advice or taking any measures under that subsection unless it is established that the person acted in bad faith.
Marginal note:Recovery of reasonable costs and expenses by Her Majesty
39.26 (1) Her Majesty in right of Canada may recover the costs and expenses of, and any costs and expenses incidental to, any measures taken under subsection 39.25(1) from any person referred to in subsection 39.22(3).
Marginal note:Costs reasonably incurred
(2) The costs and expenses may be recovered only to the extent that they can be established to have been reasonably incurred in the circumstances.
Marginal note:Liability
(3) The persons referred to in subsection (1) are jointly and severally, or solidarily, liable for the costs and expenses referred to in that subsection.
Marginal note:Procedure
(4) A claim under this section may be sued for and recovered by Her Majesty in right of Canada with costs in proceedings brought or taken in the name of Her Majesty in right of Canada in any court of competent jurisdiction.
Marginal note:Recourse or indemnity
(5) This section does not limit or restrict any right of recourse or indemnity that a person may have against any other person.
Marginal note:Limitation and prescription
(6) If events giving rise to a claim under this section occur, proceedings in respect of the claim may be commenced not later than five years after the day on which the events occur.
Things Seized, Detained, Abandoned or Forfeited
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