An Act to amend the Migratory Birds Convention Act, 1994 and the Canadian Environmental Protection Act, 1999 (S.C. 2005, c. 23)
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Assented to 2005-05-19
An Act to amend the Migratory Birds Convention Act, 1994 and the Canadian Environmental Protection Act, 1999
S.C. 2005, c. 23
Assented to 2005-05-19
An Act to amend the Migratory Birds Convention Act, 1994 and the Canadian Environmental Protection Act, 1999
SUMMARY
This enactment amends the Migratory Birds Convention Act, 1994 to
(a) state that that Act applies in the exclusive economic zone of Canada;
(b) protect migratory birds from the effects caused by deposits of harmful substances, such as oil, in the exclusive economic zone of Canada;
(c) state that that Act applies to vessels and their owners and operators;
(d) subject masters, chief engineers, owners and operators of vessels and directors and officers of corporations to a duty of care to ensure compliance with that Act and its regulations;
(e) expand the enforcement powers to include orders to direct and detain vessels found to be in contravention of that Act or its regulations;
(f) expand the jurisdiction of Canadian courts to include the exclusive economic zone of Canada;
(g) increase penalties; and
(h) permit courts to impose additional punishments in the form of orders covering matters such as environmental audits, community service and the creation of scholarships for students enrolled in environmental studies.
This enactment also amends the Canadian Environmental Protection Act, 1999 to
(a) protect the marine environment from the wrongful activities of ships as well as persons;
(b) include prohibitions concerning the disposal and incineration of substances at sea by ships;
(c) include regulation-making authority to deal with disposals of substances during the normal operations of ships, aircrafts, platforms and other structures;
(d) expand the enforcement powers to include orders to direct ships found to be in contravention of that Act or its regulations;
(e) subject owners of ships and directors and officers of corporations that own ships to a duty of care to ensure that ships comply with the provisions of that Act and its regulations concerning disposal at sea and with orders and directions made under that Act; and
(f) expand the jurisdiction of Canadian courts to include the exclusive economic zone of Canada.
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
1994, c. 22MIGRATORY BIRDS CONVENTION ACT, 1994
1. (1) The definition “conveyance” in subsection 2(1) of the Migratory Birds Convention Act, 1994 is replaced by the following:
“conveyance”
« moyen de transport »
“conveyance” means a vehicle, aircraft, vessel or any other contrivance that is used to move persons or goods;
(2) Subsection 2(1) of the Act is amended by adding the following in alphabetical order:
“Canadian vessel”
« bâtiment canadien »
“Canadian vessel” means a vessel that
(a) is registered, listed or licensed under the Canada Shipping Act,
(b) is not registered, listed or licensed under the Canada Shipping Act or under the laws of another state but is owned by one or more persons each of whom is
(i) a Canadian citizen,
(ii) in the case of a vessel that is not required to be registered, listed or licensed under that Act, a person who is resident and domiciled in Canada, or
(iii) a corporation incorporated under the laws of Canada or a province, that has its principal place of business in Canada, or
(c) is not registered, listed or licensed under the Canada Shipping Act but is owned or operated by Her Majesty in right of Canada;
“deposit”
« immersion ou rejet »
“deposit” means any discharging, spraying, releasing, spilling, leaking, seeping, pouring, emitting, emptying, throwing, dumping or placing;
“environment”
« environnement »
“environment” means the components of the Earth and includes
(a) air, land and water,
(b) all layers of the atmosphere,
(c) all organic and inorganic matter and living organisms, and
(d) the interacting natural systems that include the components referred to in paragraphs (a) to (c);
“fixed platform”
« plate-forme fixe »
“fixed platform” means an artificial island or a marine installation or structure that is permanently attached to the seabed for the purpose of exploration or exploitation of resources or for other economic purposes;
“foreign national”
« étranger »
“foreign national” has the same meaning as in subsection 2(1) of the Immigration and Refugee Protection Act;
“foreign vessel”
« bâtiment étranger »
“foreign vessel” means a vessel that is not a Canadian vessel;
“master”
« capitaine »
“master” means every person who has command or charge of a vessel, but does not include a licensed pilot within the meaning of section 2 of the Pilotage Act;
“operator”
« exploitant »
“operator”, in respect of a vessel, means a person other than an owner who has, either by law or by contract, the possession and use of the vessel;
“owner”
« propriétaire »
“owner”, in respect of a vessel, means an actual owner of the vessel if the vessel is not registered or listed, or a registered owner if it is registered or listed;
“vessel”
« bâtiment »
“vessel” means a boat, ship or craft designed, used or capable of being used solely or partly for navigation in, on, through or immediately above water, without regard to the method or lack of propulsion, but does not include a fixed platform.
2. The Act is amended by adding the following after section 2:
APPLICATION
Marginal note:Application
2.1 This Act applies in Canada and in the exclusive economic zone of Canada.
3. Section 4 of the Act and the heading that follows it are replaced by the following:
Marginal note:Purpose
4. The purpose of this Act is to implement the Convention by protecting and conserving migratory birds — as populations and individual birds — and their nests.
PROHIBITIONS
4. The Act is amended by adding the following after section 5:
Marginal note:Prohibition
5.1 (1) No person or vessel shall deposit a substance that is harmful to migratory birds, or permit such a substance to be deposited, in waters or an area frequented by migratory birds or in a place from which the substance may enter such waters or such an area.
Marginal note:Prohibition
(2) No person or vessel shall deposit a substance or permit a substance to be deposited in any place if the substance, in combination with one or more substances, results in a substance — in waters or an area frequented by migratory birds or in a place from which it may enter such waters or such an area — that is harmful to migratory birds.
Marginal note:Saving
(3) Subsections (1) and (2) do not apply if
(a) the deposit is authorized under the Canada Shipping Act; or
(b) the substance is of a type and quantity, and the deposit is made under conditions, authorized under an Act of Parliament other than the Canada Shipping Act, or authorized by the Minister for scientific purposes.
Marginal note:Prohibition
5.2 No person shall
(a) wilfully destroy or cause to be destroyed a document, a record or data that is required to be kept under this Act or the Canada Shipping Act, or wilfully alter or cause to be altered such a document, a record or data with intent to mislead;
(b) make or cause to be made a false entry, or omit to make or cause to be omitted to be made a required entry, in a document, a record or data that is required to be kept under this Act or the Canada Shipping Act;
(c) wilfully obstruct or hinder a person who is engaged in carrying out duties or functions under this Act or a person acting under their direction and control; or
(d) knowingly provide false or misleading information or knowingly make a false or misleading statement, either orally or in writing, to a person who is engaged in carrying out duties or functions under this Act or a person acting under their direction and control.
Marginal note:Prohibition
5.3 (1) No Canadian employer shall dismiss, suspend, demote, discipline, harass or otherwise disadvantage an employee, or deny an employee a benefit of employment, because
(a) the employee, acting in good faith and on the basis of reasonable belief, disclosed to a federal minister, or any employee of the public service of Canada, that the employer or another person had contravened or had intended to contravene a provision of this Act or the regulations;
(b) the employee, acting in good faith and on the basis of reasonable belief, refused or stated an intention to refuse to do anything that is a contravention of a provision of this Act or the regulations;
(c) the employee, acting in good faith and on the basis of reasonable belief, did or stated an intention to do anything that is required to be done to prevent a contravention of a provision of this Act or the regulations; or
(d) the employer believes that the employee will do anything referred to in paragraph (a), (b) or (c).
Definition of “Canadian employer”
(2) In subsection (1), “Canadian employer” means an employer that is a Canadian citizen, a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act or a corporation incorporated under the laws of Canada or a province that has its principal place of business in Canada.
Marginal note:Saving
(3) Nothing in this section impairs any right of an employee either at law or under an employment contract or collective agreement.
Definitions of “employee” and “employer”
(4) In this section, “employee” includes an independent contractor and “employer” has a corresponding meaning.
OBLIGATIONS
Marginal note:Obligation — owners, operators, etc.
5.4 Every master, chief engineer, owner and operator of a vessel — and, if the owner or operator is a corporation, every director and officer of the corporation who is in a position to direct or influence its policies or activities relating to conduct prohibited by section 5.1 — shall take all reasonable care to ensure that the vessel and all persons on board the vessel comply with section 5.1.
Marginal note:Obligation — directors and officers
5.5 Every director and officer of a corporation shall take all reasonable care to ensure that the corporation complies with this Act and the regulations.
5. (1) Subsection 6(3) of the Act is replaced by the following:
Marginal note:Certificate of designation
(3) Every game officer must be provided with a certificate of designation as a game officer in a form approved by the Minister and, on entering any place under this Act, the officer shall, on request, show the certificate to the person in charge or control of the place.
(2) Subsection 6(6) of the Act is replaced by the following:
Marginal note:Arrest without warrant
(6) A game officer may arrest a person without a warrant if they believe, on reasonable grounds, that the person has committed an offence under this Act or if they find the person committing or about to commit an offence under this Act.
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