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Transboundary Waters Protection Act (S.C. 2013, c. 12)

Assented to 2013-06-19

Transboundary Waters Protection Act

S.C. 2013, c. 12

Assented to 2013-06-19

An Act to amend the International Boundary Waters Treaty Act and the International River Improvements Act

SUMMARY

This enactment amends the International Boundary Waters Treaty Act to prohibit the bulk removal of transboundary waters. Some definitions and exceptions that are currently found in regulations are transferred to the Act. The enactment also provides for measures to administer and enforce the Act. Lastly, it also makes a consequential amendment to the International River Improvements Act.

Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

SHORT TITLE

Marginal note:Short title

 This Act may be cited as the Transboundary Waters Protection Act.

R.S., c. I-17INTERNATIONAL BOUNDARY WATERS TREATY ACT

 Section 2 of the International Boundary Waters Treaty Act is replaced by the following:

Marginal note:Treaty in schedule confirmed

2. The treaty relating to the boundary waters and to questions arising along the boundary between Canada and the United States made between His Majesty, King Edward VII, and the United States, signed at Washington on January 11, 1909, and the protocol of May 5, 1910, in Schedule 1, are hereby confirmed and sanctioned.

  •  (1) The portion of section 10 of the Act before the definition “boundary waters” is replaced by the following:

    Marginal note:Definitions

    10. The definitions in this section apply in sections 11 to 42.

  • (2) Section 10 of the Act is amended by adding the following in alphabetical order:

    “analyst”

    « analyste »

    “analyst” means a person who is designated under section 20.1 to assist an inspector to verify compliance with this Act.

    “bulk removal”

    « captage massif »

    “bulk removal” means the removal of water from boundary or transboundary waters and the taking of that water, whether it has been treated or not, outside the Canadian portion of the water basin  —  set out in Schedule 2  —  in which the waters are located

    • (a) by any means of diversion, including by pipeline, canal, tunnel, aqueduct or channel; or

    • (b) by any other means by which more than 50 000 L of water are taken outside the water basin per day.

    Bulk removal does not include the taking of a manufactured product that contains water, including water and other beverages in bottles or other containers, outside a water basin.

    “inspector”

    « inspecteur »

    “inspector” means a person who is designated under section 20.1 to verify compliance with this Act.

    “non-commercial project”

    « projet non commercial »

    “non-commercial project” means a project involving bulk removal in which no one is required to pay for the water that is removed.

    “transboundary waters”

    « eaux transfrontalières »

    “transboundary waters” means those waters that, in their natural channels, flow across the international boundary between Canada and the United States, including those set out in Schedule 3.

 Section 13 of the Act is replaced by the following:

Marginal note:Purpose
  • 13. (0.1) The purpose of this section is to prevent the risk of environmental harm resulting from bulk removal.

  • Marginal note:Prohibition  — removal of boundary waters

    (1) Despite section 11, the bulk removal of boundary waters is prohibited.

  • Marginal note:Prohibition — removal of transboundary waters

    (2) Despite section 12, the bulk removal of transboundary waters is prohibited.

  • Marginal note:Deeming

    (3) For the purposes of subsections (1) and (2) and the application of the treaty, bulk removal is deemed, given its cumulative effects on boundary waters and on transboundary waters that flow to the United States, to affect the natural level or flow of those waters on the other side of the international boundary.

  • Marginal note:Exceptions

    (4) Subsections (1) and (2) do not apply in respect of boundary waters or transboundary waters that are used

    • (a) in a vehicle, including a vessel, aircraft or train,

      • (i) as ballast,

      • (ii) for the operation of the vehicle, or

      • (iii) for people, animals or goods on or in the vehicle; or

    • (b) in a non-commercial project on a short-term basis for firefighting or humanitarian purposes.

 The portion of subsection 19(1) of the Act before paragraph (a) is replaced by the following:

Marginal note:Ministerial orders
  • 19. (1) If a person contravenes subsection 11(1), 12(1) or 13(1) or (2), the Minister may

 The Act is amended by adding the following after section 20:

Administration and Enforcement

Designation

Marginal note:Power to designate

20.1 For the purposes of the administration and enforcement of this Act, the Minister may designate persons or classes of persons to exercise powers in relation to any matter referred to in the designation, including, with the approval of a provincial government, persons or classes of persons who are authorized by that government to exercise powers and carry out functions with respect to bodies of water in the province.

Powers

Marginal note:Authority to enter
  • 20.2 (1) An inspector may, for the purpose of verifying compliance with this Act, enter a place, including a vehicle, in which they have reasonable grounds to believe an object to which this Act applies is located or an activity regulated by this Act is taking place.

  • Marginal note:Powers on entry

    (2) The inspector may, for that purpose,

    • (a) examine anything in the place;

    • (b) use any means of communication in the place or cause it to be used;

    • (c) use any computer system in the place, or cause it to be used, to examine data contained in or available to it;

    • (d) prepare a document, or cause one to be prepared, based on the data;

    • (e) use any copying equipment in the place, or cause it to be used;

    • (f) remove anything from the place for examination or copying;

    • (g) direct any person to put any machinery, vehicle or equipment in the place into operation or to cease operating it;

    • (h) prohibit or limit access to all or part of the place;

    • (i) take samples of anything in the place; and

    • (j) conduct tests on, or take measurements of, anything in the place.

  • Marginal note:Dwelling-house

    (3) If the place is a dwelling-house, the inspector may enter it without the occupant’s consent only under the authority of a warrant issued under subsection (4).

  • Marginal note:Authority to issue warrant — dwelling-house

    (4) On ex parte application, a justice of the peace may issue a warrant authorizing an inspector who is named in it to enter a dwelling-house, subject to any conditions specified in the warrant, if the justice is satisfied by information on oath that

    • (a) the dwelling-house is a place referred to in subsection (1);

    • (b) entry to the dwelling-house is necessary to verify compliance with this Act; and

    • (c) entry was refused by the occupant or there are reasonable grounds to believe that entry will be refused or that consent to entry cannot be obtained from the occupant.

  • Marginal note:Use of force

    (5) In executing a warrant to enter a dwelling-house, an inspector may use force only if the use of force has been specifically authorized in the warrant and the inspector is accompanied by a peace officer.

  • Marginal note:Authority to issue warrant — non-dwelling-houses

    (6) On ex parte application, a justice of the peace may issue a warrant authorizing an inspector who is named in it to enter a place other than a dwelling-house, subject to any conditions specified in the warrant, if the justice is satisfied by information on oath that

    • (a) the place is a place referred to in subsection (1);

    • (b) entry to the place is necessary to verify compliance with this Act;

    • (c) entry was refused by the occupant or there are reasonable grounds to believe that entry will be refused, that consent to entry cannot be obtained from the occupant, that entry cannot be effected without the use of force or that the place is abandoned; and

    • (d) all reasonable attempts were made to notify the owner, operator or person in charge of the place.

  • Marginal note:Waiving notice

    (7) The justice may waive the requirement to give notice under paragraph (6)(d) if he or she is satisfied that attempts to give the notice would be unsuccessful because the owner, operator or person in charge is absent from the justice’s jurisdiction or that it is not in the public interest to give the notice.

  • Marginal note:Stopping and detaining vehicles

    (8) For the purpose of verifying compliance with this Act, an inspector may, at any reasonable time, direct that any vehicle be stopped — or be moved, by the route and in the manner that they specify, to a specified place — and they may, for a reasonable time, detain that vehicle.

Marginal note:Authority of analyst
  • 20.3 (1) An analyst may, at an inspector’s request, accompany them into a place for the purpose of assisting them to verify compliance with this Act.

  • Marginal note:Powers on entry

    (2) The analyst may, for that purpose,

    • (a) examine anything in the place;

    • (b) take samples of anything in the place; and

    • (c) conduct tests on, or take measurements of, anything in the place.

Marginal note:Disposition of sample

20.4 An inspector or analyst may dispose of a sample taken in the place in any manner that they consider appropriate.

Marginal note:Entry on private property
  • 20.5 (1) For the purpose of gaining entry to a place referred to in subsection 20.2(1), an inspector and any analyst accompanying them may enter private property and pass through it, and are not liable for doing so. For greater certainty, no person has a right to object to that use of the property and no warrant is required for the entry, unless the property is a dwelling-house.

  • Marginal note:Accompanying person

    (2) A person may, at the inspector’s request, accompany the inspector to assist them to gain entry to the place referred to in subsection 20.2(1) and is not liable for doing so.

Marginal note:Assistance

20.6 The owner or person in charge of the place and every person in the place shall give all assistance that is reasonably required to enable the inspector to verify compliance with this Act and shall provide any documents, data or information that is reasonably required for that purpose.

Marginal note:Certificate

20.7 The Minister shall provide every inspector and analyst with a certificate of designation and, on entering a place, they shall produce the certificate to the person in charge of the place on request.

Marginal note:Immunity

20.8 An inspector and an analyst are not personally liable for anything they do or omit to do in good faith in carrying out their functions.

Marginal note:Production of documents and samples
  • 20.9 (1) The Minister may, for the purpose of verifying compliance with this Act, by registered letter or by a demand served personally, require any person, within any reasonable time and in any reasonable manner that may be stipulated in the letter or demand,

    • (a) to produce at a place specified by the Minister any sample taken or any document; or

    • (b) to conduct any tests or take any measurements or samples there.

  • Marginal note:Compliance

    (2) Any person who is required to do anything under subsection (1) shall, despite any law to the contrary, comply with the requirement.

 
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