Port State Measures Agreement Implementation Act (S.C. 2015, c. 18)
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Assented to 2015-06-18
Port State Measures Agreement Implementation Act
S.C. 2015, c. 18
Assented to 2015-06-18
An Act to amend the Coastal Fisheries Protection Act
SUMMARY
This enactment amends the Coastal Fisheries Protection Act to implement the Port State Measures Agreement, to prohibit the importation of fish caught and marine plants harvested in the course of illegal, unreported and unregulated fishing and to clarify certain powers in respect of the administration and enforcement of the Act.
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
ALTERNATIVE TITLE
Marginal note:Alternative title
1. This Act may be cited as the Port State Measures Agreement Implementation Act.
R.S., c. C-33COASTAL FISHERIES PROTECTION ACT
Marginal note:1999, c. 19, s. 1(4)
2. (1) The definitions “Agreement”, “fishing vessel of a participating state” and “participating state” in subsection 2(1) of the Coastal Fisheries Protection Act are repealed.
(2) The definitions “fish” and “fishing vessel” in subsection 2(1) of the Act are replaced by the following:
“fish”
« poisson »
“fish” includes
(a) any part or derivative of a fish,
(b) shellfish, crustaceans, marine animals and any part or derivative of any of them, and
(c) the eggs, sperm, spawn, larvae, spat or juvenile stages, as the case may be, of fish, shellfish, crustaceans and marine animals;
“fishing vessel”
« bateau de pêche »
“fishing vessel” means any of the following:
(a) a ship, boat or any other description of vessel that is used in or equipped for
(i) fishing, processing fish or transporting fish from fishing grounds,
(ii) taking, processing or transporting marine plants, or
(iii) provisioning, servicing, repairing or maintaining any vessels of a foreign fishing fleet while at sea,
(b) a ship, boat or any other description of vessel that is used in transhipping fish, or marine plants, that have not been previously landed;
(3) Subsection 2(1) of the Act is amended by adding the following in alphabetical order:
“fisheries management organization”
« organisation de gestion des pêches »
“fisheries management organization” means an organization or arrangement established by two or more states, or by one or more states and an organization of states, for the purpose of the conservation and management of fish stocks in the sea or any area of the sea;
“fishing vessel of a state party to the Fish Stocks Agreement”
« bateau de pêche d’un État assujetti à l’Accord sur les stocks de poissons »
“fishing vessel of a state party to the Fish Stocks Agreement” means a foreign fishing vessel that is entitled to fly the flag of a state party to the Fish Stocks Agreement;
“Fish Stocks Agreement”
« Accord sur les stocks de poissons »
“Fish Stocks Agreement” means the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, adopted by the United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks in New York on August 4, 1995;
“flag state”
« État du pavillon »
“flag state” means the state whose flag a fishing vessel is entitled to fly;
“marine plant”
« plante marine »
“marine plant” means a saltwater plant, including benthic and detached algae, flowering plants, brown algae, red algae, green algae and phytoplankton, and any part or derivative of a saltwater plant;
“Port State Measures Agreement”
« Accord sur les mesures de l’État du port »
“Port State Measures Agreement” means the Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, approved by the Conference of the Food and Agriculture Organization of the United Nations in Rome on November 22, 2009;
“state party to the Fish Stocks Agreement”
« État assujetti à l’Accord sur les stocks de poissons »
“state party to the Fish Stocks Agreement” means a foreign state or an organization of foreign states that is prescribed by regulation;
Marginal note:1999, c. 19, s. 2
3. The portion of section 5.3 of the Act before paragraph (a) is replaced by the following:
Marginal note:Prohibition — Fish Stocks Agreement
5.3 No fishing vessel of a state party to the Fish Stocks Agreement shall, in an area of the sea designated under subparagraph 6(e)(ii),
4. The Act is amended by adding the following after section 5.5:
PROHIBITED IMPORT
Marginal note:Prohibition — importation
5.6 (1) No person shall import any fish or marine plant knowing it to have been taken, harvested, possessed, transported, distributed or sold contrary to any of the following:
(a) an international fisheries treaty or arrangement to which Canada is party, including any conservation, management or enforcement measures taken under the treaty or arrangement;
(b) any conservation or management measures of a fisheries management organization of which Canada is not a member that is prescribed by regulation;
(c) a law related to fisheries of a foreign state.
Marginal note:Prohibition — other
(2) No person shall, in connection with the importation of any fish or marine plant, transport, sell, distribute, buy or accept the delivery of the fish or marine plant knowing that it was taken, harvested, possessed, transported, distributed or sold contrary to any of the following:
(a) an international fisheries treaty or arrangement to which Canada is party, including any conservation, management or enforcement measures taken under the treaty or arrangement;
(b) any conservation or management measures of a fisheries management organization of which Canada is not a member that is prescribed by regulation;
(c) a law related to fisheries of a foreign state.
Marginal note:Prohibition — importation
(3) No person shall import any fish or marine plant that is not accompanied by the documentation required by regulation.
5. (1) Paragraph 6(a) of the Act is amended by striking out “or” at the end of subparagraph (i), by adding “or” at the end of subparagraph (ii) and by adding the following after subparagraph (ii):
(iii) foreign fishing vessels that have been ordered to proceed to a Canadian port by their flag state, or foreign fishing vessels that have been ordered to proceed to a port by their flag state and that proceed to a Canadian port, to enter Canadian fisheries waters for any purpose related to verifying compliance with a law related to fisheries of a foreign state, with any conservation or management measures of a fisheries management organization or with any international fisheries treaty or arrangement to which Canada is party, including any conservation, management or enforcement measures taken under the treaty or arrangement;
(2) Section 6 of the Act is amended by adding the following after paragraph (b.3):
(b.31) prescribing a fisheries management organization of which Canada is not a member for the purposes of paragraphs 5.6(1)(b) and (2)(b);
(3) Section 6 of the Act is amended by adding the following after paragraph (d):
(d.1) respecting documentation required for the importation of fish and marine plants;
Marginal note:1999, c. 19, s. 3(2)
(4) The portion of paragraph 6(e) of the Act before subparagraph (ii) is replaced by the following:
(e) for the implementation of the Fish Stocks Agreement, including regulations
(i) incorporating by reference, or carrying out and giving effect to, any conservation or management measures, as of a fixed date or as they are amended from time to time, of a regional fisheries management organization or arrangement established by two or more states, or by one or more states and an organization of states, for the purpose of the conservation or management of a straddling fish stock or highly migratory fish stock, and designating from among the measures incorporated by reference or regulations made under this subparagraph those the contravention of which is prohibited by paragraph 5.3(a),
Marginal note:1999, c. 19, s. 3(2)
(5) Subparagraphs 6(e)(iii) and (iv) of the Act are replaced by the following:
(iii) setting out the circumstances in which a person engaged or employed in the administration or enforcement of this Act may exercise, in a manner consistent with the Fish Stocks Agreement and the measures incorporated by reference and the regulations made under subparagraph (i), the powers conferred by or under this Act and setting out any procedures to be followed in doing so,
(iv) empowering the Minister to authorize a state party to the Fish Stocks Agreement to take enforcement action in respect of a Canadian fishing vessel,
Marginal note:1999, c. 19, s. 3(2)
(6) Subparagraphs 6(e)(vi) and (vii) of the Act are replaced by the following:
(vi) permitting Her Majesty in right of Canada to recover any reasonable costs incurred as a result of the detention in port of a fishing vessel of a state party to the Fish Stocks Agreement, and
(vii) prescribing a state party to the Fish Stocks Agreement for the purposes of this Act; and
Marginal note:1999, c. 19, s. 3(2)
(7) Subparagraph 6(f)(i) of the Act is replaced by the following:
(i) incorporating by reference, or carrying out and giving effect to, any of those measures as of a fixed date or as they are amended from time to time and designating from among the measures incorporated by reference or regulations made under this subparagraph those the contravention of which is prohibited by section 5.4,
Marginal note:1994, c. 14, s. 4; 1999, c. 19, s. 4
6. Sections 7 to 7.1 of the Act are replaced by the following:
Definition of “place”
7. For the purposes of sections 7.1, 7.4, 7.6 and 9, “place” includes
(a) a fishing vessel found within Canadian fisheries waters or the NAFO Regulatory Area;
(b) any other vehicle, including a vessel or aircraft; and
(c) a container.
Marginal note:Entry — any place
7.1 (1) A protection officer may, for a purpose related to verifying compliance with this Act, enter any place in which the protection officer has reasonable grounds to believe that
(a) there is any fish, marine plant or other thing in respect of which this Act applies;
(b) there has been carried on, is being carried on or is likely to be carried on any activity in respect of which this Act applies; or
(c) there are any records, books or other documents, including documents in electronic form, concerning anything referred to in paragraphs (a) and (b).
Marginal note:Entry — fishing vessel within Canadian fisheries waters or NAFO Regulatory Area
(2) Despite subsection (1), a protection officer may board a fishing vessel found within Canadian fisheries waters or the NAFO Regulatory Area for a purpose related to verifying compliance with this Act.
Marginal note:Powers on entry
(3) The protection officer referred to in subsection (1) or (2) may, for a purpose related to verifying compliance with this Act,
(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) conduct tests or analyses of anything in the place;
(g) take measurements or samples of anything in the place;
(h) take photographs or make recordings or sketches of anything in the place;
(i) remove anything found in the place;
(j) direct any person to put any machinery, vehicle or equipment in the place into operation or to cease operating it; and
(k) prohibit or limit access to all or part of the place or to anything in the place.
Marginal note:Entry — fishing vessels ordered to port by flag state
(4) A protection officer may, for a purpose related to verifying compliance with a law related to fisheries of a foreign state, with any conservation or management measures of a fisheries management organization or with an international fisheries treaty or arrangement to which Canada is party, including any conservation, management or enforcement measures taken under the treaty or arrangement, board a foreign fishing vessel that was authorized to enter Canadian fisheries waters under subparagraph 6(a)(iii).
Marginal note:Powers on entry
(5) The protection officer may, for the purpose referred to in subsection (4), exercise the powers referred to in subsection (3) to the extent that the exercise of those powers is authorized by the foreign state or is provided for in the measures, treaty or arrangement in question.
Marginal note:Duty to assist
(6) The owner or person in charge of a place and every person in the place shall give all assistance that is reasonably required to enable a protection officer to perform his or her functions under this section and shall provide any document or information, and access to any data, that is reasonably required for that purpose.
Marginal note:Person accompanying protection officer
7.2 A protection officer may be accompanied by any other person that the protection officer believes is necessary to help him or her perform his or her functions under this Act.
Marginal note:Stopping and detaining vehicle
7.3 A protection officer may, for a purpose related to verifying compliance with this Act, direct that any vehicle, including a fishing vessel found within Canadian fisheries waters or the NAFO Regulatory Area, be stopped and moved to another location and may detain it for a reasonable time. The person in charge of the vehicle shall comply with the directions.
Marginal note:Warrant to enter dwelling place
7.4 (1) If a place is a dwelling place, a protection officer may enter it without the occupant’s consent only under the authority of a warrant issued under subsection (2).
Marginal note:Authority to issue warrant
(2) On ex parte application, a justice of the peace may issue a warrant authorizing a protection officer to enter a dwelling place, subject to any conditions specified in the warrant, and authorizing any other person named in the warrant to accompany the protection officer, if the justice is satisfied by information on oath that
(a) the dwelling place is a place referred to in section 7.1;
(b) entry to the dwelling place 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 by, or that consent to entry cannot be obtained from, the occupant.
Marginal note:Enforcement on high seas for unauthorized fishing in Canadian fisheries waters
7.5 (1) If a protection officer has reasonable grounds to believe that a fishing vessel of a state party to the Fish Stocks Agreement or of a state that is party to a treaty or arrangement described in paragraph 6(f) has engaged in unauthorized fishing in Canadian fisheries waters and the vessel is in an area of the sea designated under subparagraph 6(e)(ii) or (f)(ii), the officer may, with the consent of that state, take any enforcement action that is consistent with this Act.
Marginal note:Powers not affected in case of pursuit
(2) Subsection (1) does not affect any powers the protection officer has in the case of a pursuit that began while the vessel was in Canadian fisheries waters.
Marginal note:Search
7.6 (1) A justice, as defined in section 2 of the Criminal Code, who on ex parte application is satisfied by information on oath that there are reasonable grounds to believe that there is in a place any fish, marine plant or other thing that was obtained by or used in, or that will afford evidence in respect of, a contravention of this Act, may issue a warrant authorizing the protection officer named in the warrant to enter and search the place for the fish, marine plant or other thing, subject to any conditions specified in the warrant.
Marginal note:Search without warrant
(2) A protection officer may exercise the powers referred to in 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 a warrant.
Marginal note:Search — fishing vessels ordered to port by flag state
(3) A justice, as defined in section 2 of the Criminal Code, on ex parte application by a protection officer, may issue a warrant authorizing the protection officer named in the warrant to board a foreign fishing vessel that was authorized to enter Canadian fisheries waters under subparagraph 6(a)(iii) and search the vessel, or to enter any other place and search the other place, for any fish, marine plant or other thing, subject to any conditions specified in the warrant, if the justice is satisfied by information on oath that
(a) there are reasonable grounds to believe that there is in the vessel any fish, marine plant or other thing that was obtained by or used in, or that will afford evidence in respect of, a contravention of a law related to fisheries of a foreign state, any conservation or management measures of a fisheries management organization or an international fisheries treaty or arrangement to which Canada is party, including any conservation, management or enforcement measures taken under the treaty or arrangement, or there is in the other place any such fish, marine plant or other thing and that fish, marine plant or other thing is from the vessel; and
(b) the vessel’s flag state does not object to the search of the vessel.
Marginal note:Presumption
(4) The foreign fishing vessel’s flag state is deemed to not object to the search if the protection officer has informed the flag state of his or her intention to apply for the warrant referred to in subsection (3) and the flag state has not communicated its objection within the period prescribed by regulation.
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