Short Title

Marginal note:Short title

1 This Act may be cited as the Navigation Protection Act.

Interpretation

Marginal note:Definitions

2 The following definitions apply in this Act.

designated work

designated work means a minor work or a work that is constructed or placed in, on, over, under, through or across any minor water. (ouvrage désigné)

ferry cable

ferry cable[Repealed, 2012, c. 31, s. 317]

Indigenous knowledge

Indigenous knowledge means the Indigenous knowledge of the Indigenous peoples of Canada. (connaissances autochtones)

Indigenous peoples of Canada

Indigenous peoples of Canada has the meaning assigned by the definition aboriginal peoples of Canada in subsection 35(2) of the Constitution Act, 1982. (peuples autochtones du Canada)

Minister

Minister means the Minister of Transport. (ministre)

minor water

minor water means any navigable water designated under paragraph 28(2)(b). (eaux secondaires)

minor work

minor work means any work designated under paragraph 28(2)(a). (ouvrage secondaire)

navigable water

navigable water includes a canal and any other body of water created or altered as a result of the construction of any work. (eaux navigables)

obstruction

obstruction means a vessel, or part of one, that is wrecked, sunk, partially sunk, lying ashore or grounded, or any thing, that obstructs or impedes navigation or renders it more difficult or dangerous, but does not include a thing of natural origin unless a person causes the thing of natural origin to obstruct or impede navigation or to render it more difficult or dangerous. (obstacle)

owner

owner, in relation to a work, means the actual or reputed owner of the work or that owner’s agent or mandatary. It includes a person who is in possession or claiming ownership of the work and a person who is authorizing or otherwise responsible for the construction, placement, alteration, repair, rebuilding, removal, decommissioning, maintenance, operation, safety or use of the work. It also includes a person who proposes to construct or place a work. (propriétaire)

person in charge

person in charge, with respect to an obstruction, includes the owner of the obstruction and, in the case of a vessel, or part of one, that is an obstruction, the registered owner or other owner at the time the obstruction was occasioned, as well as the managing owner, master and any subsequent purchaser. (responsable)

Tribunal

Tribunal means the Transportation Appeal Tribunal of Canada established by subsection 2(1) of the Transportation Appeal Tribunal of Canada Act. (Tribunal)

vessel

vessel includes every description of ship, boat or craft of any kind, without regard to method or lack of propulsion and to whether it is used as a sea-going vessel or on inland waters only, including everything forming part of its machinery, tackle, equipment, cargo, stores or ballast. (bâtiment)

work

work includes any structure, device or thing, whether temporary or permanent, that is made by humans. It also includes the dumping of fill or the excavation of materials from the bed of any navigable water. (ouvrage)

Her Majesty

Marginal note:Binding on Her Majesty

2.1 This Act is binding on Her Majesty in right of Canada or a province.

Works

Marginal note:Prohibition

3 It is prohibited to construct, place, alter, repair, rebuild, remove or decommission a work in, on, over, under, through or across any navigable water that is listed in the schedule except in accordance with this Act or any other federal Act.

Marginal note:Opt in

• 4 (1) An owner of a work that is constructed or placed, or proposed to be constructed or placed, in, on, over, under, through or across any navigable water, other than any navigable water that is listed in the schedule, may request that this Act be made applicable to the work as if it were a work that is constructed or placed, or proposed to be constructed or placed, in, on, over, under, through or across any navigable water that is listed in the schedule.

• Marginal note:Request

  (2) The request shall be made to the Minister in the form and manner, and contain the information, that is specified by the Minister and shall be accompanied by the applicable fee.

• Marginal note:Deeming

  (3) The Minister may accept the request if he or she considers that it is justified in the circumstances, in which case the work is deemed, for the purposes of this Act, to be a work that is constructed or placed, or proposed to be constructed or placed, in, on, over, under, through or across any navigable water that is listed in the schedule, as the case may be.

Marginal note:Assessment by Minister

• 5 (1) An owner who proposes to construct, place, alter, repair, rebuild, remove or decommission a work — other than a designated work — in, on, over, under, through or across any navigable water that is listed in the schedule shall give notice of the proposal to the Minister.

• Marginal note:Notice

  (2) The notice shall be made in the form and manner, and contain the information, that is specified by the Minister and shall be accompanied by the applicable fee.

• Marginal note:Application

  (3) Subsection (1) also applies even if the construction, placement, alteration, repair, rebuilding, removal or decommissioning of the work has begun or is completed before the Minister is notified under subsection (1).

• Marginal note:Assessment — factors

  (4) In determining whether the work is likely to substantially interfere with navigation, the Minister shall, on receipt of the notice and the applicable fee, assess the proposal and in doing so shall take into account any relevant factor, including

  • (a) the characteristics of the navigable water in question;

  • (b) the safety of navigation;

  • (c) the current or anticipated navigation in that navigable water;

  • (d) the impact of the work on navigation in that navigable water, for example, as a result of its construction, placement, alteration, repair, rebuilding, removal, decommissioning, maintenance, operation or use; and

  • (e) the cumulative impact of the work on navigation in that navigable water.

• Marginal note:Related works

  (5) If the Minister is of the opinion that two or more works are related, the Minister may consider them to be a single work.

• Marginal note:Minister’s powers

  (6) In determining whether the work is likely to substantially interfere with navigation, the Minister may require from the owner

  • (a) any additional information that the Minister considers appropriate; and

  • (b) the deposit of any information specified by the Minister in the local land registry or land titles office or in any other place specified by the Minister and the publication of a notice containing any information specified by the Minister in the Canada Gazette and in any other publication specified by the Minister.

• Marginal note:Notice

  (7) The notice referred to in paragraph (6)(b) shall invite any interested person to provide written comments to the Minister within 30 days after its publication.

• Marginal note:Assessment results

  (8) On completion of the assessment of the proposal, the Minister shall determine whether or not the work is likely to substantially interfere with navigation and shall so inform the owner.

• Marginal note:Notice

  (9) If the work does not conform to the description that the owner provided in the notice referred to in subsection (1), the owner shall so notify the Minister. The Minister may then require that a new notice be given under that subsection.

5.1 [Repealed, 2012, c. 31, s. 318]

Marginal note:Approval

• 6 (1) An owner may construct, place, alter, repair, rebuild, remove or decommission a work in, on, over, under, through or across any navigable water that is listed in the schedule that the Minister has determined under section 5 is likely to substantially interfere with navigation only if the Minister has issued an approval for the work, which may be issued only if an application for the approval is submitted and the application is accompanied by the applicable fee.

• Marginal note:Application for approval

  (2) The application for an approval shall be made in the form and manner, and contain the information, specified by the Minister.

• Marginal note:Refusal

  (3) The Minister may refuse to issue an approval if he or she considers that the refusal is in the public interest, including by reason of the record of compliance of the owner under this Act.

• Marginal note:Terms and conditions

  (4) The Minister may attach any term or condition that he or she considers appropriate to an approval including a requirement that the owner give security in the form of a letter of credit, guarantee, suretyship or indemnity bond or insurance or any other form that is satisfactory to the Minister.

• Marginal note:Compliance with requirements

  (5) The owner shall comply with the approval and maintain, operate and use the work in accordance with the requirements under this Act.

• Marginal note:Contiguous area

  (6) The Minister may, in an approval, designate an area contiguous with a work that is necessary for the safety of persons and navigation.

• Marginal note:Transfer

  (7) An approval may only be transferred if written notice of the transfer is given to the Minister 30 days before the transfer takes place.

• Marginal note:Approval after construction or placement begins

  (8) The Minister may, if he or she considers that it is justified in the circumstances, approve the construction or placement of the work after its construction or placement begins or is completed.

Marginal note:Amendment of approval

• 7 (1) The Minister may amend an approval by amending or revoking any term or condition of the approval.

• Marginal note:Other amendment of approval

  (2) The Minister may otherwise amend the approval, including by adding terms and conditions, only if he or she is satisfied that

  • (a) the work that is the subject of the approval interferes more with navigation at the time in question than it did when the approval was issued;

  • (b) the work causes or is likely to cause a serious and imminent danger to navigation; or

  • (c) the amendment of the approval is in the public interest.

• Marginal note:Suspension or cancellation

  (3) The Minister may suspend or cancel an approval if he or she considers that

  • (a) the owner has not complied with the approval;

  • (b) the approval was obtained by a fraudulent or improper means or by the misrepresentation of a material fact;

  • (c) the owner has not paid a fine or penalty imposed under this Act;

  • (d) the owner has contravened this Act; or

  • (e) the suspension or cancellation is in the public interest, including by reason of the record of compliance of the owner under this Act.

Marginal note:Emergency

8 Even if the notice referred to in subsection 5(1) has not yet been given, the Minister may authorize the construction, placement, alteration, repair, rebuilding, removal or decommissioning of a work — other than a designated work — in, on, over, under, through or across any navigable water that is listed in the schedule if the Minister considers that such an authorization is necessary as a result of an emergency that has resulted in or may result in a danger to life or property, social disruption or a breakdown in the flow of essential goods, services or resources and that is caused by a real or imminent

• (a) fire, flood, drought, storm, earthquake or other natural phenomenon;

• (b) disease in human beings, animals or plants; or

• (c) accident or pollution incident.

Marginal note:Permitted works

• 9 (1) An owner may construct, place, alter, repair, rebuild, remove or decommission a work in, on, over, under, through or across any navigable water that is listed in the schedule that the Minister has determined under section 5 is not likely to substantially interfere with navigation only if the construction, placement, alteration, repair, rebuilding, removal or decommissioning is in accordance with the requirements under this Act.

• Marginal note:Terms and conditions

  (2) The Minister may impose any term or condition that he or she considers appropriate on the construction, placement, alteration, repair, rebuilding, removal, decommissioning, maintenance, operation, safety or use of the work including the designation of an area contiguous with a work that is necessary for the safety of persons and navigation.

• Marginal note:Security

  (3) In addition, the Minister may require, as a term or condition, that the owner give security in the form of a letter of credit, guarantee, suretyship or indemnity bond or insurance or any other form satisfactory to the Minister.

• Marginal note:Compliance with requirements

  (4) The owner shall comply with the terms and conditions imposed under subsections (2) and (3) and maintain, operate and use the work in accordance with the requirements under this Act.

• Marginal note:Amendment of terms and conditions

  (5) The Minister may amend or revoke any term or condition.

Marginal note:Designated works

• 10 (1) An owner may construct, place, alter, repair, rebuild, remove or decommission a designated work in, on, over, under, through or across any navigable water that is listed in the schedule only if the construction, placement, alteration, repair, rebuilding, removal or decommissioning is in accordance with the requirements under this Act.

• Marginal note:Maintenance, operation and use

  (2) The owner shall maintain, operate and use the designated work in accordance with the requirements under this Act.

Marginal note:Application

• 11 (1) This section applies to any work that is constructed, placed, altered, repaired, rebuilt, removed, decommissioned, maintained, operated or used contrary to the requirements under this Act.

• Marginal note:Minister’s powers

  (2) The Minister may

  • (a) order the owner of a work to remove or alter the work;

  • (b) during the construction, placement, alteration, repair, rebuilding, removal or decommissioning of a work, order any person to remove or alter the work or to do any other thing with respect to the work, including taking all measures necessary for the safety of navigation;

  • (c) if the owner or the person fails to comply with an order given under paragraph (a) or (b), cause any thing to be done with respect to the work, including the removal of the work, its destruction and the sale, donation or other disposal of the materials contained in the work; and

  • (d) order any person to refrain from proceeding with the construction, placement, alteration, repair, rebuilding, removal or decommissioning of a work.

• Marginal note:Costs of removal or disposal

  (3) The amount of the costs incurred by the Minister while acting under paragraph (2)(c), after deducting from that amount any sum that may be realized by sale or otherwise, is recoverable with costs in the name of Her Majesty from the owner.

11.1 [Repealed, 2012, c. 31, s. 318]

11.2 [Repealed, 2012, c. 31, s. 318]

Marginal note:Obligation to notify Minister

• 12 (1) An owner of a work in, on, over, under, through or across any navigable water that is listed in the schedule shall immediately notify the Minister if the work causes or is likely to cause a serious and imminent danger to navigation.

• Marginal note:Duty to take corrective measures

  (2) The owner shall, as soon as feasible, take all reasonable measures consistent with public safety and with the safety of navigation to prevent any serious and imminent danger to navigation that is caused or likely to be caused by the work or to counteract, mitigate or remedy any adverse effects that result from that danger to navigation or might reasonably be expected to result from it.

Marginal note:Removal of works, etc.

• 13 (1) The Minister may order the owner of a work constructed or placed in, on, over, under, through or across any navigable water that is listed in the schedule to repair, alter or remove it if he or she is satisfied that

  • (a) it interferes more with navigation at the time in question than it did when it was constructed or placed;

  • (b) it is causing or is likely to cause a serious and imminent danger to navigation; or

  • (c) its repair, alteration or removal is in the public interest.

• Marginal note:Works

  (2) The Minister may, if he or she is satisfied that it is necessary in the circumstances, order the owner to do any other thing with respect to the work.

• Marginal note:Owner’s expense

  (3) If the owner fails to comply with an order made under subsections (1) or (2), the Minister may cause the order to be carried out at the expense of the owner.

13.1 [Repealed, 2012, c. 31, s. 318]

Marginal note:Statutory Instruments Act

14 For greater certainty, approvals issued under section 6, terms and conditions imposed under subsection 9(2) or (3) and orders given under paragraph 11(2)(a), (b) or (d) or subsection 13(1) or (2) are not statutory instruments as defined in subsection 2(1) of the Statutory Instruments Act.

14.1 [Repealed, 2012, c. 31, s. 318]

Obstructions

Marginal note:Notice and indication of obstruction

• 15 (1) The person in charge of an obstruction in a navigable water — other than a minor water — listed in the schedule shall

  • (a) immediately give notice of the existence of the obstruction to the Minister, in the form and manner, and including the information, specified by the Minister; and

  • (b) place and, as long as the obstruction is present, maintain, by day, a sufficient signal and, by night, a sufficient light, to indicate the position of the obstruction.

• Marginal note:Failure to signal and light rectifiable by Minister

  (2) The Minister may cause the signal and light to be placed and maintained if the person in charge of the obstruction fails to do so.

• Marginal note:Removal of obstruction

  (3) Unless otherwise ordered by the Minister, the person in charge of the obstruction shall immediately begin its removal and shall carry on the removal diligently to completion.

• Marginal note:Failure to remove obstruction rectifiable by Minister

  (4) The Minister may cause the obstruction to be removed or destroyed if the person in charge of the obstruction fails to remove the obstruction.

Marginal note:Minister’s powers

• 16 (1) The Minister may order the person in charge of an obstruction or potential obstruction in a navigable water — other than a minor water — that is listed in the schedule to secure, remove or destroy it in the manner that the Minister considers appropriate if the situation has persisted for more than 24 hours.

• Marginal note:Property belonging to Her Majesty

  (2) The Minister may order any person to secure, remove or destroy a wreck, vessel, part of a vessel or any thing that is cast ashore, stranded or left on any property belonging to Her Majesty in right of Canada and impedes, for more than 24 hours, the use of that property as may be required for the public purposes of Canada.

• Marginal note:Failure to comply with order

  (3) If the person to whom an order is given under subsection (1) or (2) fails to comply with the order, the Minister may cause the order to be carried out.

• Marginal note:Not a statutory instrument

  (4) For greater certainty, an order given under this section is not a statutory instrument as defined in subsection 2(1) of the Statutory Instruments Act.

Marginal note:Moving and sale

• 17 (1) The Minister may cause an obstruction in a navigable water — other than in a minor water — that is listed in the schedule or the wreck, vessel, part of a vessel or thing referred to in subsection 16(2) to be moved to a place that the Minister considers appropriate and to be sold by auction or otherwise as the Minister considers appropriate. The Minister may apply the proceeds of the sale to make good the expenses incurred by the Minister in placing and maintaining any signal or light to indicate the position of the obstruction, wreck, vessel, part of a vessel or thing or in securing, removing, destroying or selling it.

• Marginal note:Surplus

  (2) The Minister shall pay over all or any portion of the surplus of the proceeds of the sale to the person in charge of the obstruction sold or to any other person that is entitled to the proceeds.

Marginal note:Costs constituting debt

• 18 (1) The amount of the costs incurred by the Minister while acting under subsection 15(2) or (4) or section 16 — whether or not a sale has been held under section 17 — constitutes a debt due to Her Majesty in right of Canada.

• Marginal note:Recovery by Her Majesty

  (2) Such debts are recoverable from

  • (a) the person in charge of the obstruction at the time the obstruction was occasioned;

  • (b) any person through whose act or fault or through the act or fault of whose servant the obstruction was occasioned or continued; or

  • (c) the person to whom the order referred to in subsection 16(2) is given.

• Marginal note:Application of moneys recovered

  (3) Any sum recovered under subsection (2) shall be paid into the Consolidated Revenue Fund.

Marginal note:Order to remove vessel left anchored

• 19 (1) If a vessel has been left anchored, moored or adrift in any navigable water — other than in any minor water — that is listed in the schedule so that, in the Minister’s opinion, it obstructs or is likely to obstruct navigation, the Minister may order the registered owner or other owner, managing owner, master, person in charge of the vessel or subsequent purchaser to secure it or remove it to a place that the Minister considers appropriate.

• Marginal note:Failure to comply with order

  (2) If a person to whom an order is given under subsection (1) fails to comply without delay with the order, the Minister may cause the vessel to be secured or removed to the place that the Minister considers appropriate, and the costs of securing or removing the vessel are recoverable from the person as a debt due to Her Majesty.

• Marginal note:Not a statutory instrument

  (3) For greater certainty, an order given under this section is not a statutory instrument within the meaning of the Statutory Instruments Act.

Marginal note:Abandoned vessel

• 20 (1) If any vessel or thing is wrecked, sunk, partially sunk, stranded, grounded, including on the shore, or abandoned in a navigable water, the Minister may, for a purpose that he or she specifies and subject to any conditions that he or she considers appropriate, authorize any person to take possession of all or part of the vessel or thing, for the benefit of that person or the public.

• Marginal note:Notification

  (2) The Minister must not authorize a person to take possession of all or part of the vessel or thing under subsection (1) unless the person has given 30 days’ notice, in the form and manner specified by the Minister, of their intention to do so

  • (a) to its owner; or

  • (b) to the public, if its owner is unknown or cannot be located.

• Marginal note:Consent not required

  (3) A person that is authorized to take possession of a vessel under subsection (1) is not required to obtain the consent of its owner to register the vessel or obtain a pleasure craft licence for it under the Canada Shipping Act, 2001.

• Marginal note:Statutory Instruments Act

  (4) For greater certainty, conditions imposed under subsection (1) are not statutory instruments as defined in subsection 2(1) of the Statutory Instruments Act.

Deposit and Dewatering

Marginal note:Throwing or depositing sawdust, etc., prohibited

21 No person shall throw or deposit or cause, suffer or permit to be thrown or deposited any sawdust, edgings, slabs, bark or like rubbish of any description whatever that is liable to interfere with navigation in any water, any part of which is navigable or that flows into any navigable water.

Marginal note:Throwing or depositing stone, etc., prohibited

22 No person shall throw or deposit or cause, suffer or permit to be thrown or deposited any stone, gravel, earth, cinders, ashes or other material or rubbish that is liable to sink to the bottom in any water, any part of which is navigable or flows into any navigable water, where there is not a minimum depth of 36 metres of water at all times, but nothing in this section shall be construed so as to permit the throwing or depositing of any substance in any part of a navigable water if it is prohibited by or under any other federal Act.

Marginal note:Dewatering

23 No person shall dewater any navigable water.

Marginal note:Exemption by order

24 The Governor in Council may, by order, exempt from any of sections 21 to 23, any rivers, streams or waters, in whole or in part, if it is shown to the satisfaction of the Governor in Council that the exemption would be in the public interest.

Marginal note:Powers of certain persons

25 Sections 21, 22 and 26 do not affect the legal powers, rights or duties of harbour masters, port wardens, the person responsible for the management of the St. Lawrence Seaway or a port authority established under the Canada Marine Act in respect of materials that, under those sections, are not allowed to be deposited in navigable waters.

Marginal note:Dumping places

26 The Minister may designate places in any navigable water that is not within the jurisdiction of any person referred to in section 25, where stone, gravel, earth, cinders, ashes or other material may be deposited even if the minimum depth of water at that place may be less than 36 metres, and the Minister may make rules respecting the deposit of the materials.

Agreements and Arrangements

Marginal note:Agreements and arrangements

27 The Minister may, with respect to his or her responsibilities under this Act, enter into agreements or arrangements for carrying out the purposes of this Act and authorize any person or organization with whom an agreement or arrangement is entered into to exercise the powers or perform the duties under this Act that are specified in the agreement or arrangement.

Marginal note:Agreement — cost recovery

• 27.1 (1) The Minister may enter into an agreement with any person or organization respecting any matter for which a regulation made under paragraph 28(1)(b) could prescribe a fee.

• Marginal note:Regulations — exemption

  (2) If both an agreement entered into under subsection (1) and a regulation made under paragraph 28(1)(b) relate to the same matter, the regulation does not apply to the person or organization that has entered into the agreement in respect of the matter for which payment is required under the agreement.

• Marginal note:Recovery

  (3) When the Minister enters into an undertaking with respect to a matter for which payment of an amount is required from the other party under the terms of an agreement entered into under subsection (1), the undertaking is deemed, for the purposes of recovering that amount, not to be a duty of the Minister under this Act.

• Marginal note:Debt due to Her Majesty

  (4) All amounts payable under an agreement entered into under subsection (1) and any interest payable on them constitute a debt due to Her Majesty in right of Canada.

• Marginal note:Spending

  (5) The Minister may spend the amounts received under an agreement entered into under subsection (1) in the fiscal year in which they are received or in the next fiscal year.

Regulations, Orders, Incorporation by Reference and Interim Orders

Regulations and Orders

Marginal note:Regulations by Governor in Council

• 28 (1) The Governor in Council may, for the purposes of this Act, make regulations

  • (a) respecting time limits for issuing approvals or for refusing to do so;

  • (b) prescribing fees, or the method of calculating fees, to be paid with the request referred to in section 4, to be paid for the assessment referred to in section 5, to be paid with the application referred to in section 6 and to be paid for any other service, right or privilege provided under this Act and respecting the payment of those fees;

  • (c) respecting the issuing, amendment, suspension and cancellation of approvals under section 6;

  • (d) respecting the water levels and water flow necessary for navigation;

  • (e) respecting the construction, placement, alteration, repair, rebuilding, removal, decommissioning, maintenance, operation, safety or use of works in, on, over, under, through or across any navigable waters — other than any minor waters — that are listed in the schedule;

  • (f) respecting the designation of areas contiguous with works that are necessary for the safety of persons and navigation;

  • (g) respecting notification requirements in the case of a change in owner of a work;

  • (h) excluding any thing from the definition obstruction in section 2;

  • (i) designating any provision of this Act, of the regulations or of an order as a provision whose contravention may be proceeded with as a violation in accordance with sections 39.1 to 39.26;

  • (j) establishing a penalty, or a range of penalties, in respect of each violation;

  • (k) establishing criteria to be considered in determining the amount of the penalty if a range of penalties is established;

  • (l) classifying each violation as a minor violation, a serious violation or a very serious violation;

  • (m) respecting the circumstances under which, the criteria by which and the manner in which the amount of a penalty may be increased or reduced in whole or in part;

  • (n) providing for a lesser amount that may be paid as complete satisfaction of a penalty if it is paid within the prescribed time and in the prescribed manner and providing, among other things, the circumstances in which the lesser amount may be set out in a notice of violation;

  • (o) prescribing anything that is to be prescribed under this Act; and

  • (p) for carrying out the purposes and provisions of this Act.

• Marginal note:Minister’s power

  (2) The Minister may make an order

  • (a) designating any works as minor works;

  • (b) designating, as minor waters, any of the navigable waters, in whole or in part, that are listed in the schedule;

  • (c) respecting the construction, placement, alteration, repair, rebuilding, removal, decommissioning, maintenance, operation, safety or use of works in, on, over, under, through or across any navigable waters — other than any minor waters — that are listed in the schedule; and

  • (d) respecting the construction, placement, alteration, repair, rebuilding, removal, decommissioning, maintenance, operation, safety or use of works in, on, over, under, through or across any minor waters.

• Marginal note:Classes

  (3) A regulation or order made under this section may establish classes and distinguish among those classes.

• Marginal note:Conflict

  (4) If there is a conflict between a regulation made under paragraph (1)(e) and an order made under paragraph (2)(c), the regulation prevails.

• Marginal note:Exemption from Statutory Instruments Act

  (5) An order made under subsection (2) is not a statutory instrument as defined in subsection 2(1) of the Statutory Instruments Act. However, it shall be published in the Canada Gazette within 23 days after the day on which it is made.

Marginal note:Addition to schedule

• 29 (1) The Minister may, by order, amend the schedule by adding to it a reference to a navigable water after considering the following factors:

  • (a) whether the navigable water is on a nautical chart issued officially by or on the authority of the Canadian Hydrographic Service;

  • (b) the physical characteristics of the navigable water;

  • (c) whether the navigable water connects to other navigable waters and, if so, how it connects to them;

  • (d) the safety of navigation in the navigable water;

  • (e) the past, current or anticipated navigation in the navigable water;

  • (f) whether there are Indigenous peoples of Canada who navigate, have navigated or will likely navigate the navigable water in order to exercise rights recognized and affirmed by section 35 of the Constitution Act, 1982; and

  • (g) the cumulative impact of works on navigation in the navigable water.

• Marginal note:Request — addition

  (2) Any person may request that the Minister add a reference to a navigable water to the schedule by submitting an application in the form and manner, and containing the information, specified by the Minister.

• Marginal note:Other amendment of schedule

  (3) The Minister may, by order, amend the schedule by amending a reference to a navigable water and the Governor in Council may, by regulation, amend the schedule by deleting a reference to a navigable water.

Incorporation by Reference

Marginal note:Incorporation by reference

• 30 (1) A regulation or order made under this Act may incorporate by reference any document, regardless of its source, either as it exists on a particular date or as it is amended from time to time.

• Marginal note:Accessibility

  (2) The Minister shall ensure that any document that is incorporated by reference in the regulation or order is accessible.

• Marginal note:Defence

  (3) A person is not liable to be found guilty of an offence for any contravention in respect of which a document that is incorporated by reference in the regulation or order is relevant unless, at the time of the alleged contravention, the document was accessible as required by subsection (2) or it was otherwise accessible to the person.

• Marginal note:No registration or publication

  (4) For greater certainty, a document that is incorporated by reference in the regulation or order is not required to be transmitted for registration or published in the Canada Gazette by reason only that it is incorporated by reference.

31 [Repealed, 2009, c. 2, s. 339]

Interim Orders

Marginal note:Interim orders

• 32 (1) The Minister may make an interim order that contains any provision that may be contained in a regulation made under this Act if the Minister believes that immediate action is required to deal with a significant risk, direct or indirect, to safety or security.

• Marginal note:Cessation of effect

  (2) An interim order has effect from the time that it is made but ceases to have effect on the earliest of

  • (a) 14 days after it is made, unless it is approved by the Governor in Council,

  • (b) the day on which it is repealed,

  • (c) the day on which a regulation made under this Act, that has the same effect as the interim order, comes into force, and

  • (d) one year after the interim order is made or any shorter period that may be specified in the interim order.

• Marginal note:Contravention of unpublished order

  (3) No person shall be convicted of an offence consisting of a contravention of an interim order that, at the time of the alleged contravention, had not been published in the Canada Gazette unless it is proved that, at the time of the alleged contravention, the person had been notified of the interim order or reasonable steps had been taken to bring the purport of the interim order to the notice of those persons likely to be affected by it.

• Marginal note:Exemption from Statutory Instruments Act

  (4) An interim order

  • (a) is exempt from the application of sections 3, 5 and 11 of the Statutory Instruments Act; and

  • (b) shall be published in the Canada Gazette within 23 days after it is made.

• Marginal note:Deeming

  (5) For the purpose of any provision of this Act other than this section, any reference to regulations made under this Act is deemed to include interim orders, and any reference to a regulation made under a specified provision of this Act is deemed to include a reference to the portion of an interim order containing any provision that may be contained in a regulation made under the specified provision.

• Marginal note:Tabling of order

  (6) A copy of each interim order must be tabled in each House of Parliament within 15 days after it is made.

• Marginal note:House not sitting

  (7) In order to comply with subsection (6), the interim order may be sent to the Clerk of the House if the House is not sitting.

Administration and Enforcement

Designation

Marginal note:Designation

33 The Minister may designate persons or classes of persons for the purposes of the administration and enforcement of this Act.

Powers

Marginal note:Authority to enter

• 34 (1) A designated person may, for a purpose related to verifying compliance with this Act, enter a place in which they have reasonable grounds to believe that any of the following items are located:

  • (a) a work or anything related to a work; and

  • (b) an obstruction or potential obstruction.

• Marginal note:Certification

  (2) On entering a place, the designated person shall, on request, produce to the person in charge of the place a certification in the form established by the Minister attesting to the designation.

• Marginal note:Powers

  (3) The designated person may, for the purposes referred to in subsection (1),

  • (a) examine anything that is found in the place;

  • (b) remove any document or other thing from the place for examination or, in the case of a document, copying;

  • (c) direct any person to put into operation or cease operating any work, vessel or other conveyance, machinery or equipment in the place;

  • (d) prohibit or limit access to the place for as long as specified;

  • (e) take photographs and make video recordings and sketches;

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

  • (g) 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

  • (h) use or cause to be used any copying equipment at the place to make copies of any books, records, electronic data or other documents.

• Marginal note:Entry — private property

  (4) The designated person, in carrying out their functions under this section, and a person accompanying them may enter on and pass through or over private property without being liable for doing so.

Marginal note:Duty to assist

35 The owner or person who is in charge of a place that is entered under subsection 34(1) and every person who is in the place shall

• (a) give a designated person who is carrying out their functions under section 34 all reasonable assistance; and

• (b) provide them with any information that they may reasonably require.

Marginal note:Warrant for dwelling-house

• 36 (1) If any place referred to in subsection 34(1) is a dwelling-house, the designated person may not enter it without the consent of the occupant except 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 the person who is named in it to enter a dwelling-house, subject to any conditions that may be 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 34(1);

  • (b) entry to the dwelling-house is necessary for a purpose related to verifying compliance with this Act; and

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

Prohibitions

Marginal note:False statements or information

• 37 (1) No person shall knowingly, orally or in writing, make a false or misleading statement or provide false or misleading information, in connection with any matter under this Act, to a designated person who is carrying out their functions under section 34.

• Marginal note:Obstruction

  (2) No person shall knowingly obstruct or hinder a designated person who is carrying out their functions under section 34.

Injunction

Marginal note:Injunction

• 38 (1) If, on the application of the Minister, it appears to a court of competent jurisdiction that a person has done, is about to do or is likely to do any act constituting or directed toward the commission of an offence or a violation under this Act, the court may issue an injunction ordering a person named in the application

  • (a) to refrain from doing an act that, in the opinion of the court, may constitute or be directed toward the commission of the offence or the violation; or

  • (b) to do an act that, in the opinion of the court, may prevent the commission of the offence or the violation.

• Marginal note:Notice

  (2) No injunction may be issued under subsection (1) unless 48 hours’ notice is served on the party or parties named in the application or the urgency of the situation is such that service would not be in the public interest.

Immunity

Marginal note:Not personally liable

• 39 (1) Servants of the Crown, as those terms are defined in section 2 of the Crown Liability and Proceedings Act, are not personally liable for anything they do or omit to do in good faith under this Act.

• Marginal note:Crown not relieved

  (2) Subsection (1) does not, by reason of section 10 of the Crown Liability and Proceedings Act, relieve the Crown of liability for a tort or extracontractual civil liability to which the Crown would otherwise be subject.

Administrative Monetary Penalties

Violations

Marginal note:Commission of violation

• 39.1 (1) Every person who contravenes a provision designated under paragraph 28(1)(i) commits a violation and is liable to a penalty established in accordance with the regulations.

• Marginal note:Purpose of penalty

  (2) The purpose of a penalty is to promote compliance with this Act and not to punish.

• Marginal note:Maximum penalty

  (3) The maximum penalty for a violation is $5,000, in the case of an individual, and $40,000 in any other case.

Proceedings

Marginal note:Notice of violation

• 39.11 (1) A designated person may issue a notice of violation and cause it to be provided to a person if the designated person has reasonable grounds to believe that the person has committed a violation.

• Marginal note:Contents of notice

  (2) The notice of violation shall

  • (a) name the person believed to have committed the violation;

  • (b) identify the acts or omissions that constitute the alleged violation;

  • (c) set out the penalty for the violation that the person is liable to pay;

  • (d) set out the particulars concerning the time and manner of payment; and

  • (e) set out a lesser amount that may be paid as complete satisfaction of the penalty if it is paid within the prescribed time and in the prescribed manner that are specified in the notice.

• Marginal note:Summary of rights

  (3) A notice of violation shall summarize, in plain language, the rights and obligations under this section and sections 39.12 to 39.23 of the person to whom it is provided, including the right to request a review of the acts or omissions that constitute the alleged violation or of the amount of the penalty and the procedure for requesting the review.

• Marginal note:Short-form descriptions

  (4) The Minister may establish a short-form description of each violation to be used in notices of violation.

Penalties

Marginal note:Effect of payment

• 39.12 (1) If the person who is named in a notice of violation pays, within the prescribed time and in the prescribed manner that are specified in the notice, the amount of the penalty — or, if applicable, the lesser amount that may be paid as complete satisfaction of the penalty — set out in the notice,

  • (a) the person is deemed to have committed the violation to which the amount paid relates;

  • (b) the Minister shall accept the amount paid as complete satisfaction of the penalty; and

  • (c) the proceedings commenced in respect of the violation under section 39.11 are ended.

• Marginal note:Alternatives to payment

  (2) Instead of paying the penalty or, if applicable, the lesser amount that may be paid as complete satisfaction of the penalty, the person who is named in the notice may, within the prescribed time and in the prescribed manner that are specified in the notice, request a review by the Tribunal of the acts or omissions that constitute the alleged violation or of the amount of the penalty, as the case may be.

• Marginal note:Deeming

  (3) If the person who is named in the notice does not pay the penalty or, if applicable, the lesser amount that may be paid as complete satisfaction of the penalty, within the prescribed time and in the prescribed manner and does not exercise the right referred to in subsection (2) within the prescribed time and in the prescribed manner, the person is deemed to have committed the violation identified in the notice.

Review by Tribunal

Marginal note:Review — violation

• 39.13 (1) After completing a review requested under subsection 39.12(2) with respect to the acts or omissions that constitute the alleged violation identified in the notice of violation, the Tribunal shall determine whether the person who is named in the notice committed the violation and, if the Tribunal determines that the person did so but considers that the amount of the penalty for the violation was not established in accordance with the regulations, the Tribunal shall correct that amount and cause the person to be provided with a notice of the Tribunal’s decision.

• Marginal note:Review — penalty

  (2) After completing a review requested under subsection 39.12(2) with respect to the amount of the penalty set out in the notice of violation, the Tribunal shall determine whether the amount of the penalty was established in accordance with the regulations and, if the Tribunal determines that it was not, the Tribunal shall correct that amount and cause the person to be provided with a notice of the Tribunal’s decision.

• Marginal note:Payment

  (3) The person who is provided with a notice of the Tribunal’s decision is liable to pay the amount of the penalty that is set out in it within the prescribed time and in the prescribed manner that are specified in the notice.

• Marginal note:Effect of payment

  (4) If the person pays the amount of the penalty that is set out in the notice of the Tribunal’s decision within the prescribed time and in the prescribed manner that are specified in the notice,

  • (a) the Tribunal shall accept the amount as complete satisfaction of the penalty; and

  • (b) the proceedings commenced in respect of the violation under section 39.11 are ended.

Recovery of Debts

Marginal note:Debts to Her Majesty

• 39.14 (1) The following amounts are debts due to Her Majesty in right of Canada that may be recovered in the Federal Court:

  • (a) the amount of a penalty set out in a notice of violation, beginning on the day on which it is required to be paid in accordance with the notice, unless a request is made to have the Tribunal review the acts or omissions that constitute the violation or the amount of the penalty, as the case may be;

  • (b) the amount of a penalty set out in the notice of the Tribunal’s decision made under subsection 39.13(1) or (2), beginning on the day specified in the notice; and

  • (c) the amount of any reasonable expenses incurred in attempting to recover an amount referred to in paragraph (a) or (b).

• Marginal note:Limitation period or prescription

  (2) Proceedings to recover such a debt may be commenced no later than five years after the debt becomes payable.

• Marginal note:Debt final

  (3) The debt is final and not subject to review or to be restrained, prohibited, removed, set aside or otherwise dealt with except to the extent and in the manner provided by sections 39.12 and 39.13.

Marginal note:Certificate of default

• 39.15 (1) The Minister may issue a certificate certifying the unpaid amount of any debt referred to in subsection 39.14(1).

• Marginal note:Effect of registration

  (2) Registration of the certificate in the Federal Court has the same effect as a judgment of that court for a debt of the amount specified in the certificate and all related registration costs.

Rules of Law About Violations

Marginal note:Violations not offences

39.16 For greater certainty, a violation is not an offence and, accordingly, section 126 of the Criminal Code does not apply.

Marginal note:Due diligence defence

• 39.17 (1) A person shall not be found to be liable for a violation if they establish that they exercised due diligence to prevent the commission of the violation.

• Marginal note:Common law principles

  (2) Every rule and principle of the common law that renders any circumstance a justification or an excuse in relation to a charge for an offence under this Act applies in respect of a violation to the extent that it is not inconsistent with this Act.

Marginal note:Burden of proof

39.18 If the Tribunal is to determine whether a person who is named in a notice of violation committed any violation that is identified in it, the Tribunal shall do so on a balance of probabilities.

Marginal note:Offences by corporate officers, etc.

39.19 If a person other than an individual commits a violation under this Act, any of the person’s officers, directors and agents or mandataries who directed, authorized, assented to or acquiesced or participated in the commission of the violation is a party to and liable for the violation, whether or not the person who actually committed it is proceeded against in accordance with this Act.

Marginal note:Vicarious liability — acts of employees, agents and mandataries

39.2 A person is liable for a violation that is committed by that person’s employee or agent or mandatary who is acting in the course of the employee’s employment or within the scope of the agent or mandatary’s authority, whether or not the employee or agent or mandatary who actually committed the violation is identified or proceeded against in accordance with this Act.

Marginal note:Continuing violation

39.21 A violation that is continued on more than one day constitutes a separate violation in respect of each day during which it is continued.

Other Provisions

Marginal note:Evidence

39.22 In any proceeding for a violation, a notice of violation purporting to be issued under this Act is admissible in evidence without proof of the signature or official character of the person appearing to have signed it.

Marginal note:Limitation period or prescription

39.23 Proceedings in respect of a violation may be commenced no later than six months after the day on which a designated person becomes aware of the acts or omissions that constitute the alleged violation.

Marginal note:Certification by Minister

39.24 A document appearing to have been issued by the Minister and certifying the day on which the acts or omissions that constitute the alleged violation became known to a designated person is admissible in evidence without proof of the signature or official character of the person appearing to have signed it and, in the absence of evidence to the contrary, is proof that the designated person became aware of the acts or omissions on that day.

Marginal note:Information may be made public

39.25 The Minister may make public the name and business address of a person who is deemed to have committed a violation or who was determined to have committed a violation, the acts or omissions and provisions at issue, and the amount payable as a result, if any.

Marginal note:How act or omission may be proceeded with

39.26 If an act or omission may be proceeded with either as a violation or as an offence, proceeding in one manner precludes proceeding in the other.

Offences and Punishment

Marginal note:Offence

• 40 (1) Every person is guilty of an offence and is liable on summary conviction to imprisonment for a term of not more than six months or to a fine of not more than $50,000, or to both, if the person

  • (a) contravenes section 3;

  • (b) does not give the notice required under subsection 5(1) or (9) or 12(1) or paragraph 15(1)(a);

  • (c) contravenes subsection 6(5), 9(4), 10(2) or 15(3), section 21, 22, 23 or 35 or subsection 37(1) or (2);

  • (d) contravenes an order given under paragraph 11(2)(a), (b) or (d) or subsection 13(1) or (2), 16(1) or (2) or 19(1);

  • (e) does not take the measures required under subsection 12(2) or paragraph 15(1)(b);

  • (f) contravenes a regulation or order made under section 28; or

  • (g) contravenes an interim order made under section 32.

• Marginal note:Vessel liable for fine

  (2) If any materials referred to in section 22 are thrown from or deposited by a vessel and a conviction is obtained for that activity, the vessel is liable for any fine that is imposed and may be detained by any port warden or the chief officer of customs at any port until the fine is paid.

• Marginal note:Continuing offence

  (3) If the offence under subsection (1) is committed or continued on more than one day, the person who commits it is liable to be convicted for a separate offence for each day on which it is committed or continued.

• Marginal note:Officers, etc., of corporations

  (4) If a corporation commits an offence under this Act, any officer, director or agent or mandatary of the corporation who directed, authorized, assented to, acquiesced in or participated in the commission of the offence is a party to, and guilty of, the offence and liable on conviction to the punishment provided for the offence, whether or not the corporation has been prosecuted or convicted.

• Marginal note:Duty to ensure compliance

  (5) Every director and officer of a corporation shall take all reasonable care to ensure that the corporation complies with this Act.

Marginal note:Review of Act

• 41 (1) A review of the provisions and the operation of this Act must be completed by the Minister before the end of the fifth year after the day on which this section comes into force.

• Marginal note:Tabling of report

  (2) The Minister shall cause a report of the review to be laid before each House of Parliament on any of the first 15 days on which that House is sitting after the report has been completed.