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Bill C-68

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First Session, Forty-second Parliament,
64-65-66-67 Elizabeth II, 2015-2016-2017-2018
HOUSE OF COMMONS OF CANADA
BILL C-68
An Act to amend the Fisheries Act and other Acts in consequence
Reprinted as amended by the Standing Committee on Fisheries and Oceans as a working copy for the use of the House of Commons at Report Stage and as reported to the House on May 30,2018
MINISTER OF FISHERIES, OCEANS AND THE CANADIAN COAST GUARD
90864


RECOMMENDATION
Her Excellency the Governor General recommends to the House of Commons the appropriation of public revenue under the circumstances, in the manner and for the purposes set out in a measure entitled “An Act to amend the Fisheries Act and other Acts in consequence”.
SUMMARY
This enactment amends the Fisheries Act to, among other things,
(a)require that, when making a decision under that Act, the Minister shall consider any adverse effects that the decision may have on the rights of the Indigenous peoples of Canada recognized and affirmed by section 35 of the Constitution Act, 1982, include provisions respecting the consideration and protection of Indigenous knowledge of the Indigenous peoples of Canada, and authorize the making of agreements with Indigenous governing bodies to further the purpose of the Fisheries Act;
(b)add a purpose clause and considerations for decision-making under that Act;
(c)empower the Minister to establish advisory panels and to set fees, including for the provision of regulatory processes;
(d)provide measures for the protection of fish and fish habitat with respect to works, undertakings or activities that may result in the death of fish or the harmful alteration, disruption or destruction of fish habitat, including in ecologically significant areas, as well as measures relating to the modernization of the regulatory framework such as authorization of projects, establishment of standards and codes of practice, creation of fish habitat banks by a proponent of a project and establishment of a public registry;
(e)empower the Governor in Council to make new regulations, including regulations respecting the rebuilding of fish stocks and importation of fish;
(f)empower the Minister to make regulations for the purposes of the conservation and protection of marine biodiversity;
(g)empower the Minister to make fisheries management orders prohibiting or limiting fishing for a period of 45 days to address a threat to the proper management and control of fisheries and the conservation and protection of fish;
(h)prohibit the fishing of a cetacean with the intent to take it into captivity, unless authorized by the Minister, including when the cetacean is injured, in distress or in need of care; and
(i)update and strengthen enforcement powers, as well as establish an alternative measures agreements regime; and
(j)provide for the implementation of various measures relating to the maintenance or rebuilding of fish stocks.
The enactment also makes consequential amendments to other Acts.
Available on the House of Commons website at the following address:
www.ourcommons.ca


1st Session, 42nd Parliament,
64-65-66-67 Elizabeth II, 2015-2016-2017-2018
HOUSE OF COMMONS OF CANADA
BILL C-68
An Act to amend the Fisheries Act and other Acts in consequence
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
R.‍S.‍, c. F-14

Fisheries Act

2012, c. 19, s. 133(3), c. 31, s. 175
1(1)The definitions commercial, Indigenous and recreational in subsection 2(1) of the Fisheries Act are repealed.
2012, c. 19, s. 133(3), c. 31, s. 175
(2)The definition Aboriginal in subsection 2(1) of the English version of the Act is repealed.
R.‍S.‍, c. 35 (1st supp.‍), s. 5
(3)The definition pêcherie in subsection 2(1) of the French version of the Act is repealed.
2012, c. 19, s. 133(2)
(4)The definition analyst in subsection 2(1) of the Act is replaced by the following:
analyst means a person who is designated under subsection 56.1(1) to perform the functions of an analyst; (analyste)
2012, c. 19, s. 133(3)
(5)The definition fish habitat in subsection 2(1) of the Act is replaced by the following:
fish habitat means water frequented by fish and any other areas on which fish depend directly or indirectly to carry out their life processes, including spawning grounds and nursery, rearing, food supply and migration areas; (habitat)
R.‍S.‍, c. 35 (1st Supp.‍), s. 5
(6)The definition fishery in subsection 2(1) of the English version of the Act is replaced by the following:
fishery with respect to any fish, includes, 
(a)any of its species, populations, assemblages and stocks, whether the fish is fished or not,
(b)any place where fishing may be carried on,
(c)any period during which fishing may be carried on,
(d)any method of fishing used, and
(e)any type of fishing gear or equipment or fishing vessel used; (pêche)
2012, c. 19, s. 133(3), c. 31, s. 175
(7)The definitions autochtone and pêche in subsection 2(1) of the French version of the Act are replaced by the following:
autochtone Se dit, à l’égard de la pêche pratiquée par une organisation autochtone ou ses membres, de celle pratiquée à des fins de consommation personnelle, à des fins sociales ou cérémoniales ou à des fins prévues dans un accord sur des revendications territoriales conclu avec l’organisation autochtone.‍ (Indigenous)
pêche S’entend de l’action de capturer ou de tenter de capturer du poisson par tout moyen et, en outre, notamment des espèces, populations, assemblages et stocks de poissons pêchés ou non, du lieu ou de la période où il est permis de pêcher ou de la méthode ou des types d’engins, d’équipements ou de bateaux de pêche utilisés. (fishery et fishing)
(8)Subsection 2(1) of the Act is amended by adding the following in alphabetical order:
Indigenous governing body means a council, government or other entity that is authorized to act on behalf of an Indigenous group, community or people that holds rights recognized and affirmed by section 35 of the Constitution Act, 1982; (corps dirigeant autochtone)
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)
laws includes the by-laws made by an Indigenous governing body; (lois)
(9)Subsection 2(1) of the English version of the Act is amended by adding the following in alphabetical order:
Indigenous, in relation to a fishery, means that fish is harvested by an Indigenous organization or any of its members for the purpose of using the fish as food, for social or ceremonial purposes or for purposes set out in a land claims agreement entered into with the Indigenous organization; (autochtone)
2012, c. 19, s. 133(4)
(10)Subsection 2(2) of the Act is replaced by the following:
Deeming — habitat
(2)For the purposes of this Act, the quantity, timing and quality of the water flow that are necessary to sustain the freshwater or estuarine ecosystems of a fish habitat are deemed to be a fish habitat.
R.‍S.‍, c. 35 (1st Supp.‍), s. 2
2The heading “Purposes” after section 2 of the English version of the Act is replaced by the following:
Purpose
3The Act is amended by adding the following after the heading “Purposes” after section 2:
Purpose of Act
2.1The purpose of this Act is to provide a framework for
(a)the proper management and control of fisheries; and
(b)the conservation and protection of fish and fish habitat, including by preventing pollution.
Territorial Application
Application
2.2(1)This Act applies in Canada, and also to
(a)Canadian fisheries waters; and
(b)with respect to a sedentary species, any portion of the continental shelf of Canada that is beyond the limits of Canadian fisheries waters.
Definition of sedentary species
(2)For the purpose of paragraph (1)‍(b), sedentary species means any organism that, at the harvestable stage, either is immobile on or under the seabed or is unable to move except by remaining in constant physical contact with the seabed or subsoil.
Indigenous Peoples of Canada
Rights of Indigenous peoples of Canada
2.3For greater certainty, nothing in this Act is to be construed as abrogating or derogating from the protection provided for the rights of the Indigenous peoples of Canada by the recognition and affirmation of those rights in section 35 of the Constitution Act, 1982.
Duty of Minister
2.4When making a decision under this Act, the Minister shall consider any adverse effects that the decision may have on the rights of the Indigenous peoples of Canada recognized and affirmed by section 35 of the Constitution Act, 1982.
Considerations
Considerations for decision making
2.5Except as otherwise provided in this Act, when making a decision under this Act, the Minister may consider, among other things,
(a)the application of a precautionary approach and an ecosystem approach;
(b)the sustainability of fisheries;
(c)scientific information;
(d)Indigenous knowledge of the Indigenous peoples of Canada that has been provided to the Minister;
(e)community knowledge;
(f)cooperation with any government of a province, any Indigenous governing body and any body — including a co-management body — established under a land claims agreement;
(g)social, economic and cultural factors in the management of fisheries;
(h)the preservation or promotion of the independence of licence holders in commercial inshore fisheries; and
(i)the intersection of sex and gender with other identity factors.
4The Act is amended by adding the following after section 4:
Advisory Panels
Minister may establish advisory panels
4.01(1)The Minister may, in order to carry out the purpose of this Act, establish advisory panels and provide for their membership, functions and operation.
Remuneration of members
(2)Members of an advisory panel established under subsection (1) are to be paid any amount that is fixed by the Governor in Council for each day that they attend any of the advisory panel’s meetings.
Expenses
(3)The members are also entitled to be reimbursed, in accordance with Treasury Board directives, for the travel, living and other expenses incurred in connection with their work for the panel while absent from their ordinary place of work, in the case of full-time members, or from their ordinary place of residence, in the case of part-time members.
2012, c. 19, s. 134
5(1)The portion of subsection 4.1(1) of the Act before paragraph (a) is replaced by the following:
Minister may enter into agreements
4.1(1)The Minister may enter into an agreement with any government of a province, any Indigenous governing body and any body — including a co-management body — established under a land claims agreement, to further the purpose of this Act, including an agreement with respect to one or more of the following:
2012, c. 19, s. 134
(2)Paragraph 4.1(2)‍(h) of the Act is replaced by the following:
(h)the circumstances and manner in which the government of the province or the Indigenous governing body is to provide information on the administration and enforcement of a provision of the laws of the province or the Indigenous governing body that the agreement provides is equivalent in effect to a provision of the regulations.
2012, c. 19, s. 134
(3)Subsection 4.1(4) of the Act is replaced by the following:
Agreements to be published
(4)Subject to subsections (5) to (8), the Minister shall publish an agreement in the manner that he or she considers appropriate.
Publication of negotiated agreement
(5)Before any agreement that is negotiated for the purposes of section 4.2 is entered into, the Minister shall publish the agreement, or give notice of its availability, in Part I of the Canada Gazette and in any other manner that he or she considers appropriate.
Comments
(6)Within 60 days after the publication of an agreement or the giving of notice of its availability, any person may file comments with the Minister.
Publication by Minister of results
(7)After the end of the 60-day period, the Minister shall publish in Part I of the Canada Gazette and in any other manner that he or she considers appropriate a report that summarizes how any comments were dealt with or a notice of the availability of that report.
Publication of final agreements
(8)The Minister shall publish any final agreement, or give notice of its availability, in Part I of the Canada Gazette and in any other manner that he or she considers appropriate.
2012, c. 19, s. 134
6Subsections 4.2(1) to (4) of the Act are replaced by the following:
Declaration of equivalent provisions
4.2(1)If an agreement entered into under section 4.1 provides that there is in force a provision of the laws of the province or the Indigenous governing body that is equivalent in effect to a provision of the regulations, the Governor in Council may, by order, declare that certain provisions of this Act or of the regulations do not apply in the province or the territory governed by the Indigenous governing body, as the case may be, with respect to the subject matter of the provision of the laws of the province or the Indigenous governing body.
Non-application of provisions
(2)Except with respect to Her Majesty in right of Canada, the provisions of this Act or of the regulations that are set out in the order do not apply within the province or the territory governed by the Indigenous governing body, as the case may be, with respect to the subject matter of the provision of the laws of the province or the Indigenous governing body.
Revocation
(3)The Governor in Council may revoke the order if the Governor in Council is satisfied that the provision of the laws of the province or the Indigenous governing body, as the case may be, is no longer equivalent in effect to the provision of the regulations or is not being adequately administered or enforced.
Notice
(4)The Governor in Council may revoke the order only if the Minister has given notice of the proposed revocation to the government of the province or to the Indigenous governing body, as the case may be.
7The Act is amended by adding the following after section 5:
Exercise of powers
5.1Every power that may be exercised in Canada by a fishery officer or fishery guardian under this Act may be exercised anywhere this Act applies.
2012, c.‍19, s. 135
8Section 6 of the Act and the heading before it are repealed.
2012, c. 19, s. 135
9Section 6.1 of the Act is replaced by the following:
Fish Stocks
Measures to maintain fish stocks
6.1(1)In the management of fisheries, the Minister shall implement measures to maintain prescribed major fish stocks at or above the level necessary to promote the sustainability of the stock, taking into account the biol­ogy of the fish and the environmental conditions affecting the stock.
Limit reference point
(2)If the Minister is of the opinion that it is not feasible or appropriate, for cultural reasons or because of adverse socio-economic impacts, to implement the measures referred to in subsection (1), the Minister shall set a limit reference point and implement measures to maintain the fish stock at or above that point, taking into account the biology of the fish and the environmental conditions affecting the stock.
Publication of decision
(3)If the Minister sets a limit reference point in accordance with subsection (2), he or she shall publish the decision to do so, within a reasonable time and with reasons, on the Internet site of the Department of Fisheries and Oceans.
Plan to rebuild
6.2(1)If a prescribed major fish stock has declined to or below its limit reference point, the Minister shall develop a plan to rebuild the stock to or above that point in the affected area, taking into account the biology of the fish and the environmental conditions affecting the stock, and implement it within the period provided for in the plan.
Amendment
(2)If the Minister is of the opinion that such a plan could result in adverse socio-economic or cultural impacts, the Minister may amend the plan or the implementation period in order to mitigate those impacts while minimizing further decline of the fish stock.
Endangered or threatened species
(3)Subsection (1) does not apply if the affected fish stock is an endangered species or a threatened species under the Species at Risk Act or if the implementation of international management measures by Canada does not permit it.
Publication of decision
(4)If the Minister amends a plan in accordance with subsection (2) or decides not to make one in accordance with subsection (3), he or she shall publish the decision to do so, with reasons, on the Internet site of the Department of Fisheries and Oceans.
Restoration measures
(5)In the management of fisheries, if the Minister is of the opinion that the loss or degradation of the stock’s fish habitat has contributed to the stock’s decline, he or she shall take into account whether there are measures in place aimed at restoring that fish habitat.
Regulations
6.3The major fish stocks referred to in sections 6.1 and 6.2 are to be prescribed by regulations.
10(1)Subsection 7(1) of the French version of the Act is replaced by the following:
Baux, permis et licences de pêche
7(1)En l’absence d’exclusivité du droit de pêche conférée par la loi, le ministre peut, à discrétion, délivrer des baux et permis de pêche ainsi que des licences d’exploitation de pêches — ou en permettre la délivrance —, indépendamment du lieu de l’exploitation ou de l’activité de pêche.
(2)Subsection 7(2) of the Act is replaced by the following:
Default of payment of fine
(1.1)The Minister may refuse to issue a lease or licence for fisheries or fishing to a person, if, among other things, they are in default of payment of a fine in relation to a contravention of the Act and the proceeds of the fine belong to Her Majesty in Right of Canada or of a province or to any other person or entity.
Restriction
(2)Except as otherwise provided in this Act or regulations made under it, leases or licences for any term of more than nine years shall be issued only under the authority of the Governor in Council.
R.‍S.‍, c. 31 (1st Supp.‍), s. 95
11Sections 8 and 9 of the Act are replaced by the following:
Fees
8(1)Except if fees are prescribed in this Act, the Governor in Council may, by regulation and on the recommendation of the Minister, prescribe the fees that are to be charged for fishery or fishing licences and for fishing quotas.
Periodic adjustment
(2)For greater certainty, the regulations made under subsection (1) may provide for periodic adjustment of the fees referred to in that subsection.
Suspension or cancellation
9(1)Subject to subsection (2), the Minister may suspend or cancel any lease or licence issued under the authority of this Act, if
(a)he or she determines that any provision of that lease or licence was not complied with;
(b)he or she determines that the lease or licence holder has, with respect to the lease or licence, entered into an agreement that contravenes any provision of this Act or of the regulations; or
(c)the lease or licence holder is in default of payment of a fine in relation to a contravention of this Act and the proceeds of the fine belong to Her Majesty in right of Canada or of a province or to any other person or entity.
Restriction
(2)The Minister may suspend or cancel a lease or licence under paragraph (1)‍(a) or (b) only if no proceedings under this Act have been commenced with respect to the non-compliance or contravention referred to in those paragraphs, as the case may be.
Fisheries Management Orders
Powers of Minister
9.1(1)The Minister may, if he or she is of the opinion that prompt measures are required to address a threat to the proper management and control of fisheries and the conservation and protection of fish, make a fisheries management order with respect to any aspect of fisheries in any area of Canadian fisheries waters specified in the order
(a)prohibiting fishing of one or more species, populations, assemblages or stocks of fish;
(b)prohibiting any type of fishing gear or equipment or fishing vessel from being used;
(c)limiting the fishing of any specified size, weight or quantity of any species, populations, assemblages or stocks of fish; and
(d)imposing any requirements with respect to fishing.
Conditions
(2)The Minister may impose any conditions that he or she considers appropriate in the order.
Application of order
(3)The fisheries management order may provide that it applies only to
(a)a particular class of persons, including
(i)persons who fish using a particular method or a particular type of gear or equipment, and
(ii)persons who use fishing vessels of a particular class; or
(b)holders of a particular class of licence.
Duty to comply
9.2Every person or holder to whom a fisheries management order applies shall comply with it.
Duration
9.3(1)A fisheries management order issued under section 9.1 shall be in effect for the term specified in the order, which shall not exceed 45 days from the day on which the order is issued.
Renewal of order
(2)If the Minister is of the opinion that prompt measures continue to be required to address the threat referred to in subsection 9.1(1), he or she may renew the order for a term that does not exceed 45 days from the day on which it is issued.
Amendment of order
9.4(1)The Minister may amend a fisheries management order, other than its term, if he or she is of the opinion that the measures specified in the order are inadequate to address the threat referred to in subsection 9.1(1).
Revocation of order
(2)If the Minister is of the opinion that the measures specified in the order are no longer necessary to address the threat or if the threat no longer exists, he or she may revoke the order.
Notice
9.5(1)Notice of a fisheries management order shall be given to the persons or holders to whom it applies, in the prescribed manner or, if there is no prescribed manner, using a method provided under section 7 of the Fishery (General) Regulations, with any necessary modifications.
If notice not given
(2)If notice is not given, then the contravention of a fisheries management order is not an offence under this Act unless, at the time of the contravention, reasonable steps had been taken to bring the substance of the order to the notice of the persons or holders to whom it applies.
Inconsistency
9.6If there is an inconsistency between a fisheries management order and any regulations made under this Act, orders issued under those regulations or conditions of any lease or licence issued under this Act, the fisheries management order prevails to the extent of the inconsistency.
Statutory Instruments Act
9.7Orders made under section 9.1 are not statutory instruments for the purposes of the Statutory Instruments Act.
12The Act is amended by adding the following after section 10:
Fees
Fees for services or use of facilities
11(1)The Minister may fix, by regulation, the fees to be paid for a service or the use of a facility provided under this Act by him or her, the Department of Fisheries and Oceans or any board or agency of the Government of Canada for which he or she has responsibility.
Amount not to exceed cost
(2)Fees that are fixed under subsection (1) shall not exceed the cost to Her Majesty in right of Canada of providing the service or the use of the facility.
Fees for products or cost recovery
12(1)The Minister may fix, by regulation, fees in respect of the products provided or the recovery, in whole or in part, of costs that are incurred in relation to the administration of this Act by him or her, the Department of Fisheries and Oceans or any board or agency of the Government of Canada for which he or she has responsibility.
Amount not to exceed cost
(2)Fees in respect of the product or recovery of costs that are fixed under subsection (1) shall not exceed the cost to Her Majesty in right of Canada of providing the product or recovering of costs.
Fees for rights and privileges
13Subject to section 8, the Minister may fix, by regulation, fees payable in respect of a conferral, by means of a permit or authorization, of a right or privilege provided under this Act.
Fees for providing regulatory processes
14(1)The Minister may fix, by regulation, fees in respect of the provision of regulatory processes under this Act by him or her, the Department of Fisheries and Oceans or any board or agency of the Government of Canada for which he or she has responsibility.
Amount
(2)Fees that are fixed under subsection (1) shall in the aggregate not exceed an amount sufficient to compensate Her Majesty in right of Canada for any reasonable expenses incurred by Her Majesty for the purpose of providing regulatory processes under this Act.
Periodic adjustment
15Regulations made under any of sections 11 to 14 may provide for the periodic adjustment of the fees referred to in those sections.
Proceeds of fees — provinces
16Any fees charged in relation to the issuance of a licence by an employee of a provincial government belong to Her Majesty in right of that province.
2012, c. 19, s. 136, c.‍31, s.‍176
13Section 20 of the Act and the heading before it are replaced by the following:
Prevention of the Escape of Fish
14Section 23 of the French version of the Act is replaced by the following:
Défense de pêcher dans les zones louées à d’autres
23Il est interdit de pêcher ou de tuer du poisson dans les eaux, sur la grève ou dans une pêche mentionnées dans un bail ou une licence, ou d’y mouiller ou utiliser quelque engin ou appareil de pêche, sans la permission de l’occupant selon le bail ou la licence alors en vigueur; il est également interdit de troubler ou d’endommager pareille pêche.
15Section 24 of the Act is replaced by the following:
Taking cetaceans into captivity
23.1(1)Subject to subsection (2), no one shall fish for a cetacean with the intent to take it into captivity.
Exception
(2)The Minister may, subject to any conditions that he or she may specify, authorize a person to fish for a cetacean with the intent to take it into captivity if he or she is of the opinion that the circumstances so require, including when the cetacean is injured or in distress or is in need of care.
Seines, nets, etc.‍, not to obstruct navigation
24Seines, nets or other fishing apparatus shall not be set or used in such a manner or in such a place that they or any equipment that is attached to any of them obstructs the navigation of boats and vessels and no boats or vessels shall destroy or wantonly injure in any way seines, nets or other fishing apparatus lawfully set or used or any equipment that is attached to any of them.
1991, c. 1, s. 6
16Subsections 25(1) and (2) of the French version of the Act are replaced by the following:
Installation d’engins de pêche en période d’interdiction
25(1)Sous réserve des règlements, il est interdit de placer des engins ou appareils de pêche dans les eaux, sur la grève ou dans une pêche durant une période d’interdiction.
Enlèvement des engins de pêche
(2)Sous réserve des règlements et du paragraphe (3), les personnes qui placent des engins ou appareils de pêche dans les eaux, sur la grève ou dans une pêche sont tenues de les enlever dès qu’elles ont cessé de s’en servir et au plus tard avant le début de la période d’interdiction.
17Section 28 of the Act is repealed.
2012, c. 31, s. 173
18(1)The portion of subsection 29(1) of the Act before paragraph (a) is replaced by the following:
Obstructing passage of fish or waters
29(1)No person shall, for the purpose of fishing, place, erect, use or maintain any seine, net, weir or other fishing gear or apparatus, or any log, rock or material of any kind that
2012, c. 31, s. 173
(2)Subsection 29(2) of the Act is replaced by the following:
Removal
(2)The Minister or a fishery officer may order the removal of or remove any seine, net, weir or other fishing gear or apparatus, or any log, rock or material of any kind that, in the opinion of the Minister or fishery officer, results in an obstruction referred to in paragraph (1)‍(a) or (b).
2012, c. 19, s. 140
19The heading before section 34 of the Act is replaced by the following:
Fish and Fish Habitat Protection and Pollution Prevention
20(1)The portion of subsection 34(1) of the Act before the first definition is replaced by the following:
Definitions
34(1)The following definitions apply in this section and sections 34.1 to 42.5.
(2)Subsection 34(1) of the Act is amended by adding the following in alphabetical order:
designated project means a project that is designated by regulations made under paragraph 43(1)‍(i.‍5) or that belongs to a class of projects that is designated by those regulations and that consists of works, undertakings or activities, including any works, undertakings or activities that the Minister designates to be associated with the project; (projet désigné)
ecologically significant area means an area designated by regulations made under subsection 35.2(2); (zone d’importance écologique)
(3)Section 34 of the Act is amended by adding the following after subsection (2):
Application — Designated project
(3)Any provision of this Act that applies to works, undertakings or activities also applies to the works, undertakings or activities of a designated project, except paragraphs 34.4(2)‍(a) to (c) and (e) and 35(2)‍(a) to (c) and (e).
21The Act is amended by adding the following after section 34:
Factors
34.1(1)Before recommending to the Governor in Council that a regulation be made in respect of section 34.4,35 or 35.1 or under subsection 35.2(10), 36(5) or (5.1), paragraph 43(1)‍(b.‍2) or subsection 43(5) or before exercising any power under subsection 34.3(2) or (3), paragraph 34.4(2)‍(b) or (c), subsection 34.4(4), paragraph 35(2)‍(b) or (c) or subsection 35(4), 35.1(2), 35.2(7) or 36(5.2), or under subsection 37(2) with regard to an offence under subsection 40(1), the Minister, prescribed person or prescribed entity, as the case may be, shall consider the following factors:
(a)the contribution to the productivity of relevant fisheries by the fish or fish habitat that is likely to be affected;
(b)fisheries management objectives;
(c)whether there are measures and standards
(i)to avoid the death of fish or to mitigate the extent of their death or offset their death, or
(ii)to avoid, mitigate or offset the harmful alteration, disruption or destruction of fish habitat;
(d)the cumulative effects of the carrying on of the work, undertaking or activity referred to in a recommendation or an exercise of power, in combination with other works, undertakings or activities that have been or are being carried on, on fish and fish habitat;
(e)any fish habitat banks, as defined in section 42.01, that may be affected;
(f)whether any measures and standards to offset the harmful alteration, disruption or destruction of fish habitat give priority to the restoration of degraded fish habitat;
(g)Indigenous knowledge of the Indigenous peoples of Canada that has been provided to the Minister; and
(h)any other factor that the Minister considers relevant.
Application of subsection (1)
(2)The obligation to consider the factors set out in subsection (1) applies only to the recommendations and powers that continue to be made or exercised by the Minister after an order is made under subsection 43.2(1) that sets out the powers, duties or functions that the designated minister may exercise or perform.
Standards and codes of practice
34.2(1)The Minister may establish standards and codes of practice for
(a)the avoidance of death to fish and harmful alteration, disruption or destruction of fish habitat;
(b)the conservation and protection of fish or fish habitat; and
(c)the prevention of pollution.
Content
(2)The standards and codes of practice may specify procedures, practices or standards in relation to works, undertakings and activities during any phase of their construction, operation, modification, decommissioning or abandonment.
Consultation
(3)Before establishing any standards and codes of practice, the Minister may consult with any provincial government, any Indigenous governing body, any government department or agency or any persons interested in the protection of fish or fish habitat and the prevention of pollution.
Publication
(4)The Minister shall publish any standards and codes of practice established under this section, or give notice of them, in the Canada Gazette and he or she may also do so in any other manner that he or she considers appropriate.
Studies, etc.‍ — management or control of obstruction
34.3(1)If the Minister considers that doing so is necessary to ensure the free passage of fish or the protection of fish or fish habitat, the owner or person who has the charge, management or control of an obstruction or any other thing that is detrimental to fish or fish habitat shall, on the Minister’s request and within the period specified by him or her, conduct studies, analyses, samplings and evaluations, and provide the Minister with any document and other information relating to them, to the obstruction or thing or to the fish or fish habitat that is or is likely to be affected by the obstruction or thing.
Minister’s order
(2)If the Minister considers that doing so is necessary to ensure the free passage of fish or the protection of fish or fish habitat, the owner or person who has the charge, management or control of an obstruction or any other thing that is detrimental to fish or fish habitat shall, on the Minister’s order, within the period specified by him or her and in accordance with any of his or her specifications,
(a)remove the obstruction or thing;
(b)construct a fishway;
(c)implement a system of catching fish before the obstruction or thing, transporting them beyond it and releasing them back into the water;
(d)install a fish stop or a diverter;
(e)install a fish guard, a screen, a covering, netting or any other device to prevent the passage of fish into any water intake, ditch, channel or canal;
(f)maintain the flow of water necessary to permit the free passage of fish; or
(g)maintain at all times the characteristics of the water and the water flow upstream and downstream of the obstruction or thing that are necessary for the conservation and protection of the fish and fish habitat, including
(i)the water temperature, and
(ii)the physical characteristics and chemical composition of the water flow.
Modification, repair and maintenance
(3)On the Minister’s order, the owner or person referred to in subsection (2) shall
(a)make any provision that the Minister considers necessary for the free passage of fish or the protection of fish or fish habitat during the carrying on of any activity mentioned in that subsection;
(b)operate and maintain anything referred to in that subsection in a good and effective condition and in accordance with any specifications of the Minister; and
(c)modify or repair it in accordance with any specifications of the Minister.
Obstruction of free passage of fish
(4)No person shall
(a)damage or obstruct any fishway constructed or used to enable fish to pass over or around any obstruction;
(b)damage or obstruct any fishway, fish stop or diverter constructed or installed on the Minister’s order;
(c)stop, impede or hinder fish from entering or passing through any fishway, or stop, impede or hinder fish from surmounting any obstruction or leap;
(d)damage, remove or authorize the removal of any fish guard, screen, covering, netting or other device installed on the Minister’s order; or
(e)fish in any manner within 23 m downstream from the lower entrance to any fishway, obstruction or leap.
Exception — removal for repairs
(5)Despite paragraph (4)‍(d), a person may remove or authorize the removal of any fish guard, screen, covering, netting or other device installed on the Minister’s order if the removal is required for modification, repair or maintenance.
Statutory Instruments Act
(6)Orders made under this section are not statutory instruments for the purposes of the Statutory Instruments Act.
Regulations
(7)The Minister may make regulations respecting the flow of water that is to be maintained to ensure the free passage of fish or the protection of fish or fish habitat.
Death of fish
34.4(1)No person shall carry on any work, undertaking or activity, other than fishing, that results in the death of fish.
Exception
(2)A person may carry on a work, undertaking or activity without contravening subsection (1) if
(a)the work, undertaking or activity is a prescribed work, undertaking or activity or belongs to a prescribed class of works, undertakings or activities, as the case may be, or is carried on in or around prescribed Canadian fisheries waters, and the work, undertaking or activity is carried on in accordance with the prescribed conditions;
(b)the carrying on of the work, undertaking or activity is authorized by the Minister and the work, undertaking or activity is carried on in accordance with the conditions established by the Minister;
(c)the carrying on of the work, undertaking or activity is authorized by a prescribed person or prescribed entity and the work, undertaking or activity is carried on in accordance with the conditions set out in the authorization;
(d)the death results from the doing of anything that is authorized, permitted or required under this Act;
(e)the work, undertaking or activity is carried on in accordance with the regulations;
(f)the work, undertaking or activity is carried on in accordance with a permit issued under subsection 35.1(2), in the case of a designated project; or
(g)the work, undertaking or activity is a prescribed work, undertaking or activity under paragraph 35.2(10)‍(a) or belongs to a prescribed class of works, undertakings or activities under that paragraph, as the case may be, and carried on in an ecologically significant area in accordance with an authorization issued under subsection 35.2(7).
Other conditions
(3)The prescribed person or prescribed entity referred to in paragraph (2)‍(c) may, in addition to the prescribed classes of conditions impose, subject to the regulations, any other conditions that they consider appropriate in the circumstances.
Regulations
(4)The Minister may, for the purposes of paragraph (2)‍(a) and subject to paragraph 43(1)‍(i.‍1), make regulations prescribing anything that is authorized to be prescribed.
Amendment, suspension or cancellation — paragraph (2)‍(b)
(5)The Minister may amend, suspend or cancel an authorization issued under paragraph (2)‍(b).
Amendment, suspension or cancellation — paragraph (2)‍(c)
(6)A prescribed person or prescribed entity referred to in paragraph (2)‍(c) may amend, suspend or cancel an authorization issued under that paragraph.
2012, c. 19, s. 142(2)
22(1)Subsection 35(1) of the Act is replaced by the following:
Harmful alteration, disruption or destruction of fish habitat
35(1)No person shall carry on any work, undertaking or activity that results in the harmful alteration, disruption or destruction of fish habitat.
2012, c. 19, s. 142(1)
(2)Paragraph 35(2)‍(a) of the Act is replaced by the following:
(a)the work, undertaking or activity is a prescribed work, undertaking or activity or belongs to a prescribed class of works, undertakings or activities, as the case may be, or is carried on in or around prescribed Canadian fisheries waters, and the work, undertaking or activity is carried on in accordance with the prescribed conditions;
2012, c. 19, ss. 142(1) and (3)
(3)Paragraphs 35(2)‍(c) and (d) of the Act are replaced by the following:
(c)the carrying on of the work, undertaking or activity is authorized by a prescribed person or prescribed entity and the work, undertaking or activity is carried on in accordance with the conditions set out in the authorization;
(d)the harmful alteration, disruption or destruction results from the doing of anything that is authorized, permitted or required under this Act;
(4)Subsection 35(2) of the Act is amended by adding the following after paragraph (e):
(f)the work, undertaking or activity is carried on in accordance with a permit issued under subsection 35.1(2), in the case of a designated project; or
(g)the work, undertaking or activity is a prescribed work, undertaking or activity under paragraph 35.2(10)‍(a) or belongs to a prescribed class of works, undertakings or activities under that paragraph, as the case may be, and is carried on in an ecologically significant area in accordance with an authorization issued under subsection 35.2(7).
2012, c. 19, s. 142(4)
(5)Subsections 35(3) and (4) of the Act are replaced by the following:
Other conditions
(3)The prescribed person or prescribed entity referred to in paragraph (2)‍(c) may, in addition to the prescribed classes of conditions impose, subject to the regulations, any other conditions that they consider appropriate in the circumstances.
Regulations
(4)The Minister may, for the purposes of paragraph (2)‍(a) and subject to paragraph 43(1)‍(i.‍1), make regulations prescribing anything that is authorized to be prescribed.
Amendment, suspension or cancellation — paragraph (2)‍(b)
(5)The Minister may amend, suspend or cancel an authorization issued under paragraph (2)‍(b).
Amendment, suspension or cancellation — paragraph (2)‍(c)
(6)A prescribed person or prescribed entity referred to in paragraph (2)‍(c) may amend, suspend or cancel an authorization issued under that paragraph.
23The Act is amended by adding the following after section 35:
Designated project
35.1(1)No person shall carry on any work, undertaking or activity that is part of a designated project except in accordance with a permit issued under subsection (2).
Issuance of permit
(2)The Minister may issue a permit to carry on any work, undertaking or activity that is part of a designated project and attach any conditions to it.
Amendment, suspension or cancellation
(3)The Minister may amend, suspend or cancel a permit issued under subsection (2).
Associated works, undertakings or activities
(4)The Minister may designate any work, undertaking or activity as a work, undertaking or activity that is associated with a designated project.
Ecologically significant area
35.2(1)No person shall carry on a work, undertaking or activity prescribed under paragraph (10)‍(a) or that belongs to a prescribed class under that paragraph, in an ecologically significant area except in accordance with an authorization issued under subsection (7).
Designation — ecologically significant area
(2)The Governor in Council may, on the recommendation of the Minister, make regulations designating ecologically significant areas.
Requirement to provide information
(3)Any person who proposes to carry on a work, undertaking or activity referred to in subsection (1) in an ecologically significant area shall provide the Minister with any document and other information that is required by regulation in respect of the prescribed work, undertaking or activity, or the water, place, fish or fish habitat that is likely to be affected by the prescribed work, undertaking or activity.
Request for additional information
(4)Regulations made for the purpose of subsection (3) do not prevent the Minister from requesting additional information that he or she considers necessary in the circumstances.
Compliance with request
(5)Every person who is required to provide any additional information must provide it within the time and in the manner that the Minister specifies.
Extension of time
(6)The Minister may, on request in writing from any person who is required to provide any additional information, extend the specified time.
Powers of Minister
(7)If the Minister is satisfied, after having reviewed any document and other information provided under subsection (3) or (4), that avoidance and mitigation measures may be implemented to achieve the prescribed objectives for the conservation and protection of fish and fish habitat, he or she may authorize, subject to the regulations made under subsection (10), the carrying on of the work, undertaking or activity referred to in subsection (1) in an ecologically significant area, on any conditions that he or she considers appropriate.
Amendment, suspension or cancellation — authorization
(8)The Minister may amend, suspend or cancel an authorization issued under subsection (7).
Fish habitat restoration plan
(9)The Minister shall, as soon as feasible, prepare a fish habitat restoration plan for an ecologically significant area, if he or she is of the opinion that fish habitat restoration in that ecologically significant area is required in order to meet any prescribed objectives for the conservation and protection of fish and fish habitat.
Regulations
(10)The Governor in Council may, on the Minister’s recommendation, make regulations
(a)prescribing works, undertakings or activities or classes of works, undertakings or activities, for the purposes of this section;
(b)respecting any document or other information that is required to be provided under subsection (3), including the manner in which and the time within which it is to be provided;
(c)respecting the objectives for the conservation and protection of fish and fish habitat in an ecologically significant area;
(d)prescribing works, undertakings or activities or classes of works, undertakings or activities that the Minister shall not authorize under paragraphs 34.4(2)‍(b) and 35(2)‍(b) to be carried on in an ecologically significant area;
(e)prescribing conditions under which and requirements subject to which the Minister may issue an authorization under subsection (7);
(f)respecting the manner and circumstances relating to the amendment, suspension or cancellation of an authorization referred to in subsection (7); and
(g)respecting the process by which a person may request an amendment, suspension or cancellation of an authorization under subsection (7).
2012, c. 19, s. 144(2)
24(1)The portion of subsection 37(1) of the Act before paragraph (b) is replaced by the following:
Minister may require plans and specifications
37(1)If a person carries on or proposes to carry on any work, undertaking or activity that results or is likely to result in the death of fish, in the harmful alteration, disruption or destruction of fish habitat or in the deposit of a deleterious substance in water frequented by fish or in any place under any conditions where that deleterious substance or any other deleterious substance that results from the deposit of that deleterious substance may enter any such waters, the person shall, on the request of the Minister — or without request in the manner and circumstances prescribed by regulations made under paragraph (3)‍(a) — provide him or her with any documents — plans, specifications, studies, procedures, schedules, analyses, samples, evaluations — and any other information relating to the work, undertaking or activity, or to the water, place, fish or fish habitat that is or is likely to be affected by the work, undertaking or activity, that will enable the Minister to determine
(a)whether the work, undertaking or activity results or is likely to result in the death of fish that constitutes or would constitute an offence under subsection 40(1) and what measures, if any, would prevent that death or mitigate the extent of death;
(a.‍1)whether the work, undertaking or activity results or is likely to result in the harmful alteration, disruption or destruction of fish habitat that constitutes or would constitute an offence under subsection 40(1) and what measures, if any, would prevent that result or mitigate its effects; or
2012, c. 19, s. 144(2)
(2)Paragraph 37(1)‍(b) of the French version of the Act is replaced by the following:
b)si l’ouvrage, l’entreprise ou l’activité entraîne ou entraînera vraisemblablement l’immersion ou le rejet d’une substance en contravention avec l’article 36 et quelles sont les mesures éventuelles à prendre pour prévenir ou atténuer les dommages qui en découlent.
2012, c. 19, s. 144(2)
(3)Subsection 37(1.1) of the Act is repealed.
2012, c. 19, s. 144(2)
(4)The portion of subsection 37(2) of the Act before paragraph (a) is replaced by the following:
Powers of Minister
(2)If, after reviewing any document and other information provided under subsection (1) and affording the persons who provided it a reasonable opportunity to make representations, the Minister is of the opinion that an offence under subsection 40(1) or (2) is being or is likely to be committed, he or she may, by order, subject to regulations made under paragraph (3)‍(b),
2012, c. 19, s. 144(2)
(5)Paragraph 37(2)‍(a) of the English version of the Act is replaced by the following:
(a)require any modifications or additions to the work, undertaking or activity or any modifications to any plans, specifications, procedures or schedules relating to it that the Minister considers necessary in the circumstances, or
2012, c. 19, s. 144(2)
(6)The portion of subsection 37(2) of the Act after paragraph (b) is replaced by the following:
The Minister may personally direct the closing of the work or undertaking or the ending of the activity for any period that he or she considers necessary in the circumstances.
2012, c. 19, ss. 144(4), (5)‍(F) and (6)
(7)Paragraphs 37(3)‍(a) to (c) of the Act are replaced by the following:
(a)prescribing the manner and circumstances in which any document or other information is to be provided to the Minister without request under subsection (1); and
(b)prescribing the manner and circumstances in which the Minister may make orders under subsection (2) and the terms of the orders.
(8)Subsections 37(4) and (5) of the Act are replaced by the following:
Consultation
(4)If the Minister proposes to make an order under subsection (2), he or she shall offer to consult with the governments of any provinces that he or she considers to be interested in the proposed order and with any departments or agencies of the Government of Canada that he or she considers appropriate.
Exception
(5)Nothing in subsection (4) prevents the Minister from making an interim order under subsection (2) without the offer of consultation referred to in subsection (4) if he or she considers that immediate action is necessary.
Statutory Instruments Act
(6)Orders made under this section are not statutory instruments for the purposes of the Statutory Instruments Act.
2012, c. 19, s. 145(1)
25(1)Subsection 38(1) of the Act is replaced by the following:
Power to designate
38(1)The Minister may designate persons or classes of persons as inspectors for the purposes of the administration and enforcement of this Act and may limit in any manner he or she considers appropriate the powers that an inspector may exercise under this Act.
2012, c. 19, s. 145(2)
(2)Subparagraph 38(3)‍(b)‍(i) of the Act is replaced by the following:
(i)the death of fish,
(i.‍1)the harmful alteration, disruption or destruction of fish habitat, or
2012, c. 19, s. 145(3)
(3)The portion of subsection 38(4) of the Act before paragraph (a) is replaced by the following:
Duty to notify — serious harm to fish
(4)Every person shall without delay notify an inspector, a fishery officer, a fishery guardian or an authority prescribed by the regulations of an occurrence that results in serious harm to fish that are part of a commercial, recreational or Indigenous fishery, or to fish that support such a fishery, that is not authorized under this Act, or of a serious and imminent danger of such an occurrence, if the person at any material time
(4)The portion of subsection 38(4) of the Act before paragraph (a) is replaced by the following:
Duty to notify — death of fish
(4)Every person shall without delay notify an inspector, a fishery officer, a fishery guardian or an authority prescribed by the regulations of the death of fish that is not authorized under this Act, or of a serious and imminent danger of such occurrence, if the person at any material time
2012, c. 19, ss. 145(1), (3) and 4(F)
(5)Paragraphs 38(4)‍(a) and (b) of the French version of the Act are replaced by the following:
a)la personne qui est responsable, à titre de propriétaire ou autrement, de l’ouvrage, de l’entreprise ou de l’activité à l’origine de l’évènement effectif ou fort probable et imminent;
b)celle qui est à l’origine de l’évènement effectif ou fort probable et imminent, ou y contribue.
(6)Section 38 of the Act is amended by adding the following after subsection (4):
Duty to notify — harmful alteration, disruption or destruction of fish habitat
(4.1)Every person shall without delay notify an inspector, a fishery officer, a fishery guardian or an authority prescribed by the regulations of a harmful alteration, disruption or destruction of fish habitat that is not authorized under this Act, or of a serious and imminent danger of such an occurrence, if the person at any material time
(a)owns or has the charge, management or control of the work, undertaking or activity that resulted in the occurrence or the danger of the occurrence; or
(b)causes or contributes to the occurrence or the danger of the occurrence.
2012, c. 19, s. 145(1)
(7)The portion of subsection 38(5) of the Act before paragraph (a) is replaced by the following:
Duty to notify — deleterious substance
(5)If there occurs a deposit of a deleterious substance in water frequented by fish that is not authorized under this Act, or if there is a serious and imminent danger of such an occurrence, and detriment to fish habitat or fish or to the use by humans of fish results or may reasonably be expected to result from the occurrence, then every person shall without delay notify an inspector, a fishery officer, a fishery guardian or an authority prescribed by the regulations if the person at any material time
2012, c. 19, s. 145(1)
(8)Subsection 38(6) of the Act is replaced by the following:
Duty to take corrective measures
(6)Any person described in paragraph (4)‍(a) or (b), (4.1)‍(a) or (b) or (5)‍(a) or (b) shall, as soon as feasible, take all reasonable measures consistent with public safety and with the conservation and protection of fish and fish habitat to prevent the occurrence or to counteract, mitigate or remedy any adverse effects that result from the occurrence or might reasonably be expected to result from it.
2012, c. 19, s. 145(1)
(9)Subsection 38(7) of the Act is replaced by the following:
Report
(7)As soon as feasible after the occurrence or after learning of the danger of the occurrence, the person shall provide an inspector, a fishery officer, a fishery guardian or an authority prescribed by the regulations with a written report on the occurrence or danger of the occurrence.
2012, c. 19, s. 145(1)
(10)Subsection 38(7.1) of the Act is replaced by the following:
Corrective measures
(7.1)If an inspector or fishery officer, whether or not they have been notified under subsection (4), (4.1) or (5) or provided with a report under subsection (7), is satisfied on reasonable grounds that immediate action is necessary in order to take any measures referred to in subsection (6), the inspector or officer may, subject to subsection (7.2), take any of those measures at the expense of any person described in paragraph (4)‍(a) or (b), (4.1)‍(a) or (b) or (5)‍(a) or (b) or direct that person to take the measures at their expense.
2012, c. 19, s. 145(1)
(11)Paragraph 38(9)‍(a) of the Act is replaced by the following:
(a)the authority for the purposes of subsection (4), (4.1) or (5), the manner in which the notification under those subsections is to be made, the information to be contained in the notification and the circumstances in which no notification need be made;
(12)Subsections 38(11) to (13) of the Act are repealed.
26The Act is amended by adding the following after section 39:
Exercise of powers
39.1Every power that may be exercised in Canada by an inspector under this Act may be exercised anywhere this Act applies.
1991, c. 1, s. 10(1); 2012, c. 19, s. 147(1)‍(E)
27(1)The portion of subsection 40(1) of the Act before paragraph (a) is replaced by the following:
Offence and punishment
40(1)Every person who contravenes subsection 34.4(1) or 35(1) is guilty of an offence and liable
2012, c. 19, ss. 147(6) and (7)
(2)Paragraphs 40(3)‍(a) and (a.‍1) of the Act are replaced by the following:
(a)in carrying on a work, undertaking or activity, fails to comply with a prescribed condition referred to in paragraph 34.4(2)‍(a) or 35(2)‍(a), with a condition set out in an authorization or a permit, as the case may be, issued under paragraph 34.4(2)‍(b) or (c) or 35(2)‍(b) or (c) or subsection 35.1(2) or 35.2(7), or with a condition imposed by regulations made under subsection 36(5) or (5.2),
(a.‍1)fails to provide any document or other information as requested by the Minister under subsection 37(1) within a reasonable time after the request is made,
(a.‍2)fails to provide any document or other information required to be provided under subsection 35.2(3) within the prescribed period,
(a.‍3)fails to provide any additional information that is required to be provided under subsection 35.2(4) within the time and in the manner that the Minister specifies,
2012, c. 19, s. 147(8)
(3)Paragraph 40(3)‍(c) of the Act is replaced by the following:
(c)fails to provide notification that he or she is required to provide under subsection 38 (4), (4.1) or (5),
2012, c. 19, s. 147(9)
(4)The portion of paragraph 40(3)‍(d) of the Act before subparagraph (iii) is replaced by the following:
(d)carries on any work, undertaking or activity described in subsection 37(1)
(i)otherwise than in accordance with any document and other information relating to the work, undertaking or activity that they provide to the Minister under that subsection,
(ii)otherwise than in accordance with any such document and other information as required to be modified by any order of the Minister under paragraph 37(2)‍(a), or
(5)Subsection 40(3) of the Act is amended by adding the following after paragraph (d):
(d.‍1)carries on any work, undertaking or activity described in subsection 35.2(3) otherwise than in accordance with any document and other information relating to the work, undertaking or activity that they provide to the Minister under that subsection or subsection 35.2(4),
2012, c. 19, s. 147(10)
(6)Subsection 40(3) of the Act is amended by striking out “or” at the end of paragraph (g) and by replacing paragraph (h) with the following:
(h)fails to comply with a request of the Minister made under subsection 34.3(1) or an order of the Minister made under subsection 34.3(2) or (3),
(7)Subsection 40(3) of the Act is amended by adding the following after paragraph (h):
(i)fails to comply with all or any part of a direction of a fishery officer or fishery guardian with respect to the application of any regulations made under paragraph 43(1)‍(o),
(8)Subsection 40(3) of the Act is amended by adding the following after paragraph (i):
(j)carries on any work, undertaking or activity that is a part of a designated project in contravention of subsection 35.1(1), or
(k)carries on, in contravention of subsection 35.2(1), any work, undertaking or activity prescribed under paragraph 35.2(10)‍(a),
(9)The portion of subsection 40(5) of the Act before paragraph (b) is replaced by the following:
Matters of proof
(5)For the purpose of any proceedings for an offence under any of subsections (1), (2) and (3),
(a)the death of fish takes place whether or not any act or omission resulting in the death is intentional;
(a.‍1)a harmful alteration, disruption or destruction of fish habitat takes place whether or not an act or omission resulting in the alteration, disruption or destruction is intentional;
(a.‍2)a deposit as defined in subsection 34(1) takes place whether or not any act or omission resulting in the deposit is intentional; and
28The Act is amended by adding the following after section 42:
Definitions
42.01The following definitions apply in this section and sections 42.02 to 42.04.
conservation project means a work, undertaking or activity that is carried on by a proponent for the purpose of creating, restoring or enhancing fish habitat within a service area in order to acquire habitat credits. (projet de conservation)
fish habitat bank means an area of a fish habitat that has been created, restored or enhanced by the carrying on of one or more conservation projects within a service area and in respect of which area the Minister has certified any habitat credit under paragraph 42.02(1)‍(b).‍ (réserve d’habitats)
habitat credit means a unit of measure that is agreed to between any proponent and the Minister under section 42.02 that quantifies the benefits of a conservation project. (crédit d’habitat)
proponent means a person who proposes the carrying on of a conservation project and any other work, undertaking or activity within a proposed service area.‍ (promoteur)
service area means the geographical area that encompasses a fish habitat bank and one or more conservation projects and within which area a proponent carries on a work, undertaking or activity. (zone de service)
Arrangements respecting fish habitat banks
42.02(1)For the purposes of sections 42.01 to 42.04, the Minister may
(a)establish a system for the creation, allocation and management of a proponent’s habitat credits in relation to a conservation project; and
(b)issue a certificate to the proponent respecting the validity of any habitat credit acquired from the carrying on of a conservation project.
Arrangements
(2)In exercising the powers referred to in subsection (1), the Minister may enter into arrangements with any proponent.
Contents
(3)An arrangement referred to in subsection (2) shall include, among other things,
(a)any document and other information that describes the proposed fish habitat bank, conservation project and service area;
(b)a written confirmation that the Department of Fisheries and Oceans and anyone authorized to act on the Department’s behalf is authorized to access the site of the conservation project for the term of the arrangement;
(c)a description of the administration, management and general operation of the arrangement by the parties, including
(i)a procedure for proposing a conservation project and an approval process,
(ii)a habitat credit certification process,
(iii)a process for habitat credit evaluation and any re-evaluation that may be required by the Minister,
(iv)habitat credit accounting procedures respecting the habitat credit ledger,
(v)progress reports on the conservation project, and
(vi)any other relevant matters respecting the administration of the arrangement;
(d)reports on the performance of the arrangement;
(e)the form and manner in which the arrangement may be amended;
(f)the date on which the arrangement comes into force; and
(g)the signatures of the parties.
Use of habitat credit within service area
42.03A proponent may only use their certified habitat credits in respect of a fish habitat bank within a service area to offset the adverse effects on fish or fish habitat from the carrying on of a work, undertaking or activity authorized or permitted to be carried on in that service area.
Regulations
42.04The Governor in Council may make regulations
(a)respecting the establishment of a system for the creation, allocation and management of habitat credits referred to in paragraph 42.02(1)‍(a);
(b)respecting the issuance of a certificate of validity of any habitat credit referred to in paragraph 42.02(1)‍(b); and
(c)respecting an arrangement with any proponent.
2012, c. 19, s. 148
29Subsection 42.1(1) of the Act is replaced by the following:
Annual report
42.1(1)The Minister shall, as soon as feasible after the end of each fiscal year, prepare and cause to be laid before each house of Parliament a report on the administration and enforcement of the provisions of this Act relating to fish and fish habitat protection and pollution prevention for that year.
30The Act is amended by adding the following after section 42.1:
Public registry
42.2The Minister shall establish a public registry for the purpose of facilitating access to records relating to matters under any of sections 34 to 42.1.
Contents of registry — obligatory
42.3(1)The Minister shall publish the following records in the registry:
(a)any agreements referred to in section 4.1 that are entered into by him or her and that establish the circumstances and manner referred to in paragraph 4.1(2)‍(h);
(b)any standards and codes of practice established by the Minister under section 34.2;
(c)any orders made by the Minister under sections 34.3 and 37;
(d)any authorizations given under paragraphs 34.4(2)‍(b) and (c) and 35(2)‍(b) and (c) and subsection 35.2(7);
(e)any permits issued by him or her under section 35.1; and
(f)any fish habitat restoration plan prepared under subsection 35.2(9).
Contents of registry — optional
(2)The Minister may publish in the registry, other records that he or she considers appropriate for the purpose set out in section 42.2, including
(a)any agreements referred to in section 4.1 and subsection 4.4(3);
(b)any arrangements referred to in subsection 4.4(3) and section 42.02;
(c)any proposed regulations;
(d)any reports submitted under any regulations made under this Act;
(e)any guidelines; and
(f)any policy.
Request of designated minister
(3)The Minister may, on the request of any other minister designated under section 43.2, publish any records in the registry that the designated minister considers appropriate for the purpose set out in section 42.2.
Types of records in registry
(4)Despite subsections (1) to (3), the registry shall contain only records or any part of those records
(a)that are publicly available; or
(b)that the Minister determines would be disclosed to the public in accordance with the Access to Information Act if a request were made in respect of that record under that Act, including any record that would be disclosed in the public interest under subsection 20(6) of that Act.
Form, manner and access — registry
42.4The Minister may determine the form of the registry, how it is to be kept and how access to it is to be provided.
Protection from civil proceeding or prosecution
42.5Despite any other Act of Parliament, civil or criminal proceedings shall not be brought against Her Majesty in right of Canada, the Minister and any person acting on behalf of or under the direction of the Minister for the full or partial disclosure of any record through the registry made in good faith or for any consequences of its disclosure.
31(1)Paragraph 43(1)‍(a) of the Act is replaced by the following:
(a)respecting the proper management and control of the seacoast and inland fisheries, including for social, economic or cultural purposes;
(2)Subsection 43(1) of the Act is amended by adding the following after paragraph (b):
(b.‍1)respecting the rebuilding of fish stocks;
(b.‍2)respecting the restoration of fish habitat;
(3)Subsection 43(1) of the Act is amended by adding the following after paragraph (d):
(d.‍1)respecting the circumstances when the holder of a licence or the operator named in the licence is required to personally carry on the activity authorized by the licence and the exceptions to that requirement;
(4)Paragraph 43(1)‍(f) of the Act is replaced by the following:
(f)respecting the issuance, suspension and cancellation of licences and leases, including
(i)if the lease or licence holder or the applicant for that lease or licence is a party to an agreement in respect of the lease or licence that contravenes any provision of this Act or of the regulations, or
(ii)if the applicant for the lease or licence is a corporation;
(5)Subsection 43(1) of the Act is amended by adding the following after paragraph (g):
(g.‍01)respecting the use and control of the rights and privileges under a lease or licence issued under this Act, including the prohibition on the transfer of the use and control of those rights and privileges except under prescribed conditions;
(g.‍02)in the case of a licence issued to an organization, respecting the designation of persons who may fish and the fishing vessels that may be used under the licence and any other matter relating to designations, including the method of designation and who may designate those persons and vessels;
2012, c. 19, s. 149(2)
(6)Paragraphs 43(1)‍(i) to (i.‍4) of the Act are replaced by the following:
(i)respecting the conservation and protection of fish habitat;
(i.‍1)for the purposes of paragraphs 34.4(2)‍(a) and 35(2)‍(a), prescribing anything that is authorized to be prescribed under those paragraphs;
(i.‍11)respecting the process relating to the issuance of the authorizations referred to in paragraph 34.4(2)‍(b) or (c) or 35(2)‍(b) or (c) or the permits referred to in subsection 35.1(2);
(i.‍2)prescribing the documents or other information that are to be provided for the obtaining of the authorizations referred to in paragraph 34.4(2)‍(b) or (c) or 35(2)‍(b) or (c) or the permits referred to in subsection 35.1(2), or for the amendment, suspension or cancellation of those authorizations or permits;
(i.‍21)prescribing persons or entities who may authorize the carrying on of works, undertakings or activities under paragraphs 34.4(2)‍(c) and 35(2)‍(c) and respecting the requirements that these persons or entities may be subject to;
(i.‍3)prescribing the conditions and requirements under which a person or entity referred to in paragraph 34.4(2)‍(c) or 35(2)‍(c) may issue the authorization;
(i.‍31)with respect to an authorization issued under 34.4(2)‍(c) or 35(2)‍(c), prescribing the classes of conditions that the prescribed person or entity
(i)shall include in the authorization,
(ii)may include in it, or
(iii)shall not include in it;
(i.‍4)respecting time limits for issuing authorizations referred to in paragraph 34.4(2)‍(b) or (c) or 35(2)‍(b) or (c) or for issuing permits under subsection 35.1(2), or for refusing to do so;
(i.‍5)for the purposes of the definition designated project in subsection 34(1), designating projects or classes of projects that may result in the death of fish or the harmful alteration, disruption or destruction of fish habitat;
(i.‍6)respecting the time, manner and circumstances in which the Minister may amend, suspend or cancel an authorization referred to in subsection 34.4(5) or 35(5), or a permit referred to in subsection 35.1(3), as the case may be;
(i.‍7)respecting the time, manner and circumstances in which the prescribed person or prescribed entity may amend, suspend or cancel an authorization referred to in subsection 34.4(6) or 35(6);
(i.‍8)respecting the process by which a person may request an amendment, suspension or cancellation of an authorization under subsection 34.4(5) or (6) or 35(5) or (6), or a permit under subsection 35.1(3), as the case may be;
(7)Paragraph 43(1)‍(j) of the Act is replaced by the following:
(j)respecting the import or export of fish;
(j.‍1)prescribing the circumstances in which the Indigenous knowledge of the Indigenous peoples of Canada that is provided to the Minister under this Act in confidence may be disclosed without written consent;
1991, c. 1, s. 12(3)
(8)Paragraph 43(1)‍(m) of the Act is replaced by the following:
(m)if a close time, fishing quota or limit on the size or weight of fish or fishing gear or equipment has been fixed in respect of an area under the regulations, authorizing persons referred to in paragraph (l) to vary the close time, fishing quota or limit or fishing gear or equipment in respect of that area or any portion of that area;
(9)Subsection 43(1) of the Act is amended by adding the following after paragraph (n):
(n.‍1)defining aquatic invasive species for the purposes of the regulations;
2012, c. 19, s. 149(3)
(10)The portion of paragraph 43(1)‍(o) of the Act before subparagraph (ii) is replaced by the following:
(o)respecting the management and control of aquatic invasive species, including regulations
(i)respecting the prevention of the introduction and spread of those species,
2012, c. 19, s. 149(3)
(11)Paragraph 43(1)‍(o) of the Act is amended by striking out “or” at the end of subparagraph (iv) and by replacing subparagraph (v) with the following:
(v)respecting the treatment and destruction of members of those species,
(vi)respecting the eradication of those species in a specified geographical area,
(vii)respecting the powers of a fishery officer and fishery guardian to manage and control those species,
(viii)authorizing a fishery officer and fishery guardian to exercise their powers with respect to a species that the officer or guardian, as the case may be, has reasonable grounds to believe is an aquatic invasive species, or
(ix)requiring any person to keep any record, book or other document containing any information relevant to the control of those species, and respecting where, how and how long it is to be kept; and
2012, c. 19, s. 149(4)
(12)Subsection 43(4) of the Act is replaced by the following:
Paragraph 43(1)‍(i.‍5)
(4)Regulations made under paragraph (1)‍(i.‍5) may include as a criterion for designation the fact that a decision has been made under an Act of Parliament to subject the project to an impact assessment.
2012, c. 19, s. 149(5)
(13)Subsection 43(5) of the Act is replaced by the following:
Regulations exempting certain Canadian fisheries waters
(5)The Governor in Council may make regulations exempting any Canadian fisheries waters from the application of sections 34.3,34.4 and 35 and subsections 38(4) and (4.1).
32The Act is amended by adding the following after section 43.2:
Regulations — Minister
43.3(1)The Minister may, for the purposes of the conservation and protection of marine biodiversity and with respect to any area of Canadian fisheries waters that he or she specifies, make regulations
(a)prohibiting fishing of one or more species, populations, assemblages or stocks of fish;
(b)prohibiting any type of fishing gear or equipment from being used;
(c)prohibiting any type of fishing vessel from being used;
(d)prescribing classes of persons in respect of whom the prohibitions set out in paragraphs (a) to (c) apply; and
(e)prescribing types of fishing vessels in respect of which the prohibitions set out in paragraphs (a) and (b) apply.
Inconsistency
(2)If there is an inconsistency between regulations made by the Minister under subsection (1) and any regulations made by the Governor in Council under this Act, any orders issued under any regulations made by the Governor in Council under this Act or any conditions of any lease or licence issued under this Act, the regulations made by the Minister prevail to the extent of the inconsistency.
Compliance with Terms and Conditions
Compliance with terms and conditions of licences, etc.
43.4(1)Every person acting under the authority of a permission referred to in section 4 or a lease or licence, whether issued under this Act or provincial legislation, shall comply with any terms and conditions of the permission, lease or licence that are imposed under the authority of this Act.
Statutory Instruments Act
(2)The permissions referred to in section 4 and the leases and licences issued under this Act — including their terms and conditions — are not statutory instruments for the purposes of the Statutory Instruments Act.
Offence and punishment
(3)Every person who contravenes subsection (1)
(a)is guilty of an indictable offence and liable to a fine of not more than $500,000; or
(b)is guilty of an offence punishable on summary conviction and liable to a fine of not more than $100,000.
33Section 44 of the Act is replaced by the following:
Prohibition of harvesting of marine plants in certain cases
44Except in accordance with the conditions of a licence issued by the Minister under section 45, no person shall harvest marine plants in the coastal waters of Canada in contravention of any regulation made under paragraph 46(1)‍(a).
34Section 46 of the Act is renumbered as subsection 46(1) and is amended by adding the following:
Periodic adjustment
(2)For greater certainty, regulations made under paragraph (1)‍(d) may provide for periodic adjustment of the fees referred to in that paragraph.
35Section 48 of the Act is replaced by the following:
Saving
48Nothing in sections 44 to 47 shall be construed as preventing traditional harvesting of marine plants by Indigenous persons for their use as food.
36Section 49 of the Act is amended by adding the following after subsection (3):
Stopping and detaining vessel or vehicle
(4)A fishery officer or fishery guardian may, for the purpose referred to in subsection (1), require any vessel or vehicle to be stopped, require it to be moved to a place where an inspection can be carried out and detain it for a reasonable time. The operator of the vessel or vehicle shall comply with the requirements.
37Sections 53 and 54 of the French version of the Act are replaced by the following:
Contestations
53L’agent local des pêches règle les différends portant sur les limites de pêche ou sur des réclamations relatives à des stations de pêche, ou sur la position et l’usage de filets et autres engins de pêche.
Distance entre les pêches
54Les agents des pêches peuvent fixer la distance devant séparer les pêches; ils enlèvent sur-le-champ tous engins de pêche ou matériaux que le propriétaire néglige ou refuse d’enlever, lequel se rend coupable d’infraction à la présente loi et responsable des frais d’enlèvement et des dommages qui peuvent en résulter.
38The Act is amended by adding the following after section 56:
Analysts
Analyst
56.1(1)The Minister may designate persons or classes of persons as analysts for the purposes of the administration and enforcement of this Act.
Certificate of analyst as proof
(2)Subject to subsections (3) and (4), a certificate purporting to be signed by an analyst is, in the absence of evidence to the contrary, presumed to be authentic and is evidence of the facts stated in it in any prosecution for an offence under this Act, if it contains
(a)a statement that the analyst has tested or analyzed a substance, product or fish, and the results of the analysis or test; or
(b)a statement that the analyst has verified the accuracy of the instruments used by a fishery officer, fishery guardian or inspector to conduct any tests or analyses or to take any measurements.
Attendance of analyst
(3)The party against whom an analyst’s certificate is produced may, with the court’s permission, require the analyst’s attendance for cross-examination.
Notice
(4)No certificate may be admitted in evidence unless the party intending to produce it has given to the party against whom it is intended to be produced reasonable notice of that intention together with a copy of the certificate.
1991, c. 1, s. 18
39(1)Paragraph 61(1)‍(b) of the French version of the Act is replaced by the following:
b)celles qui, en vue de la revente, achètent du poisson;
1991, c. 1, s. 18
(2)Subsection 61(1) of the Act is amended by striking out “and” at the end of paragraph (c) and by replacing paragraph (d) with the following:
(d)any person who imports fish into Canada or exports fish from Canada;
(e)any person who trades in or barters fish; and
(f)any agent or employee of a person referred to in paragraphs (a) to (e).
(3)Section 61 of the Act is amended by adding the following after subsection (3):
Duty to keep records — legally caught fish
(3.1)For the purpose of enabling the Minister to verify if fish exported from Canada has been legally caught, a person referred to in subsection (1) shall also keep any relevant records, books of account and other documents for a minimum period of five years from the day on which the person engaged in any of the activities referred to in that subsection.
40The Act is amended by adding the following after section 61:
Information required by the Minister
61.1(1)The Minister may, for the purpose of conducting research, creating an inventory of data, establishing objectives and codes of practice, issuing guidelines or assessing or reporting on the state of fisheries, fish or fish habitat, require any specified person to provide him or her with any document and other information that is in that person’s possession, or to which the person may reasonably be expected to have access.
Exception — Indigenous knowledge of Indigenous peoples
(2)The Minister shall not require any Indigenous knowledge of the Indigenous peoples of Canada to be provided to him or her by any person under subsection (1).
Other recipient
(3)The Minister may, in accordance with an agreement entered into under section 4.1, require the person to submit the document and other information to the entity that is a party to that agreement.
Conditions respecting access to information
(4)Subsection (3) does not apply unless the agreement sets out conditions respecting access by the entity that is a party to that agreement to all or part of the document and other information that the person is required to submit.
Compliance
(5)Every person who is required to provide any document and other information shall provide it within the time and in the manner that the Minister specifies.
Extension of time
(6)The Minister may, on request in writing from any person who is required to provide any document and other information, extend the specified time.
Preservation of information
(7)The Minister may require the person to keep the required document and other information, together with any calculations, measurements and other data on which they are based, and may also specify where, how and how long they are to be kept. However, the period for which they are to be kept shall not exceed five years from the day on which the Minister makes the requirement under subsection (1).
Inconsistency with regulations
(8)If there is an inconsistency between any requirements made by the Minister under this section and any provision of the regulations made under paragraphs 43(1)‍(g.‍1) and (g.‍2), the requirements prevail to the extent of the inconsistency.
Indigenous Knowledge of the Indigenous Peoples of Canada
Confidentiality
61.2(1)Any Indigenous knowledge of the Indigenous peoples of Canada that is provided to the Minister under this Act in confidence is confidential and shall not knowingly be, or be permitted to be, disclosed without written consent.
Exception
(2)Despite subsection (1), the Indigenous knowledge referred to in that subsection may be disclosed if
(a)it is publicly available;
(b)the disclosure is necessary for the purposes of procedural fairness and natural justice or for use in legal proceedings; or
(c)the disclosure is authorized in the circumstances set out in the regulations made under paragraph 43(1)‍(j.‍1).
Consultation
(2.1)Before disclosing Indigenous knowledge under paragraph (2)‍(b) for the purposes of procedural fairness and natural justice, the Minister shall consult the person or entity who provided the Indigenous knowledge and the person or entity to whom it is proposed to be disclosed about the scope of the proposed disclosure and potential conditions under subsection (3).
Further disclosure
(3)The Minister may, having regard to the consultation referred to in subsection (2.1), impose conditions with respect to the disclosure of Indigenous knowledge by any person or entity to whom it is disclosed under paragraph (2)‍(b) for the purposes of procedural fairness and natural justice.
Duty to comply
(4)The person or entity referred to in subsection (3) shall comply with any conditions imposed by the Minister under that subsection.
Protection from civil proceeding or prosecution
(5)Despite any other Act of Parliament, civil or criminal proceedings shall not be brought against Her Majesty in right of Canada, the Minister and any person acting on behalf of or under the direction of the Minister for the full or partial disclosure of the Indigenous knowledge referred to in subsection (1) made in good faith under this Act or for any consequences of the disclosure.
1991, c. 1, s. 21
41Subsection 71(4) of the Act is replaced by the following:
Order to extend detention
(4)A court may, by order, permit the fish or other thing seized or any proceeds realized from its disposition to be detained for any further period that may be specified in the order if the Minister makes a request to that effect before the end of the period of detention in question and the court is satisfied that the order is justified in the circumstances.
42The Act is amended by adding the following after section 71:
Continued detention not required
71.01(1)If a fishery officer is of the opinion that the continued detention of the fish or thing seized under this Act is no longer required for the purpose of any investigation or any proceeding, the fishery officer may apply to a court for an order under subsection (2).
Order of forfeiture
(2)The court may, on application by a fishery officer under subsection (1), order that the fish or thing be forfeited to Her Majesty to be disposed of as the Minister directs if the court is satisfied,
(a)that the possession of the fish or thing was unlawful at the time of seizure; or
(b)if the thing seized is fishing gear or equipment,
(i)that it was found in Canadian fisheries waters or in any portion of the continental shelf of Canada that is beyond the limits of Canadian fisheries waters,
(ii)that there are reasonable grounds to believe that the fishing gear or equipment is foreign or that it was placed there by a foreign fishing vessel, as defined in subsection 2(1) of the Coastal Fisheries Protection Act, and
(iii)that there is no lease, licence nor other authorization under this Act for their use in those waters or in any portion of that continental shelf of Canada, as the case may be.
Notice of application
(3)The court may, before making an order under subsection (2), require that notice of the application be sent to the following persons, as the case may be:
(a)the person from whom the fish or thing was seized, if known;
(b)the person who appears to be the owner of the fishing gear or equipment, if applicable; or
(c)any other person whom the court designates as a person who has an interest in the application.
Appearance before court
(4)The court shall provide any person to whom notice is sent an opportunity to appear before the court and establish that he or she is lawfully entitled to the possession of the fish or thing.
Forfeiture or return
(5)After the hearing, the court may, as the court considers appropriate in the circumstances, order the forfeiture of the fish or thing under subsection (2) or their return.
1991, c. 1, s. 21
43Subsection 72(3) of the Act is replaced by the following:
Forfeiture of fish — other cases
(3)If a person is charged with an offence under this Act that relates to fish seized under paragraph 51(a) and the person is acquitted or discharged absolutely or conditionally, or the court orders a stay of the proceedings but it is proved that the fish was caught, possessed, sold, purchased, traded, bartered, imported or exported in contravention of this Act or the regulations, the court may order that the fish, or any proceeds realized from its disposition, be forfeited to Her Majesty.
1991, c. 1, s. 22
44Subsection 75(1) of the Act is replaced by the following:
Application by person claiming interest
75(1)Subject to section 71.01, if any thing other than fish is forfeited to Her Majesty under subsection 72(1) or (4), any person who claims an interest in the thing as owner, mortgagee, lienholder or holder of any like interest, other than a person convicted of the offence that resulted in the forfeiture or a person from whom the thing was seized, may, within 30 days after the forfeiture, apply in writing to a judge for an order under subsection (4).
1991, c. 1, s. 24
45Paragraph 79.2(b) of the French version of the Act is replaced by the following:
b)prendre les mesures qu’il estime justes pour réparer ou éviter les dommages aux poissons, aux pêches ou à l’habitat du poisson résultant ou susceptibles de résulter de la perpétration de l’infraction;
46The Act is amended by adding the following after section 79.6:
Exemption
79.61No person commits an offence under this Act by reason of exercising powers or performing duties and functions related to the administration or enforcement of this Act or the regulations, or by reason of accompanying a person exercising those powers or performing those duties and functions, if, in that exercise or that performance, the person complies with the conditions that the Minister may impose.
47The Act is amended by adding the following after section 86:
Alternative Measures Agreements
Definitions
86.1The following definitions apply in sections 86.2 to 86.95.
alternative measures means measures in respect of the protection of fisheries, fish or fish habitat or the prevention of pollution, other than judicial proceedings, that are used to deal with a person who is alleged to have committed an offence under this Act.‍ (mesures de rechange)
Attorney General means either the Attorney General of Canada or the Attorney General or Solicitor General of the province in which the proceedings are taken, and includes the lawful deputy of either of them.‍ (procureur général)
Use of measures
86.2(1)Alternative measures may be used only if doing so is not inconsistent with the purpose of this Act and the following conditions are met:
(a)the alleged offence is an offence under this Act, except an offence under section 62 or 63 or any other offence referred to in any regulations made under paragraph 86.95(a);
(b)an information has been laid in respect of the offence;
(c)the Attorney General, after consulting with the Minister, is satisfied that the measures would be appropriate, having regard to the nature of the offence, the circumstances surrounding its commission and the following factors:
(i)the importance of the protection of fisheries, fish or fish habitat or the prevention of pollution,
(ii)the alleged offender’s history of compliance with this Act,
(iii)whether the offence is a repeated occurrence,
(iv)any allegation that information is being or was concealed or other attempts to subvert the purpose and requirements of this Act are being or have been made, and
(v)whether any remedial or preventive action has been taken by or on behalf of the alleged offender in relation to the offence;
(d)the alleged offender has been advised of the right to be represented by counsel;
(e)the alleged offender accepts responsibility for the act or omission that forms the basis of the offence;
(f)the alleged offender applies, in accordance with regulations made under section 86.95, to participate in the measures;
(g)the alleged offender and the Attorney General have entered into an alternative measures agreement within 180 days after the day on which the Attorney General provided the alleged offender with initial disclosure of the Crown’s evidence;
(h)the Attorney General considers that there is sufficient evidence to proceed with the prosecution of the offence; and
(i)the prosecution of the offence is not barred at law.
Restriction on use
(2)Alternative measures shall not be used if the alleged offender
(a)denies participation or involvement in the commission of the alleged offence; or
(b)expresses the wish to have any charge against them dealt with by the court.
Admissions not admissible in evidence
(3)No admission, confession or statement accepting responsibility for a given act or omission made by an alleged offender as a condition of being dealt with by alternative measures is admissible in evidence against them in any civil or criminal proceedings.
Dismissal of charge
(4)If alternative measures have been used, the court shall dismiss the charge laid against the alleged offender in respect of that offence if the court is satisfied on a balance of probabilities that the alleged offender has complied with the alternative measures agreement.
No bar to proceedings
(5)The use of alternative measures is not a bar to any proceedings against the alleged offender under this Act.
Laying of information, etc.
(6)This section does not prevent any person from laying an information, obtaining the issue or confirmation of any process, or proceeding with the prosecution of any offence, in accordance with the law.
Sentencing considerations
86.3If an information in respect of an offence of contravening an alternative measures agreement has been laid and proceedings in respect of the alleged offence for which the agreement was entered into have been recommenced, the court imposing a sentence for either offence shall take into account any sentence that has previously been imposed for the other offence.
Nature of measures contained in agreement
86.4(1)An alternative measures agreement may contain any terms and conditions, including
(a)terms and conditions having any or all of the effects set out in section 79.2 or having any of the prescribed effects that the Attorney General, after consulting with the Minister, considers appropriate; and
(b)terms and conditions relating to the costs of laboratory and field tests, travel and living expenses, costs of scientific analyses and other reasonable costs associated with supervising and verifying compliance with the agreement.
Supervisory bodies
(2)Any governmental or non-governmental body may supervise and verify compliance with an alternative measures agreement.
Duration of agreement
86.5An alternative measures agreement comes into force on the day on which it is signed or on any later day that the agreement specifies and continues in force for the period, not exceeding five years, that the agreement specifies.
Filing in court for purpose of public access
86.6(1)The Attorney General shall consult with the Minister before entering into an alternative measures agreement and shall cause the agreement to be filed, subject to subsection (5), as part of the court record of the proceedings to which the public has access, with the court in which the information was laid within 30 days after the day on which the agreement was entered into.
Reports
(2)A report relating to the administration of or compliance with an alternative measures agreement must, immediately after all the terms and conditions of the agreement have been complied with or the charges in respect of which the agreement was entered into have been dismissed, be filed with the court in which the agreement was filed.
Confidential information or material injury
(3)Subject to subsection (4), the following information shall be set out in a schedule to the agreement or to the report:
(a)trade secrets of any person;
(b)financial, commercial, scientific or technical information that is confidential information and that is treated consistently in a confidential manner by any person;
(c)information the disclosure of which could reasonably be expected to result in material financial loss or gain to any person, or could reasonably be expected to prejudice any person’s competitive position; or
(d)information the disclosure of which could reasonably be expected to interfere with any person’s contractual or other negotiations.
Agreement on information to be in schedule
(4)The parties to an alternative measures agreement must agree on which information is information referred to in paragraphs (3)‍(a) to (d).
Schedule confidential
(5)The schedule is confidential and shall not be filed with the court.
Prohibition of disclosure
(6)The Minister shall not disclose any information set out in a schedule except under section 86.93 or under the Access to Information Act.
Stay and recommencement of proceedings
86.7Despite section 579 of the Criminal Code,
(a)the Attorney General shall, on filing the alternative measures agreement, stay the proceedings or apply to the court for an adjournment of the proceedings in respect of the offence alleged to have been committed for a period of not more than one year after the day on which the agreement expires; and
(b)proceedings stayed under paragraph (a) may be recommenced, without laying a new information or preferring a new indictment, as the case may be, by the Attorney General giving notice of the recommencement to the clerk of the court in which the stay of the proceedings was entered, but if that notice is not given within one year after the day on which the agreement expires, the proceedings are deemed never to have been commenced.
Application to vary agreement
86.8(1)The Attorney General may, on application by the alleged offender and after consulting with the Minister, vary an alternative measures agreement in one or both of the following ways, if the Attorney General considers doing so is appropriate owing to a material change in the circumstances since the agreement was entered into or last varied:
(a)by making any changes to the agreement or to its terms and conditions; and
(b)by decreasing the period during which the agreement is to remain in force or relieving the alleged offender, either absolutely or partially or for any period that the Attorney General considers appropriate, of compliance with any term or condition that the agreement specifies.
Filing of varied agreement
(2)Subject to subsection 86.6(5), an agreement that has been varied shall be filed with the court in which the original agreement was filed.
Records
86.9Sections 86.91 to 86.93 apply only to alleged offenders who have entered into an alternative measures agreement, regardless of the degree of their compliance with its terms and conditions.
Records of police forces and investigative bodies
86.91(1)A record that relates to an offence under this Act that is alleged to have been committed, including the original or a copy of any fingerprints or photographs of the alleged offender, may be kept by any police force or body responsible for, or participating in, the investigation of the offence.
Disclosure by fishery officer, fishery guardian or inspector
(2)A fishery officer, fishery guardian or inspector may disclose to any person any information in a record kept under subsection (1) that it is necessary to disclose in the conduct of the investigation of an offence under this Act.
Disclosure to insurance company
(3)A fishery officer, fishery guardian or inspector may disclose to an insurance company any information in a record kept under subsection (1) that it is necessary to disclose for the purpose of the insurance company’s investigation of a claim arising out of an offence under this Act that is committed or alleged to have been committed by the alleged offender to whom the record relates.
Government records
86.92(1)The Minister, fishery officers, fishery guardians and inspectors and any department or agency of a government in Canada with which the Minister has entered into an agreement under section 86.94 may keep records and use information obtained as a result of the use of alternative measures
(a)for the purposes of an inspection under this Act or an investigation of any offence under this Act;
(b)in any proceedings under this Act;
(c)for the purpose of the administration of alternative measures programs; or
(d)otherwise for the purposes of the administration or enforcement of this Act.
Supervision and verification of records
(2)Any person who is engaged in supervising and verifying compliance with an alternative measures agreement may
(a)keep records relating to the supervision and verification; and
(b)use any information that they obtain as a result of the supervision and verification for any purpose referred to in subsection (1).
Disclosure of records
86.93(1)Any record referred to in section 86.91 or 86.92 may be
(a)made available to any judge or court for any purpose that relates to proceedings relating to offences under this Act that are committed or alleged to have been committed by the alleged offender to whom the record or information relates;
(b)made available to any prosecutor, fishery officer, fishery guardian or inspector
(i)for the purpose of investigating an offence under this Act that the alleged offender is suspected on reasonable grounds of having committed, or in respect of which the alleged offender has been arrested or charged, or
(ii)for any purpose that relates to the administration of the case to which the record relates;
(c)made available to any employee of a department or agency of a government in Canada, or any agent or mandatary of that department or agency, that is
(i)engaged in the administration of alternative measures in respect of the alleged offender, or
(ii)preparing a report in respect of the alleged offender under this Act; or
(d)made available to any other person who is considered, or is within a class of persons that is considered, by a judge of a court to have a valid interest in the record, to the extent directed by the judge, if that person gives a written undertaking not to subsequently disclose the information except in accordance with subsection (2) and if the judge is satisfied that the disclosure is
(i)in the public interest for research or statistical purposes, or
(ii)in the interest of the proper administration of justice.
Subsequent disclosure
(2)If a record is made available to a person under subparagraph (1)‍(d)‍(i), the person may subsequently disclose information contained in the record, but shall not disclose it in any form that could reasonably be expected to identify the alleged offender to whom it relates or any other person specified by the judge.
Information and copies
(3)Any person to whom a record is authorized to be made available under this section may be given any information that is contained in the record and may be given a copy of any part of the record.
Evidence
(4)Nothing in this section authorizes the introduction into evidence of any part of a record that would not otherwise be admissible in evidence.
Exception
(5)For greater certainty, this section does not apply to an alternative measures agreement, a varied alternative measures agreement or a report that is filed with the court in accordance with section 86.6.
Agreements respecting exchange of information
86.94The Minister may enter into an agreement with a department or agency of a government in Canada respecting the exchange of information for the purpose of administering alternative measures or preparing a report in respect of an alleged offender’s compliance with an alternative measures agreement.
Regulations
86.95The Minister may make regulations respecting the alternative measures that may be used for the purposes of this Act, including regulations
(a)excluding specified offences under this Act from the application of those measures;
(b)respecting the form and manner in which and the period within which an application under paragraph 86.2(1)‍(f) to participate in the measures is to be made, and the information that is to be contained in or that is to accompany the application;
(c)respecting the manner of preparing and filing reports relating to the administration of and compliance with alternative measures agreements;
(d)respecting the terms and conditions that may be included in an alternative measures agreement and their effects; and
(e)respecting the classes of reasonable costs and the manner of paying the costs associated with supervising and verifying compliance with an alternative measures agreement.
Offence and punishment
86.96Every person who contravenes an alternative measures agreement referred to in subsection 86.2(1)
(a)is guilty of an indictable offence and liable to a fine of not more than $500,000; or
(b)is guilty of an offence punishable on summary conviction and liable to a fine of not more than $100,000.
48The Act is amended by adding the following after section 87:
Powers of Fisheries Officers — waters and territory of foreign state
87.1Subject to the consent of a foreign state and any conditions that it may impose, every power that may be exercised, and every duty or function that may be performed in Canada by a fishery officer under this Act may be exercised or performed on or over the waters that are subject to the jurisdiction of a foreign state or on the state’s territory, or in a port of the foreign state, in relation to any fishing vessel that is subject to the jurisdiction of Canada.
49The Act is amended by adding the following after section 91:
Review of Act
Five-year review
92Every five years beginning on the day on which this section comes into force, the provisions and operation of this Act shall be reviewed by the committee of the Senate, of the House of Commons or of both Houses that is designated or established for that purpose.
Replacement of “Aboriginal” with “Indigenous”
50The English version of the Act is amended by replacing “Aboriginal” with “Indigenous” in the following provisions:
(a)paragraphs 6(a) and (c);
(b)subsection 35(1);
(c)the portion of subsection 37(1) before paragraph (b);
(d)subparagraph 38(3)‍(b)‍(i); and
(e)paragraph 43(1)‍(i.‍01).

Transitional Provisions

Analysts
51Any person who is designated as an analyst within the meaning of the definition analyst in subsection 2(1) of the Fisheries Act, as it read immediately before the day on which section 38 of this Act comes into force, is deemed to be designated as an analyst under subsection 56.1(1) of the Fisheries Act as enacted by that section 38.
Authorization — Paragraph 35(2)‍(b)
52Any authorization issued by the Minister under paragraph 35(2)‍(b) of the Fisheries Act before the day on which section 22 of this Act comes into force and that is still valid on the day on which that section comes into force is deemed to have been issued under paragraphs 34.4(2)‍(b) and 35(2)‍(b), as those paragraphs read after that day.
Application — Paragraph 35(2)‍(b)
53(1)If an application for the issuance of an authorization under paragraph 35(2)‍(b) of the Fisheries Actis made in accordance with the Applications for Authorization under Paragraph 35(2)‍(b) of the Fisheries Act Regulations before the day on which section 22 of this Act comes into force, and the applicant has received notification from the Minister that the application is complete in accordance with the requirements of those regulations, then the Fisheries Act as it read immediately before the day on which this Act receives royal assent, applies to the exercise of the Minister’s power under that Act to author­ize the carrying on of the work, undertaking or activity that is referred to in the application. Any authorization issued by the Minister is deemed to be an authorization that was issued under paragraphs 34.4(2)‍(b) and 35(2)‍(b) of that Act, as those paragraphs read after the day on which section 22 of this Act comes into force.
Incomplete application
(2)If the Minister notifies the applicant in ac­cordance with the Applications for Authorization under Paragraph 35(2)‍(b) of the Fisheries Act Regulations, that the application is incomplete, then the applicant shall provide the Minister with the required information or documentation
(a)no later than 180 days after the day on which section 22 of this Act comes into force, if the applicant receives the notice before that day;
(b)no later than 180 days after the day on which the applicant received the notice, if the applicant receives the notice on or after the day on which section 22 of this Act comes into force.
Minister’s notification
(3)If the Minister notifies the applicant, in ac­cordance with the Applications for Authorization under Paragraph 35(2)‍(b) of the Fisheries Act Regulations, following the receipt of any required information or documentation from the applicant within the time period referred to in subsection (2), that the application is complete, the Fisheries Act as it read immediately before the day on which this Act received royal assent applies to the exercise of the Minister’s power under that Act to authorize the carrying on of the work, undertaking or activity that is referred to in the application. Any authorization issued by the Minister is deemed to be an authorization that was issued under paragraphs 34.4(2)‍(b) and 35(2)‍(b) of that Act, as those paragraphs read after the day on which section 22 of this Act comes into force. However, if the Minister notifies the applicant that the application is still incomplete, then the authorization that was applied for is deemed to have been refused.

Consequential Amendments

R.‍S.‍, c. A-1

Access to Information Act

54Schedule II to the Access to Information Act is amended by adding, in alphabetical order, a reference to
Fisheries Act
Loi sur les pêches
and a corresponding reference to “subsections 61.2(1) and (2)”.
R.‍S.‍, c. O-7; 1992, c.‍35, s. 2

Canada Oil and Gas Operations Act

2015, c. 4, s. 28
55The portion of item 2 of Part 1 of Schedule 2 to the Canada Oil and Gas Operations Act in column 2 is replaced by the following:
34.4(1) and 35(1)
1987, c. 3; 2014, c. 13, s. 3

Canada–Newfoundland and Labrador Atlantic Accord Implementation Act

2015, c. 4, s.‍70
56 The portion of item 2 of Part 1 of Schedule 2 to the Canada–Newfoundland and Labrador Atlantic Accord Implementation Act in column 2 is replaced by the following:
34.4(1) and 35(1).
1988, c. 28

Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act

2015, c. 4, s. 109
57The portion of item 2 of Part 1 of Schedule VI to the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act in column 2 is replaced by the following:
34.4(1) and 35(1)
2012, c. 31, s. 179

Bridge To Strengthen Trade Act

2012, c. 31, par. 184(3)‍(a)
58(1)Subsection 8(1) of the English version of the Bridge To Strengthen Trade Act is replaced by the following:
Harm to fish
8(1)Before a person who proposes to carry on any work, undertaking or activity, for the purpose of the construction of the bridge, parkway or any related work and for which an authorization referred to in paragraphs 35(2)‍(b) or (c) of the Fisheries Act would have been required but for section 3, begins to carry on the work, undertaking or activity, they must file with the Minister a plan that includes all measures to be taken to mitigate the harm to fish that are part of a commercial, recreational or Indigenous fishery, or to fish that support such a fishery resulting from the carrying on of the work, undertaking or activity.
(2)Subsection 8(1) of the Act is replaced by the following:
Death of fish or harmful alteration, disruption or destruction of fish habitat
8(1)Before a person who proposes to carry on any work, undertaking or activity, for the purpose of the construction of the bridge, parkway or any related work and for which an authorization referred to in paragraph 34.4(2)‍(b) or (c) or 35(2)‍(b) or (c) of the Fisheries Act would have been required but for section 3, begins to carry on the work, undertaking or activity, they must file with the Minister a plan that includes all measures to be taken to mitigate the extent of death of fish or the harmful alteration, disruption or destruction of fish habitat, resulting from the carrying on of the work, undertaking or activity.

Coming into Force

Order in council
59Subsections 1(1), (5) and (10), sections 8, 13 and 19 to 24, subsections 25(2), (4), (5), (6), (8), (10) and (11) and 27(1) to (6), (8) and (9), sections 28 to 30, subsections 31(6) and (13), sections 52, 53 and 55 to 57 and subsection 58(2) come into force on a day or days to be fixed by order of the Governor in Council.
Published under authority of the Speaker of the House of Commons

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