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Bill C-23

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42-43 ELIZABETH II

CHAPTER 22

An Act to implement a Convention for the protection of migratory birds in Canada and the United States

[Assented to 23rd June, 1994]

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

SHORT TITLE

Short title

1. This Act may be cited as the Migratory Birds Convention Act, 1994.

INTERPRETATION

Definitions

2. (1) In this Act,

``Convention' '
« convention »

``Convention'' means the Convention set out in the schedule, as amended from time to time;

``conveyance' '
« moyen de transport »

``conveyance'' means a vehicle, aircraft or water-borne craft or any other contrivance that is used to move persons or goods;

``migratory bird''
« oiseau migrateur »

``migratory bird'' means a migratory bird referred to in the Convention, and includes the sperm, eggs, embryos, tissue cultures and parts of the bird;

``Minister''
« ministre »

``Minister'' means the Minister of the Environment or, in respect of any matter related to the Northern Pipeline referred to in the Northern Pipeline Act, the member of the Queen's Privy Council for Canada designated as the Minister for the purposes of that Act;

``nest''
« nid »

``nest'' means the nest of a migratory bird and includes parts of the nest.

Possession

(2) For the purposes of this Act,

    (a) a person has anything in possession when the person has it in their personal possession or knowingly

      (i) has it in the actual possession or custody of another person, or

      (ii) has it in any place, whether or not that place belongs to or is occupied by the person, for their own use or benefit or for the use or benefit of another person; and

    (b) where a person has anything in their possession or custody with the knowledge and consent of another person or other persons, it is in the possession and custody of each and all of them.

Aboriginal and treaty rights

(3) For greater certainty, nothing in this Act shall be construed so as to abrogate or derogate from any existing aboriginal or treaty rights of the aboriginal peoples of Canada under section 35 of the Constitution Act, 1982.

HER MAJESTY

Binding on Her Majesty

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

PURPOSE

Purpose

4. The purpose of this Act is to implement the Convention by protecting migratory birds and nests.

PROHIBITION

Prohibition

5. Except as authorized by the regulations, no person shall, without lawful excuse,

    (a) be in possession of a migratory bird or nest; or

    (b) buy, sell, exchange or give a migratory bird or nest or make it the subject of a commercial transaction.

ADMINISTRATION

Game officers

6. (1) The Minister may designate any person or class of persons to act as game officers for the purposes of this Act and the regulations, and all members of the Royal Canadian Mounted Police are game officers for the purposes of this Act and the regulations.

Designation of provincial government employees

(2) The Minister may not designate a person or class of persons employed by the government of a province unless that government agrees.

Certificate of designation

(3) Every game officer must be provided with a certificate of designation as a game officer in a form approved by the Minister and, on entering any place under this Act, the officer shall, if so requested, show the certificate to the occupant or person in charge of the place.

Powers of peace officers

(4) For the purposes of this Act and the regulations, game officers have all the powers of a peace officer, but the Minister may specify limits on those powers when designating any person or class of persons.

Exemptions for law enforcement activities

(5) For the purpose of investigations and other law enforcement activities under this Act, the Minister may, on any terms and conditions the Minister considers necessary, exempt game officers who are carrying out duties or functions under this Act, and persons acting under their direction and control, from the application of any provision of this Act or the regulations.

Obstruction

(6) When a game officer is carrying out duties or functions under this Act or the regulations, no person shall

    (a) knowingly make any false or misleading statement either orally or in writing to the game officer; or

    (b) otherwise wilfully obstruct the game officer.

Inspections

7. (1) For the purpose of ensuring compliance with this Act and the regulations, a game officer may, subject to subsection (3), at any reasonable time enter and inspect any place in which the officer believes, on reasonable grounds, there is any thing to which this Act or the regulations apply or any document relating to the administration of this Act or the regulations, and the game officer may

    (a) open or cause to be opened any container that the game officer believes, on reasonable grounds, contains any such thing or document;

    (b) inspect the thing and take samples free of charge;

    (c) require any person to produce the document for inspection or copying, in whole or in part; and

    (d) seize any thing by means of or in relation to which the game officer believes, on reasonable grounds, this Act or the regulations have been contravened or that the game officer believes, on reasonable grounds, will provide evidence of a contravention.

Conveyance

(2) For the purposes of carrying out the inspection, the game officer may stop a conveyance or direct that it be moved to a place where the inspection can be carried out.

Dwelling-plac e

(3) The game officer may not enter a dwelling-place except with the consent of the occupant or person in charge of the dwelling-place or under the authority of a warrant.

Warrant

(4) Where on ex parte application a justice, as defined in section 2 of the Criminal Code, is satisfied by information on oath that

    (a) the conditions for entry described in subsection (1) exist in relation to a dwelling-place,

    (b) entry to the dwelling-place is necessary for the administration of this Act or the regulations, and

    (c) entry to the dwelling-place has been refused or there are reasonable grounds for believing that entry will be refused,

the justice may issue a warrant authorizing the game officer to enter the dwelling-place sub ject to any conditions that may be specified in the warrant.

Search and seizure without warrant

8. For the purpose of ensuring compliance with this Act and the regulations, a game officer may exercise the powers of search and seizure provided in section 487 of the Criminal Code without a warrant if the conditions for obtaining a warrant exist but, by reason of exigent circumstances, it would not be feasible to obtain it.

Custody of things seized

9. (1) Subject to subsections (2) and (3), where a game officer seizes a thing under this Act or under a warrant issued under the Criminal Code,

    (a) sections 489.1 and 490 of the Criminal Code apply; and

    (b) the game officer, or any person that the officer may designate, shall retain custody of the thing subject to any order made under section 490 of the Criminal Code.

Forfeiture where ownership not ascertainable

(2) Where the lawful ownership of or entitlement to the seized thing cannot be ascertained within thirty days after its seizure, the thing, or any proceeds of its disposition, are forfeited to

    (a) Her Majesty in right of Canada, if the thing was seized by a game officer employed in the public service of Canada; or

    (b) Her Majesty in right of a province, if the thing was seized by a game officer employed by the government of that province.

Perishable things

(3) Where the seized thing is perishable, the game officer may dispose of it or destroy it, and any proceeds of its disposition must be

    (a) paid to the lawful owner or person lawfully entitled to possession of the thing, unless proceedings under this Act are instituted within ninety days after its seizure; or

    (b) retained by the game officer pending the outcome of the proceedings.

Abandonment

(4) The lawful owner of the seized thing may abandon it to Her Majesty in right of Canada or a province.

Disposition by Minister

10. Any thing that has been forfeited or abandoned under this Act must be dealt with and disposed of as the Minister may direct.

Liability for costs

11. The lawful owner and any person lawfully entitled to possession of any thing seized, abandoned or forfeited under this Act are jointly and severally liable for all the costs of inspection, seizure, abandonment, forfeiture or disposition incurred by Her Majesty that exceed any proceeds of the disposition of the thing that have been forfeited to Her Majesty under this Act.

REGULATIONS

Regulations

12. (1) The Governor in Council may make any regulations that the Governor in Council considers necessary to carry out the purposes and provisions of this Act and the Convention, including regulations

    (a) providing for the periods during which, and the areas in which,

      (i) migratory birds may be killed, captured or taken,

      (ii) nests may be damaged, destroyed, removed or disturbed, or

      (iii) migratory birds or nests may be bought, sold, exchanged, given or made the subject of a commercial transaction;

    (b) for limiting the number of migratory birds that a person may kill, capture or take in any period when doing so is permitted by the regulations, and providing for the manner in which those birds may then be killed, captured or taken and the equipment that may be used;

    (c) respecting the possession of migratory birds and nests that have been killed, captured, taken or removed in accordance with the regulations;

    (d) for granting permits to kill, capture, take, buy, sell, exchange, give or possess migratory birds, or to make migratory birds the subject of a commercial transaction;

    (e) for granting permits to remove or eliminate migratory birds or nests where it is necessary to do so to avoid injury to agricultural interests or in any other circumstances set out in the regulations;

    (f) respecting the issuance, renewal, revocation and suspension of permits;

    (g) for regulating the shipment or transportation of migratory birds from one province to another province or country and providing for the imposition of conditions governing international traffic in migratory birds;

    (h) for prohibiting the killing, capturing, injuring, taking or disturbing of migratory birds or the damaging, destroying, removing or disturbing of nests;

    (i) prescribing protection areas for migratory birds and nests, and for the control and management of those areas;

    (j) for charging fees for permits, leases, stamps or other authorizing documents required to carry on any activity under this Act or the regulations, and for determining the amount of the fees and the terms and conditions under which they are to be paid; and

    (k) authorizing the Minister to vary or suspend the application of any regulation where the Minister considers it necessary to do so for the conservation of migratory birds.

Amendments to Convention

(2) The Minister shall, by order, amend the schedule to incorporate any amendment to the Convention as soon as is practicable after the amendment takes effect, and table any amendment in both Houses of Parliament within fifteen sitting days after the order is made.

Debate in House of Commons

(3) Any amendment tabled in both Houses of Parliament pursuant to subsection (2) shall be debated in the House of Commons within twenty sitting days after being tabled in both Houses.

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