Bill C-6

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	49-50 ELIZABETH II
	CHAPTER 40

	An Act to amend the International Boundary Waters Treaty Act
	[Assented to 18th December, 2001]
R.S., c. I-17	Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
	*1. The International Boundary Waters Treaty Act* is amended by adding the following after section 9:**
	LICENCES AND PROHIBITIONS
	Interpretation
Definitions	10. The definitions in this section apply in sections 11 to 26.
``boundary waters'' « eaux limitrophes »	``boundary waters'' means boundary waters as defined in the treaty.
``licence'' « licence »	``licence'' means a licence issued under section 16.
``Minister'' « ministre »	``Minister'' means the Minister of Foreign Affairs.
	Licences
Boundary waters	11. (1) Except in accordance with a licence, no person shall use, obstruct or divert boundary waters, either temporarily or permanently, in a manner that affects, or is likely to affect, in any way the natural level or flow of the boundary waters on the other side of the international boundary.
Exceptions	(2) Subsection (1) does not apply in respect of the ordinary use of waters for domestic or sanitary purposes, or the exceptions specified in the regulations.
Other waters	12. (1) Except in accordance with a licence, no person shall construct or maintain, either temporarily or permanently, any remedial or protective work or any dam or other obstruction in waters flowing from boundary waters, or in downstream waters of rivers flowing across the international boundary, the effect of which is or is likely to raise in any way the natural level of waters on the other side of the international boundary.
Exceptions	(2) Subsection (1) does not apply in respect of the exceptions specified in the regulations.
	Prohibition
Prohibition - water removal	13. (1) Despite section 11, no person shall use or divert boundary waters by removing water from the boundary waters and taking it outside the water basin in which the boundary waters are located.
Deeming	(2) For the purpose of subsection (1) and the application of the treaty, removing water from boundary waters and taking it outside the water basin in which the boundary waters are located is deemed, given the cumulative effect of removals of boundary waters outside their water basins, to affect the natural level or flow of the boundary waters on the other side of the international boundary.
Water basins	(3) Subsection (1) applies only in respect of the water basins described in the regulations.
Exceptions	(4) Subsection (1) does not apply in respect of the exceptions specified in the regulations.
	General
Binding on Her Majesty	14. Sections 11 to 13 are binding on Her Majesty in right of Canada or a province.
Application	15. Sections 11, 12 and 13 do not apply in respect of uses, obstructions or diversions in existence immediately before the respective coming into force of those sections, but those sections do apply in respect of such uses, obstructions or diversions if significant changes occur to them after their respective coming into force.
	Powers of Minister
Licence	16. Subject to the regulations, the Minister may, on application, issue, renew or amend a licence to do any activity referred to in subsection 11(1) or 12(1), subject to any terms or conditions the Minister considers appropriate.
Transfer	17. A licence is not transferable except with the consent of the Minister.
Suspension and revocation of licence	18. (1) The Minister may suspend or revoke a licence whenever the Minister believes on reasonable grounds that the licensee has contravened this Act or a condition of the licence, but the licensee must first be given notice in writing by the Minister of the reasons for the suspension or revocation and a reasonable opportunity to make representations to the Minister.
Consent of licensee	(2) The Minister may also suspend or revoke a licence with the consent of, or on application by, the licensee.
Ministerial orders	19. (1) If a person contravenes subsection 11(1), 12(1) or 13(1), the Minister may
	(a) order the person to remove or alter any obstruction or work to which the contravention relates; or
	(b) order the person to refrain from proceeding with any construction or other work, or to cease the use or diversion, to which the contravention relates.
Powers of Minister	(2) If the person fails to comply with an order made under paragraph (1)(a) or (b), the Minister may remove or alter anything referred to in paragraph (1)(a) or used in relation to any activity referred to in paragraph (1)(b) or order it to be forfeited to Her Majesty in right of Canada.
Disposition	(3) Anything forfeited under subsection (2) may be removed, destroyed or otherwise disposed of as the Minister directs.
Costs recoverable	(4) The Minister's cost of removing or altering anything under subsection (2) and the costs of and incidental to the removal, destruction or disposition under subsection (3) of anything forfeited, less any sum that may be realized from its disposition, are recoverable by Her Majesty in right of Canada from the person who contravened the order made under subsection (1) as a debt due to Her Majesty in any court of competent jurisdiction.
Agreements with provinces	20. The Minister may, with the approval of the Governor in Council, enter into an agreement or arrangement with the government of one or more provinces respecting the activities referred to in sections 11 to 13.
	Regulations
Regulations	21. (1) The Governor in Council may, on the recommendation of the Minister, make regulations
	(a) specifying what constitutes a use, obstruction, diversion or work for the purposes of this Act;
	(b) defining, for the purposes of this Act, any word or expression used in sections 11 to 26 that is not defined in this Act;
	(c) describing the water basins to which section 13 applies;
	(d) specifying exceptions to the application of subsections 11(1), 12(1) and 13(1);
	(e) prescribing classes of licences and determining the persons who are eligible to hold licences of any particular class;
	(f) respecting applications for licences, including the form of the applications, the information to be provided in respect of the applications and the manner in which the applications are to be filed, processed and disposed of;
	(g) respecting the form of licences and the information they must include and requiring licensees to publish or otherwise make them available for public inspection;
	(h) prescribing fees, or the manner of calculating fees, in respect of licences and prescribing the manner in which the fees are to be paid;
	(i) prescribing the duration of licences;
	(j) respecting the renewal and amendment of licences;
	(k) prescribing uses, obstructions, diversions and works for which a licence may not be issued;
	(l) providing for inspections in respect of activities to which sections 11, 12 and 13 relate; and
	(m) generally for carrying out the purposes and provisions of this Act.
Ordinary meaning applies	(2) For greater certainty, regulations made under paragraph (1)(a) do not restrict the ordinary meaning of the words ``use'', ``obstruction'', ``diversion'' or ``work''.
	Aboriginal and Treaty Rights
Rights of aboriginal peoples	21.1 For greater certainty, nothing in this Act shall be construed so as to abrogate or derogate from the protection provided for existing aboriginal or treaty rights of the aboriginal peoples of Canada by the recognition and affirmation of these rights in section 35 of the Constitution Act, 1982.
	Offences and Punishment
Offences	22. (1) Every person who contravenes subsection 11(1), 12(1) or 13(1) is guilty of an offence and liable
	(a) on conviction on indictment, to a fine of not more than $1,000,000 or to imprisonment for a term of not more than three years, or to both; or
	(b) on summary conviction, to a fine of not more than $300,000 or to imprisonment for a term of not more than six months, or to both.
Continuing offences	(2) A contravention of subsection 11(1), 12(1) or 13(1) that is committed or continued on more than one day is deemed to constitute a separate offence for each day on which the contravention is committed or continued.
Additional fine	23. If a person is convicted of an offence of having contravened subsection 11(1), 12(1) or 13(1), the convicting court may, if satisfied that the person acquired monetary benefits or that monetary benefits accrued to the person as a result of committing the offence, order the person to pay an additional fine above the maximum amount of any fine that may otherwise be imposed under section 22, in an amount equal to the court's finding of the amount of those monetary benefits.
Offences by corporate officers, etc.	24. If a corporation commits an offence under this Act, an officer, director, agent or mandatary of the corporation who directed, authorized, assented to, acquiesced in or participated in the commission of the offence is a party to and guilty of the offence and is liable on conviction to the punishment provided for the offence, whether or not the corporation has been prosecuted.
Offences by employees, agents or mandataries	25. In any prosecution for an offence under this Act, it is sufficient proof of the offence to establish that it was committed by an employee, agent or mandatary of the accused, whether or not the employee, agent or mandatary is identified or has been prosecuted for the offence, unless the accused establishes that the accused exercised all due diligence to prevent the commission of the offence.
	Injunctions
Injunctions	26. (1) When, on the application of the Minister, it appears to a court of competent jurisdiction that a person has done or is about to do or is likely to do any act or thing constituting or directed toward the commission of an offence under this Act, the court may issue an injunction ordering any person named in the application
	(a) to refrain from doing any act or thing that it appears to the court may constitute or be directed toward the commission of the offence; or
	(b) to do any act or thing that it appears to the court may prevent the commission of the offence.
Notice	(2) No injunction shall issue under subsection (1) unless 48 hours notice is given to the party or parties named in the application or the urgency of the situation is such that service of notice would not be in the public interest.
Coming into force	2. Section 1, or any provision enacted by that section, comes into force on a day or days to be fixed by order of the Governor in Council.

Bill C-6

49-50 ELIZABETH II

CHAPTER 40