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Bill C-441

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First Reading

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Suspension or conclusion of investigation	63. (1) The responsible minister may suspend or conclude the investigation if he or she is of the opinion that
	(a) the alleged offence does not require further investigation; or
	(b) the investigation does not substantiate the alleged offence or any other offence.
Report if investigation suspended	(2) If the investigation is suspended, the responsible minister must
	(a) prepare a written report describing the information obtained during the investigation and stating the reasons for its suspension and the action, if any, that the responsible minister has taken or proposes to take;
	(b) send a copy of the report to the applicant; and
	(c) notify the applicant if the investigation is subsequently resumed.
Report when investigation concluded	(3) When the investigation is concluded, the responsible minister must
	(a) prepare a written report describing the information obtained during the investigation and stating the reasons for its conclusion and the action, if any, that the responsible minister has taken or proposes to take; and
	(b) send a copy of the report to the applicant and to each person whose conduct was investigated.
	A copy of the report sent to a person whose conduct was investigated must not disclose the name or address of the applicant or any other personal information about them.
When report need not be sent	(4) If another investigation in relation to the alleged offence is ongoing apart from the application, the responsible minister need not send copies of a report described in subsection (2) or (3) until the other investigation is suspended or concluded.
	ENDANGERED SPECIES PROTECTION ACTION
Circumstan- ces in which a person may bring an action	64. (1) A person who has applied for an investigation may bring an endangered species protection action if
	(a) the responsible minister has failed to provide
	(i) the notice required by subsection 61(3), within the time required by that subsection, or
	(ii) the report required by subsection 62(1), within the time required by that subsection;
	(b) the responsible minister has not conducted and reported on the investigation within a reasonable time;
	(c) the person has received a notice under subsection 63(1) or a progress report under subsection 64(1) or a report under subsection 63(3) and is not satisfied with the justification provided in the notice, or the progress of an investigation provided in the progress report or the reasons for the suspension of an investigation provided in the report, as the case may be; or
	(d) an offence under this Act is about to be committed.
Nature of the action	(2) The action may be brought in any court of competent jurisdiction against a person who committed, or has done anything directed towards the commission of, an offence that
	(a) was alleged in the application for the investigation; and
	(b) caused or will cause harm to an individual of a listed extirpated, endangered or threatened species, its critical habitat or the residence of an individual.
Relief that may be claimed	(3) In the action, the person may claim any or all of the following:
	(a) a declaratory order;
	(b) an order, including an interlocutory order, requiring the defendant to refrain from doing anything that, in the opinion of the court, may constitute or be directed towards an offence;
	(c) an order, including an interlocutory order, requiring the defendant to do anything that, in the opinion of the court, may prevent an offence;
	(d) an order to the parties to negotiate corrective measures with respect to the significant harm resulting from the offence and to report to the court on the negotiations within a time set by the court;
	(e) an order requiring the defendant to take measures to redress the harm caused to a species or its habitat or to pay to the Minister an amount to be used to compensate for the harm caused to the species or its habitat; and
	(f) any other appropriate relief, including the costs of the action, but not including damages.
Circumstan- ces in which a person may bring an action	65. (1) A person described in subsection 60(1) who has not applied for an investigation may bring an endangered species protection action against a person who the person believes 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 that will or is likely to harm an individual of a listed extirpated, endangered or threatened species, its critical habitat or the residence of an individual. The action may be brought in any court of competent jurisdiction.
Relief that may be claimed	(2) In the action, the person may claim any relief referred to in paragraph 64(3)(b), (c) or (e).
No action for remedial conduct	66. An endangered species protection action may not be brought if the alleged conduct
	(a) was or will be taken to protect a listed endangered or threatened species or its habitat or to protect the environment, national security, safety or health, including animal and plant health;
	(b) is an activity described in paragraph 39(1)(a), (b), (c) or (d); or
	(c) is an activity authorized under section 50 by any document referred to in section 51 that is in effect under that section.


Notice of the action	67. (1) The plaintiff in an endangered species protection action must give notice of the action in the public registry no later than ten days after the document originating the action is first served on a defendant.
Notice of other matters	(2) The court may order any party to the action to give notice in the public registry of any other matter relating to the action.
Attorney General to be served	68. (1) A plaintiff must serve the Attorney General with a copy of the document originating an endangered species protection action within ten days after first serving the document on a defendant.
Attorney General may participate	(2) The Attorney General is entitled to participate in the action, either as a party or otherwise. Notice of a decision of the Attorney General to participate must be given to the plaintiff and the public registry within forty-five days after the copy of the originating document is served on the Attorney General.
Right of appeal	(3) The Attorney General is entitled to appeal from a judgment in the action and to make submissions and present evidence in an appeal.
Other participants	69. (1) The court may allow any person to participate in an endangered species protection action in order to provide fair and adequate representation of the private and public interests involved, including governmental interests.
Manner and terms of participation	(2) The court may determine the manner and terms of the person's participation, including the payment of costs.
Burden of proof	70. The burden of proof in an endangered species protection action is on a balance of probabilities.
Undertakings to pay damages	71. In deciding whether to dispense with an undertaking to pay damages caused by an interlocutory order, the court in an endangered species protection action may consider any special circumstances, including whether the action is a test case, raises a novel point of law or is in the public interest. No undertaking shall be given to pay damages where these damages exceed one thousand dollars.
Remedies	72. If a court finds that the plaintiff is entitled to judgment in an endangered species protection action, it may grant any relief mentioned in subsection 64(3).
Orders to negotiate corrective measures	73. (1) A court order to negotiate corrective measures with respect to significant harm caused by an offence may include the following measures to the extent that they are reasonable, practical and ecologically sound:
	(a) measures for the prevention, reduction or elimination of the harm or the risk of harm;
	(b) measures to assist in the recovery of the species involved and its habitat; and
	(c) the payment of money by the defendant, as the court may direct to achieve the purposes of the measures.
	Before making the order, the court must take into account any efforts that the defendant has already made to deal with the harm or risk of harm.
Other orders	(2) The court may also make interlocutory or ancillary orders to ensure that the negotiation of the corrective measures runs smoothly, including orders
	(a) for the payment of the costs of negotiation;
	(b) requiring any party to prepare a draft of the measures; and
	(c) setting a time limit for the negotiations.
Appointment of other person to prepare measures	(3) The court may appoint a person who is not a party to prepare draft corrective measures if the parties cannot agree on the measures or the court is not satisfied with the measures that they negotiate.
Order to prepare other measures	(4) The court may order the parties to prepare other corrective measures if it is not satisfied with the measures that they negotiate.
Approval and effective date	(5) The court may approve corrective measures that the parties negotiate or corrective measures prepared by a person appointed under subsection (3), and the approved measures come into effect on a day determined by the court.
Restriction on orders to negotiate corrective measures	74. A court may not order the negotiation of corrective measures if it determines that
	(a) the objectives mentioned in paragraphs 73(1)(a) to (c) have already been achieved; or
	(b) corrective measures that meet the same objectives have already been ordered under this Act or any other law in force in Canada.
Settlement or discontinu- ance	75. An endangered species protection action may be settled or discontinued only with the approval of the court and on terms that it considers appropriate.
Settlements and orders binding	76. If an endangered species protection action results in a final order of a court or a settlement approved by a court,
	(a) the resolution of any question of fact by the order or settlement is binding on a court in any other endangered species protection action in which it arises; and
	(b) no other endangered species protection action may be brought with respect to the facts of the offence dealt with by the order or settlement.
Costs	77. The court shall not award costs in an endangered species protection action unless the court finds that there are special reasons for doing so.
Evidence of offence	78. (1) In an endangered species protection action, the record of proceedings in any court in which the defendant was convicted of an offence is evidence that the defendant committed the offence.
Certificate evidence of conviction	(2) In the action, evidence that a defendant was convicted of an offence may be given by a certificate stating with reasonable particularity the defendant's conviction and sentence.
Signature on certificate	(3) The certificate must be signed by
	(a) the judge or other person who made the conviction; or
	(b) the clerk of the court in which the conviction was made.
	Once it is proved that the defendant is the offender mentioned in the certificate, it is evidence without proof of the signature or the official character of the person appearing to have signed it.
Civil remedies not affected	79. (1) No civil remedy for any conduct is suspended or affected by reason only that the conduct is an offence.
Remedies not repealed, etc.	(2) Nothing in this Act may be interpreted so as to repeal, remove or reduce any remedy available to any person under any law in force in Canada.

Bill C-441

ENDANGERED SPECIES PROTECTION ACTION